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Monday, November 30, 2009

Ind. Decisions - Supreme Court issues two more opinions late today

In Ava McSwane, et al v. Bloomington Hospital and Healthcare System and Jean M. Eelma, M.D., an11-page, split (see below) opinion, Chief Justice Shepard writes:

The estate of a domestic violence victim whose former husband killed her on the way home after she insisted on leaving the hospital with him sued the hospital and the treating physician for her death. The trial court granted summary judgment on the basis of lack of duty and contributory negligence. We affirm. * * *

While negligence is generally a question for the finder of fact, where the evidence permits only a single inference, contributory negligence may be a matter of law for the court. Funston v. Sch. Town of Muncie, 849 N.E.2d 595, 599 (Ind. 2006). The trial court found that Malia’s insistence on leaving with Monty in the face of offers by hospital staff and pleas by her own mother was negligence that contributed to her injury. This was not error.

Conclusion. We affirm the judgment of the trial court.

Sullivan, J., concurring in part and concurring in result, agrees with Chief Justice Shepard that summary judgment was appropriate on grounds that the defendants did not breach their duty of care as a matter of law and, therefore, it not being necessary to address the issue of contributory negligence, expresses no view on it.
Boehm, J., concurs in result.
Rucker, J., dissents with separate opinion in which Dickson, J., joins. [the opinion begins] I agree with the majority that “a hospital’s duty of care to a patient who presents observable signs of domestic abuse includes some reasonable measures to address the patient’s risk.” Although the existence of duty is a matter of law for the courts to decide, a breach of duty is usually a matter left to the trier of fact. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003). Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred. Id. Unlike the majority however I do not believe the question of breach in this case can be determined as a matter of law.

In Term. of Parent-Child Rel. of M.B., et al; T.B. v. IDCS, a 15-page, 5-0, 2 opinion decision, Justice Sullivan writes:
A mother seeks restoration of her parental rights, contending that she voluntarily agreed to the termination on the condition that she could continue visitation with her children, only to have visitation terminated at a subsequent hearing of which she received no notice or opportunity to be heard. Conditioning the voluntary termination of parental rights on continuing post-adoption visitation irreconcilably conflicts with Indiana adoption law and is not permitted. On the facts of this case, the mother is entitled to a hearing on the termination of her visitation rights but not a full restoration of her parental rights. * * *

We are presented with a situation in which Mother contends that she voluntarily agreed to the termination of her parental rights subject to continued and ongoing visitation with her child-ren, only to have that visitation right terminated at a hearing of which she received no notice and no opportunity to be heard. She asks to restore the status quo ante such that all her parental rights would be restored and any termination proceedings would need to begin anew.

For the following reasons, set forth in detail below, we conclude that Mother is entitled to some relief but not a full restoration of her parental rights. When she voluntarily relinquished her parental rights, it was not subject to unconditional future visitation with her children but only visitation so long as it was in the Children’s best interests. As such, she knew and agreed that visitation might be terminated in the future. On the other hand, due process demanded that she be given notice and the opportunity to be heard before visitation was terminated. * * *

We hold that, unless all of the provisions of Indiana’s open adoption statutes (I.C. §§ 31-19-16-1 & 2) are satisfied, the voluntary termination of parental rights may not be conditioned upon post-adoption contact privileges. * * *

We agree with the Court of Appeals that the visitation proviso contained in the Adden-dum was invalid as a matter of Indiana law, see supra Part I. We decline to analyze this as a matter of contract law, however, and instead conclude that the Addendum should be honored af-ter taking into account the following three factors. * * *

Given these three factors – that the State voiced no objection to the visitation proviso and acknowledged and complied with it; the trial court’s colloquy with Mother expressly referenced the visitation proviso; and the visitation proviso was not unconditional – it would be inequitable and unjust to hold that Mother’s voluntary relinquishment of her parental rights was not subject to ongoing but conditional visitation rights. We hold, on the facts of this case, that Mother’s pa-rental rights were terminated as provided in I.C. §§ 31-35-1-12(2)(A) & (B) except that that she had the right to ongoing periodic visitation with the Children unless and until a court were to de-termine that such visitation was no longer in the children’s best interest. If a court were to make such a determination, she would not be entitled to further visitation. * * *

Having found that Mother’s voluntary relinquishment of her parental rights was subject to conditional visitation rights, Mother further maintains that because her rights to notice and an opportunity to be heard at the hearing terminating her visitation rights were violated, the earlier termination of her parental rights should also be vacated. We hold that her parental rights remain terminated and that she is entitled to no relief in that regard. She consented to the termination in a proceeding that appears to us to have accorded with all relevant law, save the visitation provi-so. While she retains an enforceable right as to the visitation proviso, this does not create any basis for reopening the termination of parental rights proceeding.

Conclusion. Having previously granted transfer, we affirm the trial court’s acceptance of Mother’s vo-luntary termination of her parental rights to the Children. We reverse the trial court’s decision to terminate Mother’s visitation rights at the three month CHINS review hearing and remand this case to the trial court with instructions that should the State continue to seek termination of Mother’s visitation rights, the court consider the request at a hearing that accords with the requirements discussed in this opinion.

Shepard, C.J., and Dickson and Rucker, JJ., concur.
Boehm, J., concurs in result with separate opinion. [that begins] I concur in Part III of the majority opinion. I agree with the result reached by the majori-ty in Parts I and II, but I do not agree that a consent with an invalid condition is nonetheless a consent. I would, as the majority puts it, resolve Mother’s claim as a matter of contract. Mother consented to termination, but attached an addendum containing a written condition—on its face a perpetual unchallengeable right to visitation—that violated several statutory provisions. A con-sent with an unacceptable condition is no consent at all.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - A new Indianapolis parking citations court will open tomorrow, Dec. 1st [Updated 12/1/09]

From a press release issued by the Indy mayor's office:

INDIANAPOLIS - On December 1st, the City of Indianapolis will pilot a parking citation court in an effort to improve the way the city collects revenue from parking citations. The court will hold hearings at the former Guardian Home facility and will be managed five days a week to give violators an opportunity to pay outstanding citations.

"We have seen a significant lack of collections with unpaid parking citations and feel this is a way to increase revenue while working under our Six Sigma process to manage the program with greater efficiencies," said Manuel Mendez, Deputy Controller.

Using Six Sigma process improvement strategies, it is estimated that under this program the City may collect an additional $352,000 to $520,000 in parking citation revenue over the next 12 months.

The parking citation court will be managed by T2 Systems, which currently oversees the City's collections and software for parking tickets. The court, which will hold hearings on a daily basis, will allow violators increased opportunities from the currently run system which holds hearings every two weeks.

"Our goal with this program is to assist the City in collecting parking citation revenue. Working together with the City, T2 Systems also offers payment options over the Internet, mail or IVR to make paying citations as easy and convenient as possible," said Jim Zaloudek, Chief Financial Officer for T2. "This allows us to fulfill our role of helping the City's parking operations be as profitable and efficient as possible."

If citations are not paid prior to their scheduled hearing, the City may request a fine of up to $2,500 per citation. Upon receiving a judgment for an unpaid citation, individuals responsible could be subject to collections actions or having their vehicle registration suspended.

The citation court opens Tuesday, December 1st from the hours of 9am to 3pm at the Guardian Home located at 5751 University Ave.

The ILB is not clear re in what respect this will be a "court" and "hold hearings."

[Updated 12/1/09] "Indianapolis gets tougher on unpaid parking fines" is the headline to this story today in the Indianapolis Star, reported by Tom Spalding.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes, II, a 13-page, 5-0 opinion, Justice Sullivan writes

Following the death of 13-year-old Kodi Pipes at basketball practice for his school's team, his parents brought a child wrongful death action against the school corporation. This case requires us to determine whether Indiana law recognizes a rebuttable presumption that children between the ages of seven and 14 are incapable of contributory negligence. We hold that Indiana does recognize the presumption. As such, we affirm the jury verdict for the plaintiffs.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 25, 2009

Here is the Clerk's transfer list for the week ending November 25, 2009. It is two pages long.

One transfer was granted last week, in the case of Kenneth J. Brown v. State of Indiana - see this Nov. 24th ILB entry for details.
___________

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, November 30, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies rehearing in David Camm case [Updated]

Here is the complete text of the Order:

Appellee's Petition For Rehearing is DENIED this 30th day of November, 2009.

Dickson, Sullivan, and Boehm, JJ., concur.
Shepard, C.J., and Rucker, J., dissent and would grant rehearing and affirm the trial court.

Here is the June 26, 2009, 4-1, opinion, written by Justice Dickson. It concluded:
We reverse the defendant's convictions and remand for new trial or other proceedings consistent with this opinion.

Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion.

Here is a list of all "David Camm" ILB entries.

[Updated at 3:00 PM] Here is a just-posted story by Ben Zion Hershberg of the Louisville Courier Journal:

The Indiana Supreme Court said Monday it won’t reconsider its decision to overturn David Camm’s conviction of the murders of his wife and their two children in September 2000.

On June 26, the court ruled 4-1 that Camm’s 2006 conviction of the murders of his family in the garage of their Georgetown home should be overturned because of arguments by Floyd County Prosecutor Keith Henderson that Camm killed his family to cover up alleged molestation of his 5-year old daughter Jill.

The court said there was no evidence connecting Camm to the alleged molestation. It also said that testimony by a friend of Camm’s wife Kimberly that she expected to see Camm about the time investigators said the murders occurred shouldn’t have been allowed because it could not be challenged by the defense.

Monday’s ruling sends the case back to Floyd County Prosecutor Keith Henderson. He could not be reached immediately for comment.

The Indiana Attorney General’s office had asked the Supreme Court in July to reconsider its decision. The decision not to do so came in a one-sentence order Monday supported by three of the justices, with two dissenting.

Camm has been convicted twice, but both were overturned by higher courts.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (9):

In G.Q. v. Caleb Branam and Bloomington Hospital an dHealthcare System , a 10-page opinion, Judge May writes:

G.Q. appeals the trial court’s order committing him to Bloomington Care Crisis Center and authorizing the facility to administer medications without his consent. We affirm.
Truck City of Gary, Inc. v. Calumet Realty Corp. - "At the very latest, the Authority took possession of the Premises on May 10, 2007, when it executed the Agreement with Truck City. * * * In so doing, the Authority exerted dominion and control over the Premises and thereby terminated the Lease between Calumet and Truck City. As such, Calumet was no longer entitled to collect rent from Truck City. Consequently, we reverse the trial court’s grant of Calumet’s summary judgment motion and remand with instructions to enter summary judgment in favor of Truck City. Reversed and remanded."

Anna C. Finnerty v. Gerald W. Clutter - "We conclude that the trial court did not abuse its discretion when it ordered that church attendance during Father’s parenting time was “his prerogative,” but recommended that the children continue to attend church during his parenting time “if it has been their practice in the past to do so.” We affirm."

In Anna Mae Hardebeck v. James A. Hardebeck , a 15-page, 2-1 opinion, Judge Najam concludes:

Wife's argument that the dissolution court abused its discretion in finding dissipation must fail. Affirmed.

BARNES, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion: [which reads in part] - “For better, for worse; for richer, for poorer.”

These words uttered at the beginning of so many marital relationships oftentimes come into fuller focus when those relationships are dissolved.

My colleagues hold that the trial court was within its discretion in concluding that a spouse may be found to have dissipated property for her refusal to sign and file joint tax returns. I respectfully dissent from that holding. * * *

From my perspective, Wife was not only within her statutory rights in refusing to file a joint tax return, but she may have been acting with great prudence in doing so. I would reverse the trial court's finding that Wife's refusal to sign joint income tax returns was dissipation.

In Estate of Andrea B. Eguia; Graciela Telez v. Esther B. Eguia, et al, a 7-page opinion, Judge May concludes:
This case involves the sensitive issue of how a court should resolve a property dispute arising among members of a religious organization. This issue is better litigated by parties that have a true stake in the outcome. See Schloss, 553 N.E.2d at 1206 (standing requirement is designed to ensure litigation will vigorously contested). Telez has not demonstrated that the probate court’s resolution of the issue has affected or will affect her in any way. Therefore, we conclude she lacks standing, and we dismiss her appeal. Dismissed.
In Term. of Parent-Child Rel. of A.S.; K.S. v. IDCS, a 15-page, 2-1 opinion, Judge Najam writes:
K.S. (“Mother”) appeals from the trial court's termination of her parental rights over her minor daughter, A.S., following a hearing. Mother raises two issues for our review, but we address only the following dispositive issue: whether the trial court abused its discretion when it permitted Mother's trial counsel to withdraw her appearance under the Marion Circuit and Superior Court Civil Division rule on the withdrawal of appearances. We reverse and remand with instructions. * * *

In sum, we hold that the trial court abused its discretion when it granted Mother's attorney's oral motion to withdraw her appearance at the commencement of the March 16 hearing in violation of the local rule. Here, as in In re D.A., Mother's attorney did not notify Mother of her intention to withdraw. 869 N.E.2d at 509. The local rule also required Mother's attorney to expressly inform Mother of the potential consequences of the withdrawal, and the undisputed evidence demonstrates that Mother's attorney did not do so. * * *

BARNES, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] I respectfully dissent. Mother put counsel and the trial court in an untenable position. On February 27, 2009, the court set this matter for hearing on March 16, 2009. Counsel notified Mother of the hearing, stated that she needed to know whether Mother would attend, and advised Mother that she could not adequately represent her unless she attended or at least communicated with her. Mother did not respond. Because Mother failed to communicate or cooperate with her lawyer, counsel could not prepare for the final hearing or defend against the termination. Counsel did not know until the hearing itself occurred whether Mother would attend. Counsel could not give Mother ten days notice of her intent to withdraw because she had no such intent until the hearing itself occurred and Mother failed to appear.

In Stefen Rice v. State of Indiana , a 12-page opinion, Judge May writes:
Stefen Rice appeals his conviction of reckless homicide, a Class C felony. Rice raises four issues: (1) whether the trial court abused its discretion by instructing alternate jurors that they could participate in discussions; (2) whether the trial court abused its discretion by admitting two photographs from the autopsy; (3) whether the trial court abused its discretion by excluding a portion of the evidence technician's testimony; and (4) whether the evidence was sufficient to support Rice's conviction. We affirm. * * *

Rice argues alternate jurors should not be allowed to participate in discussions, because discussions are the functional equivalent of deliberations. See Ives v. State, 418 N.E.2d 220, 225 (Ind. 1981) (holding alternates may retire with jury, but are not permitted to participate in deliberations). Furthermore, he argues, if discussions are de facto deliberations, allowing alternates to participate in discussions impermissibly increases the size of the jury. * * *

However, Jury Rule 20, which was adopted by our Supreme Court in the face of precedent prohibiting alternates from participating in deliberations, “unambiguously made a distinction between discussions and deliberations.” Id. We agree with the Weatherspoon panel that we “are not at liberty to rewrite the rules promulgated by our Supreme Court,” id.; therefore, we hold the trial court did not err in instructing the jury.

In Desmond Davidson v. State of Indiana , a 14-page, 2 opinion decision, Judge Najam writes:
Davidson now appeals his sentence for auto theft. * * *

Initially, we address the threshold question presented by Davidson on appeal, namely, whether we ought to consider the suspended portion of his sentence as qualitatively different from the executed portion of his sentence for purposes of determining whether the trial court abused its discretion in sentencing him and whether his sentence is inappropriate. Members of this court have been unable to reach unanimous agreement on this issue. Judge May was the first to state her belief that “A year is still a year, and a sentence is still a sentence,” and that suspended sentences ought to be treated no differently from executed sentences for purposes of appellate review. Beck v. State, 790 N.E.2d 520, 523 (Ind. Ct. App. 2003) (Mattingly-May, J., concurring in result). The majority in Beck, however, stated its belief that a sentence is not a “maximum” sentence, even if it equals the maximum time allowed by statute for a particular crime, if part of that time is suspended. * * *

In Eaton v. State, 825 N.E.2d 1287 (Ind. Ct. App. 2005), the majority followed Cox and Judge May's point of view. Judge Kirsch dissented, stating, “a suspended sentence is not the same as an executed sentence, and time spent on work release through a community corrections program is not the same as time spent in a state prison.” * * *

Most recently, a panel of this court adopted Judge Kirsch's view and held, “for purposes of Rule 7(B) review, a maximum sentence is not just a sentence of maximum length, but a fully executed sentence of maximum length.” Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), trans. pending. * * *

We agree with the rationale in Beck and Jenkins and hold that, in the appellate review of sentencing decisions, we will “not simply [look] at the number of years of the sentence[,]” but will “look at the total sentence actually imposed (including whether some or all of a sentence was suspended or suspended to probation)[.]” See Eaton, 825 N.E.2d at 1291 (Kirsch, C.J., dissenting). Accordingly, we reject Davidson's invitation to review his partially-suspended advisory sentence the same as if it were a fully-executed advisory sentence. * * *

KIRSCH, J., concurs.
BARNES, J., concurs in result with separate opinion. [that begins and ends] I write to concur in result, noting that I am in full accord with all parts of the majority opinion, except where it agrees with another panel of this court's opinion in Jenkins. I believe that the interpretation Judge May first gave in her concurrence in Beck, i.e. that “A year is still a year, and a sentence is still a sentence,” is the most legally sound manner in which to assess a sentence. * * *

I do not have any sympathy for convicted defendants who violate reasonable terms of probation. However, it seems to me that we best discharge our constitutional sentencing review prerogative by considering a sentence in its entirety, and as if any suspended portion of that sentence would be imposed. For these reasons, I would not follow the reasoning of my colleagues in the majority and in Jenkins, and I believe that when reviewing a sentence on appeal, we should treat a fully or partially suspended sentence no differently than a fully executed sentence. In other words, I would review Davidson's 545-day sentence as a 545-day sentence, without regard for the fact that a majority of that sentence was suspended to probation. This is Davidson's one chance for full appellate review of the 545-day sentence, and I would provide it to him. That said, I do not believe the trial court abused its discretion in sentencing Davidson or that his sentence is inappropriate.

Jack Jervis v. State of Indiana - "Jack Jervis was convicted in 2001 of murder. We affirmed his conviction, and he petitioned for post-conviction relief, alleging he received ineffective assistance of trial counsel. The post-conviction court denied the petition, and we affirm."

NFP civil opinions today (5):

Christopher Cornett v. Everett Bamish and Mary Bamish (NFP) - "The trial court's judgment in the instant case is not precluded by or in contravention of our drainage laws."

Timberland Home Center, Inc. and Timberland Lumber Co. v. Hansen & Horn Group, Inc. (NFP) - "Upon appeal, Timberland challenges the trial court’s order on several grounds, including that it did not include findings of fact and conclusions thereon as required by Indiana Trial Rules 52 and 65(D). Concluding that such findings are necessary to support a preliminary injunction in the instant case, we reverse and remand to the trial court for further proceedings."

Melisa J. Chenoweth v. Michael D. Chenoweth (NFP) - "In sum, we conclude that the short duration of the marriage, the pre-marital value of Wife’s 401(k) account, and the relative earnings of the parties justify a deviation from the 50/50 presumptive split of the marital estate and remand for division of the marital estate in accordance with this decision. Because of our holding on this issue, we need not address other issues involving the division of marital property. These include the division of uninsured medical expenses, the disposition of the marital residence, and the trial court’s order that Wife refinance the marital residence to satisfy the equalization judgment. Instead, the trial court shall address these issues on remand in accordance with this decision. Further, on remand, the trial court shall determine a retroactive support award. In all other respects, we affirm."

Term. of the Parent-Child Rel. of: L.B. v. Ind. Dept. of Child Svcs. (NFP)

Term. of Parent-Child Rel. of T.B., et al; M.B. & H.W. v. IDCS (NFP)

NFP criminal opinions today (16):

Johnny Baker v. State of Indiana (NFP)

Carlos DeShawn Pack v. State of Indiana (NFP)

Eric Tate v. State of Indiana (NFP)

Cassidy Miller v. State of Indiana (NFP)

Vance W. Carter v. State of Indiana (NFP)

Troy Riggs v. State of Indiana (NFP)

Christopher Yakim v. State of Indiana (NFP)

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

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

Tony Branch v. State of Indiana (NFP)

Jabbar L. Davis v. State of Indiana (NFP)

Ivory Johnson v. State of Indiana (NFP)

Adam A. Jenkins v. State of Indiana (NFP)

Curtis Outlaw v. State of Indiana (NFP)

Christian Hollinsworth v. State of Indiana (NFP)

Kenneth France v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Ind. App.Ct. Decisions

Courts - Two bankruptcy cases before SCOTUS on Tuesday

Per the entry "This Week at the Court" from SCOTUSBlog today, two cases the ILB has been covering are sceduled for oral argument Tuesday:

Milavetz, Gallop & Milavetz v. United States; United States v. Milavetz, Gallop, & Milavetz (08-1119; 08-1225) — Congress’s power to bar attorneys from advising debtors to take on more debt before filing for bankruptcy -- this is the “debt relief agency” issue.

United Student Aid Funds, Inc. v. Espinosa (08-1134) — standard for forgiving student loan debt in bankruptcy

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Courts in general

Courts - Continuing with: "Judges In Pa. Corruption Case Likely to Evade Civil Charges" Indiana case mentioned [Updated]

Updating this ILB entry from Nov. 23rd, David Post of The Volokh Conspiracy had an interesting post on Nov. 28th, headed "Are Judges Really Immune when Taking Kickbacks?"

Somewhat related is this Nov. 30th National Law Journal story by Mike Scarcella, headed "Lawyer for [Federal] Prosecutor Seeks Supreme Court Review of Immunity Ruling." It begins:

Federal prosecutor Daniel Zachem has a lot riding on a pro se civil suit against him that alleges he participated in a conspiracy to violate the rights of a D.C. Superior Court grand juror.

But the suit has far-reaching implications for all federal prosecutors, and so Zachem's lawyer wants the U.S. Supreme Court to pick up the case and reverse an appellate ruling this year that narrowed the scope of prosecution immunity from suit.

[Updated at 10:36 AM] See the WSJ Law Blog's just-posted entry by Ashby Jones headed "The Pa. Judicial Scandal: A Closer Look at the Victims."

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Courts in general

Ind. Decisions - Cass County "Judge OKs city to perform environmental studies on land for trail extension"

Kevin Lilly reports today in the Logansport Pharos-Tribune:

A local judge has ruled that the freight railcar restoration company that owns land the city desires for a trail extension must allow access to the property for environmental studies.

Last week, Cass Superior Court Judge Thomas Perrone decided the city has the right to enter the property of Transco Railcar, located on the north bank of the Wabash River at 18th Street, for the purpose of determining levels of soil contamination before exercising the power of eminent domain to acquire the 5.44 acres of land needed to extend the Little Turtle Waterway.

Transco had been refusing the city access to their property. Instead, they suggested mediation as a way to get “fair compensation” for the land without litigation.

According to Mercedes Brugh, chairman of the Little Turtle Waterway Corp., the environmental studies would assist in formulating an offer to Transco for their strip of land between 12th and 18th streets.

Neither side was able to come to an agreement before the city filed the complaint in August.

Judge Perrone had the matter under advisement since hearing arguments from both sides in October.

The issue was whether the city had the right to conduct the environmental studies before enacting the power of eminent domain. Jim Brugh, Mercedes’ husband and the city’s attorney in the case, cited legal authority indicating the city and its environmental consultant could access Transco’s land.

Transco, which is represented by the law firm of Starr, Austen & Miller, argued that the city did not have such authority, according to court documents.

Judge Perrone ruled in favor of the city. He found that state law regarding eminent domain allows entry to the land in question for “examination and survey of the property” as long as the environmental assessments would not substantially interfere with the owners’ “use and enjoyment of the property.”

The city is facing a deadline that is part of the $150,000 federal grant for the 1.1-mile trail extension. In 2007, the Logansport Parks Department secured the grant. Under its terms, construction has to be finished by November 2011.

According to past reports from parks administrator Janet Fawley, construction is expected to begin in the spring and wrap up in 2010. Mercedes Brugh shared that position.

“I am optimistic that we will be able to come to agreement and soon begin work on that very beautiful section of the Wabash River,” she wrote in an e-mailed statement.

The extension is part of the city’s plan for more trails. The Eel River Run Trail is a proposed 2.4-mile pathway that would eventually connect Little Turtle Waterway to the existing River Bluff Trail and Riverside Park across the Eel River. That project calls for installing bridges over the Eel River at Riverside Park and beside the railroad bridge near Front Street. It is being made possible by a $1 million grant and a local match by Cole Hardwood owner Milt Cole.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Gambling panel's findings are near: No bills planned for 2010 session"

That is the headline to this story today by Lesley Stedman Weidenbener of the Louisville Courier Journal.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Indiana Government

Ind. Law - More on "Grappling with Meth in Elkhart County"

Updating yesterday's ILB entry highlighting the five-part series, today's part 2 story, reported by Emily Monacelli, is headed "Grappling With Meth: Local landlords, property owners foot the bill for cleanup." Some quotes from the long story:

When local police find what they believe is a meth lab, they call the Indiana State Police's clandestine lab team to remove the chemicals, which they usually find in a jar or bottle. The county health department posts the property unfit for human habitation and gives the homeowner a list of qualified inspectors. The homeowner does not have a time limit in which they must clean the property, but it must pass testing with minimal residue before people can live there again. Exposure to meth making chemicals can cause resipratory problems, dizziness, headaches, confusion and nausea, according to officials with the Elkhart County Health Department.

In Elkhart County, 35 buildings that formerly contained meth labs still have not been cleaned and deemed fit for occupation, according to records kept by the Elkhart County Health Department and obtained by The Elkhart Truth. The Indiana Department of Environmental Management mandated counties start monitoring meth lab sites in 2007. Of those sites in Elkhart County that hven't been cleaned, 33 were houses or apartments. One was an empty commercial building. One was a car repair shop that's been out of business since the bust there in 2008.

Since 2007, 40 sites -- mostly houses -- that formerly contained meth labs have been cleaned by homeowners, including Simpson's land.

"We were responsible, you know, my land," Simpson said. "We were responsible for getting it cleaned up. Between my son and me it was $5,000 or $6,000 to get it cleaned up. That's why I'm kind of taking my time on the second one. Money only goes so far. I'm on a fixed income."

Once a health department employee notifies the homeowner of the meth lab, the health department has no further means of enforcement, according to Tara Still, an environmentalist with the health department.

"It's up to the property owner on how quickly or how slowly or if anything gets done at all," Still said. "The property can sit vacant indefinitely."

And they do, especially if the property owner doesn't have the $10,000 to $30,000 it takes to clean a house, as estimated by the health department.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Indiana Law

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

The feature - "What did you miss over the weekend?" this week covers 4.5 days:

From Sunday, Nov. 29, 2009:

From Saturday, Nov. 28, 2009: From Friday, Nov. 27, 2009: From Thanksgiving Day, Thursday, Nov. 26, 2009: From Wednesday afternoon, Nov. 25, 2009

Posted by Marcia Oddi on Monday, November 30, 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 11/30/09):

Thursday, December 3rd

Next week's oral arguments before the Supreme Court (week of 12/7/09):

Next Thursday, December 10th

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 11/30/09):

Monday, November 30th

Wednesday, December 2nd

Thursday, December 3rd

Next week's oral arguments before the Court of Appeals (week of 12/7/09):

Next Tuesday, December 8th

Next Wednesday, December 9th

Next Thursday, December 10th

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

The past COA webcasts which have been webcast are accessible here.

Posted by Marcia Oddi on Monday, November 30, 2009
Posted to Upcoming Oral Arguments

Sunday, November 29, 2009

Law - "California's Jessica’s Law too vague to enforce? Most local offenders too close to schools, parks"

A story today by Denise Zapata and Kevin Crowe from San Diego's Union-Tribune includes this overview:

Background: One of the aspects of Jessica’s Law, which California voters passed in 2006, limits where registered sex offenders can live.

What’s happening: The law is rarely enforced because of a legal challenge, funding shortages and its vague provisions. Meanwhile, at least 70 percent of offenders in San Diego County live in restricted areas.

What’s next: The California Supreme Court is expected to rule on a case challenging residency limits in February.

The story itself begins:
More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.

Jessica’s Law, which was approved by California voters in November 2006, toughened sanctions against sex offenders and bars them from living within 2,000 feet of a school or park. In San Diego County, 1,266 of 1,731 offenders whose addresses are made public by the state live in those restricted zones, according to an analysis by the Watchdog Institute, a nonprofit investigative journalism unit based at San Diego State University.

That finding surprises virtually no one in law enforcement. They say the law is vague and has holes, making it nearly impossible to enforce.

For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to General Law Related

Ind. Law - "Grappling with Meth in Elkhart County;" Basketball in Medora

From today's Elkhart Truth:

Journalists from The Elkhart Truth and msnbc.com have spent the last several months exploring how methamphetamine is affecting Elkhart County.

“Grappling With Meth” is a five-part series, along with accompanying photos and online videos, that is the result of their work. Methamphetamine, a more potent form of amphetamine, is a highly addictive drug made using chemicals such as anhydrous ammonia, pseudoephedrine, fertilizers and drain cleaner.

The high from meth can last more than 24 hours and is followed by a severe crash, where the user may “tweak” or experience “meth psychosis,” which is similar to schizophrenia.

Long-term effects include malnutrition, organ damage, permanent psychological problems, stroke and death.

In 2008, Elkhart County ranked second in the state for the most reported meth labs, with 65 labs tallied, according to the Indiana State Police.

Noble County topped the state with 80 labs reported that year.

Through September 2009, Elkhart County was leading the state in the number of meth labs reported, with 79 reported, according to state police.

The five parts are:

  • Sunday: Overview - Elkhart County initially got Mexican meth, but much of it is now made in local labs. Meth labs have become a common occurrence in Elkhart County.

  • Monday: Environment - Making meth is a messy business and landlords are often left to clean up an apartment where a lab was, or walk away from a damaged property.

  • Tuesday: Family impact - Meth is incredible addictive and often scars its users and their families.

  • Wednesday: Fighting in tough times - A look at meth use in Elkhart County in relation to economics and its use elsewhere.

  • Thursday: Treatment - Elkhart County may not have enough treatment options for addicts.
From the Saturday NY Times, a long story headed "In Rural Indiana Town, Even Basketball Suffers," reported by John Branch, that begins:
MEDORA, Ind. — Players for Medora High School have taken the court wearing work boots because their families cannot afford basketball shoes. Most smoke cigarettes. Some talk openly of drug use. All but a few come from broken homes.

Medora Hornets Coach Marty Young, left, went 0-22 in his first year. The 23-year-old coach is not expecting many more, if any, victories this season. * * *

Now 23, Young is not expecting many, if any, on-court victories during the season that starts on Saturday, either. But he counts wins and losses differently from most. “If they’re in the gym these two hours, then I know they’re not in trouble,” Young said.

Poverty rates are high here, college graduates few. Drug use is rampant, several said, and many residents live in ramshackle trailer homes strewn about the hills that surround the checkerboard streets of the town. In these depressed times, there is little to cheer but the high school basketball team.

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to Indiana Law

Ind. Gov't. - "Lean times pressure Indiana's lawmakers Excess is out, pinching pennies is in"

That is the headline to this story today by Ed Bradner of the Evansville Courier & Press, that begins:

INDIANAPOLIS — As the 2010 session of the Indiana General Assembly approaches, state lawmakers are feeling pressure to practice a brand of politics that respects the country's economic woes.

Feeling the weight of the economic downturn, Hoosiers have grown more frugal. It's why Indiana's sales tax revenue is sagging: Excess is out and pinching pennies is in.

A similar story exists in politics. Voters who are watching their own families' budgets like hawks are demanding that kind of accountability from the politicians who represent them.

In the past, with the critical 2010 elections looming and with control of the General Assembly equaling control of redistricting in 2011, the focus of the upcoming session would have been politics.

This year, though, lawmakers on both sides of the aisle readily admit there won't be much patience for political posturing when they head back to the Statehouse in January.

That's why Democrats and Republicans who in the past have resisted such changes now are embracing proposals to limit lobbying largesse and crack down on gerrymandering.

Most telling are the issues lawmakers have chosen to get early starts on by holding December hearings. Both Democrats and Republicans are using the month to debate issues that draw contrast between the two parties.

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to Indiana Government

Ind. Law - "State turns consumers into syngas patsies"

Updating this ILB entry from Nov. 25th headed "Still more on: Governor signs first bill of 2009 session," about a company called Indiana Gasification LLC and its project, voted into law, to manufacture synthetic natural gas from coal for Indiana's consumers, rather than buying actual natural gas, The Bloomington Alternative has an opinion piece today by John Blair of Evansville, headed "State turns consumers into syngas patsies."

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to Indiana Law

Law - "Ambassador to Costa Rica: Who is Anne Slaughter Andrew?"

Updating this ILB entry from Oct. 16th headed "Obama Picks Another Ambassador From Big Law", AllGov has a story today headed "Ambassador to Costa Rica: Who is Anne Slaughter Andrew?" Access it here.

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to General Law Related

Ind. Decisions - 7th Circuit's "Gun ruling reversal tests domestic violence law "

The 7th Circuit's decision Nov. 18th in the case of U.S. v. Skoien (WD Wis.), which the ILB blogged here at the time because of this conclusion:

The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest—§ 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.
is the subject of an important Nov. 27th story by Bruce Vielmetti of the Milwaukee Journal Sentinel:
A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court.

The case could have far-ranging impact in the gun-rights debate. For Steve Skoien, it meant he'll be home for the holidays.

The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other "presumptively legal" firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.

The opinion by Judge Diane Sykes says that Heller's "reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights."

And so Skoien's conviction was reversed and his case sent back to Madison so prosecutors can try to meet that burden. On Wednesday, a judge ordered his release from federal prison in North Carolina, where he had been assigned to serve his sentence.

Skoien, 30, was convicted of misdemeanor domestic violence in 2006 and sentenced to probation. In 2007, probation agents learned Skoien had gotten a gun deer license. They went by his house and found a shotgun in his pickup. He admitted he'd used it to shoot a deer that morning. In fact, the carcass was in his garage.

A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.

From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.

But the Heller court also said it wasn't trying to undo the many "presumptively lawful" gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.

While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.

"We take all this to mean that gun laws - other than those like the categorically invalid one in Heller itself - must be independently justified," Sykes wrote after discussing aspects of the Heller ruling.

Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.

Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn't make enough of a record on that question, and sent the case back.

"If the government successfully discharges its burden, the district court shall reinstate Skoien's conviction," Sykes wrote.

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

Ind. Gov't. - More on "Ex-Town of Chesterfield Employees Accused Of Siphoning Town Funds " [Updated]

Updating this ILB entry from Nov. 24th, Keith Roysdon of the Muncie Star-Press has a long story today headlined "Chesterfield is buzzing over missing money, resigned officials." Some quotes:

CHESTERFIELD -- Balanced on the line between Delaware and Madison counties like a tightrope walker, Chesterfield once had a wild reputation for its anything-goes taverns and fabled massage parlors on the outskirts of town.

For most of the last decade, however -- since the longtime town marshal got busted in a ticket-fixing scam -- Chesterfield has been as quiet as the famed spiritualist camp that bears the town's name.

But there's a noticeable buzz in the town of less than 3,000 people about Chesterfield's latest scandal, one that prompted the abrupt resignations of the town's top cop and clerk-treasurer amid reports of the theft of more than $250,000 of the town's money.

No criminal charges have yet been lodged, but a lawsuit filed last week by Indiana Attorney General Greg Zoeller alleges Clerk-treasurer Christopher Parrish, town Marshal James Kimm and three other now-former town employees stole municipal funds by submitting bogus claims for work-related trips that were never taken, vehicle repairs that were never made and building repairs that were never completed.

"The claim that the town's former top fiscal officer and the town's former police chief hatched a scheme to defraud the taxpayers who employed them appears to be the ultimate betrayal of the public's trust," Zoeller said after filing the suit in a Madison County court.

Town officials are startled by the amount of money allegedly stolen - $259,535.91, to be exact.

"I couldn't believe it," said veteran Chesterfield police officer Robert Stewart, named interim town marshal after Kimm resigned in September. "I didn't think the town had that much money to spend."

[Updated 12/1/09] Today's Muncie Star-Press has a story headed "Two fired employees say they've won their Chesterfield jobs back."

Posted by Marcia Oddi on Sunday, November 29, 2009
Posted to Indiana Government

Saturday, November 28, 2009

Courts - "When Prisoners Phone Home "

From an editorial today in the NY Times:

New York State’s highest court has rejected the last vestiges of a lawsuit by families of inmates who claimed that the prison system overcharged them for telephone calls from their loved ones. The good news is that this suit — and an accompanying lobbying effort — has already succeeded in reforming a terribly unfair system.

New York, like many states, used the phones in its prisons as a profit center. MCI, which provided the phone service, agreed to pay the prison system 57.5 percent of the fees it charged for prisoners’ collect calls. The state then allowed MCI to charge outrageously high rates: 16 cents or more a minute plus a $3 surcharge for every call. Families paid as much as $300 to $400 a month, according to one advocacy group.

The Center for Constitutional Rights, a public interest legal organization, and prisoners’ families sued in 2004, charging that the exorbitant rates were unconstitutional. The suit rightly embarrassed New York politicians. In January 2007, Eliot Spitzer, the state’s newly elected governor, announced that rates would be substantially lowered. The Legislature later made it illegal for the Department of Correctional Services to accept revenue in excess of its reasonable costs for operating an inmate phone system.

What was left for the New York State Court of Appeals to decide was whether family members were due refunds. They contended that the excessive fees were an illegal tax that violated inmates’ equal protection rights. This week, the court, by a 5-to-1 vote, rejected the suit.

The decision is regrettable. But even the majority noted that the plaintiffs had strong arguments that the high rates were bad policy because they made it difficult for inmates to maintain family and community ties, and that released prisoners who lack these ties are more likely to return to a life of crime.

Posted by Marcia Oddi on Saturday, November 28, 2009
Posted to Courts in general

Law - "So here's what free speech has come to on campus"

The ILB has had a number of entries under the heading "'Harsh Words Die Hard on the Web': Students at Yale Law and Indiana University Feel Effects of Anonymous Attacks."

Well, Indiana University (among others) is in the news again. Here is the beginning of a story in the Dec. 7th Time Magazine, by Sophia Yan, headed "Anonymous Gossip Sites."

So here's what free speech has come to on campus: "Name the freshman sluts!" an anonymous post demands on the Indiana University page of a multischool gossip site. So-and-so "has herpes!" proclaims an unsigned post on Texas Christian University's page. Among the profundities on the University of Alabama page: "Frats=fags."

Horny guys, lowbrow debates and run-of-the-mill spam all seem to be in abundant supply on CollegeACB.com (the acronym stands for Anonymous Confession Board). But what sets this site--and others like it--apart from the coarse commentary found on YouTube or, for that matter, a political blog are the personal attacks against private citizens, often with last names included, that leave victims with little recourse aside from demanding that the anonymous comments be taken down.

What used to be whispered on campuses is now broadcast, in the most cowardly way, for anyone with an Internet connection to see. Beverly Low, dean of first-year students at Colgate University, describes the phenomenon as an "electronic bathroom wall." The posts--which are often suffused with racism, sexism and homophobia--can be so vicious and juvenile that Ben Lieber, dean of students at Amherst College, likens them to "the worst of junior high."

And yet even the most élite universities are struggling with the problem of anonymous gossip sites. Some sites are homegrown and deal only with one school. Others are sprawling entities, catering to hundreds of schools and offering features like search capability and, at one enterprising site, the option to vote on how truthful an anonymous post is.

See also this Nov. 2 story in the St. Peterburg Times.

Thanks to this item at SlashDot.com for the links.

Posted by Marcia Oddi on Saturday, November 28, 2009
Posted to General Law Related

Ind. Courts - "Clerk unplugging computers: Staff cut ending free public access"

Supplementing yesterday's ILB entry on the demise of courthouse libraries is this story today in the Evansville Courier & Press, reported by Thomas B. Langhorne. Some quotes:

In about a month, a work force reduction will compel the Vanderburgh County Clerk's Office to close its library of six free public-access computers used for looking up case information.

It's one slice in local government services to the public — a loss, although not a crippling loss. But it might be just a hint of what's to come.

"The library's busy all day long," County Clerk Susan Kirk said.

"People come up because they can't remember their case numbers, or they want to look up (civil and criminal, excluding juvenile) cases, and it's heavily used by abstracters who work for title companies."

Kirk says she is forced to close the library to move the employee who supervises it over to replace a small-claims clerk who left her 54-person staff in October. That open position, she said, has proved indispensable.

"The library is something we've done for the public and the abstracters, and we're not going to be able to do it anymore," she said.

After the library closes, individuals seeking the data it offered will have to make requests in writing and, by state law, wait as long as seven days to receive the requested information.

Kirk hopes to move two of her computers into another courts system office, but it's not yet clear whether that will be technologically feasible.

The library closing is necessary, she says, because the County Council declined to authorize her to fill the vacant small-claims clerk position under the county's hiring freeze when she asked for permission in October.

Posted by Marcia Oddi on Saturday, November 28, 2009
Posted to Indiana Courts

Ind. Courts - Public defenders are threatened with cuts in several Indiana counties

"Clark budget cuts threaten public defender's office" is the headline of this Nov. 27 story by Ben Zion Hershberg in the Louisville Courier Journal. Some quotes:

A 30 percent budget cut ordered by the Clark County Council for next year could leave the public defender’s office with only half of its part-time lawyers.

“Nothing like this has happened before,” said Jeff Stonebraker, the county’s chief public defender. Budget problems in earlier years “have not even been close” to next year’s expectations, he said.

Clark Circuit Judge Dan Moore, in a memorandum to the council on Nov. 4, said too few public defenders could create serious delays that might lead to crowding at the county jail or even violate state or federal requirements for timely court action.

But Dave Abbott, president of the County Council, said, “Our hands are tied.” * * *

Stonebraker and two administrative assistants make up his office’s full-time staff, and the bulk of cases are handled by 10 lawyers who have private practices but work part-time for the public defender, earning from $23,000 to $31,870 a year.

A 30 percent budget cut ordered by the Clark County Council for next year could leave the public defender’s office with only half of its part-time lawyers.

“Nothing like this has happened before,” said Jeff Stonebraker, the county’s chief public defender. Budget problems in earlier years “have not even been close” to next year’s expectations, he said.

Clark Circuit Judge Dan Moore, in a memorandum to the council on Nov. 4, said too few public defenders could create serious delays that might lead to crowding at the county jail or even violate state or federal requirements for timely court action.

But Dave Abbott, president of the County Council, said, “Our hands are tied.”

State finance officials told the county that its 2010 budget approved this fall would exceed tax revenue by up to $6 million, Abbott said Friday.

Since the cuts were ordered last month, the heads of other county departments have said they’ll lay off at least 13 employees by Jan. 1 and eliminate at least eight other vacant positions. The county government has more than 300 employees.

Dan Eggerman, a consultant hired by county Auditor Keith Groth to analyze the budget problem, said in an Oct. 19 report that a large part of next year’s shortfall is rooted in the council’s 2007 decision to cut allowed 2008 property tax collections by 25 percent, a reduction that has forced officials since then spend down rainy day funds and other revenue sources.

A decision to eliminate a bridge replacement tax also hurt revenue, Eggerman said.

Stonebraker said other parts of the county’s judicial system won’t be affected by the cuts as much as the public defender’s office because it depends more heavily on general fund revenue to stay afloat than the courts or the prosecutor’s office, which get some money from probation fees and grants.

Stonebraker and two administrative assistants make up his office’s full-time staff, and the bulk of cases are handled by 10 lawyers who have private practices but work part-time for the public defender, earning from $23,000 to $31,870 a year.

“I have not been able to formulate a satisfactory plan which allows us to function effectively after implementation of the budget cut,” Stonebraker said in a report to the council. He said five part-time lawyers won’t be able to handle the caseload, but the only alternative to cutting the other five is to keep the office operating as it is until the money runs out around August and then close.

Abbott described the latter option as a threat and said he’ll ignore it. He said the council won’t give the public defender more money at this time even if Stonebraker decides to hold on to his current staff.

Abbott said he believes the county is doing more financially to defend accused criminals than victims. It’s possible, he said, that some suspects who now get public defenders by saying they’re indigent can be required to pay at least part of the cost of their lawyers.

Much like Judge Moore, Superior Court Judge Joseph Weber said he’s concerned about possible delays in handling court cases. But Weber said he doesn’t expect the courts to lose employees because of the budget cuts because they can use accumulated probation fees to pay staff.

Weber added, however, that probation fees will largely be gone by 2011.

"Lake public defenders are newest budget casualties" is the headline to this Nov. 26 story by Ruth Ann Krause in the Gary Post-Tribune. Some quotes:
Budget cuts have forced the elimination of seven positions in the Lake County public defender's office.

With the office handling about 70 percent of the 1,900 criminal cases filed annually, the cuts may mean the office will have to refuse new cases, Chief Public Defender David Schneider said Wednesday.

Three trial attorneys, John Davis, Kelly White Gibson and Catherine Lake, appellate public defender Paul Stanko, investigator Mike Brown and two secretaries will no longer have positions at the end of the year.

To close an estimated budget shortfall of $17 million in 2010, the Lake County Council this fall issued a mandate that each county department would reduce its payroll by 10 percent. All told, more than 100 employees stand to lose their jobs by year's end.

When the new year begins, the county public defenders office will have 17 trial attorneys, five appellate public defenders, and 15 contract attorneys working out of the conflicts division. Five contract attorney positions were eliminated. The conflicts attorneys represent individuals who are charged in multiple-defendant cases.

Lake, who has more than eight years with the office and 10 years' experience previously with the Lake County prosecutor's office, said she was not given a reason last week when she was told she was fired. Gibson and Davis, however, said they understood the cuts were a result of the Lake County Council's need to trim the budget. All three attorneys also maintain private practices.

Schneider said there have been numerous meetings in recent weeks as the office and the council grappled with where to make cuts.

The office currently is representing four defendants in time-consuming and complicated life-without-parole cases and more could be coming.

Diane Poulton, spokeswoman for Prosecutor Bernard Carter, said no decision has been made on whether life-without-parole sentencing requests will be filed on: * * *

Schneider said the entire public defender staff agreed to a 10-percent pay cut in an effort to retain all the positions. Last year, the office generated $1.4 million and cost taxpayers $1.1 million.

Gibson, who has six years with the office, who like Davis and Lake maintains a private practice, said she was told there was no seniority grid in the office. "I wasn't given a reason why I was chosen," she said, but indicated she was grateful for the opportunity to serve.

Davis, who has been with the office for about five years, plus three or four years as a contract attorney, said: "Afterwards we were told they (council) wanted bodies."

See also several related stories from the past week -- "Vanderburgh County Public Defenders caseload climbing" from Nov. 23rd and "Hammond Legal aid clinic sees a surge in demand," also from Nov. 23.

Posted by Marcia Oddi on Saturday, November 28, 2009
Posted to Indiana Courts

Friday, November 27, 2009

Courts - "State Courts at the Tipping Point "

That is the headline of a Nov. 24, 2009 editorial in the NY Times. Some quotes:

State courts are not just another government agency. They are at the center of the nation’s legal system and enforcement of the rule of law, handling more than 95 percent of all civil and criminal litigation. This vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits. * * *

New Hampshire, for example, suspended civil and criminal jury trials in 8 of 10 county courts for one month each between last December and June. In California, state courthouses are closed for business on the third Wednesday of every month. Iowa is planning to close all state courts for several days before the state’s fiscal year ends on June 30.

More than two dozen states have imposed court hiring freezes, and 11 states have put staff on unpaid furloughs of varying length, according to the National Center for State Courts. Court staff, including clerks, court interpreters and security personnel, have been eliminated or reduced. In a financially driven loosening of security in Maine, for instance, magnetic security machines at local courthouses are no longer regularly manned. In Alabama, says the immediate past president of the Alabama Bar Association, Mark White, fiscally driven “compromises in service and security are creating a situation ripe for disaster.”

In Georgia, it can take 60 days to hold a hearing in a temporary custody case that used to take just a few weeks. In other states as well, spending cuts have led to fewer court dates available for hearing and trials, creating a growing backlog of cases. With priority given to serious criminal matters, there is a looming threat to the civil justice system, and its ability to vindicate people’s rights, and to foster economic growth and stability by enforcing business contracts in a timely manner.

The brunt of the budget cuts has fallen on the high-volume courts hearing family and juvenile matters, misdemeanors and small-claims disputes, notes the American Bar Association. Some of society’s most vulnerable people, including battered women, abused and neglected children and victims of vandalism and petty theft, turn to these courts for protection and justice.

There are factors apart from budget problems undermining the vitality of state courts, not least the advent of expensive judicial election and retention campaigns fueled by special interest money. And no one, including [Mass.] Chief Justice Marshall, suggests that state courts should be spared from having to share the burden at a time when cuts to health care and public education are under consideration in nearly every jurisdiction.

But, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.

Posted by Marcia Oddi on Friday, November 27, 2009
Posted to Courts in general

Law - How to use the new Google Scholar legal search options; the demise of courthouse libraries

See this Nov. 17th entry from the Supreme Court of Texas Blog.

And for a story on how the combined impact of budget cuts and the availability (to some) of online research resources has impacted courthouse libraries, see this story by Douglas S. Malan of The Connecticut Law Tribune headed "The Final Chapter for Court Libraries? Budget crunch to force closure of six courthouse law libraries." From the story:

Law library funding issues were discussed several times over the course of the year, but in the end they were largely overshadowed by the Judicial Branch's decision to close three courthouses. Last week was the first time that also put a specific number on the number of libraries to be shuttered.

From the Judicial Branch's standpoint, those most affected will be self-represented parties, solo attorneys and small law firms that can't afford to pay the several hundreds, or sometimes thousands, of dollars needed to subscribe to online research programs like Westlaw and LexisNexis.

"From our perspective, it's a big deal," [Chief Court Administrator Judge Barbara Quinn] told the Connecticut Law Tribune last week. "Who it hits the hardest are self-represented parties who receive help from the librarians." * * *

One Stratford lawyer who didn't want to be identified said she regularly uses law libraries in Milford and Stamford. "Most libraries are pretty empty most of the time, which is why you might not be hearing the outrage" concerning closings, she said. "Most research is done online. However, the law libraries are an irreplaceable resource" for pro ses and lawyers who haven't paid for online research access.

Richard A. Roberts, president of the New Haven County Bar Association, said the libraries also are valuable for lawyers who want to quickly and cheaply brush up on types of cases that they don't normally handle. * * *

Massachusetts lawyer Robert J. Ambrogi, who blogs on technology and the law for the Connecticut Law Tribune's parent company ALM, agrees that there are resources available in a law library that just can't be accessed easily or inexpensively.

These include treatises outlining the basics of a certain area of law, along with continuing legal education materials.

"I'm the kind of guy that does everything online, but every so often, I'll go to the law library to find something that I can't get online," Ambrogi said. "The problem is a lot of lawyers who don't have access to technology or aren't as savvy are going to the law library."

This recalls Francesca Jarosz's Sept. 21st, 2009 story in the Indianapolis Star, headed "County library could be endangered legal resource." A quote:
Scott Vaughn hovered near a table covered with two thick law books and a binder full of court filing forms. He was trying to find the paperwork to start child custody proceedings. His deadline to file was approaching.

Next to him, librarian Zoya Golban flipped through the books to locate a reference that helped her find the proper form. She explained to Vaughn that he was a petitioner and pulled the paperwork to copy.

Similar interactions play out dozens of times a day at the Marion County Law Library. Located on the third floor of the City-County Building, it is one of the few places where litigants who represent themselves in civil court -- because they can't afford a lawyer -- can find guidance navigating the complex court system.

But it's a public service that may soon go away. Budget cuts could close the law library by the end of this year.

Court administrators say they've pared their costs so much that keeping the library open would force other court staff reductions or program cuts.

Posted by Marcia Oddi on Friday, November 27, 2009
Posted to General Law Related

Environment - "Cost of coal-gasification plant reaches $2.5 billion; the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant"

Supplementing this ILB entry from Nov. 25th is this story from Charles Wilson of the AP. Some quotes:

INDIANAPOLIS — Duke Energy says the cost of the coal-gasification power plant it's building in along the White River has risen another $150 million, boosting the project's estimated price to $2.5 billion — nearly twice the original estimate. And the latest increase won't be the project's last.

Charlotte, N.C.-based Duke Energy said in documents filed Tuesday with the Indiana Utility Regulatory Commission that the 630-megawatt plant's cost has gone up because its design has required more steel, piping, electric cable and other materials than originally expected.

“Because this is the first time this technology has been used on this scale, there was not nearly as much guidance on size and quantity as there would be for a typical project with a design that had been constructed many times,” Duke Energy Indiana President Jim Stanley said in a statement.

The plant is being built near Edwardsport, about 15 miles northeast of Vincennes. The plant will replace a 160-megawatt coal-fired facility that Duke operates there. The company said construction is about 28 percent complete.

Unlike traditional coal-fired power plants that burn coal to produce electricity, coal gasification converts coal into a synthetic gas that's processed to remove pollutants such as mercury and sulfur. That gas is then burned in a traditional turbine power plant to produce electricity.

Duke officials say the plant, slated to begin operation in 2013, stands to be the first in the nation to use coal gasification technology on such a large scale.

The company expects to provide another cost revision by March covering labor, engineering, procurement and plant startup costs. Duke spokeswoman Angeline Protogere said the utility would file for a rate adjustment to cover the increased cost then. * * *

The estimated cost of the plant has grown steadily since it was announced in 2007, when Duke said the plant would likely cost between $1.3 billion and $1.6 billion.

Kerwin Olson, program director for the Citizens Action Coalition of Indiana, said the group believed the original estimate was “way off” and had expected the cost to spiral.

Olson said he expects the Utility Regulatory Commission to approve the latest cost increase. But he said the watchdog group wants Duke Energy's case reopened and re-examined. “We don't think the plant is needed and we don't think the IURC is looking at the true cost of this facility,” he said. He said it would be cheaper to stop building the plant now than to complete and operate it.

The Office of Utility Consumer Counselor, which represents ratepayers before the Utility Regulatory Commission, has not reviewed the Duke filing. Anthony Swinger, a spokesman for the utility consumer counselor's office, said that could take several weeks.

“However, it does concern us that the utility is announcing expected cost increases for this project for the second time in less than a year,” Swinger said. “This comes despite Duke's previous expressions of confidence that the project could be completed under the previous revised cost estimate of $2.35 billion that was approved earlier this year.”

Duke noted that labor costs would be a key factor in the plant's final cost. But Olson said the estimate so far doesn't include the potential costs for developing technology to capture and store carbon dioxide emitted by the plant.

The commission already gave Duke approval to charge ratepayers $17 million to study the feasibility of carbon capture, and a request for $121 million for a geological study for underground carbon storage is pending.

Such emissions are blamed for global warming, and Congress is considering legislation that would set caps on the amount of carbon dioxide and other greenhouse gases power plants could emit. Olson said some studies show that carbon capture requirements could double the cost of a power plant.

Duke doesn't know how much capturing and storing carbon from the plant would cost, Protogere said. Duke has applied for a federal grant that could potentially cover up to half of those costs, she said.

Duke's Indiana customers have been expected to see about an 18 percent rate hike to pay for the project, which is receiving more than $460 million in government tax incentives. But that rate increase doesn't reflect the latest cost increases.

Posted by Marcia Oddi on Friday, November 27, 2009
Posted to Environment

Thursday, November 26, 2009

Law - Marriage between first cousins permitted in many states; what about Indiana?

Some quotes from this long story by Sarah Kershaw in today's NY Times:

While many people have a story about a secret cousin crush or kiss, most Americans find the idea of cousins marrying and having children disturbing or even repulsive. The cartoonish image of hillbilly cousins giving birth to cross-eyed, deformed and mentally disabled children has endured in the national psyche. But even in the United States — one of the few countries in the world where such unions are illegal — marriage between first cousins may be slowly emerging from the shadows.

Although it is still a long way from being widely accepted, in recent years cousin marriage has been drawing increased attention, as researchers study the potential health risks to children of cousins. And the couples themselves have begun to connect online, largely through a Web site called Cousincouples.com, which bills itself as “the world’s primary resource for romantic relationships among cousins,” and is trying to build support for overturning laws prohibiting cousin marriage.

For the most part, scientists studying the phenomenon worldwide are finding evidence that the risk of birth defects and mortality is less significant than previously thought. A widely disseminated study published in The Journal of Genetic Counseling in 2002 said that the risk of serious genetic defects like spina bifida and cystic fibrosis in the children of first cousins indeed exists but that it is rather small, 1.7 to 2.8 percentage points higher than for children of unrelated parents, who face a 3 to 4 percent risk — or about the equivalent of that in children of women giving birth in their early 40s. The study also said the risk of mortality for children of first cousins was 4.4 percentage points higher.

More-recent studies suggest that the risks may be even lower. * * *

“It’s never as simple as people make it out to be,” said Dr. Bittles, noting that very early studies did not account for factors like access to prenatal health care, and did not distinguish between couples like Ms. Spring-Winters and her husband, the first cousins in a family to marry, and those who are part of groups in which the practice is common over generations and has led to high rates of genetic disorders. “But the widely accepted scare stories — even within academia — and the belief that cousin marriage is inevitably harmful have declined in the face of some of the data we’ve been producing,” he said.

Dr. Bittles, who is working on an update of the 2002 study, and other researchers argue that laws against marriage between cousins were rooted in myth and moral objections, and that they amounted to genetic discrimination akin to eugenics or forced sterilization. People with severe disorders like Huntington’s disease, who have a 50 percent chance of passing it on to their offspring, are not barred from marrying because of the risk of genetic defects, he said, so cousins should not be, either.

The story includes a link to a map showing states which prohibit and allow marriage between first cousins:
Marriage between first cousins is illegal in 25 states. It is allowed in the rest of the country, but seven states have conditions: five have minimum-age restrictions or require that one of the spouses not be able to have children; Maine requires a physician's certificate of genetic counseling; and North Carolina allows first cousins to marry but not double first cousins (the offspring of two siblings who marry two siblings).
Indiana is one of the "allowed with conditions" states. Here is Indiana's statute, IC 31-11-1-1:
Two (2) individuals may not marry each other if the individuals are more closely related than second cousins. However, two (2) individuals may marry each other if the individuals are:
(1) first cousins; and
(2) both at least sixty-five (65) years of age.
As added by P.L.1-1997, SEC.3.

Posted by Marcia Oddi on Thursday, November 26, 2009
Posted to General Law Related

Law - Answers about divorce and money

Following up on the earlier NYT columns (see Nov. 22nd ILB entry here) on "Financial Decisions to Make as You Divorce," the Times money blog, Bucks, has also had a 3-part set of questions and answers about divorce and money:

Remember, this is a NY-based column.

Posted by Marcia Oddi on Thursday, November 26, 2009
Posted to General Law Related

Ind. Decisions - Supreme Court issues order accepting certified question re corporation directors

In a 2-page order dated Nov. 24, 2009, in In re ITT Corporation Derivative Litigation, Chief Justice Shepard writes:

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of New York has certified a question of Indiana state law for this Court's consideration. The question arises in In re ITT Corporation Derivative Litigation, Case No. 07-CV-2878 (CS) (S.D.N.Y.). The question, as framed by the federal district court, is:
"What standard should be applied in determining whether a director is 'disinterested' within the meaning of Indiana Code § 23-1-32-4(d), and more specifically, is it the same standard as is used in determining whether a director is disinterested for purposes of excusing demand on the corporation's directors under Federal Rule of Civil Procedure 23.1 and RaZes v. BZasband, 634 A.2d 927, 936 (Del. 1993)7"
The certified question, which each member of this Court has considered, is hereby ACCEPTED pursuant to Indiana Appellate Rule 64.

Posted by Marcia Oddi on Thursday, November 26, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Daniels fills a three-month vacancy on Tipton City Court

From the Kokomo Tribune, a story by Daniel Human - some quotes:

The governor’s office announced Tuesday the appointment of 47-year Tipton resident Jack Richter as the city’s judge. He will fill a vacancy left by Judge Lewis Harper, who died in August while he served in office. * * *

Richter was born in Kokomo, then moved to Sharpsville, where he graduated from Sharpsville High School in 1956. He then enlisted in the U.S. Navy, serving as a carpenter with the Seabees until 1959.

He received a degree in accounting from Ivy Tech Community College in 1971 and worked in the accounting department of Delco Electronics in Kokomo until he retired in 1995.

His first experience with the legal system came after he retired when he went to work as a bailiff for former Tipton County Circuit Court Judge D.P. Nash.

Richter said his experience as a bailiff has helped him learn some of the basics about the legal system, but he will have a lot to learn once the state swears him into office.

“I’m not going to set the world on fire the first day,” he said.

Under Indiana law, it is not usually mandatory to be an attorney to be a city or town court judge.

Rateike said it is “not uncommon” for the governor’s office to appoint a non-attorney judge to serve in a city court. There are nine or 10 cities in the state that require city judges to be attorneys, but Tipton is not one of them, he said.

City courts are primarily responsible for handling minor offenses, mostly misdemeanors and infractions, such as traffic violations.

Posted by Marcia Oddi on Thursday, November 26, 2009
Posted to Indiana Courts

Wednesday, November 25, 2009

Ind. Courts - "1st educational neglect cases seen in Allen County: The two women claimed to be home schooling their sons" [Updated]

Ashkey Smith reports in the Fort Wayne News-Sentinel, in a long story that begins:

For the first time, Allen County is holding parents legally accountable in educating their children, but one Fort Wayne Community Schools board member says it needs to be more than just a one-time effort.

Two felony cases are in the Superior Court system, where two women have been charged with educational neglect - a Class D felony in Indiana. They both claim they have been home schooling their children, but do not have the documentation to prove it.

Lila M. Ferguson, 38, and Molly M. Williams, 42, who were living together in New Haven at the time, are each alleged to have removed their sons from public school in January 2006. Both told school officials they would be home schooling their children, according to the probable-cause affidavits. Ferguson did not enroll her son in a public school again until Sept. 16, 2008, and Williams did not do so until Jan. 12.

If convicted, each woman could face six months to three years in prison. Both are scheduled to plead guilty in court today.

This is the first time in Allen County, as far as representatives know, that prosecutors have charged anyone with educational neglect. The closest known case to the area occurred last year, when a Wabash woman was charged with the same crime because her fifth-grade son missed 10 days of school the previous year, six of them unexcused. Also, he was tardy 28 times and, according to his teacher, sometimes arrived dirty, smelling of urine and without his homework. The woman later agreed to plead guilty in return for a 1 1/2 -year suspended sentence, which she is serving on probation instead of jail, as long as her son attends school.

[Updated 11/26/09] Today's Journal Gazette has a brief story headed "Home-school moms plead to neglect."

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Indiana Courts

Ind. Decisions - "Denial of racial harassment claim affirmed: Annual mistreatment at party too infrequent"

The Nov. 24th 7th Circuit decision in the Indiana case of Dennis Ford v. Minteq Shapes, summarized here, is the subject of a story today by David Ziemer in the Wisconsin Law Journal that begins:

Because it is so infrequent, the Seventh Circuit held that an employer did not create a hostile work environment by refusing to let its only black employee bring his grandchildren to the company Christmas party, even though it allowed the rest of its employees to bring their families.

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

Courts - "First Amendment No Shield for Debt Collectors Gone Bad, Alaska Supreme Court Says"

A brief article by Marcia Coyle of The Blog of Legal Times today begins:

Debt collectors who use unfair or deceptive tactics during collection litigation cannot rely on the First Amendment's petition clause as a defense, ruled the Alaska Supreme Court recently in the first appellate decision on the issue.

In an increasing number of consumer cases, debt collection agencies have been arguing that their litigation tactics are immunized from suits under state and federal unfair trade practices laws because those suits burden their constitutional right to petition the courts, according to Deepak Gupta of Public Citizen Litigation Group, appellate counsel to the debtor in the Alaskan case.

“The Alaska Supreme Court’s ruling sends the message that debt collection companies can’t get away with abusive tactics simply by hiring lawyers,” said Gupta. “The court rejected a dangerous new immunity defense that would have created a gaping hole in consumer protection law.”

The Alaskan case— Pepper v. Routh Crabtree —stemmed from an attempt by Checkrite of Anchorage, a collection agency, to collect $518.80 in dishonored checks allegedly written by Robin Pepper, a mentally disabled woman. Checkrite hired the Routh Crabtree law firm in Anchorage to recover the amount owed, and the firm subsequently sued Pepper.

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Courts in general

Ind. Courts - More on: "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"

Updating this ILB entry from yesterday, Jon Murray of the Indianapolis Star reports today:

An injection of $2 million will help shorten the backlog of about 800 abused and neglected children in Marion County who are on a waiting list to get adult advocates.

The advocates act on behalf of children involved in the welfare system, providing reports to the courts and helping children navigate legal and social services issues.
Advertisement

The persistent backlog has rendered as many as half of eligible children effectively voiceless this year. While they wait, their cases keep moving forward.

"We could be nine months into a case before a child gets his advocate," said Marion County juvenile court Judge Marilyn Moores. "But children are parties to a case. . . . If you're waitlisted nine months, you're essentially unrepresented for that time."

Moores and other officials, including Mayor Greg Ballard, will announce the new funding today.

The money will help provide an extra set of eyes and ears -- something already required by law and an essential component, Moores said, as decisions by the courts can have grave consequences.

Marion County isn't alone in Indiana, particularly in urban areas, with struggling to fund programs and find enough advocates, who are mostly volunteers.

Adding to the pressure is a surge in child removals by the Indiana Department of Child Services in recent years as the agency has weathered a litany of high-profile deaths of children under its watch. Those included 12-week-old Destiny Linden, who was still on the advocate waiting list when she died in foster care.

The new funding will let Child Advocates, a nonprofit agency that provides the service in Marion County, hire more staff to manage community volunteer advocates. It also will recruit and train up to 200 more advocates to augment the 358 now on its roster, said Cindy Booth, the agency's executive director.

"We are hoping that by the end of next year," she said, "all children will be represented." * * *

Marion County's waiting list is down from about 1,100 at the start of the year. Statewide, despite a record number of new volunteers last year, the backlog was 4,000 by the end of 2008 in 65 counties with certified Court Appointed Special Advocate or guardian ad litem programs, though not all had waits.

The state GAL/CASA office has put up highway billboards seeking more volunteers and recently received a $20,000 grant to create a recruiting Web site. "We've had more interest than ever," said Leslie Dunn, the office's director.

Advocates often spend more time with children than DCS caseworkers or anyone else in the system, visiting foster homes and reporting to the court about their needs and care.

"They don't have a dog in the fight as far as the legal issues," Moores said. "They are there to represent the child's best interest."

From an Indy Star sidebar:
Here's how you can help

Volunteer advocates are needed across Indiana to help children who have been abused and neglected. All prospective volunteers must be at least 21 years old and a high school graduate, complete an application, and submit to a criminal background check. A training program is required.

Volunteers gather information to help assess the home life of a child in foster care. They also monitor the child's care and needs while in foster care. Their written reports, based on their observations, are used in court to help determine a child's future.

For more information about volunteering in Marion County, call (317) 205-3055 or send an e-mail to info@childadvocates.net.

For more information about volunteer opportunities in other counties, call (800) 542-0813 or go online to www.casa.IN.gov.

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Indiana Courts

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

For publication opinions today (2):

In Cincinnati Insurance Co. v. James and Jan Trosky, et al , a 16-page opinion, Judge Friedlander writes:

Cincinnati Insurance Company appeals from the trial court's order in a declaratory judgment action denying Cincinnati's and State Farm Fire's motions for summary judgment, and granting James and Jan Trosky's motion for summary judgment against Cincinnati and State Farm Fire, and granting Kaitlin Culpepper's cross-motion for partial summary judgment against Cincinnati. Cincinnati raises the following issue for our review: Did the trial court correctly conclude that excess underinsured motorist coverage (UIM coverage) in a personal liability umbrella policy was available where the underlying insurance policy provided UIM coverage, but no UIM benefits were paid because the total coverage limits had been exhausted instead by set-offs and liability payments? We affirm. * * *

In summary, Indiana substantive law applies here. Further, we hold that the government vehicle exclusion from the definition of underinsured motorist in insurance policies is void as against public policy in Indiana. Lastly, we hold that the exhaustion of a tortfeasor's statutory tort cap liability does not mean that an insured is not “legally entitled to recover” as that term is used in insurance policies.

Rachid Dallaly v. State of Indiana is a 14-page opinion written by Judge Brown. It begins:
Rachid Dallaly appeals his convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. Dallaly raises two issues, which we revise and restate as whether the evidence is sufficient to sustain his convictions. We affirm.
NFP civil opinions today (2):

Gary Moody v. Wellman Group (NFP) is a pro se case. The 8-page opinion by Judge Friedlander begins:

Gary Moody appeals from a small claims judgment in favor of Wellman Group, LLC (Wellman), Moody‟s former landlord, for unpaid rent and damages. Proceeding pro se, Moody presents the following consolidated and restated issues for review:
1. Did the trial court abuse its discretion by denying Moody‟s requests for the appointment of counsel?
2. Did the trial court abuse its discretion by denying Moody‟s third request for a continuance?
3. Did the trial court improperly accept testimony from an unsworn witness?
4. Did the trial court and its staff exhibit bias and unprofessional conduct toward Moody?
We affirm.
In Steven Barnard and Sherry Barnard v. Metro Security Forces, Inc., et al. (NFP), a 7-page opinion, Judge Robb writes:
Steven Barnard appeals the trial court’s order granting summary judgment in favor of Metro Security Forces, Inc. (“Metro Security”). For our review, Barnard raises a single issue, whether the trial court erred when it granted summary judgment. Concluding the evidence submitted by Metro Security is insufficient to support the grant of summary judgment, we reverse and remand.
NFP criminal opinions today (4):

David A. Kendrick v. State of Indiana (NFP)

Noah J. Springer v. State of Indiana (NFP)

Betty Grady v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Adult businesses back on agenda" for New Haven

Litigation involving the City of New Haven and Flying J has been the subject of a number of ILB entries involving both state and federal court, the most entry being this one from August 31, 2009 - COA opinion.

Today Amanda Iacone reports in the Fort Wayne Journal Gazette in a long story that begins:

NEW HAVEN – New Haven officials continued efforts Tuesday to restrict and control adult entertainment businesses.

The City Council introduced two ordinances that would designate which businesses must apply for a city permit to operate. The council referred a third ordinance, which would determine which zoning districts such businesses would be allowed in, to the city’s plan commission. And the council tabled a fourth ordinance that deals with massage-related businesses.

City attorneys and officials have been working with a Tennessee attorney who specializes in writing and defending these types of ordinances, City Attorney David Van Gilder said.

The idea is not to restrict First Amendment rights, he said.

The proposed ordinances cite federal case law to support the city’s rationale for regulating such businesses. The proposed application and renewal fees are set low so that opening an adult bookstore or strip club isn’t cost-prohibitive or too restrictive, which could be seen as a violation of constitutional rights, Van Gilder said.

In general, the content of the sexually oriented business ordinances varies little from past versions that have been presented to the council. It limits the hours of operation, defines what types of business fall under the ordinance, and outlines the application and appeal process.

A separate zoning ordinance change would limit such businesses to industrially zoned areas of the city. New Haven provides a number of areas zoned industrial, which should give any would-be business owners some flexibility, Van Gilder said.

The ordinance would also prevent such locales from opening within 1,000 feet of a school, church, park or residential property.

The proposal also calls for amending an existing city law that regulates massage parlors.

Re the "Tennessee attorney", this ILB entry from July 9, 2006 quoted a story from the Evansville C&P headed "County getting lesson in laws: Efforts target adult business" that included the following:
Increasingly, small, rural counties that border major interstates are finding themselves home to adult-oriented businesses.

Spencer County officials hired a Tennessee attorney to advise them on how to shut down the Love Boutique.

Scott Bergthold of Chattanooga has built a national reputation for helping small communities keep out adult entertainment businesses. He told them the local case is part of a "very large trend" that's been going on in rural counties around the country for a good part of the past decade.

"They (rural officials) never thought they'd have the problem and now the wolf is at the door," he said. "But I have worked for a lot of counties like Spencer County, and they all share the commonality of bordering an interstate."

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Indiana Government

Environment - Wind turbines in the news

Tom Spaulding reported yesterday on the Indianapolis Star site:

A 106-megawatt wind farm built to give Indianapolis Power & Light Co. a new green supply of energy began operating this week in Northwest Indiana, one of several developments under way in the growing number of turbines in the state.

The Hoosier Wind Project near Fowler in east central Indiana consists of 53 turbines and was built by enXco, which announced this week that the farm will be delivering carbon-free electricity to IPL.

It is the second wind farm to begin supplying power to Indiana in two weeks. A wind farm capable of generating enough power to light 60,000 average homes was dedicated last week in northwestern Indiana of Horizon Wind Energy's operations near the town of Brookston. * * *

IPL's parent company, AES Corp., said in the summer that it plans to build wind turbines in an area that would span the line between Clinton and Tipton counties, a project that would cost up to $1 billion. The counties are north of Indianapolis.

A public hearing Dec. 8 will consider the proposal to put wind turbines in southeastern Clinton County. The proposal by AES Wind Generation LLC, a Virginia-based company, calls on installing and operating up to 200 2.5-megawatt windmills. The farm will cover roughly 32,000 acres in the eastern portion of the county.

"By size, it will be the largest (wind farm) project in the area," said Mark Mills, director of the Clinton County Area Plan Commission.

Clinton County Commissioner Bill Beard said he's excited about the wind farm potential.

"I'd say that has the potential to double the assessed valuation in the county, thereby reducing tax rates," Beard said.

In other recent news about wind farms in Indiana, officials last week celebrated the completion of the first of three phases of the Meadow Lake Wind Farm near Brookston in northern Indiana. The Meadow Lake farm has 121 turbines already, and the second phase will add 66 turbines.

In a story today in the Evansville C&P, Garret Matthews reports:
BOONVILLE, Ind. — A Warrick County judge has ruled the 60-foot-tall wind turbine that Huntington Creek Subdivision resident David Johnson wants to build is OK under the county's zoning ordinance.

"A free-standing wind turbine tower is permitted as an accessory use in an R-2 district upon the proper granting of a variance," Judge Keith A. Meier of Superior Court No. 1 wrote in a decision earlier this month.

The ruling concerned a variance granted to Johnson by the county's Board of Zoning Appeals in the spring.

The ILB quotes from a longer story on the challenge in this Sept. 10, 2009 entry.

Here is a list of other ILB entries on wind turbines.

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Environment

Environment - More on "Pollution partners not all paragons: State recognizes 22 firms it also has fined"

A Fort Wayne Journal Gazette editorial today headed "Poor partnership" references its Nov. 22nd story and opines:

The Indiana Department of Environmental Management’s Partners for Pollution Prevention is an extreme example of mission creep. The primary duty of the state agency is enforcement against environmental polluters, not serving as their public relations team.

There is nothing wrong with IDEM officials patting on the back those corporate citizens with exemplary environmental records for their environmental stewardship. Praising companies that successfully demonstrate an understanding that protecting Indiana’s environment protects the state’s economy is wise. But as the Sunday story by Dan Stockman showed, IDEM’s Partners for Pollution Prevention program recognized 22 businesses that it also has fined for environmental violations.

IDEM officials try to sell the program as a public-private partnership to prevent environmental pollution. But it’s clear the agency needs to be more selective about its partners.

The list of companies participating in the prevention program is rife with companies already cited for breaking state environmental laws. The list of 58 partners includes several of the state’s largest polluters. And those companies have accumulated more than $1 million in fines and costs to meet IDEM demands. * * *

For two years IDEM has been ridiculed for the leniency it showed the BP Whiting oil refinery. Officials in neighboring Illinois were outraged that Indiana regulators were going to permit the refinery to increase the pollution the refinery dumps into Lake Michigan, the source of Chicago’s drinking water. And recently, the EPA amended its citation against the BP refinery for clean air violations.

According to the IDEM, no partner has ever been removed from the program because of violations.

The agency needs to make enforcement against companies that pollute a greater priority. And save the feel-good partnership programs for companies that are demonstrating good environmental stewardship.

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Environment

Ind. Gov't. - "State audits, slams Lake County books"

A long story today in the Gary Post-Tribune, reported by Andy Grimm, begins with this:

CROWN POINT -- State auditors had a few simple suggestions for Lake County to do a better job of handling taxpayer money. Keep ledger books. Reconcile them with bank statements. Close the door to your safe.

Financial practices in the county received sub-par reviews in a host of State Board of Accounts audits for 2008 that were released this week.

A side-bar instructs:
To view the audit reports online, go to the State Board of Accounts Web site, www.in.gov.sboa, and look for Lake County reports posted Nov. 19.
What you are looking for is reports B35145 through B35155.

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Indiana Government

Ind. Law - Still more on: Governor signs first bill of 2009 session

Per this ILB entry from March 25, 2009, the first bill signed in the 2009 session was in support of a company called Indiana Gasification LLC. The AP reported at the time:

Daniels said federal agencies forecast that over the long term it will be cheaper "perhaps by a very large margin" to produce synthetic natural gas from coal rather than buying actual natural gas because of market fluctuations.

But opponents of the bill contend that it could actually lead to higher bills for natural gas users.

National stories, however, have been about the production of natural gas from shale, leading to items like this one from the NY Times quoted in this Oct. 10, 2009 ILB entry:
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.

Meanwhile, the Indiana-financed natural gas from coal project continues, and is now looking at a $1 billion project to build a pipeline to pump CO2 from Indiana to the Gulf Coast, according to a story today by Dan Shaw in the Evansville Courier & Press:
After a Rockport, Ind., plant turns coal into natural gas, it will send the carbon dioxide produced as a byproduct to the Gulf of Mexico via a pipeline.

Once there, the CO2 will be pumped into wells to force up more oil than could be obtained through normal drilling. That’s the idea at least, says William Rosenberg, a leader in the company undertaking the project, Indiana Gasification LLC. * * *

Indiana Gasification has a contract to sell its CO2 to Denbury Resources Inc., a Plano, Texas-based company, he said. Under the plans, Denbury will pay for building the pipeline from the Gulf Coast, a project estimated to cost more than $1 billion. The company, an independent oil and gas company, will pump the gas from the Rockport plant and use it to force oil out of wells.

By selling the excess oil, Denbury will bring in enough revenue to pay for both the pipeline and the cost of transporting the CO2, Rosenberg predicted. There may even be enough money left over to return to Indiana Gasification as a profit, which would help to keep the rates paid by utility customers low, Rosenberg said.

But the Rockport plant won’t generate enough CO2 itself to support the pipeline. Another company will have to enter into a similar agreement. Rosenberg said companies in Illinois, Indiana and Kentucky have shown interest in that prospect. * * *

The Department of Energy is now considering whether it will guarantee loans Indiana Gasification takes out to build the project. Rosenberg said he hopes to obtain the federal government’s promise to pay off $1.87 billion in debt should the plant fail.

Before awarding the guarantee, the Department of Energy must study whether the plant will emit loud noises, pollute nearby water and air, worsen flooding and affect the underlying geology, among other possibilities. Its conclusions will go into an environmental-impact statement, likely to appear in 18 to 24 months.

Before then, the public will have at three opportunities to comment on the plan, including Dec. 3. Though Rosenberg looks forward to getting the loan guarantee, that step won’t be the last governmental approval needed for the project.

Just as important will be a contract with the Indiana Finance Authority, which will determine exactly how Indiana Gasification will be compensated for making natural gas out of coal. Under current plans, utility companies throughout the state will have to deliver the gas produced at the Rockport plant.

The cost of that fuel will make up part of every bill sent to a utility customer, Rosenberg said. The price they pay — like any utility rate — will be controlled by the Indiana Regulatory Commission.

Rosenberg said he hopes to sell natural gas for $7.50 a therm, an amount that can fluctuate with the cost of coal and labor. He acknowledged that price is higher than the same therm can be bought for today. At the close of the market Monday, natural gas was being sold for $3.79 a therm.

[More] The Indianapolis Star has just posted an AP story headlined "Price of Duke Energy's coal-gasification plant soars."

Posted by Marcia Oddi on Wednesday, November 25, 2009
Posted to Indiana Law

Tuesday, November 24, 2009

Courts - Illinois appellate court rejects "legitimate business interest" test

Here is the opinion, issued 9/23/09, Sunbelt Rentals v. Ehlers.

Here is the write-up today in Chicago Law, with the headline "Illinois court resets bar for non-compete clause; 'Legitimate business interest' test no longer valid."

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Courts in general

Ind. Decisions - One case granted transfer Nov. 24th

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

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Clark E. Welch, et al. v. Connie M. Heavelin, et al. , a 4-page opinion, Sr. Judge Hoffman writes:

Clark E. Welch appeals the trial court’s order of foreclosure in favor of Connie and Daniel Heavelin, assignees of a mortgage from their deceased mother, Verlie Mae Welch Gillespie. We affirm. * * *

[Welch's] sole contention is that pursuant to the Judgment Lien Statute, the lien on his property expired in June 2003, ten years from the time the lien was entered, and five years before Gillespie died.

However, more than one-hundred and twenty-five years ago, the Indiana Supreme Court explained that the predecessor to Indiana Code Section 34-55-9-2 applied only to the recovery of money, and did not apply to a decree of foreclosure establishing a specific mortgage lien upon real estate. The Evansville Gas-Light Company v. the State ex rel. Reitz, 73 Ind. 219, 221 (1881). This court reached a similar result in Lewis v. Davis, 55 N.E.2d 119, 120 (Ind. Ct. App. 1944), wherein we stated that although an action on a note is barred by the a ten-year statute of limitations, an action to foreclose the mortgage made to secure payment of the note is controlled by a twenty-year statute.

Here, the trial court properly found that the controlling statute is Indiana Code Section 32-28-4-1, which controls mortgage liens. Pursuant to the terms of this statute, a mortgage lien expires in twenty years. The mortgage lien in this case was created in 1993, and Connie and David had until 2013 to foreclose the mortgage. Their 2008 complaint was therefore timely filed, and we find no error.

NFP civil opinions today (4):

Donald Frazier v. Asset Acceptance, LLC (NFP) - "The Indiana Code provides that the St. Joseph Superior Court has “[o]riginal, appellate, concurrent, and coextensive jurisdiction with the circuit court in all civil cases, criminal cases, and probate matters.” Ind. Code § 33-33-71-8(1). Thus, the St. Joseph Superior Court had subject matter jurisdiction over the instant case because it is a civil case, and whether the judgment was based on a claim not properly raised does not affect that subject matter jurisdiction. Because the instant case does not implicate subject matter jurisdiction, Frazier's Trial Rule 60(B)(6) motion presented no valid basis for a void judgment. The trial court did not err in denying his motion to reconsider it. We will not allow Frazier to use Trial Rule 60(B)(6) to resurrect his right to appeal. Affirmed."

Darren D. Williams and Tonya Williams v. City of Logansport, et al (NFP) - "Darren and Tonya Williams, pro se, appeal the trial court's order declining to award damages in their action against the City of Logansport and the Cass County Sheriff's Department (the “Department”) to quiet title and for slander of title. We affirm."

Dale L. Horn v. Lucinda B. Horn (NFP) - a 2-1 opinion: "Based on the foregoing, we find that (1) the trial court did not abuse its discretion by denying Dale’s motion for a continuance; (2) the trial court properly divided the marital estate; and (3) the trial court properly calculated Dale’s child support obligation."

Term. of Parent-Child Rel. of B.A. & D.A., Jr.; D.A. v. IDCS (NFP)

NFP criminal opinions today (3):

Credell Henry v. State of Indiana (NFP)

Ketih McCants v. State of Indiana (NFP)

Eric E. Fields v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indianapolis Courts, City dedicate $2 Million to Clear Backlog of Cases for Children in Need of Court Appointed Special Advocates"

From a just-received press release:

Mayor Ballard will join Marion County Superior Court Judge Marilyn Moores and representatives from Child Advocates to announce funding for a new court structure designed to clear a backlog of more than 800 cases involving foster children in need of legal advocates.

Child Advocates, Inc. is appointed by the Marion County Courts to represent the interests of children who have been removed from their homes because of abuse and neglect.

WHO: Mayor Greg Ballard; Marion County Superior Court Judge Marilyn Moores; Cindy Booth, Executive Director of Child Advocates, Inc.; Aaron Storey, formerly a foster child represented by a Court Appointed Special Advocate,; and Danielle Pierson, former foster youth and now social worker

WHAT: Announcement of funding for case backlog

WHERE: Marion County Juvenile Court, 2451 N. Keystone Avenue, Muster Room

WHEN: 9:30 a.m. Wednesday, November 25, 2009

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Indiana Courts

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

In Dennis Ford v. Minteq Shapes (ND Ind., J. Van Bokkelen), a 7-page opinion, Judge Bauer writes:

Dennis Ford sued his employer, Minteq Shapes and Services, Inc., claiming that Minteq racially harassed him, paid him a discriminatory wage, and retaliated against him, all in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. The district court granted summary judgment to Minteq on all counts. We have reviewed the district court’s decision de novo; finding no error, we affirm.

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

Courts - "NY Judge Blasts Bank's Foreclosure Conduct and Cancels Mortgage"

Vesselin Mitev reports in the New York Law Journal in a long story that begins:

A lender's "unconscionable, vexatious and opprobrious" conduct in attempting to foreclose on a Long Island home has prompted a state judge to cancel the mortgage on the property.

IndyMac Bank v. Yano-Horoski, 2005-17926, came before Suffolk County Supreme Court Justice Jeffrey A. Spinner as the result of a state law mandating pre-foreclosure settlement conferences between lenders and borrowers of subprime, or high-cost, home loans.

The case was decided with the county facing what the judge characterized as "the yawning abyss of a deep mortgage and housing crisis with foreclosure filings at a record high rate and a corresponding paucity of emergency housing."

Spinner acknowledged that foreclosure is sometimes inevitable and proper, but he noted that a "plethora" of subprime mortgages had been successfully modified in the county's foreclosure part. And he said that he found it "deeply troubling" that the bank had spurned what would have been a "win-win" solution for all parties.

Instead of negotiating, he said that the bank had engaged in "harsh, repugnant, shocking and repulsive" treatment of the homeowner, Dana Yano-Horoski.

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Courts in general

Ind. Courts - Prosecutor named in Harrison County case

A story by Alan Stewart today in The Corydon Democrat includes these quotes:

The special prosecutor in the sexual harassment case against Harrison County Sheriff G. Michael Deatrick also has been named as the special prosecutor in the case of John Britton, an officer with the Harrison County Sheriff's Department who allegedly provided the means by which his wife allegedly shot herself.

Harrison Superior Court Judge Roger D. Davis announced last Wednesday afternoon that Switzerland County Prosecutor Nancy Jacobs will handle the Britton case. * * *

On Oct. 27, Harrison County Prosecuting Attorney Dennis Byrd filed a petition for the appointment of a special prosecutor to look into the case against Britton. The petition said the appointment of a special prosecutor was necessary to avoid the appearance of impropriety and/or a conflict of interest.

Byrd's request said that on Sept. 24 and Oct. 6, 20 and 27, he consulted with the Indiana Prosecuting Attorneys Council to discuss the ethical duties and responsibilities created by a tort claim against Harrison County filed by the estate of Christine Britton. * * *

The tort claim was filed Sept. 17 in Harrison Circuit Court on behalf of the estate of Christine Britton, who died of an alleged self-inflicted gunshot wound in March at the couple's home near Ramsey.

Charlotte Hitner, Christine Britton's mother, is serving as the personal representative of her daughter's estate for the sole purpose of bringing a wrongful death action on behalf of Christine Britton's 13-year-old daughter. The claimant anticipates the damage to be in excess of $700,000, but per Indiana Code, the $700,000 amount is the maximum allowed by law.

Indiana State Police investigators said that during questioning John Britton admitted leaving a handgun in the room after his wife threatened to shoot herself.

Byrd's petition said that both the Indiana State Police and the Kentucky Medical Examiner determined that the cause of Christine Britton's death was suicide.

John Britton remains on indefinite administrative leave.

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Indiana Courts

Ind. Law - "Judge Michael Eldred announces retirement from Vigo Superior Court after almost 30 years"

Lisa Trigg has this story today in the Terre Haute Trib-Star. Some quotes:

Judge Michael Eldred has been a fixture on the bench of Vigo Superior Court 1 for almost 30 years.

But when his fifth six-year term comes to a close at the end of 2010, Eldred has decided he will retire from office in the Vigo County Courthouse.

He announced Monday that he will not seek a sixth term as judge of Division 1.

“This has been a difficult but rewarding job with different challenges almost every day,” Eldred said. “Yet, I can say that I enjoyed coming to this courthouse every day.”

The range of cases he has presided over has run the gamut from misdemeanor crimes to felony murder. Eldred said he feels himself to be “maxed out experience-wise,” but that does not mean he is ready to give up practicing law.

Serving as a senior judge is one option. He has also taught classes at Indiana State University. And he welcomes new opportunities that may arise.

“I’ve always been challenged by complex cases, and I know the Indiana Supreme Court accepts competent senior judges to do difficult cases around the state, so I will consider joining that group if they’ll have me.”

Announcing his retirement from the bench with a year left to serve not only allows Eldred time to plan for the future, but it also gives potential candidates for the office a chance to prepare their campaigns.

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Indiana Courts

Law - "In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold"

That is a quote from Adam Liptak's front-page story today in the NY Times. Headed "Right and Left Join to Challenge U.S. on Criminal Justice," the story reports that:

Edwin Meese III, a former attorney general, once referred to the American Civil Liberties Union as part of the “criminals' lobby,” but on this issue, he says, he is willing to work with the group.
More quotes:
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained. * * *

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws. * * *

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.” * * *

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to General Law Related

Ind. Gov't. - "Ex-Town of Chesterfield Employees Accused Of Siphoning Town Funds "

Here is the story from last evening's Indy 6 News:

Five former employees of the town of Chesterfield in Madison County are accused of stealing hundreds of thousands of dollars in public funds for personal use.

The Indiana Attorney General's Office filed a lawsuit Monday afternoon against former Clerk Treasurer Chris Parrish, former Town Marshal James Kimm, former part-time police officer Joseph Brown and former water department maintenance employees Chris Walters and James Walters, 6News' Rafael Sanchez reported.

A recent State Board of Accounts audit found the misuse of $259,626 from the town of Chesterfield during 2007 and 2008.

"We have this case, and a number of other cases, where it's not just a bookkeeping error, it's not something where people have made a mistake about accounting, but where people made personal benefit out of public funds they should know we're going to come after them," Attorney General Greg Zoeller told 6News.

Here is the news release from AG Zoeller's office. Some quotes:
INDIANAPOLIS – Today Indiana Attorney General Greg Zoeller filed a lawsuit demanding that five former officials of the town of Chesterfield – including the former clerk-treasurer and former town marshal -- repay more than $259,000 in public funds they allegedly defrauded from the town government. The Attorney General also is seeking temporary restraining orders against the defendants to protect assets from being disposed of or sold.

The lawsuit, filed in Madison County Circuit Court, is part of a stepped-up effort by Zoeller to combat public corruption and misuse of tax dollars by elected officials and government employees.

“The claim that the town’s former top fiscal officer and the town’s former police chief hatched a scheme to defraud the taxpayers who employed them appears to be the ultimate betrayal of the public’s trust,” Zoeller said.

The case stems from an Oct. 26, 2009, certified audit by State Board of Account examiners who found that five individuals, individually or together, allegedly defrauded the town government out of a total $259,626.07 by getting paid for false mileage reimbursement claims, phony automotive-repair and building-repair claims, and for hours never worked during 2007 and 2008. * * *

"The audit claims this fraud was brazen in its audacity and proportionately large in its scope. The quarter-million-dollar fraud represents a very sizeable portion of the town’s entire operating budget. That’s why we will be moving quickly in pursuing the defendants’ assets in order to protect the taxpayers and restore to the Chesterfield town treasury what was wrongfully taken,” Zoeller said.

The State Board of Accounts audit found that Parrish and the others executed the scheme without the knowledge of the Chesterfield Town Council. Parrish issued “manual” checks the council did not see, the audit found.

Posted by Marcia Oddi on Tuesday, November 24, 2009
Posted to Indiana Government

Monday, November 23, 2009

Courts - "GPS and Privacy Rights" [Updated]

From an editorial today in the NY Times:

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.

For more on the NY ruling, see this ILB entry from May 18, 2009, and this one from July 2, 2009. The May entry also discusses and links to the 7th Circuit opinion, U.S. v. Garcia.

The NYT editorial does not mention a Sept. 17, 2009 Mass. high court decision about which the Boston Globe wrote at the time: "For the first time, the Supreme Judicial Court ruled yesterday that the state constitution allows police to break into a suspect’s car to secretly install tracking devices using a global positioning system, provided that authorities have a warrant before they do so." That decision was Comm. v. Connolly.

Here is the State of Washington case from 2003, Jackson v. State, and the much-cited Oregon case from 1988 (involving a radio transmitter), State v. Campbell.

[Note that the ILB used the new Google Scholar feature to quickly access these cases. Read about it here.]

[Updated 11/24/09] We have had at least one trial court ruling in Indiana on this issue, and the ILB reported it on March 9, 2006. Here is an OCRed copy of the March 6, 2006 Order Granting Motion to Suppress, issued by Judge David O. Kelley, Warrick Circuit Court.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending November 20, 2009

Here is the Clerk's transfer list for the week ending November 20, 2009. It is three pages long.

No transfers were 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 Monday, November 23, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Marlow J. Lainhart v. State of Indiana , a 33-page opinion, Judge Vaidik writes:

Marlow Lainhart appeals his conviction for Class A misdemeanor intimidation. Marlow was found guilty of communicating a threat to another person with intent to place the victim in fear of retaliation for a prior lawful act. At trial, the State improperly (1) distinguished the roles of defense and prosecution in criminal cases, (2) discussed the penal consequences of the crime charged, (3) commented on the defendant's failure to produce witnesses in his defense, and (4) vouched for the credibility of the investigating officer. We find these acts of misconduct together constituted fundamental error. We further hold that the State improperly charged alternate crimes in a single count of intimidation. We reverse and remand. * * *

Differentiating the roles of prosecution and defense during voir dire is generally improper and may constitute fundamental error. * * *

Here the prosecutor's comments during voir dire echoed the remarks held improper in Bardonner. The prosecutor explained that his job was “to seek the truth,” whereas the role of defense counsel was “to defend their client to the best of their ability, whatever that may be.” In accordance with Bardonner, we hold that the State's voir dire remarks constituted improper commentary on the disparate roles of defense and prosecution. * * *

Marlow argues that the State improperly discussed potential punishment with the jury panel.

Punishment is not an element of the crime charged, and when punishment is not to be imposed by the jury, it is not a matter to be placed before the jury, by the State, for its consideration. * * *

The prosecutor did not cite the exact range of punishment for the crime charged, but even the State concedes that “what the prosecutor did here had essentially the same consequences as if the prosecutor had informed the jury of the actual penalties; that is, it presented the problem of the jury considering something other than guilt or innocence on the evidence in its deliberations and such may constitute misconduct.” We agree with both Marlow and the State that the prosecutor's comments vis-à-vis potential punishment were improper. * * *

Marlow argues that the State improperly impeached him with his post-arrest silence.

The use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619 (1976). * * *

Marlow therefore fails to meet his burden of showing that he received Miranda warnings prior to the silence with which he was impeached. Accordingly, we find no Doyle violation and hold that the State's cross-examination was not improper. * * *

It is improper for a prosecutor to suggest that a defendant shoulders the burden of proof in a criminal case. Dobbins v. State, 721 N.E.2d 867, 874 (Ind. 1999). While the State may argue to the jury the uncontradicted nature of its own case, the State may not suggest that the defendant has the burden of proof by inquiring in closing argument why the defendant did not call witnesses to testify on his behalf. Wright v. State, 690 N.E.2d 1098, 1112 (Ind. 1997), reh’g denied. * * * Indiana cases have consistently held that a prosecutor's improper statements concerning a defendant's failure to present witnesses may be cured by the trial court advising the jury that the defendant was not required to prove his innocence or to present any evidence. * * *

Here the prosecutor suggested during jury selection that “it would take an awful lot to get an officer [to lie]” and said that “there's no place for it in our society.” During closing argument he told jurors that “if any officer would even come close to not putting out exactly what happened telling the truth, they're out. I would never, ever, put them in front of a Jury, if I suspected anything.” We agree with Marlow that the prosecutor's remarks constituted improper indoctrination, vouching, and commentary on the justness of the cause.

We conclude that the State improperly distinguished the roles of prosecution and defense, referred to the penal consequences of the offense charged, commented on Marlow's failure to call corroborating witnesses, and personally vouched for Officer Roberts's credibility. Although each instance of prosecutorial misconduct alone may not have constituted reversible error, we are persuaded that the cumulative effect of the State's misconduct was to make a fair trial impossible.

Having concluded that the State's misconduct constituted reversible error, the question of whether Marlow may be subjected to a new trial depends upon an analysis of the sufficiency of the evidence. McMurrar v. State, 905 N.E.2d 527, 529 (Ind. Ct. App. 2009). If, viewed as a whole, the State's evidence would have been sufficient to sustain the judgment, retrial would not offend double jeopardy principles. Id. If, however, the evidence is insufficient, Marlow may not be retried. Id. at 529-30. * * *

For the reasons stated, we find sufficient evidence to sustain Marlow's conviction for Class A misdemeanor intimidation. The State may therefore retry Marlow if it so chooses. We address Marlow's remaining arguments to the extent they may arise on remand.

NFP civil opinions today (1):

Lesa Davis v. Antony Romack (NFP) - "Put simply, the relevant circumstances here have not changed. The trial court’s denial of Mother’s motion to order Father to pay weekly child support is not clearly erroneous."

NFP criminal opinions today (3):

Scott E. Lawrence v. State of Indiana (NFP)

Charles Jackson v. State of Indiana (NFP)

David I. Shirley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Standards for Juvenile Punishment "

Adam Liptak's weekly "Sidebar" column in the NY Times begins today:

The law is made up of rules and standards.

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said. “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”

The lawyers in the two cases the court heard — one involving a rape committed at 13, the other an armed burglary at 16 — had at least two answers to the chief justice’s proposal. One was that it is too soon to tell at sentencing whether unformed teenagers will later change for the better. The other was that states already take age into account but do so in very different ways.

According to a report from researchers at Florida State University, just two states, Florida and Louisiana, have imprisoned 94 of the nation’s roughly 110 juvenile offenders sentenced to die in prison for crimes in which no one was killed.

But there is a third possible retort, one that draws on the Supreme Court’s 2002 decision in Atkins v. Virginia barring the execution of the mentally retarded. That sounds like a rule, in that it made an entire class of people categorically ineligible for the death penalty. But it turns out to be a standard.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Courts in general

Ind. Gov't. - "NWI Region lawmakers balance the demands of legislative work, real jobs"

Dan Carden has a story today in the NWI Times on part-time (Indiana) vs. full-time (Illinois) legislators. Some quotes:

Service in the General Assembly is considered a part-time job. Technically, the Legislature only meets from early January through March 15 in even-numbered years and April 30 in odd-numbered years.

But special sessions, summer study committees, caucus meetings and constituent needs tend to keep lawmakers on the job year-round.

"This job is not a part-time job," said state Rep. Shelli VanDenburgh, D-Crown Point. "Somebody's always wanting to meet you, wanting you to speak somewhere. There's constituent problems that come in every day."

State Sen. Earline Rogers, D-Gary, said she used to be able to balance her career as a Gary teacher with her work at the Legislature. She would teach from September to January, take a leave of absence when session started and be back in the classroom the Monday after adjournment.

But Rogers says an intensive legislative workload and new technology making it easier for constituents to contact her have increased the time it takes to be a legislator.

"I don't know whether I could have done it as effectively when I worked as a teacher, as I can do it now, since I'm retired," Rogers said.

Last year, VanDenburgh quit her job as director of child support payments at the Lake County clerk's office to devote more time to her work as a state representative.

"I miss the money, though, from having two paychecks," she said.

State lawmakers earn about $40,000 a year. Officially the salary is $19,890, but lawmakers also receive expenses payments, called per diems, of $155 on days the Legislature is in session and $62 on other days they do legislative work, according to the Legislative Services Agency.

One advantage some see to a part-time legislature is that lawmakers are essentially forced to have other work, and that keeps them grounded in the concerns of their constituents. * * *

In contrast to Indiana, the Illinois General Assembly is considered a "full-time" legislature.

The legislative session in Illinois officially runs from January to June, with a two-week Veto Session in October.

In recent years, innumerable special sessions to address ongoing budget crises have kept the Legislature in Springfield practically year-round.

Illinois lawmakers earn about $60,000 per year, plus daily session per diems. But most earn an additional $10,000 or so for serving in leadership positions in their party or on legislative committees.

A significant difference between Illinois and Indiana is the size of a legislator's staff.

In both states, legislators share staff at the Statehouse within their chamber's party caucus.

But Illinois lawmakers also receive money to open and staff offices in their legislative districts. Indiana lawmakers do not.

Like Illinois, a number of Indiana legislators also receive leadership allowances. And they receive health benefits, and pension benefits. Notably, their pension benefits are computed on the basis of their "salary", which is defined by law as (1) salary, (2) per diem, and (3) leadership allowances. This ILB entry from March 4, 2007 and this one from Aug. 20, 2008 provides background.

For more information, here are the pages of the state budget which went into effect July 1, 2009 dealing with legislative compensation. Note however that funds for legislative pensions and health insurance are not included in these pages (please correct me if I'm wrong).

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Legislative Benefits

Environment - McGrawsville Feed & Grain to $10,300 in penalties for fish kill

Daniel Human of the Logansport Pharos-Tribune has a story today that reports:

AMBOY — State environmental agencies and a Miami County agricultural company held responsible for a fish kill in 2008 have come to an agreement, representatives from each group said.

According to an agreed order adopted Nov. 4, the Indiana Department of Environmental Management fined McGrawsville Feed & Grain Inc., a bulk fertilizer storage facility, about $10,300 in civil penalties and reimbursements to the state. The company also prepared a spill response plan, per the agreement, in case there is another fertilizer leak. * * *

In April 2008, about 5,000 gallons of liquid ammonia fertilizer spilled from a rusty hole in a holding tank at McGrawsville Feed & Grain.

The fertilizer leaked into a 1.6-mile stretch of Niger Creek and part of Pipe Creek, killing an estimated 9,300 fish, according to IDEM.

It took about three days to clean up the spill.

In April, IDEM notified the company of violations [ILB - here is the NOV], including allowing the spill, failing to notify the department within the mandatory two-hour window after employees discovered the spill, not properly maintaining the fertilizer tanks and discharging fertilizer without a valid permit. * * *

Civil penalties accounted for $8,750 of the total fines. And $1,602.53 was reimbursement to IDEM “for the value of the damage to fish and wildlife,” according to the agreed order.

Phil Bloom, a spokesman for the Department of Natural Resources, said the DNR uses a formula set by the American Fisheries Society to assess the reimbursement amount.

“They put together a list of price values for various fish based on size and species,” Bloom said. “For example, if someone caused a fish kill tomorrow that had some 13-inch sturgeon in it, the price would be $72.38 [per fish]. That’s one of the more expensive fish.”

The 9,300 fish that died in the Niger Creek spill were mostly suckers and shiner minnows. The reimbursement averaged to about 17 cents per fish.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Environment

Law "Tracking sex-crime offenders gets trickier"

From today's Washington Post, some quotes from this story by Jerry Markon:

The nationwide crackdown on child pornography and other sex offenses has created severe manpower shortages and technology challenges for probation officers, police and federal agents struggling to track offenders who are jumping online with cellphones and portable game systems and flocking to social networking and other sites, where children or pornography can easily be found.

There are more than 716,000 registered sex offenders nationwide, according to the National Center for Missing & Exploited Children, a 78 percent increase since 2001, and that does not include all offenders because some crimes do not require registration. Sex-offender registries have grown even faster in the Washington area, with more than 24,000 people listed. * * *

Federal child sexual exploitation prosecutions are up 147 percent since 2002, and the Justice Department is hiring 81 more prosecutors for these cases. Funding for task forces that bring charges in state courts rose this year from $16 million to $75 million.

But many of those offenders are now leaving prison, even as revenue-strapped states are cutting the budgets of probation departments. In Virginia, probation and parole cuts this year totaled nearly $10 million, including $500,000 for electronic monitoring of sexually violent predators. Maryland also has cut its budget.

"The burden on probation and parole officers is going to explode," said Ernie Allen, the national center's president.

The monitoring of virtually all sex offenders is required by law when they are on probation or parole.

The problem has gained national attention with the discovery of 10 bodies and a skull at a registered sex offender's home in Cleveland and revelations that Jaycee Lee Dugard was kidnapped at age 11 in 1991 and allegedly held captive at a California sex offender's house until her reappearance in August. Officers had visited both homes and noticed nothing wrong.

Those cases underscore a troubled registry system that has been the public face of sex-offender monitoring. An estimated 100,000 offenders do not comply with registration requirements. Law enforcement doesn't know where many of them are.

But the most alarming development for officers is proliferating electronic gadgets and the temptations they pose to sex offenders. A man on probation in Iowa for molesting a 9-year-old girl, for example, was recently caught downloading pornographic images of a young girl on his PlayStation Portable -- while walking to his probation appointment. * * *

Sipes said officers are especially worried about social networking sites frequented by children, such as MySpace, which this year said it banned 90,000 registered sex offenders. Facebook has said it is also actively trying to prevent sex offenders from joining its site. * * *

Probation and parole officers use GPS devices, polygraph tests, home visits and treatment to track sex offenders, but those tools can be used only during periods of supervision, which often end after three to five years. Parole is post-prison, while probation is generally a sentence in lieu of prison, but the terms are often used interchangeably.

The newest trend in sex-offender management is computer monitoring, which experts said is being done by a majority of state agencies. Maryland began using monitoring software for sex offenders last month; Virginia is researching it. Most federal districts monitor computers in some form.

A monitoring program installed on an offender's computer is designed to capture every keystroke, Internet site and program, including chat and e-mail. Officials can monitor the computer remotely by logging onto a Web site or getting an e-mail if the offender does anything troublesome.

A side-bar to the story begins:
Sex-offender registries have grown dramatically this decade as prosecutors cracked down on Internet-fueled child pornography and other offenses against children. The National Center for Missing & Exploited Children says there are 716,319 registered sex offenders in the United States. That compares with about 403,000 in 2001, according to the Justice Department. The majority of registrants committed crimes against children, but other offenses, such as rapes of women, are included.
This ILB entry from Nov. 7th began:
"Keeping track of sex offenders is not easy" I thought this was a great story in the Nov. 6th Greene County Daily World, reported by Anna Rochelle. It gives a picture of all that is involved in keeping tabs on 70 sex offenders in a rural Indiana county.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to General Law Related

Ind. Law - "Vanderburgh County Public Defenders caseload climbing"

Lydia X. McCoy reports today in the Evansville Courier & Press:

The Vanderburgh County Public Defenders Agency — which provides legal counsel for indigent criminal defendants — is on pace to have a record caseload this year.

As of September, 2,053 felony cases have been filed in Vanderburgh County's Superior and Circuit courts, according to numbers from the agency. Public defenders were appointed in 1,375 of those, almost 67 percent.

"The prior (record) year we had 1,722 and that was in 2007. It went down a little in 2008, and it appears to have rebounded in 2009," Chief Public Defender Steve Owens said. * * *

The agency of five full-time and 21 part-time attorneys serves clients in all areas of Vanderburgh County courts where a person is legally entitled to an attorney. Those attorneys represent clients in a number of areas, including felonies, juvenile delinquencies and misdemeanors.

A public defender is appointed when a defendant is determined to not have any funds to pay for an attorney.

Owens said some of the reasons for the higher caseload could include the economic downturn or legislative changes that have stiffened penalties for certain crimes, including ones related to domestic violence.

Owens said the agency also is reaching its limit with the number of cases its four part-time juvenile court attorneys can handle.

"Since (the state) has changed the mechanics of dealing with cases, there's been a significant increase of child in need of services and termination cases," he said.
"There is only one county where the chief public defender said we're going to quit taking cases, and that was Marion County and in juvenile, that's the same thing we're having right now."

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Indiana Law

Law - "Hammond Legal aid clinic sees a surge in demand"

Steve Zabroski reports today in the NWI Times in a story that begins:

Uncertain circumstances triggered by the economy have brought record numbers of residents to the Hammond Legal Aid Clinic's downtown offices for help.

The nonprofit agency just completed its fifth year of pro bono, or free, legal services, and applications for advice and demand for help with employment-related problems have increased, clinic director Kris Costa Sakelaris said.

Records the clinic keeps list more than 1,600 residents who have sought legal support since the clinic opened in 2004, with nearly 400 visiting the offices, 5261 Hohman Ave., this year.

People in the past have asked for help with family law, consumer finance and housing, Sakelaris said, but this year, problems relating to Medicare benefits, predatory lending and unemployment benefits top the list for applicants.

"It seems like we have seen more people on the brink of crisis than ever before," Sakelaris said. "Many families are not only facing some legal problem but are worried about how they will keep a roof over their head or provide the next meal."

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Indiana Law

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

Updating this ILB entry from Nov. 12th, Leo Strupczewski of The Legal Intelligencer reports today in a lengthy story - some quotes:

Two former Luzerne County, Pa., judges who are facing federal criminal charges have been granted partial immunity in a civil suit brought by a class of juveniles who claim their rights were violated in the wake of the Luzerne County judicial scandal.

Writing that judicial immunity does not operate on a "sliding scale," U.S. District Judge A. Richard Caputo has ruled, in Wallace, et al. v. Powell, et al., that Michael T. Conahan and Mark A. Ciavarella Jr. are protected by immunity from facing legal action for their courtroom acts.

"The degree of corrupt behavior is not the touchstone of the immunity doctrine's application," Caputo wrote. "The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit." The ruling is a blow to the juveniles. * * *

While Caputo's ruling does not put an end to the litigation, it does mean that Ciavarella will escape liability "for the vast majority of his conduct in this action," Caputo said.

Ciavarella, the juvenile delinquency court judge during the time frame noted in the suit, allowed more than half of the juveniles who appeared before him to do so without representation or a proper colloquy. He is the judge who sentenced the juveniles in the suit.

Caputo wrote that he recognized his decision was "against the popular will," but defended his ruling throughout his 26-page memorandum and order.

The doctrine of judicial immunity, he wrote, is grounded in the notion that all judgments are final, judicial independence must be protected, sincere judges should be protected from continual legal action and the justice system is to be protected from falling into disrepute.

Such notions have been around since the days of Lord Coke, the former chief justice of England, Caputo wrote, and are "as valid today as they were four hundred years ago." "Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable," Caputo wrote. "It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake." In reaching his decision, Caputo cited four U.S. Supreme Court cases that have addressed judicial immunity in the past.

The plaintiffs, led by the Philadelphia-based Juvenile Law Center, had argued from the beginning that neither Conahan nor Ciavarella should be granted immunity because their acts were so far outside the norm.

Ciavarella's corruption, the JLC argued, was so egregious that he was not acting as a judge while he was adjudicating juveniles delinquent and sentencing them.

Caputo rejected that argument, citing the U.S. Supreme Court's 1988 decision in Forrester v. White.

In that case, the U.S. Supreme Court wrote that a judicial act "does not become less judicial by virtue of an allegation of malice or corruption of motive." Caputo continued his analysis, writing that the U.S. Supreme Court's 1978 decision in Stump v. Sparkman [which is the Indiana case] held that the question concerning judicial immunity is not related to the intent of a judge or the extent of the judge's error.

"The only question is objectively whether the alleged action is one that traditionally a judge would perform or that the parties expected would come from the judge in an official capacity," Caputo wrote.

Caputo also wrote in his opinion that both Conahan and Ciavarella still face liability -- just not as much as before.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Courts in general

The Indiana Law Blog: Catch-up: What did you miss over the weekend?

The Monday feature - "What did you miss over the weekend?"

From Sunday, Nov. 22, 2009:

From Saturday, Nov. 21, 2009:

Posted by Marcia Oddi on Monday, November 23, 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 11/23/09):

Tuesday, November 24th

Next week's oral arguments before the Supreme Court (week of 11/30/09):

Next Thursday, December 3rd

ALL Supreme Court oral arguments are videocast and accessible here, unless otherwise noted.


This week's oral arguments before the Court of Appeals (week of 11/23/09):

Next week's oral arguments before the Court of Appeals (week of 11/30/09):

Next Monday, November 30th

Next Wednesday, December 2nd

Next Thursday, December 3rd

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

The past COA webcasts which have been webcast are accessible here.

Posted by Marcia Oddi on Monday, November 23, 2009
Posted to Upcoming Oral Arguments

Sunday, November 22, 2009

Courts - "If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free"

In conjunction with this Nov. 19th ILB entry, here is another recent mortgage ruling that turned on lack of documentation, discussed in Gretchen Morgenson's Oct. 25, 2009 column (that I had overlooked) in the NY Times. Some quotes:

One surprising smackdown occurred on Oct. 9 in federal bankruptcy court in the Southern District of New York. Ruling that a lender, PHH Mortgage, hadn’t proved its claim to a delinquent borrower’s home in White Plains, Judge Robert D. Drain wiped out a $461,263 mortgage debt on the property. That’s right: the mortgage debt disappeared, via a court order.

So the ruling may put a new dynamic in play in the foreclosure mess: If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free.

The reason that notes have gone missing is the huge mass of mortgage securitizations that occurred during the housing boom. Securitizations allowed for large pools of bank loans to be bundled and sold to legions of investors, but some of the nuts and bolts of the mortgage game — notes, for example — were never adequately tracked or recorded during the boom. In some cases, that means nobody truly knows who owns what. * * *

THE case involves a borrower, who declined to be named, living in a home with her daughter and son-in-law. According to court documents, the borrower bought the house in 2001 with a mortgage from Wells Fargo; four and a half years later she refinanced with Mortgage World Bankers Inc.

She fell behind in her payments, and David B. Shaev, a consumer bankruptcy lawyer in Manhattan, filed a Chapter 13 bankruptcy plan on her behalf in late February in an effort to save her home from foreclosure.

A proof of claim to the debt was filed in March by PHH, a company based in Mount Laurel, N.J. The $461,263 that PHH said was owed included $33,545 in arrears.

Mr. Shaev said that when he filed the case, he had simply hoped to persuade PHH to modify his client’s loan. But after months of what he described as foot-dragging by PHH and its lawyers, he asked for proof of PHH’s standing in the case.

“If you want to take someone’s house away, you’d better make sure you have the right to do it,” Mr. Shaev said in an interview last week.

In answer, Mr. Shaev received a letter stating that PHH was the servicer of the loan but that the holder of the note was U.S. Bank, as trustee of a securitization pool. But U.S. Bank was not a party to the action.

Mr. Shaev then asked for proof that U.S. Bank was indeed the holder of the note. All that was provided, however, was an affidavit from Tracy Johnson, a vice president at PHH Mortgage, saying that PHH was the servicer and U.S. Bank the holder.

Among the filings supplied to support Ms. Johnson’s assertion was a copy of the assignment of the mortgage. But this, too, was signed by Ms. Johnson, only this time she was identified as an assistant vice president of MERS, the Mortgage Electronic Registration System. This bank-owned registry eliminates the need to record changes in property ownership in local land records.

Another problem was that the document showed the note was assigned on March 26, 2009, well after the bankruptcy had been filed.

Mr. Shaev’s questions about ownership also led to an admission by PHH that, along the way, it had levied an improper $450 foreclosure fee on the borrower and had overcharged interest by an unstated amount.

John DiCaro, a lawyer representing PHH at the hearing, was in the uncomfortable position of having to explain why there was no documentation of an assignment to U.S. Bank. He did not return a phone call seeking comment last week. Ms. Johnson, who couldn’t be reached for comment, did not attend the hearing.

According to a transcript of the Sept. 29 hearing, Mr. DiCaro said: “In the secondary market, there are many cases where assignment of mortgages, assignment of notes, don’t happen at the time they should. It was standard operating procedure for many years.”

Judge Drain rejected that argument, concluding that what had been presented to the court just did not add up. “I think that I have a more than 50 percent doubt that if the debtor paid this claim, it would be paying the wrong person,” he said. “That’s the problem. And that’s because the claimant has not shown an assignment of a mortgage.”

Mr. Shaev said he was shocked when the judge expunged the mortgage debt.

See also this entry from Cynthia Kouril, writing Oct. 27, 2009 in the blog firedoglake, headed "NY Bankruptcy Court Wipes out MERS-Registered Mortgage; New Trend in Foreclosures?" A quote:
I have been highly critical of Mortgage Electronic Registration System (MERS), the mortgage registry service company established by the mortgage industry to electronically record loan assignments. MERS is often shown in public records as the holder of the mortgages they listed, or as the nominee for the mortgage holder. While claiming to be a wonderful, super-efficient filing system, my anecdotal experience has been that MERS appears to be a big disorganized warehouse for paper never been properly filed or catalogued. MERS seems to know what paper it took in, but not what happened to it thereafter. As MERS handled mortgage assignments, the link between the the original lender, the current true owner of the debt and current servicer of the debt often became unclear.

Until recently, homeowners did not realize that they should avail themselves of the “prove the mortgage” laws that exist in most states. Rep. Marcy Kaptur of Ohio has been encouraging homeowners to demand foreclosing parties “prove the mortgage.”

These laws force the entity wishing to foreclose on your house prove both the debt and the interest in land by bringing the ORIGINAL blue ink signature versions into court.

If they cannot prove them, they have no standing to sue you. This provision only works if the homeowner makes a formal demand for it. There is usually a provision that allows for the bank to put in a lost or destroyed paperwork affidavit, but courts are finally waking up and scrutinizing those affidavits, which are usually so weak factually as to be virtually worthless.

All of which means this SDNY bankruptcy case is BIG news for beleaguered homeowners, and may give them the kind of leverage they need to finally get their lenders to renegotiate their loans in a good faith way.

I’m sure the appeal from the SDNY decision will be closely watched by many.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to Courts in general

Ind. Law - "Can sex offenders be cured?"

"Can sex offenders be cured?" -- that is the issue explored by South Bend Tribune writer Alicia Gallegos in a long story today that raises a number of questions.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to Indiana Law

Environment - "Pollution partners not all paragons: State recognizes 22 firms it also has fined"

Didn't you sometimes wonder about this? Dan Stocker of the Fort Wayne Journal Gazette has a long story today - here are some quotes:

Indiana’s environmental regulators bill the program as a public-private partnership to promote pollution prevention and environmental stewardship.

But the list of the companies participating in the Indiana Department of Environmental Management’s Partners for Pollution Prevention is replete with firms cited for breaking the state’s environmental laws and features some of the state’s largest polluters.

Twenty-two of IDEM’s 58 "partners" have been fined by the agency for environmental violations. Among them, they’ve racked up more than $1 million in fines and agency demands, state records show.

Big polluters on the list, according to federal data, include Duke Energy, General Motors and BP Products. In fact, the 17 IDEM partners that are among the state’s top 10 percent of air polluters by volume were responsible for 27 percent of all the air toxins in Indiana that had to be reported to the Environmental Protection Agency in 2007.

Seven of IDEM’s partners were among the top 25 dischargers of pollution into Indiana’s lakes and streams in 2007, according to EPA data. If AK Steel Corp.’s Rockport Works isn’t included, those seven accounted for almost 18 percent of the poison released into Hoosier waters.

IDEM officials defend the program; environmentalists blast such initiatives in the many states that have them.

"We call it promiscuous partnering," said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, or PEER, an environmental group based in Washington, D.C. "It’s like the (Securities and Exchange Commission) saying ‘Instead of investigating, we’ll give awards to companies who don’t bilk investors.’ They’d be laughed out of the room."

IDEM officials say the program is the only way for the state to measure and highlight gains being made in pollution reduction.

"We want to work on continual improvement," said Bobbie Steiff, who heads the program for IDEM. "Steel, energy – they’re historically very dirty industries, but they’re working very hard to improve, and that’s what we want to capture and measure." * * *

IDEM’s partners have their share of environmental horror stories.

BP Products, a partner since 2000, has been a focus of controversy for two years, since it was revealed that IDEM was going to permit the BP Whiting oil refinery to increase the amount of pollution it was dumping into Lake Michigan.

ArcelorMittal was the subject of a story Nov. 15 in the Post-Tribune of Merrillville showing how the steelmaker has essentially been operating an open dump on the shore of Lake Michigan in defiance of state law since the mid-1980s.

The newspaper quoted IDEM sources saying the existence of the dump – filled with hazardous wastes such as lead, nickel, chromium and cadmium in concentrations high enough to require the most restrictive type of landfill – has been ignored by IDEM officials, including IDEM Commissioner Tom Easterly, who oversaw the site as an employee of Bethlehem Steel, which used to own it.

Another partner, Vertellus Agriculture & Nutrition Specialties in Indianapolis, has amassed $229,063 in fines since 1998, including $81,050 since it joined the program in 2000. In 1998, when it was known as Reilly Industries, it was cited because company inspectors were using inspection sheets that had been photocopied with all the inspection results already filled in. * * *

Steiff said no partner has ever been removed from the program because of violations.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to Environment

Law - "Chicago's red-light cameras don't always deter accidents"

That is the headline to this Chicago Tribune story today by Bob Secter and Erika Slife - it begins:

Cars and trucks slammed into each other 28 times at Western Avenue and 63rd Street in 2006, the year before the Daley administration installed red-light cameras there in the name of safety. In 2008, the year after cameras went in, accidents at the Southwest Side intersection soared to 42, according to state data.

It was not an aberration. Cameras are said to reduce accidents, but collision records compiled by the Illinois Department of Transportation indicate that accidents increased at many city intersections the year after red-light cameras were installed. In fact slightly more intersections saw an increase than a decrease, the data show. * * *

Controversy over traffic cameras has only grown as more are installed across the nation.

Chicago, like many other communities with the automated devices, see cameras as a behavior-modification tool. Drivers are said to become more careful when faced with the threat of $100 fines for being caught on video blowing through stoplights or making rolling right turns on red.

Critics, and there are many passionate ones, contend cameras are little more than money-making municipal gimmicks that induce drivers to slam on brakes to avoid tickets, leading to more accidents.

Many independent traffic safety experts say the truth lies in between.

The safety benefits of red-light cameras are indisputable when placed at truly dangerous intersections, said Timothy Neuman, chief highway engineer for CH2M Hill, one of the nation's largest engineering consulting firms. But Neuman acknowledged that drivers have grown skeptical because cameras in many communities seem to be proliferating at marginal locations.

"The trick is where you put them," Neumann explained. "It frustrates traffic engineers like myself if and when it's misused."

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to General Law Related

Ind. Courts - "Attempt to appease GOP earns slap in face"

Sylvia A. Smith, Washington reporter for the Fort Wayne Journal Gazette, has this commentary today - here are some quotes:

WASHINGTON – When President Obama selected a Hoosier judge as his first nominee for the federal appeals court in March, it was supposed to reflect a new way of doing business in Washington.

He consulted with the home-state senators, including Sen. Richard Lugar. Translation: Republicans were not shut out of the selection process.

He went to Indiana to find his first nominee. Translation: Hoosiers (and other Republican states) need not think Obama would ignore them now that he had gotten what he wanted – their voters.

He picked a jurist whose political activity was connected to a moderate Democrat (then-Gov. Evan Bayh). Translation: Senate Republicans could be reassured that Obama would choose from among the ideologically moderate pool of judges for his nominees.

David Hamilton certainly had other qualities that made him worthy of Obama’s consideration, but the outreach to Republicans was a dominant leitmotif. It was a gesture that the White House was serious about calming the partisan hostilities over judicial nominees of the past several presidencies.

That lasted about two seconds.

Hamilton was confirmed Thursday to a lifetime seat on the federal court of appeals, but not without the reappearance of the very hostilities Obama was trying to quell with his Hamilton nomination. * * *

Obama’s attempt to ratchet down the partisan hostility over judges was slapped away. Voters who don’t look beyond the final party-line (except for Lugar) vote will see Republicans in one of two ways: uber-partisan and unwilling to support any Democratic judicial nominee, or the only thing that stands between them and runaway judges.

Both impressions are wrong, and our system is not well served by politicians who encourage those false notions.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to Indiana Courts

Law - "DNA testing has led more men to discover that their children are not biologically theirs. Families are upended, and so is the law"

The NYT Sunday Magazine today has a very long article by Ruth Padawer on paternity and fatherhood. Here are just a few quotes:

Mike’s conundrum is increasingly playing out in courts across the country, a result of political, social and technological shifts. Stricter federal rules have pressed states to chase down fathers and hold them responsible for children born outside of marriage, a category that includes 40 percent of all births. At the same time, DNA tests have become easier, cheaper and more reliable. Swiping a few cheek cells and paying a couple hundred dollars can answer the question that has plagued men since the dawn of time: Am I really the father? * * *

Over the last decade, the number of paternity tests taken every year jumped 64 percent, to more than 400,000. That figure counts only a subset of tests — those that are admissible in court and thus require an unbiased tester and a documented chain of possession from test site to lab. Other tests are conducted by men who, like Mike, buy kits from the Internet or at the corner Rite Aid, swab the inside of their cheeks and that of their putative child’s and mail the samples to a lab. Of course, the men who take the tests already question their paternity, and for about 30 percent of them, their hunch is right. Yet as troubled as many of them might be by that news, they are even more stunned to discover that many judges find it irrelevant. State statutes and case law vary widely, but most judges conclude that these men must continue to raise their children — or at least pay support — no matter what their DNA says. The scientific advance that was supposed to offer clarity instead reveals just how murky society’s notions of fatherhood actually are. * * *

Even in paternity cases simpler than that of Mike and L., nonbiological fathers often feel like serial dupes: their wives or girlfriends cheated on them, the children they thought were theirs aren’t and yet they are required to support children they did not create. Because nothing can be done about the cheating or the biological revelation, the men focus their indignation on the money. The urge to withhold every dime, lest it end up easing the mother’s life, is hard to resist. Often the fight isn’t really about child support; it’s simply a way to channel rage about the woman’s duplicity. Some observers suggest that insisting these men pay child support will damage rather than fortify the relationship between father and child that society seeks to preserve. As Alaska’s Supreme Court concluded in a decade-old paternity case, making a nonbiological father pay “might itself destroy an otherwise healthy paternal bond by driving a destructive wedge of bitterness and resentment between the father and his child.” * * *

Judges around the country have interpreted the common law in so many different ways that what happens in contested-paternity cases depends almost as much on the state as on the details of the case. Some state-court judges have let nonbiological fathers off the hook financially, but they are in the minority. In most states, judges put the interest of the child above that of the genetic stranger who unwittingly became her father — and that means requiring him to pay child support. Some judges have even rebuked nonbiological fathers for trying to weasel out of their financial obligations. “The laws should discourage adults from treating children they have parented as expendable when their adult relationships fall apart,” Florida’s top court held in a 2007 paternity decision, quoting a law professor. “It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.”

In an age of DNA, when biological relationships can be identified with certainty, it can seem absurd to hew so closely to a centuries-old idea of paternity. And yet basing paternity decisions solely on genetics places the nonbiological father’s welfare above the child’s. Phil Reilly, a lawyer who is also a clinical geneticist, has been wrestling with the policy implications of DNA testing for years, and even he is stumped about how society should manage the problem that men like Mike face. “We’re at a point in our society where the DNA molecule is ascendant, and it’s very much in the public’s consciousness that this is a powerful way to identify relationships,” Reilly says. “Yet at the same time, more people than ever are adopting children, showing that parents can very much love a child who is not their own. The difference here for many men is the combination of hurt and rage over the deceit, the fact that they’re twice beaten. I can see both sides of this argument. As a nation, we’re still in search of what the most ethical policy should be. Every solution is imperfect.”

Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father. In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations.

Where are we on this in Indiana? See this ILB entry from March 18, 2007, and this update from Nov. 3, 2007.

The ILB would be pleased to post more recent information from readers.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to General Law Related

Courts - "When, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty"

Tony Mauro of The National Law Journal has this new article, dated Nov. 23rd and headed "Do Defendants Get Enough Warning About a Guilty Plea's Consequences?" Some quotes:

The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon. But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes. The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting. Why? Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky. His lawyer told him the plea would not get him deported, because he had lived in the United States for decades. The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.

Depending on the offense, a guilty plea or verdict can, in addition to the penalty for the crime, also make it impossible for a defendant to vote, live in public housing, become a cosmetologist, carry a gun, drive a car or receive a growing array of government benefits. If you plead guilty to public urination or if, as a 19-year-old boy, you had a relationship with a 16-year-old girl, you can in some states be marked as a sex offender for life.

The laws of some states as well as the American Bar Association's criminal justice standards call for lawyers or others to inform defendants accurately of these consequences. It often does not happen -- especially, as Padilla learned, in the area of immigration law, which may be unfamiliar territory to a harried criminal defense lawyer. "Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile," said Benita Jain, co-director of the Immigrant Defense Project.

There is much more to this article.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to Courts in general

Law - More on "Financial Decisions to Make as You Divorce"

The NYT columnist, Ron Lieber, who wrote the very useful column, "Financial Decisions to Make as You Divorce" )noted in this Nov. 15th ILB entry), today has another valuable column, "Experienced in Love and Money," that begins:

Nobody can relate to the raw, visceral experience of ending a marriage better than someone who has gone through it. So it only seemed right to end my series of columns on money and divorce with a few words of advice from financial experts about what they learned when their own marriages fell apart. * * *

Their advice on such things as choosing a lawyer and communicating with your former spouse can save you plenty, leaving more money for your children or rebuilding your financial life once your marriage is officially over.

Earlier related Lieber NYT columns include "Money Talks to Have Before Marriage," from Oct. 23, 2009, and "Money Issues That Can Test Even a Rock-Solid Marriage," from Nov. 6, 2009.

Posted by Marcia Oddi on Sunday, November 22, 2009
Posted to General Law Related

Saturday, November 21, 2009

Ind. Courts - More on "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks"

This May 14, 2008 ILB entry is quoting from a report from May 13, 2008 by Bob Segal of Indianapolis Eyewitness News 13:

Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks. He's ordered them for hundreds of drunk drivers since 2005, and he says in more than 99% of those cases, the offenders did not drive drunk again.

"I like our numbers," Morrissey said. "If you're decreasing re-offense rates, you're protecting the public." * * *

Indiana law allows judges to order the installation an ignition interlock, but they are not mandated to do so. Judges in other states do not have a choice. Six states have legislation that requires ignition interlock devices for every case of drunk driving. Twenty other states mandate ignition interlock for some alcohol-related driving offenses.

The News 13 report, which contains much more information, is still available, here.

This Nov. 16, 2007 ILB entry, quoting from a story from that day in the Terre Haute Tribune Star, includes:

Earls was given the option of attending an intensive recovery program in Atlanta, Ga., which costs $14,000 a month to attend, according to Chief Deputy Prosecutor Rob Roberts. If he is unable to attend the program, an ignition interlock device will be installed on his vehicle for 180 days after the completion of his 90-day license suspension program, the plea agreement stated.
Today the Lafayette Journal Courier has a story headed "Driver pleads guilty in crash that killed Harrison student," reported by Sophia Voravang. Some quotes:
A Texas man faces between six and 20 years in prison for driving drunk and causing a two-vehicle crash that killed a Harrison High School student.

Joseph L. Welch, 30, pleaded guilty Friday in Tippecanoe Superior Court 2 to operating a vehicle with a blood-alcohol content of 0.15 percent or more, causing death.

The Nov. 23, 2008, crash occurred when Welch allegedly ran two red traffic lights on U.S. 52 near Morehouse Road -- striking a vehicle driven by Katherine Ann "Kate" Baker, 16.

Family members and friends of the Harrison junior filled the gallery Friday in Superior Court 2. * * *

The crash had prompted the teenager's friends and classmates to push for Indiana legislators to mandate ignition interlock devices in vehicles for repeat impaired drivers and drivers arrested with high blood-alcohol contents.

Ignition interlocks requires users to blow into an installed device. Vehicles will not start if the driver's alcohol content is more than a low, predetermined setting.

The bill, however, died during the General Assembly's spring session.

Welch has a 2007 misdemeanor conviction for impaired driving in Spirit Lake, Iowa.

Actually, there were four bills involving ignition interlocks introduced in the 2009 session: SB 274, SB 542, HB 1020, and HB 1065. All died in first house committee, except for HB 1020, which passed the House and died in Senate committee.

Posted by Marcia Oddi on Saturday, November 21, 2009
Posted to Indiana Courts | Indiana Law

Courts - "Does the punishment fit the crime for child porn?" [Updated]

Thanks to the Sentencing Law and Policy Blog for the pointer to this story by Tracey Read, published Nov. 19th in the Northern Ohio News-Herald. It begins:

Legal experts on all sides agree that downloading and watching child pornography is repugnant behavior.

What they are at odds over is whether such defendants are as much of a threat to society as rapists or murderers.

Nationwide, judges are questioning whether mandatory and recommended sentences for child porn are too harsh.

The story ends with this note: "The Wall Street Journal contributed to this report." So the ILB checked the WSJ and found: "Making Punishments Fit the Most Offensive Crimes: Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel" by Amir Efrati in the Oct. 23, 2008 WSJ, and "Still More on Sentencing and Child Pornography," an entry by Ashby Jones in the Sept. 10, 2009 WSJ Law Blog.

[Updated 11/29/09] From the Denver Post, this long story by Felisa Cardona, headlined "Federal judges argue for reduced sentences for child-porn convicts."

Posted by Marcia Oddi on Saturday, November 21, 2009
Posted to Courts in general

Ind. Courts - "Defense gets $72K for experts in Jada Justice case "

From the NWI Times today, a story by Bill Dolan. Some quotes:

CROWN POINT | The public will pay up to $72,000 to get a window into the mind of a 19-year-old Hobart woman accused of killing her toddler cousin, Jada Justice, earlier this year.

Lake Criminal Court Judge Thomas Stefaniak Jr. gave public defender Lemuel Stigler authority to hire a number of psychiatric experts to examine Engelica Castillo for possible evidence of mental problems. * * *

Stigler contends Castillo appears to have significant mental health issues that require an expert to confirm and explain. Stigler noted Castillo has a history of illicit drug use and was raped at least three times before the age of 15.

"I have difficulty approving this amount of money," Stefaniak said. "When I order these funds to be spent, I know I have an obligation to be responsible with public funds and assure it won't be wasted."

The judge said recent court decisions leave him no discretion.

"Funds must be made available to satisfy our death-penalty standards. Not hiring experts would be error per se," he said.

If convicted without expert testimony, an appeals court could overturn the verdict and an order a new trial.

The prosecutor's office hasn't filed a death penalty murder charge against either defendant but is seeking a sentence of life without parole for Castillo, which triggers many of the same safeguards as for defendants in capital murder cases.

Posted by Marcia Oddi on Saturday, November 21, 2009
Posted to Indiana Courts

Ind. Law - "The power of a drug containing noxious ingredients"

Methamphetamine is the subject of this editorial today in the Fort Wayne Journal Gazette that includes these quotes:

If anyone questions how pervasive the problem with methamphetamine is in northeast Indiana or the drug’s potency to lure people into abuse, an arrest this week should shatter any remaining doubts:

The deputy town marshal of Topeka, 28-year-old Zachary Miller, was charged with conspiracy to deal methamphetamine and official misconduct.

Certainly, if the accusations are true, the officer’s actions are indefensible. Police must be trusted to uphold the law, and helping distribute such an addictive, dangerous substance is unconscionable.

But the arrest does reflect the power of a drug containing noxious ingredients. Many people are aware that the active ingredient is the decongestant ephedrine. But meth also includes a host of other substances that can include ammonia; sodium hydroxide, found in drain cleaner; phosphorus; butane; battery acid; ether, found in starting fluid; and paint thinner. * * *

The stereotypical meth user is from a poorer, rural area.

But the arrest of Miller – as well as other people from all walks of life and from cities as well as suburbs – should serve as a stark reminder that meth can affect anyone who tries it.

Hoosiers should encourage and participate in efforts to educate people about the destructive drug.

Posted by Marcia Oddi on Saturday, November 21, 2009
Posted to Indiana Law

Courts - "Kentucky Appeals court upholds $6.1 million strip-search verdict against McDonald's"

Updating this long list of earlier ILB entries, Andrew Wolfson reports in today's LCJ in a lengthy story:

The Kentucky Court of Appeals Friday upheld the $6.1 million jury award to strip-search victim Louise Ogborn, saying McDonald’s legal department was “fully aware” of hoax calls to its restaurants, yet its management made “a conscious decision not to train or warn employees or managers about the calls.”

In a unanimous decision, the court also said that the $5 million awarded to Ogborn in punitive damages for McDonald’s “reprehensible” behavior was justified because the evidence showed the company repeatedly “placed a higher value on corporate reputation than on the safety of its own employees” over the 10 years it knew about the hoax calls.

A three-judge panel also upheld the judgment for former assistant manager Donna J. Summers, who claimed she was duped into executing the search because of the company’s failure to warn her about the hoaxes. But the court cut her $1 million punitive damage award to $400,000, saying the jury’s verdict was excessive. Summers was also awarded $100,000 in compensatory damages.

Kirsten Daniel, one of Ogborn’s lawyers, said Ogborn was thrilled to hear the news that the verdict, returned after a four-week trial in Bullitt Circuit Court in 2007, had been affirmed. * * *

Ann Oldfather, another lawyer for Ogborn, said: “We are thrilled that the court made the correct decision and hope that McDonald’s does not attempt to continue to hurt Louise with any further appeals.”

A spokeswoman for McDonald’s USA said Friday the company is “extremely disappointed” with the decision but hasn’t decided whether it will ask the Kentucky Supreme Court to hear the case.

“McDonald's is not disputing that what happened to Ms. Ogborn was wrong,” spokeswoman Danya Proud said in a prepared statement. “However, it has been our position throughout these proceedings that she was the victim of a malicious hoax perpetrated by individuals not representing McDonald’s.” * * *

The Court of Appeals noted that the store was one of 30 McDonald’s restaurants at which similar hoaxes were perpetrated, and that evidence presented by Ogborn’s lawyers showed that proper training and warnings would have prevented them.

The court rejected eight grounds offered by McDonald’s for reversing the judgment, which included $1,111,312 in compensatory damages for Ogborn, who claimed she suffered psychological and emotional trauma.

Addressing McDonald’s claim that Ogborn’s damages should have been limited to worker’s compensation, the court said its lawyers failed to submit proof the company had worker’s comp insurance.

Even if they had, however, the court said Senior Judge Tom McDonald had properly ruled that the hoax occurred outside of Ogborn’s course of employment because she had “clocked out” before it occurred.

Next, the court dispatched McDonald’s claim that it shouldn’t have been held responsible under the Kentucky Civil Rights Act because Nix and the caller were not its employees.

The court said that Summers, who was an employee, compelled Ogborn to disrobe in a small office, deprived her of her clothes, and allowed four McDonald’s employees to see in her a “state of undress,” all of which “qualify as sexual harassment.”

The court rejected McDonald’s denial that Ogborn was unlawfully imprisoned, saying the evidence showed she had no choice but to stay once her clothes were taken. The company had claimed she voluntarily consented to be searched so she could clear her name.

Finally the court dismissed the company’s argument that it couldn’t be held liable for the unforeseeable criminal acts of Nix, who was later convicted of sexual abuse and other crimes and sentenced to five years in prison.

Writing for the court, Judge Glenn Acree of Lexington, joined by Judges Jeff Taylor of Owensboro and Kelly Thompson of Bowling Green, said McDonald’s knew that some of the prior hoaxes at its restaurants had produced “criminal activity” and that Nix’s crimes were a “foreseeable danger naturally resulting” from the company’s failure to warn and train employees and owners about an “ongoing problem.”

Posted by Marcia Oddi on Saturday, November 21, 2009
Posted to Courts in general

Friday, November 20, 2009

Ind. Courts - "Video explains the process of Alternative Dispute Resolution (sometimes known as Mediation) to settle court cases in Indiana"

The program, "Alternative Dispute Resolution: Real Dialogue. Real Answers," was developed by the Indiana Supreme Court to give people involved in family law cases an overview of the options available for resolving their cases outside of court. It consists of 10 videos, each under 3 minutes long.

Another program in the series is "Family Matters: Choosing to Represent Yourself in Court," access it here.

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Indiana Courts

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

In Scruggs v. Garst Seed Co. (ND Ind. J. Sharp), a 15-page opinion, Judge Williams writes:

Dayna Scruggs appeals from the grant of summary judgment in favor of her former employer, Garst Seed Company, on her claims of retaliation and a hostile work environment. A company-wide restructuring eliminated her position before she filed a charge of discrimination, so the company did not retaliate against her for filing the discrimination charge when it eliminated her position. In addition, although she contends the company also retaliated against her when it did not hire her for one of the open positions after the restructuring, Garst hired the person who had previously held the position. The incumbent was experienced in the job, and Scruggs has not created an issue for trial that the hiring decision was pretextual. Finally, the relatively isolated gender-based comments and remarks Scruggs’s supervisor directed toward her were not sufficiently severe or pervasive to rise to the level of a hostile work environment. Therefore, we affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

W. Kenneth Baldwin, et al. v. Kimberly A. Gilbert, et al. (NFP)

Donald W. Snover v. Linda K. Snover (NFP)

J.R.W. v. K.R. (NFP)

In the Matter of D.K., A.S.K., and T.M.K.; and L.D.G. v. Ind. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (5):

Sergio Neri-Ortiz v. State of Indiana (NFP)

Pablo G. Madrigal v. State of Indiana (NFP)

Brian Hedback v. State of Indiana (NFP)

Ryan Thurman v. State of Indiana (NFP)

Joey Bolden v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana AG joins federal-and-state task force intended to thwart mortgage fraud and other financial crimes

See the press release from Nov. 18th here. See also this Nov. 19th story from the Las Vegas Sun, headed "FBI looking at hundreds in mortgage schemes: Fraud squad targeting cases involving millions of dollars, many victims."

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Indiana Courts

Courts - Still more on the McDonald v. Chicago cert grant

Updating this ILB entry from Oct. 1, 2009, Ashby Jones of the WSJ Law Blog had this entry yesterday headed "Will Gun-Control Case Prompt a Constitutional Reawakening?" It begins:

Our interest in a single Supreme Court case has perhaps never been as high as it is in a case currently being briefed. The issues are fascinating on several levels, and the potential impact of a ruling is big.

The case is McDonald v. City of Chicago, for which the court granted cert on Sept. 30. The petitioners in the case, a group challenging a gun-control ordinance in Chicago, filed their brief with the court earlier this week. Were the court to adopt their position — something well within the realm of possibility — we could be looking at a significant shift in the way the justices view the Constitution and individual rights.

[More] See also this posting by Lyle Denniston of SCOTUSLaw, originally posted Nov. 16, but updated.

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Courts in general

Ind. Decisions - Re the COA decision in Ankeny v. Governor

The Court of Appeals decision Nov. 12th in the case of Steve Ankeny and Bill Kruse v. Governor of the State of Indiana (see ILB summary here - 2nd case), has been the subject of several favorable items. From a Seattle Times editorial dated Nov. 19, 2009:

In the Indiana case, Ankeny v. Governor of Indiana, the birthers argued a different thing: that a "natural-born citizen" could not have a foreign parent. And in 1961, Obama's father, a Kenyan, was a subject of the British Empire.

The Constitution doesn't say what a natural-born citizen is. The Indiana court dug into the history of U.S. and English common law, and produced the following distinction. There are two kinds of citizens: naturalized, who become citizens after they are born; and natural-born, who are citizens at birth.

All citizens at birth are natural-born. That is the rule used by the Indiana court. By U.S. law, you can be born in Uzbekistan and if you have one American parent who had been American and lived in the United States for a minimum period of time before you were born, you are American.

The Indiana ruling had a footnote. Obama is not the first U.S. president who had a noncitizen parent. "Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen."

From Eugene Volokh, founder of highly regarded law profs blog, The Volokh Conspiracy, this entry:
Indiana Court of Appeals Rejects Claim That “Because His Father Was a Citizen of the United Kingdom, President Obama Is [Not a Natural Born Citizen and Therefore] Constitutionally Ineligible to Assume the Office of the President” - The decision is Ankeny v. Governor, handed down last Thursday. The opinion is pretty detailed, and is the only substantive opinion I know of in a case challenging President Obama’s eligibility (since the other cases, including the ones that assert that he wasn’t born within the U.S., have been rejected on procedural grounds, such as ones related to standing). The court’s reasoning strikes me as quite persuasive.

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Hamilton qualified to judge"

That is the headline to this editorial today in the Fort Wayne Journal Gazette. Some quotes:

Congress’ approval of a Hoosier judge to the federal appeals court is a welcome, if belated, triumph of good government over partisan sniping.

Sen. Richard Lugar, rightly and courageously, bucked his party leadership and stood up for U.S. District Judge David Hamilton. The Republican senator, known for his intelligence and willingness to support what is right – rather than blindly support his party – dissected arguments against Hamilton in an 18-minute speech before the Senate on Monday.

Perhaps partly because of the respect Lugar holds among the Senate, nine other GOP senators joined him in a 70-29 vote Tuesday to end the filibuster and open the door – finally – to his confirmation on Thursday.

The effort to block the nomination of Hamilton to the 7th Circuit U.S. Court of Appeals in Chicago had little to do with qualifications and ability. Instead, the filibuster was because of the opponents’ partisanship, conservative ideology and hopes of slowing President Obama’s efforts to fill desperately needed federal judgeships. It is no coincidence that Hamilton was Obama’s first nominee to the court of appeals. * * *

Of Obama’s 26 judicial nominations, only five have been confirmed. Hamilton is a well qualified, moderate judge, and his confirmation was long overdue. With luck, senators will now allow Obama to replenish the vacant judicial seats.

Posted by Marcia Oddi on Friday, November 20, 2009
Posted to Indiana Courts

Thursday, November 19, 2009

Ind. Courts - Senate debate underway on Hamilton nomination [Updated]

Final debate is now underway for the "up or down" U.S. Senate vote on the David Hamilton nomination.

Watch on C-SPAN 2.

2:30 PM - The roll call has begun.

2:55 PM - It looks to be a straight party-line vote ...

2:58 PM - Nomination is confirmed 59-39.

[Updated at 3:50 PM] Here is the roll call #350. All 39 NAYs were republican; of the 59 YEAS, one was republican (Lugar), the remainder were D or I. Two senators, both Ds, did not vote, Baucus and Byrd.

[Updated 5:48 PM] Here is Warren Richey's story from the Christian Science Monitor.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Indiana Courts

Law - "Chicago's Camera Network Is Everywhere: Extensive Surveillance System Integrates Nonpolice Video, Raises Concerns About Possible Privacy Abuses"

From today's WSJ, this story by William M. Bulkeley, reporting that not only are there video cameras all over Chicago, but they are linked together into a giant web. The long story begins:

A giant web of video-surveillance cameras has spread across Chicago, aiding police in the pursuit of criminals but raising fears that the City of Big Shoulders is becoming the City of Big Brother.

While many police forces are boosting video monitoring, video-surveillance experts believe Chicago has gone further than any other U.S. city in merging computer and video technology to police the streets. The networked system is also unusual because of its scope and the integration of nonpolice cameras.

The city links the 1,500 cameras that police have placed in trouble spots with thousands more—police won't say how many—that have been installed by other government agencies and the private sector in city buses, businesses, public schools, subway stations, housing projects and elsewhere. Even home owners can contribute camera feeds.

Rajiv Shah, an adjunct professor at the University of Illinois at Chicago who has studied the issue, estimates that 15,000 cameras have been connected in what the city calls Operation Virtual Shield, its fiber-optic video-network loop.

The system is too vast for real-time monitoring by police staffers. But each time a citizen makes an emergency call, which happens about 15,000 times a day, the system identifies the caller's location and instantly puts a video feed from the nearest camera up on a screen to the left of the emergency operator's main terminal. The feeds, including ones that weren't viewed in real time, can be accessed for possible evidence in criminal cases.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to General Law Related

Law - More on: Federal golf cart subsidies

Updating this Oct. 18, 2009 ILB entry, which ended with quotes from a WSJ story about federal and state tax credts for golf carts, today's Cincinnati Enquirer has a long story by Mike Boyer headed "Tax credit spurs interest in electric carts." Some quotes:

FAIRFIELD – Gary Metcalf is used to stares as he tools around his neighborhood on his gasoline-powered, four-seater golf cart.

“Everybody wants to stop and talk to you, and it’s a good way to save on gas,” says Metcalf, owner of Gary’s Gun Shop in Fairfield.

Metcalf is one of a growing number turning to gas- and electric-powered golf carts and other low-speed vehicles for personal transportation. Golf carts have been used for personal transit in senior communities and other relatively small, closed-in areas for decades. But rising fuel costs, increasing attention on reducing pollution and federal income tax credits on some low-speed electric vehicles are putting a new charge into the market. * * *

Year-old federal income tax rules also offer credits of $5,000 or more for the purchase or lease of certain plug-in electric vehicles that go no faster than 25 miles per hour. Models from about 10 low-speed electric vehicle makers have been qualified for the tax credits by the IRS. Golf carts don’t qualify for the credit. Eligible vehicles, which can run for up to operate 30-40 miles between charges, are limited to streets posted at no more than 35 mile per hour and can cost $12,000 or more depending how they’re equipped.

If authorized by local ordinances, state motor vehicle laws also allow traditional golf carts, when inspected and equipped with proper vehicle safety equipment, to be licensed and registered for use on roads posted at 35 miles per hour or less.

FAIRFIELD – Gary Metcalf is used to stares as he tools around his neighborhood on his gasoline-powered, four-seater golf cart.

“Everybody wants to stop and talk to you, and it’s a good way to save on gas,” says Metcalf, owner of Gary’s Gun Shop in Fairfield.

Metcalf is one of a growing number turning to gas- and electric-powered golf carts and other low-speed vehicles for personal transportation. Golf carts have been used for personal transit in senior communities and other relatively small, closed-in areas for decades. But rising fuel costs, increasing attention on reducing pollution and federal income tax credits on some low-speed electric vehicles are putting a new charge into the market.

“It’s a growing phenomenon,” says Roy Kasler, president of Mid Ohio Golf Car, a Yamaha cart dealer outside Columbus who also markets across most of southern Ohio, including Cincinnati.

Golf carts for personal transportation are still a small percentage of the thousands of golf carts that Kasler sells and rents annually. But “people are finding it’s fun and convenient,” he says.

Kasler and Metcalf say there’s a social aspect to using a golf cart that’s not there driving a faster-moving car.

“Nobody knows their neighbors any more,” Metcalf says. “When you’re in a golf cart you can stop and talk to people.”

Kasler says some golf cart enthusiasts hold community parades and rallies.

Year-old federal income tax rules also offer credits of $5,000 or more for the purchase or lease of certain plug-in electric vehicles that go no faster than 25 miles per hour. Models from about 10 low-speed electric vehicle makers have been qualified for the tax credits by the IRS. Golf carts don’t qualify for the credit. Eligible vehicles, which can run for up to operate 30-40 miles between charges, are limited to streets posted at no more than 35 mile per hour and can cost $12,000 or more depending how they’re equipped.

If authorized by local ordinances, state motor vehicle laws also allow traditional golf carts, when inspected and equipped with proper vehicle safety equipment, to be licensed and registered for use on roads posted at 35 miles per hour or less.
(2 of 3)

That’s what Metcalf and a number of other motorists in Ohio, Kentucky and Indiana are doing. Just how many is unclear. Because the golf carts are registered as regular motor vehicles, vehicle registration agencies don’t break them out separately. * * *

Mike Lawrence, owner of Lawrence Motorsports in Lawrenceburg, estimates he’s outfitted a couple dozen golf carts over the past year and a half for street use. Retrofitting costs about $1,000 on top of the cart and includes adding a windshield, front and rear lights, brake lights and seat belts. The variations in local rules create a minefield for distributors, Kasler says. His company advises customers to find out what their municipality requires before buying a golf cart.

Gary Eichler Jr. of Gary Eichler Golf Center in Hamilton, says his company has equipped about two dozen golf carts for street use. He says it’s cheaper to buy and equip a used golf cart for the street than to buy a new electric low-speed vehicle even after the federal income tax credit.

A new gas or electric golf cart costs about $5,000. A used model costs about half that and can be equipped for street use for less than $1,000, he says. A gas-powered cart, with a 4-cylinder engine and a 7-gallon tank can go about 200 miles between fill-ups. Eichler says they’re cheaper to operate than electric models.

The City of Rising Sun along the Ohio River was one of the first communities in Southeast Indiana to permit golf carts on city streets. Mayor Bill Marksberry says about 20 golf carts have been permitted since Rising Sun enacted its ordinance a year ago. Rising Sun police have a unit equipped with emergency flashers.

“If every community in the United States did this, it would help reduce our consumption of oil,” Marksberry says. The larger of two federal income tax credits for qualified plug-in electric-powered vehicles, which look more like small cars than golf carts, is set to expire at year’s end. The bad news for fans of these vehicles: They’re almost impossible to find now.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to General Law Related

Courts - Still more on: In Kansas, the Mortgage Machine Backfires; MERS issue raised in Indiana

This Oct. 10, 2009 ILB entry includes a quote from the Boston Globe from Oct. 9th (from a Globe story still available)that began:

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.

Sheri Qualters of The National Law Journal has a story today headed "Defective Paperwork Strips Mortgage Holder of Foreclosure Rights." Some quotes [emphasis by ILB]:
A Massachusetts federal judge has upheld a bankruptcy court ruling allowing a trustee to treat a mortgage as an unsecured claim, which strips the mortgage holder of foreclosure rights, because of defective mortgage paperwork.

In a Nov. 17 order, District Court Judge Patti Saris affirmed a bankruptcy court order denying the plaintiffs' request to send a question of law to the Supreme Judicial Court of Massachusetts. The case is Mortgage Electronic Registration Systems Inc. (MERS) v. Warren E. Agin, trustee.

The plaintiffs wanted the state high court's take on whether the omission of a borrower's name on an acknowledgement form, which a notary public uses to confirm the identity of the borrower, is a "material defect" that voids the mortgage.

In Massachusetts, deeds or mortgages recorded at a county registry of deeds must have a properly executed acknowledgment form.

One of the plaintiffs in the June 3 bankruptcy court appeal is MERS, which runs a national mortgage electronic registration system that simplifies the selling or trading residential or commercial mortgage loans. The other plaintiff is the actual lender, Countrywide Home Loans Inc., which Bank of America Corp. acquired in 2008.

The ruling concerned a mortgage held by debtor Mathew Giroux, who filed a voluntary Chapter 7 case in bankruptcy court in Massachusetts on June 27, 2008. The bankruptcy court granted the trustee's motion for summary judgment on May 21, which allowed him to treat the mortgage as a unsecured debt.

Saris agreed with the bankruptcy court that Massachusetts case law holds that the state "requires strict formalities in the execution of acknowledgements."

Saris also agreed with the bankruptcy court that Massachusetts courts are likely to follow a 2004 6th U.S. Circuit Court of Appeals decision, In re Biggs, which held that omitting the lender's name in an acknowledgement was not a "purposeless formality."

"Although the question of the acknowledgment's validity is a determinative issue, the Court finds the outcome in the state court to be reasonably clear," Saris wrote.

Cases about the issue have also cropped up in federal courts in other jurisdictions, said the trustee's lawyer, Jeffrey J. Cymrot of Boston-based Sassoon & Cymrott. Cymrot said he's also working on a similar pending case.

"It's largely due to pushing mortgages through the system," Cymrot said. "I don't think it's rare."

The case shows that sloppy execution of mortgage documents has consequences in bankruptcy cases, Cymrot said.

He also said the central question is analogous to that in cases challenging foreclosures because of defective documents that have cropped up in recent months. "It's related, but it's another type of sloppiness," Cymrot said.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Morton P. Maish v. State of Indiana , a 10-page opinion, Judge Brown writes:

“The question . . . is whether the inferences supporting the judgment were reasonable, not whether there were other "more reasonable" inferences that could have been made.” Brink v. State, 837 N.E.2d 192, 197 (Ind. Ct. App. 2005) (quoting Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004)), trans. denied. “Reaching alternative inferences such as this is a function of the trier of fact, not this Court. We cannot reverse the conviction merely because this inference is a plausible one that might have been drawn from the evidence.” Id. * * *

While the jury could have made different inferences from the evidence, we cannot say that the inference made by the jury here—that Maish was the one who transferred cocaine to Pence—was unreasonable. Based upon our review of the record, we conclude that evidence of probative value existed from which the jury could have found beyond a reasonable doubt that Maish committed dealing in cocaine as a class B felony.

NFP civil opinions today (5):

Nathan and Kimberly Stevens v. A. Elaine McDonald, John Samuel, et al (NFP) - "Nathan and Kimberly Stevens appeal from a grant of summary judgment in favor of their neighbors, Samuel, John, and Elaine McDonald and John and Susan Grant (collectively, the Complainants) in the Complainants' action to enforce restrictive covenants. The Stevenses challenge the propriety of the grant of summary judgment as the sole issue on appeal. We affirm.

Starr Scott Amico v. Review Board of the Ind. Dept. of Workforce Development, et al. (NFP) "The sole issue presented for our review is whether the Review Board properly affirmed the decision of an administrative law judge (“ALJ”) dismissing Scott’s appeal as untimely. We affirm."

In re: R.C. and L.C.; D.C. v. Marion Co. Dept. of Child Svcs. (NFP)

Domus Properties v. Jason Cook (NFP)

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

NFP criminal opinions today (6):

In State of Indiana v. Natalie Medley (NFP), a 19-page opinion, Judge Crone writes:

Medley's testimony that she asked for an attorney on February 26 does not, standing alone, demonstrate that a motion to suppress her February 27 confession based on a re-initiation of interrogation theory would have been granted, and therefore the post-conviction court's determination that counsel's omission constitutes deficient performance is clearly erroneous. We therefore reverse the post-conviction court's conclusion that Medley received ineffective assistance of trial counsel.

The post-conviction court also concluded that

had this Court not found that Ms. Medley should receive a new trial, the Court could have found and Ordered the Marion County Prosecutor to seek to reduce Ms. Medley's sentence and to produce evidence at the re-sentencing hearing of Ms. Medley's cooperation with the State and testimony against Marshaun Buggs, resulting in his conviction for the murder of Reginald Moore.
Appellant's Br. at 34. The State asserts that the post-conviction court is barred from issuing such an order by Article 3, Section 1 of the Indiana Constitution, which prohibits the three branches of governmentthe legislative, executive, and judicialfrom exercising the functions of the others. We agree. See Williams v. State, 669 N.E.2d 1372, 1378 (Ind. 1996) (“[T]he trial judge may not assume an adversarial role in the proceedings. In fact, to the extent that intervention by the trial court in the proceedings would constitute exercising the prosecutorial function, it would violate the separation of powers or functions article of the Indiana constitution.”) (citations omitted); Beanblossom v. State, 637 N.E.2d 1345, 1348-49 (Ind. Ct. App. 1994) (observing that case law indicates that trial court does not hold inherent judicial power to modify sentence); see also Ind. Code § 35-38-1-17 (“If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney....”). We therefore reverse the post-conviction court's alternative relief.
Shaun L. Steele v. State of Indiana (NFP)

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

Andre Dixon v. State of Indiana (NFP)

William T. Padgett, Jr. v. State of Indiana (NFP)

Steven T. Marbley-El v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Ind. App.Ct. Decisions

Courts - "Justice Sotomayor adds celebrity to court"

The Washington Post on Nov. 17th had this lengthy story reported by Jesse J. Holland of the AP. Some quotes:

WASHINGTON -- Apparently, no one told Sonia Sotomayor that Supreme Court justices are supposed to be circumspect, emerging from their marble palace mainly to dispense legal wisdom to law schools, judges' conferences and lawyers' meetings.

Since becoming the first Hispanic justice, Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees. A famous jazz composer even wrote a song about her: "Wise Latina Woman."

In short, Sotomayor has become a celebrity - all without having made a single major decision at the nation's highest court.

It's not that other justices don't have their own particular glamour.

Ruth Bader Ginsburg and Antonin Scalia - both opera lovers - recently had roles in the opening performance of "Ariadne auf Naxos" for the Washington National Opera. Other justices have done tours to promote their books.

But that kind of fame rarely reaches the man on the street. * * *

It's not as if Sotomayor is pushing this public recognition.

In fact, apart from a C-SPAN program that interviewed all the justices, she is refusing television, magazine and newspaper interview requests, including a request for comment from The Associated Press for this story. Sotomayor even nixed plans by famed photographer Annie Liebowitz to shoot her for a photo spread in Vogue magazine.

She did allow Latina magazine to photograph her inside the Supreme Court building, but wouldn't submit to a formal interview even though a friend wrote the accompanying article. Wearing her black robe, the justice appeared on the cover of the latest issue prominently displaying her bright red fingernails, which White House aides had persuaded her to repolish in a demure neutral shade last July for her Senate confirmation hearing.

Even though she's avoided interviews, people recognize her everywhere. "There are people who can identify her in a line of pictures who couldn't identify some of the people who are big movie stars," Thompson said.

Part of the adulation stems from the historic nature of her appointment: the first Hispanic on the court, and only the third female, after retired Justice Sandra Day O'Connor and current Justice Ruth Bader Ginsburg.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Courts in general

Environment - IDEM and its chief in the news

Updating this ILB entry from Nov. 15th, headed "Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner," the Fort Wayne Journal Gazette has an editorial today titled "IDEM chief’s toxic pile." It reads:

Many Hoosiers gave Tom Easterly the benefit of the doubt that he would put his duty to protect the environment before business interests as director of the Indiana Department of Environmental Management. It appears he is taking unfair advantage of their generous nature.

Easterly owes Indiana residents an immediate and complete explanation about a pile of toxic steelmaking waste at ArcelorMittal in Burns Harbor, why it’s difficult to find documents related to the waste and why IDEM is failing to compel the company to comply with state environmental regulations.

Many environmental advocates – and this page – encouraged guarded optimism in Easterly’s pledge to protect Indiana’s environment when Gov. Mitch Daniels appointed him as IDEM commissioner in 2005. There was reason for doubt given he was in charge of environmental issues at Bethlehem Steel – one of ArcelorMittal’s predecessors – from 1994 to 2000.

A series of stories by environmental reporter Gitte Laasby that ran in the Post-Tribune of Northwest Indiana this week adds to the concern about Easterly’s leadership at IDEM. There is a 35-foot-tall tower of steelmaking waste at ArcelorMittal in Burns Harbor. Contrary to state law, parts of the mountain of waste have sat there as long as two decades. The heap, dubbed “Easterly’s pile” because it was started under his watch as environmental manager at Bethlehem Steel, sits about 200 feet from the Indiana Dunes National Lakeshore and Lake Michigan. It includes toxins such as lead, chromium, cadmium, silver and nickel and is exposed to the elements, likely contaminating the nearby air, soil and water.

An IDEM inspector visited the plant twice in 2008 and found the violations, but no enforcement action has occurred.

As the state’s top environmental regulator, Easterly is now responsible for oversight of his former employer. The concentration of the contamination in the pile likely requires landfill disposal. Open dumping of the waste is illegal under state and federal laws.

Equally concerning is that public records related to the waste pile appear to be missing.

So far, Easterly has refused to comment on the waste pile in Burns Harbor.

Easterly’s pile only adds to the growing list of failures of the Daniels administration to demonstrate a commitment to protecting the environment. Good environmental stewardship is what is best for Indiana’s economy. Easterly’s environmental protection failures are giving Hoosiers too many reasons to regret giving him their guarded trust.

The Gary P-T story on missing public records on waste is quoted in this ILB entry from Nov. 16th.

See also this P-T editorial from Nov. 17th, which includes the following:

Since Daniels came into office, under the direction of Easterly and his boss, Indiana has:

* Closed the IDEM office of enforcement.

* Weakened enforcement rules, making it necessary to demonstrate environmental degradation before the state takes action.

* Ended contracts with local air pollution monitors, including some in Hammond and Gary.

* Removed nearly all references about global warming in the state's educational material for kids.

* Appointed a coal industry attorney as IDEM's lead counsel.

* Fast-tracked the BP Whiting expansion permit, weakening it in the process and potentially endangering the much-needed capital project.

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Environment

Ind. Decisions - One today from 7th Circuit

In U.S. v. Leroy F. Miller (ND Ind., CJ Miller), a 5-page opinion, Judge Easterbrook writes:

Leroy Miller was convicted of aiding and abetting the possession of firearms by Ricky Fines, a felon. Last year we affirmed Miller’s conviction and 10-month sentence. 547 F.3d 718 (7th Cir. 2008). Miller then asked the district court to return the 34 firearms that had been seized at his farm. See Fed. R. Crim. P. 41(g). To retain them, Miller contended, the United States needs an order of forfeiture—but forfeiture may be initiated only within 120 days of the seizure. 18 U.S.C. §924(d)(1). A timely administrative proceeding was filed but abandoned; the United States concedes that it was defective. The indictment, which includes a count seeking forfeiture, was returned more than 120 days after the seizure. The United States acknowledges that it is too late to commence a forfeiture proceeding. But it maintains that the district court nevertheless must order the functional equivalent of forfeiture, because Miller’s felony conviction prevents him from possessing the weapons and makes their return unlawful.

Miller responded by asking the district judge to order the United States to sell the weapons for his account or deliver them to someone legally entitled to possess them. The judge declined and instead authorized the United States to destroy the guns. 2009 U.S. Dist. LEXIS 39458 (N.D. Ind. Apr. 28, 2009). The judge concluded that the United States is not obliged to act as a felon’s auctioneer, and that handing the guns over to one of Miller’s relatives would leave him in constructive possession, which would be as unlawful as physical possession. The judge recognized that the United States, having missed the statute of limitations for initiating a forfeiture proceeding, has no legal entitlement to the weapons. Forced to choose between unlawful outcomes, the judge thought it best for the United States to destroy the guns. Miller’s appropriate remedy, the judge thought, would be to collect just compensation from the United States for a taking. (The judge suggested a suit under 42 U.S.C. §1983, but as that statute applies only to state actors the judge surely meant a suit under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491.)

The district court’s disposition finds support in the decisions of two circuits. * * *

It is hard to see how either the United States or Miller can be made better off by replacing an actual sale with litigation in which the parties will offer expert evaluations of the weapons’ market value, and the Treasury will be out of pocket that amount (because destroying the guns does not produce any revenue to cover the cost of a judgment under the Tucker Act).

More than that. We do not see why all alternatives to sale or destruction necessarily would be unlawful. * * *

Because the United States did not commence a timely forfeiture proceeding, Miller’s property interest in the firearms continues even though his possessory interest has been curtailed. If the United States does not want to sell them for his account, then it must offer Miller some other lawful option: having a trustee sell or hold the guns, or giving them to someone who can be relied on to treat them as his own. The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. 11-19-

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Indiana Decisions

Ind. Courts - Still more on "Madison Co. prosecutor denies alleged misconduct"

Updating this ILB entry from Jan. 8, 2009, Christina M. Wright of the Anderson Herald-Bulletin reported yesterday:

ANDERSON, Ind. — An Indiana Supreme Court official has recommended that Madison County Prosecutor Thomas Broderick be “publicly reprimanded for his misconduct,” according to court documents.

“This sanction would serve to remind (Broderick), and members of the bar, of the duty an attorney owes our justice system, and the perils associated with representing a family member in an adversarial proceeding,” stated the recommendation from Grant Superior Court 1 Judge Jeffrey D. Todd.

The Indiana Supreme Court Disciplinary Commission filed a formal complaint against Broderick in October 2008. The complaint claimed Broderick committed professional misconduct when he signed a Delaware County Prosecutor’s Office deferral agreement after his son, Evan Broderick, was arrested for allegedly driving drunk in 2003. Broderick failed to disclose his son’s 2001 arrest for misdemeanor battery in Florida.

Broderick, who was not Madison County prosecutor at the time of the incident, has said he signed the document without fully reading it. He said Tuesday it’d be premature to comment until the final decisions are made.

Todd was appointed to listen to both sides of the complaint case, and submit recommendations to the Indiana Supreme Court. Both parties, Broderick and the Commission, have 30 days to respond to the Oct. 29 recommendations. If one side files a petition, there will be more time for the other side to respond.

However, the court is not restricted by Todd’s recommendations.

“The court reviews them and makes a final decision,” said Paula Cardoza, staff attorney for the Indiana Supreme Court.

Todd said in his recommendations that, although Broderick should be reprimanded for his oversight, he should not be suspended from practicing law.

Todd noted that Broderick breached a sacred duty of lawyers by signing his son’s deferral agreement without fully reading or understanding the document.

“It is a lawyer’s solemn duty to protect our system of justice,” the court document said. “This duty lies at the heart of what it means to be a lawyer.”

Posted by Marcia Oddi on Thursday, November 19, 2009
Posted to Indiana Courts

Wednesday, November 18, 2009

Ind. Courts - Hamilton vote now set for Thursday

The "up or down" U.S. Senate vote on the David Hamilton nomination is now set for Thursday.

Here are some interesting observations in a Washington Post editorial writers' blog. The entry is headed "Lindsey Graham's disappointing filibuster vote."

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Indiana Courts

Ind. Decisions - More on: Petitions to transfer filed in the Indiana voter ID case

This will update this ILB entry from Oct. 20th, which included links to the dueling petitions to transfer filed re the Court of Appeals decision in League of Women Voters v. Todd Rokita, the voter ID case decided by the Indiana Court of Appeals Sept. 17, 2009, on state constitutional grounds.

Here is a list of earlier ILB entries in the case.

Two national sites have now become repositories of filings in the case.

A check of our Clerk's Docket in the case shows the most recent entries to be from Nov. 9, 2009 (Case Number: 49 A 02 - 0901 - CV - 00040).

As of today, Nov. 18, 2009, the Supreme Court has not acted on the transfer petitions.

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - New Bicknell City Judge Michael Edwards named "Judge of the Day" by national law blog

Remember this entry from Nov. 3rd, 2009, where the City of Bicknell finally got a judge? Their city judge, and his wife, had been suspended by the Supreme Court, effective immediately, on Oct. 14th "on accusations they stole thousands of dollars worth of traffic ticket fines from the court's account" (see this Oct. 14th ILB entry). Another ILB entry, on Oct. 29th quoted WTHI TV 10 on "the cost of returning order to its city court.." Bicknell now had no judge, so no fines were coming in, they were missing the thousands allegedly stolen, and they still had to pay the costs of the suspended judge, plus they would have to pay the costs of a new judge, whenever one was appointed by the Supreme Court.

Then came the Nov. 3rd ILB entry - a new judge pro tempore, Michael D. Edwards, had been appointed by the Supreme Court, effective 16th.

And the new judge, unlike the suspended judge, was a lawyer. But, it turns out, just barely.

Above the Law's (ATL) Kashmir Hill picks up on the story today. Hill explains "a Georgetown classmate tipped us off to the news." Here are some quotes:

Many ‘08 law school grads are about to take a step up to second year associate level at Biglaw firms across the land. You’re feeling pretty proud? And lucky to have a Biglaw gig these days, right?

Well, eat your hearts out. Michael Edwards, Georgetown Law ‘08 grad, has already been appointed a judge. He took his seat on the bench in Indiana City Court [ILB sic - should be Bicknell, Indiana, city court] on Tuesday.

ATL quotes WTHI-TV: "Michael Edwards is a Naval Academy graduate, former Marine, and now the city court judge in Bicknell."

ATL
continues: "We sent Judge Edwards a Facebook message asking about his relatively quick costume change from cap and gown — he graduated from Georgetown in October 2008 — to judicial robe:" Here is the response:
Through law school, my dream was to return to southern Indiana and do the small town Atticus Finch thing. I was heading to one of the largest firms in Chicago to work in their litigation group, however, because of my staggering loans.

When my start date kept getting pushed back, I looked around for other options. I graduated from Annapolis and spent six years in the Marines before GULC, so I also had a military background. The Navy made me an offer to work for them as a civilian on a special project called SBX-1 at a base in southern Indiana where I’d use my military background and my JD. Anyway, the pay was better than BIGLAW with the cost of living difference, and the offer afforded me the opportunity to return to my hometown in southern Indiana and take some clients on the side.

I had just received my Indiana bar results in October while on a trip to Hawaii. A local judge (Knox County, IN) contacted me with the news that the Indiana Supreme Court needed a temporary replacement for a local city judge under indictment. I sent my resume to Chief Justice Shepard, and I was selected for the spot.

ATL concludes:
It’s been a busy month for Edwards. He found out he passed the bar at the beginning of October. He went to Hawaii for two weeks (see right), got married on November 7, and founded his own law firm yesterday, Michael Edwards Law Center LLC.

And he’s hiring. He says he’s currently sorting his judicial files and will soon hire and train a clerk.

Good work by ATL! The ILB is sorry it didn't follow up on the initial announcement!

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Indiana Courts

Ind. Decisions - Two Indiana decisions today from the 7th Circuit - plus another 2nd amendment case

In Bandak v. Eli Lilly Retirement Plan (SD Ind., McKinney), a 9-page opinion. Judge Posner writes:

Bandak, a retired employee of Eli Lilly, sued the company’s retirement plan under ERISA and received a judgment for $100,222.86 in damages and an injunction against the plan’s offsetting any of his future benefits by amounts paid to him under a plan in which he was enrolled when he worked in the United Kingdom. The district court also awarded him attorneys’ fees and costs, amounting to $89,612, on the ground that Lilly’s position in the litigation had not been substantially justified. * * *

We know that the chairman of Lilly’s board of directors was concerned about the cost of its retirement plan. And the disingenuousness of Lilly’s arguments suggests that the conflict of interest was indeed gnawing at the administrator. * * *

So not only was the district court’s decision correct; Lilly’s rejection of Bandak’s claim was not substantially justified, and therefore the district judge committed no error in awarding Bandak his reasonable attorneys’ fees and costs. Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 670-72 (7th Cir. 2007); see 29 U.S.C. § 1132(g). Bandak has asked for fees for defending the appeal, and he is entitled to them too. As we explained in Sullivan, “affirmance entitles an appellee who has properly been awarded an attorney’s fee in the district court to an attorney’s fee for successfully defending the district court’s judgment in the court of appeals. Otherwise the purpose of the initial award—to shift the cost of litigation to the losing party—would be imperfectly achieved.” Sullivan v. William A. Randolph, Inc., supra, 504 F.3d at 672 (citations omitted). Bandak is directed to submit within 10 days an itemized statement of the attorneys’ fees that he incurred in defending the appeal, and Lilly will have 10 days to respond.

In Boyer v. Crown Stock Distribution (ND Ind., CJ Miller), a 19-page opinion, Judge Posner writes:
These appeals arise from the Chapter 7 bankruptcy of Crown Unlimited Machine, Inc. The trustee in bankruptcy filed an adversary action charging the defendants—a defunct corporation and its shareholders, members of a family named Stroup—with having made a fraudulent conveyance in violation of Ind. Code § 32-18-2-14(2) (section 4(a)(2) of the Uniform Fraudulent Transfer Act), a statute enforceable in a bankruptcy proceeding. See 11 U.S.C. § 544(b). After an evidentiary hearing, the bankruptcy judge awarded the trustee $3,295,000 plus prejudgment interest. The district judge affirmed and the defendants have appealed. The trustee has cross-appealed, seeking an additional $590,328. * * *

The defendants make some other arguments, but they do not require discussion. The trustee is entitled to the judgment awarded by the bankruptcy judge, plus the $590,328 dividend. After the claims of all creditors have been satisfied and the costs of administering the bankruptcy paid, any money remaining in the hands of the trustee must be returned to the defendants. The judgment of the district court is therefore affirmed in part and reversed in part (the part relating to the dividend), and the case remanded for further proceedings consistent with this opinion.

In the 2nd amendment case, U.S. v. Skoien (WD Wis.), a 27-page opinion, Judge Sykes writes:
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. * * *

To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution. The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest—§ 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In T.L. Brandon Hollar v. State of Indiana , an 11-page opinion, Judge Bailey writes:

Hollar argues that he received the maximum sentence despite two years being suspended to probation. The State disagrees, citing Jenkins v. State, 909 N.E.2d 1080 (Ind. Ct. App. 2009), trans. denied. The Jenkins court noted a split of opinion on this Court as to whether a fully executed sentence is equivalent to a sentence of equal length with part suspended to probation. Id. at 1084. While acknowledging that probation can be revoked,2 the court concluded that, in analyzing whether a sentence is inappropriate under Indiana Appellate Rule 7(B), anything less than a fully executed sentence of the maximum length does not constitute a maximum sentence. Id. at 1085-86.

There is a “continuum of possible punishments” that essentially ranges in severity based on the degree to which the punishment impinges on a defendant's liberty. * * *

In light of this spectrum and its varying degrees of restraint on the liberty and freedom of a defendant, we look to whether the sentence is composed of executed imprisonment time, in whole or in part, or includes any alternatives to incarceration when performing 7(B) analysis. Here, Hollar was ordered to serve one year of imprisonment and two years of supervised probation. With credit time, Hollar could serve as little as six months in prison. * * *

Based on the nature of the offense and the character of the offender, Hollar has not persuaded us that his sentence of one year imprisonment and two years of probation is inappropriate. Affirmed.

BRADFORD, J., concurs.
VAIDIK, J., concurs in result with opinion. [that concludes] I would decline to follow Jenkins and instead review the entirety of Hollar's suspended and executed sentences for inappropriateness. However, I join the majority in concluding that Hollar's imposed sentence is not inappropriate in light of the nature of the offense and the character of the offender. I therefore concur in result.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Curtis Tyrone Love v. State of Indiana (NFP)

Curtis Dewhart v. State of Indiana (NFP)

Robert Michael Webb v. State of Indiana (NFP)

James L. Ratliff v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides aspect of Inlow estate dispute [Updated]

In the Matter of the Estate of Lawrence W. Inlow; Anita Inlow v. Jason L. Inlow, Heather N. Johnson, Jeremy H. Inlow, and Sarah C. Inlow, a 5-page, 5-0 opinion issued today, written by Justice Dickson, provides:

When the proceeds from a pre-trial settlement of a special administrator's wrongful death action are not specifically allocated between different types of damages, to what extent is the decedent's estate entitled to payment therefrom for the decedent's funeral and burial costs? To address this question, we granted transfer. * * *

We do not agree, however, with the widow's contention that none of the wrongful death settlement proceeds can be paid to the Estate for the funeral and burial expenses. It is quite apparent from the language of the Act that, in creating a statutory cause of action for wrongful death, the legislature intended particular attention to the payment of medical, hospital, funeral, and burial expenses. To extend this legislative objective to pre-trial settlements, a proportional allocation appears most equitable. To guide the distribution of pre-adjudication settlements in wrongful death cases in a manner consistent with the statutory scheme for distribution of proceeds when damages are adjudicated, we exercise our common law supervisory authority.

We hold that, to resolve such disputes as presented in this case, a court should direct payment from the pre-trial wrongful death settlement that part of the medical, hospital, funeral, and burial expenses that corresponds to the ratio of the total of such expenses to the estimated total damages sustained. We understand that in such disputes a court's allocation of a pre-trial wrongful death settlement may require that the court receive evidence from the parties to enable it to ascertain the approximate total damages and thus determine a proportionate equitable allocation.

We reverse the court's September 5, 2007, order to the extent that such order approves the claim of the Successor Personal Representative for the distribution of the full amount of funeral and burial expenses from the wrongful death settlement proceeds. This case is remanded to the court for a determination of the portion of said expenses to be distributed to the Estate from the wrongful death settlement in a manner consistent with this opinion.

[Updated at 4:00 PM] Erika D. Smith of the Indianapolis Star has now posted a report on the ruling, headlned "Indiana Supreme Court reverses earlier ruling on Inlow estate."

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Ind. Sup.Ct. Decisions

Law - Indiana Daily Student editorial on stalled Dawn Johnsen nomination

Published late Monday, Nov. 16th, the headline is "Unacceptable obstruction":

IU law professor Dawn Johnsen was supposed to be confirmed by Congress to head President Barack Obama’s Office of Legal Council almost a year ago.

Instead, her confirmation process has stalled. Since she was approved by the Senate Judiciary Committee in March, Senate Majority Leader Harry Reid, D-Nev., has been reluctant to try to force a vote because a supermajority of 60 senators is required to end debate.

So far, 57 Democrats and Indiana Republican Sen. Richard Lugar are in support of Johnsen’s confirmation.

In theory, judicial confirmations are only supposed to require a simple majority. But because Republicans have threatened a filibuster, Johnsen’s confirmation is two votes short of the 60 needed to gain a supermajority and end debate.

This is a common pattern with presidential appointees that seems to get worse with every administration, and it needs to stop.

Most of the concern over Johnsen’s appointment relates to her former position as director for NARAL Pro-Choice America and her strong stance against Bush torture policies.

Thirty-one Republican state senators even asked Lugar and Sen. Evan Bayh, D-Ind., to oppose Johnsen’s nomination on the basis of her pro-choice views.

As this editorial board has argued before, a closer examination of Johnsen reveals a figure much more moderate than the controversy would suggest.

Johnsen’s pro-choice stances support current law, and she has affirmed that the United States has the right to hold enemies until hostilities end under the laws of armed conflict.

The Office of Legal Council is, among other things, responsible for briefing the president on constitutional questions, including the constitutionality of pending legislation. That office should have leader a year into a president’s term.

But many other appointees should have been confirmed by now or confirmed faster. Kathleen Sebelius, the new secretary of Health and Human Services, had a lengthy confirmation process that made coping with the swine flu outbreak difficult. Lugar recently expressed frustration with a hold that had been put in place on the confirmation of the next U.S. ambassador to Brazil.

Positions both large and small need to be filled in a much timelier fashion. Our senators should certainly be critical of any nominee they are asked to confirm. But it is time more nominees got an up or down vote.

Here are earlier ILB entries mentioning Dawn Johnsen.

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to General Law Related

Ind. Decisions - More on "Sex offender registry [may be] reduced by 1/3" [Updated]

The ILB had this lengthy entry on Nov. 11, 2009, about the Indiana Supreme Court decision in Richard P. Wallace v. State, decided last April, 2009. Here are some quotes from the 5-0 opinion (emphasis added by ILB):

In this case we consider a claim that the Act constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it applies to a defendant who committed his offense before the statutes were enacted. We conclude that as applied in this case the Act violates the constitutional provision. * * *

In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation. * * *

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.

The Nov. 11th ILB entry quoted from a WANE Fort Wayne story about the implications of the Wallace ruling:
Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

The ILB entry went on to ask: But how is Wallace being implemented statewide? The conclusion - as the opinion is now being implemented, case-by-case affirmative action is necessary - this is from the end of the Nov. 11th ILB entry:
Here is the DOC page referenced in the story. The statement:
On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.
In other words, individual affirmative action is required to remove a name from the list, even though, as reported in the WANE story, in "Allen County Sex Offender Registry alone, the [Wallace] case potentially affects about 245 of the 650 people registered."

[More] The Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision. See the FAQ on who is required to register.

All of this is but a long preface to last evening's story on 6 News, Indianapolis, reported by Jack Rinehart. The headline: "Hundreds Of Sex Offenders Could Disappear From Registry: Court Ruling Calls Retroactive Registrations Unconstitutional." The ruling is the Wallace decision from last April. Here is the story:
INDIANAPOLIS -- Hundreds of convicted sex offenders could have their names and pictures removed from county lists after a state law was ruled unconstitutional.

In 1994, the Indiana Legislature created Zachary's Law, or the sex offender registry. Three years later, the Legislature amended the law to require all persons convicted of sex offenses to register.

But this September [ILB - ?], the Indiana Supreme Court reaffirmed its own ruling that the law was unconstitutional because it required those convicted before the law was enacted to register.

On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News' Jack Rinehart reported.

"We're not going to remove anybody. We're taking no enforcement action," said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender Registry. "As far as removing faces, names and addresses, we won't do that without a court order."

Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff's department.

In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list.

Some neighborhood advocates oppose the idea. * * *

Residents said they'll find a way around the law change.

"I think what you'll see is groups or agencies that will pop up and track these individuals that will try to take themselves off the list," said Bill Callahan of the Brookside Neighborhood Association. "There's nothing to stop people from getting public information about a person and creating their own list."

The ILB is trying to track down the reference to a September opinion and the reference to the state attorney general ...

[More] The "September opinion" referenced in the 6 News story may be an August 20, 2009 action by the Supreme Court to "deny Appellee's peition for rehearing, without opinion."

[Updated at 6:00 PM] Late this afternoon, in answer to a request, the ILB received this clarification from Bryan Corbin of the Indiana Attorney General's office:

To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - IU Law Prof. Mary Hart Mitchell, 56, who died Nov. 4, featured in Dan Carpenter column

Updating these earlier ILB entries, Dan Carpenter, op-ed columnist for the Indianapolis Star, has a long column today on the November 8th memorial service. It begins:

A cherished ally, exemplar and inspiration was snatched away by a sudden, shocking illness early this month.

Mary Harter Mitchell was a professor nearly 30 years at Indiana University School of Law, Indianapolis; a devoted student at Christian Theological Seminary; an author; a poet; and a Quaker who took her religion of peace and justice at its word.

As a wife, mother and friend, she practiced a politics of love that chastened those of us who get so caught up in public perfidy we lose our personal moorings, our sense of self and human connection.

In a contemporary political atmosphere that is about as conducive to efflorescence as that of the planet Mercury, Mary bloomed bright and tough as a northern rose.

"A quiet person," said her husband, CTS professor Frank Burch Brown. "But she had a fierce side that so impressed us, that emerged whenever she thought people were not getting a fair shake."

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Indiana Law

Ind. Courts - "Obama court nominee David Hamilton clears Senate hurdle: full Senate vote set for today"

Warren Richey has the story here in the Christian Science Monitor. Some quotes:

In the first major showdown over the future direction of the federal judiciary, Democratic leaders in the Senate scored a victory on Tuesday by defeating a Republican attempt to stall indefinitely President Obama’s nominee to the federal appeals court in Chicago.

The Senate voted 70 to 29 to end debate over the nomination of US District Judge David Hamilton of Indiana to a seat on the Seventh US Circuit Court of Appeals.

The vote opens the way to Judge Hamilton’s expected easy confirmation via a simple majority vote set to take place on Wednesday. * * *

The Hamilton nomination fight is about more than filling a vacant seat on the Seventh Circuit. At stake ultimately is the balance of power on several federal courts of appeals between Democratic and Republican appointees.

At the Richmond-based Fourth Circuit, that balance swung in favor of Democratic appointees 6 to 5 last week with the confirmation of Judge Andre Davis to a vacant seat. The Fourth Circuit was long a conservative judicial stronghold, but could now swing sharply to the left with four vacant seats open for Obama appointments.

The Second Circuit in New York is divided between five Republican appointees and four Democratic appointees, with four open seats.

The Philadelphia-based Third Circuit is divided six to six with two open seats.

Overall there are 21 vacancies on the 179-judge federal appeals courts. Including Judge Davis and Hamilton, Obama has nominated nine individuals to vacant appeals court seats so far.

Here is today's Senate Schedule from C-SPAN:
NOVEMBER 18, 2009 -- After the transaction of any morning business (not to extend beyond two hours), Senate will continue consideration of the nomination of David F. Hamilton, of Indiana, to be United States Circuit Judge for the Seventh Circuit, and vote on confirmation thereon. (At approximately 9:30 a.m., Senator Rockefeller will be recognized to speak.)
From the Fort Wayne Journal Gazette, Sylvia Smith has this story headed "Senate agrees to allow vote on Hoosier judicial nominee: Lugar votes to stop GOP filibuster."

Posted by Marcia Oddi on Wednesday, November 18, 2009
Posted to Indiana Courts

Tuesday, November 17, 2009

Ind. Courts - Senate debate begins on Hamilton [Updated]

At 3:13 PM Senate debate has begun on the cloture motion re consideration of the nomination of David Hamilton to the 7th Circuit. Senator Evan Bayh is the first speaker. Watch on C-SPAN 2.

[5:00 PM] Vote on the motion to proceed with debate on the nomination was approved 70-29.

[More] USA Today now has this brief story. Some quotes:

The Senate voted 70-29 today to end a filibuster threat against one of President Obama's first federal judiciary appointees, David Hamilton of Indiana. * * *

Despite increasingly partisan rhetoric on both sides of the aisle over judiciary appointments in recent years, several Republicans -- including Lugar -- crossed the aisle to vote for Hamilton. A final vote on his nomination could take place later tonight.

[Still More at 5:26] Larry Margasak of the AP has a good story on the implications of the 70 vote total, which included 10 Republican votes. Some quotes:
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.

Ten Republicans went against their own party leaders and voted to limit debate.

The vote emphatically warned Republicans that with only 40 senators, they're too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Indiana Courts

Ind. Decisions - "Man who hit school bus is in trouble for apologizing"

The case of Gabino Gonzalez v. State of Indiana, argued this morning before the Supreme Court, is the subject of a story this afternoon reported by Eric Bradner of the Evansville Courier & Press that begins:

INDIANAPOLIS — Attorneys for a man who sent an apology letter to local school officials admitting he had consumed alcohol the day he crashed into a school bus asked the Indiana Supreme Court on Tuesday not to punish him for saying he’s sorry.

After crashing his pickup truck into the side of a school bus carrying children in October 2006, the Mexican national who is identified by the name Gabino Gonzalez and two more names in court documents was on course to see a plea agreement reached in 2008.

But that agreement was scuttled when Gonzalez sent a letter to Evansville Vanderburgh School Corporation officials apologizing for the incident and admitting that he had consumed alcohol that day.

The letter raised the eyebrows of Vanderburgh Superior Court Judge Margaret Lloyd, who tossed the plea agreement after quizzing Gonzalez about contents of the letter which she found disingenuous.

Gonzalez, whose case then went to trial, faced a stiffer punishment when a court allowed the letter to be entered into evidence and he was convicted of criminal mischief and operating a vehicle while intoxicated.

The debate Tuesday centered on a state law that protects defendants from having anything they tell prosecutors during plea negotiations from being used against them in court.

Gonzalez’ letter was sent to the EVSC, not prosecutors, but his attorney, Evansville-based Matthew McGovern, argued that Gonzalez should still be protected from having that letter used against him.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Upcoming Oral Arguments

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

For publication opinions today (2):

In Paul Davis v. State of Indiana , an 11-page, 2-1 opinion, Judge Darden writes:

Davis asserts that his probation revocation hearing did not comport with due process. Specifically, he argues that the trial court did not find the underlying arrest to be reasonable and supported by probable cause. * * *

The State, however, argues that Davis was not entitled to due process rights as he admitted to violating his probation. We acknowledge that an admission of a probation violation by a probationer's attorney is binding upon the probationer. See Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997). Where, however, the admission itself is insufficient to support a probation revocation, we cannot agree it renders the procedural due process safeguards and evidentiary hearing unnecessary. Cf. id. (finding no violation of Parker's rights despite no evidence having been presented as his counsel admitted that he had failed to report to the probation department as required). Given that Davis' probation revocation hearing did not comport with due process, and therefore, insufficient evidence was presented to support the revocation, we reverse the revocation of Davis' probation. Reversed and remanded.

ROBB, J., concurs.
MATHIAS, J., dissents with separate opinion. [which states in part] Here, Davis not only admitted to the historical fact that he had been arrested, his counsel also agreed that his probation would be revoked. Although Davis did not personally speak during the revocation hearing, his counsel's admission is binding on him.

In Rachel Mosco v. IDCS , a 9-page opinion, Judge Riley writes:
This court has recognized that under strict compliance with the AOPA, there exists the potential of a state agency, as custodian of the agency record, to be “intentionally slow and uncooperative in producing a complete record, in hopes of securing a dismissal.” Reedus, 900 N.E.2d at 487-88. Moreover, the legislature anticipated the possibility that the agency record would not always be readily accessible and therefore provided for the failure of the agency to timely prepare the record by allowing the litigant to request an extension of time to file the record. I.C. § 4-21.5-5-13(b).

However, once it became clear that DCS would not be able to prepare the agency record within the thirty-day window, we believe that the onus was on Mosco to request an extension, which she did not do. Thus, we cannot say that the AOPA is a “trap” for litigants or is fundamentally unfair. * * *

Based on the foregoing, we conclude: (1) Mosco did not substantially comply with the AOPA; (2) the trial court had discretion to dismiss her case. Affirmed.

NFP civil opinions today (1):

Theresa Kopchik and William Kopchik v. Mary Ann F. Dybala (NFP) - "As noted above, adverse possession cases must be decided on a case by case basis, applying the evidence to the circumstances of the land involved. McCarty, 423 N.E.2d at 300. Considering the issues of law and the facts found by the trial court, and the inferences reasonably drawn therefrom, we find that a reasonable trier of fact could conclude that the elements of adverse possession were established by clear and convincing evidence."

NFP criminal opinions today (3):

Travis McDonald v. State of Indiana (NFP)

Rachel Cusack v. State of Indiana (NFP)

Duane R. Dawson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Ind. App.Ct. Decisions

Law - Report of the GAO on cybersecurity and evolving threats

Today the Government Accountability Office has issued a 24-page report titled "Cybersecurity: Continued Efforts are Needed to Protect Information Sysytems from Evolving Threats." Access it here.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to General Law Related

Ind. Courts - New Parenting Time and Child Support Guidelines Booklet

The ILB is pleased to make available online the ISBA Family & Juvenile Law Section's new publication, Indiana's Parenting Time and Child Support Guidelines, current as of January 1, 2010.

Note that this publication will not be produced in print form until after the first of next year, when the new Child Support Guidelines go into operation. However, there has been much interest in an advance draft, so here it is in a PDF version, posted with the approval of the ISBA section.

(Note: My company, EIS, produced this publication, via a contract with the ISBA.)

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending November 13, 2009

Just received. Here is the Clerk's transfer list for the week ending November 13, 2009. It is five pages long.

One transfer was granted last week: Efren Radillo Diaz v. State (NFP) (20A05-0903-PC-165), decided Aug. 27, 2009 by the COA.
___________

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, November 17, 2009
Posted to Indiana Transfer Lists

Law - Hackers reportedly targeting law firms via e-mail

An AP story, reported by Lolita C. Baldor, is headed "FBI says hackers targeting law firms, PR companies." The story begins:

WASHINGTON — Hackers are increasingly targeting law firms and public relations companies with a sophisticated e-mail scheme that breaks into their computer networks to steal sensitive data, often linked to large corporate clients doing business overseas.

The FBI has issued an advisory that warns companies of "noticeable increases" in efforts to hack into the law firms' computer systems — a trend that cyber experts say began as far back as two years ago but has grown dramatically.

In many cases, the intrusions are what cyber security experts describe as "spear phishing," attacks that come through personalized spam e-mails that can slip through common defenses and appear harmless because they have subject lines appropriate to a person's business and appear to come from a trusted source.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to General Law Related

Courts - "Taking Aim at Student Muckrakers"

Updating this ILB entry from Oct. 25, 2009, headed "Lake County Illinois prosecutors 'Turn Tables on Student Journalists'" (and the odd tack it took in this Nov. 12th entry), David Carr of the NY Times devotes his "The Media Equation" column today to the story. Some quotes:

Since 1992, Prof. David Protess at the Medill school at Northwestern University has worked with undergraduate journalism students to investigate cases in which prosecutors appear to have taken aim at the wrong people. That might be about to happen again, only this time the students themselves would be the targets.

In one of the most recent cases, students working with the effort, which became the Medill Innocence Project in 1999, uncovered evidence that suggested Anthony McKinney had been wrongfully convicted and imprisoned for almost three decades for the murder of a security guard in 1978. * * *

And because of that investigative work — and perhaps work on other cases, which has led to the exoneration of 11 people, 5 of whom had been sentenced to death — the project and its students find themselves in the gun sights of Cook County prosecutors.

“I and some of my former classmates are now wondering if we are going to have to consider going to jail to protect our sources and our notes,” said Evan S. Benn, a writer and editor at The St. Louis Post-Dispatch who worked on the case in his final semester at Medill before graduating in 2004.

The prosecutors are seeking access to investigative materials, e-mail messages, course outlines, syllabuses, training materials and, yes, even grades, to explore the “bias, motive and interest” behind the students’ work.

The prosecution argued in a brief filed last week that the school “conducted a private criminal investigation by using students in a journalism class” and further said that during their three years of work on the case, the students had paid witnesses money, flirted with them and, in one instance, flashed a shotgun.

Because the students did not produce newspaper articles themselves — some of their findings were published by the reporter Maurice Possley in a front-page piece in The Chicago Sun-Times last year — the prosecution holds that the students themselves are not journalists and not eligible for the reporter’s privilege of protecting their work. * * *

As some corners of journalism weaken under eroding business models, subjects of coverage seem increasingly emboldened to push back against aggressive reporting. At a time when all manner of hybrid models of journalism are emerging, the effort by Anita Alvarez, the Cook County state’s attorney, to deny the students status as journalists in the eyes of the court is ominous.

Newspapers are beginning to collaborate with schools in an effort to stretch thin budgets, journalism nonprofit groups that don’t have specific publications but share their findings are cropping up all over the map, and citizen journalists are beginning to use the Web to provide accountability reporting as well. * * *

After her election in November as Cook County state’s attorney, Ms. Alvarez challenged the new evidence in the McKinney case and issued a sweeping subpoena ordering Professor Protess to hand over all of the material from the project’s investigation, including students’ private memos and grades.

Her office said that the grades were germane because they might suggest a motive for the students’ work. The school’s lawyers will have until Jan. 11 to respond to the prosecutors’ argument that its students were not acting as journalists. At issue will be who is actually a journalist and, not so incidentally, what remains of one man’s life.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Courts in general

Courts - "GOP Opposition Slows Obama's Judicial Nominees"

Nina Totenberg's report this morning on NPR's Morning Edition is available for listening or reading here.

The Washington Post has an editorial today headed "Giving hypocrisy a bad name: Republicans slammed filibusters of Bush judicial nominees. Now they see things differently."

The LA Times' editorial on the subject is headed "Time for a ruling on judge: David F. Hamilton, nominated to the 7th Circuit Court, has been held up by partisan politics. But such delays also interfere with the administration of justice."

Here is today's Senate schedule from C-Span:

NOVEMBER 17, 2009 -- After the transaction of any morning business (not to extend beyond one hour), Senate will continue consideration of H.R. 3082, Military Construction and Veterans Affairs Appropriations Act, vote on or in relation to certain amendments, and passage of the bill; following which, Senate will resume consideration of the nomination of David F. Hamilton, of Indiana, to be United States Circuit Judge for the Seventh Circuit, and after a period of debate, vote on the motion to invoke cloture thereon. (Senate will recess from 12:30 p.m. until 2:15 p.m. for their respective party conferences.)

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Courts in general

Ind. Courts - "Changes could reshape the face of Indiana's courts"

Harold J. Adams of the Louisville Courier Journal reports today on the plan to restructure Indiana's courts.

The 27-page plan was announced by the Indiana Judicial Conference on Sept. 17th. See this ILB from Sept. 17th (including a link to the plan) and this one from Sept. 18th (including an answer to the question: "Okay, what is the Indiana Judicial Conference?"). See also this Oct. 1st ILB entry re a Fort Wayne Journal Gazette editorial.

Some quotes from Adams' lengthy story today:

City and town courts in Indiana would be eliminated, circuit and superior court judges would be appointed rather than elected and county clerks would no longer process and hold court records under a broad plan intended to improve how Indiana courts operate.

The changes outlined by the Indiana Judicial Conference in a 27-page, long-term strategic plan also hinge largely on another fundamental revision: switching how courts are funded from counties to the state.

“Because the state currently pays for some salaries and court programs and county councils pay for other salaries and programs, court funding varies from county to county,” according to the plan approved in September by the conference's board of directors. The result is that some services and expertise are available only in counties that are better off financially.

The plan, intended to improve the ability of courts to resolve legal matters “in a fair, impartial, equally accessible, prompt, professional, and efficient manner,” is likely to take considerable time to implement.

“Court structure, the funding, clerk issues and judicial selection — that's all going to involve many other players,” said Elkhart Circuit Judge Terry Shewmaker, co-chairman of the conference's nine-member strategic planning committee.

While parts of the plan may face stiff opposition in the General Assembly, particularly the idea of creating a statewide merit system for judicial selection, other parts will be resisted by some clerks and municipal court judges whose jobs would be reduced or eliminated.

The recommendations have drawn a mostly enthusiastic reaction from Rep. Linda Lawson, D-Hammond, who chairs the House Judiciary Committee, but a more mixed response from her Senate counterpart, Richard Bray, R-Martinsville. The two differ sharply, for example, on the idea of having merit selection of judges, who would then face straight yes-or-no votes in retention elections to extend their terms.

Lawson unsuccessfully sponsored a bill last year that would have created an all-merit-selection system in Lake County, her home county, which has 17 judges. She said that number of judges makes it hard for voters to be informed about candidates. * * *

As of now, there is no uniform state system of judicial selection. Lake and St. Joseph counties have a mix of merit and partisan selection. Marion County, with 37 judgeships, lets each political party put up a slate in half of the races on the ballot, almost assuring that each party-slated candidate will win.

As for how to fund courts, Lawson and Bray favor the idea of a state takeover.

The state now pays the salaries of judges and prosecutors. But other court staff — court reporters, bailiffs and probation officers — are paid by counties.

“If that's what the judges want, that's fine with me,” Lawson said of state funding.

“I think I probably would agree with that,” Bray said.

Both, however, oppose the idea of eliminating city and town courts and folding their caseloads into an expanded superior court system.

There are 75 city and town court judges in Indiana, including four in Clark County. Floyd County has none.

“I think the system's working pretty well the way it is,” said Sam Gwin, the Clarksville Town Court judge who served as Clark County Court judge in the 1970s and ‘80s before that court was converted to Clark Superior Court 3. “… That's quite a traumatic change to have the state take over everything.” * * *

Part of the plan hinges on creating a new system of judicial districts in which multiple counties would organize to share resources, civil case jurisdiction and governance.

The current system has counties organized into 14 districts. But most acknowledge, as Cody said, that “the current districts have no particular meaning.”

Proponents argue that state-funded districts would allow courts to share resources across county lines.

Cody said that some counties have programs such as drug and alcohol services, drug courts and re-entry programs while others do not.

“And it would be nice if those programs were available to all counties,” he said.

Each district would have a chief judge and would appoint an administrator to help individual courts take over paperwork now handled by the elected clerk of each county.

Clark, Floyd and Scott counties are now in a district that also includes Harrison, Crawford, Orange and Washington counties. The preferred option drawn up by the committee would split those groupings into two smaller districts.

Washington County Clerk Shirley Batt said she opposes the court administrator idea.

“You're looking to pick someone that really doesn't have any accountability to the voters,” she said. “And that gives a lot of power on a higher level just to one person.”

Shewmaker said the judges are continuing to refine the plan.

“The jury's still out” on when legislative support will be sought, he said.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Indiana Courts

Ind. Gov't. - Tippecanoe County Assessor's "software plea rebuffed"

From the Lafayette Journal Courier today, this story by Dorothy Schneider:

The Tippecanoe County commissioners denied a request from county assessor Samantha Steele for new software to process personal property taxes.

Steele said her staff has faced recurring issues trying to complete personal property work through the Manitron software purchased in the spring, which was part of a conversion from an outdated software system used by the assessor's, auditor's and treasurer's offices.

"As much as the county's paying for that software, it should be working for us. And it's not," Steele said.

But after lengthy discussion, none of the three commissioners made a motion to grant the assessor's request.

Commissioner Tom Murtaugh said he'd like to see better communication between the assessor's office and Manitron officials, two of whom were at Monday's meeting and promised better customer assistance.

Steele expressed frustration, though, and told the commissioners that it's a waste of money to continue with the current software contract. She wants to go with AS2 software, which she said would cost half of what the county is paying -- $9,000 -- in annual maintenance fees.

Murtaugh and the other commissioners said they don't want to throw away the money they've already invested in the Manitron software. Plus they didn't want the county to pay another $8,500 up front to purchase AS2 software.

Some of the Steele's concerns over the Manitron software are: problems with retrieving and retaining data, a gap in the county's mobile home records and delays in getting help from the company's customer service people.

Murtaugh said he wants to see the assessor's office continue working with the software for at least six months to see if the problems from the transition can get worked out.

See also this story from Montgomery County.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Indiana Government

Ind. Courts - "Apathy ensnarls courts, irks judges: Witnesses appear in slippers, if at all"

Rebecca S. Green had this story in yesterday's Fort Wayne Journal Gazette. Some quotes:

On Nov. 3, Brandon Pierson showed up for court wearing slippers and a leather jacket, scheduled to testify during a trial in Allen Superior Court.

But the next time he shows up, he could be handcuffed and wearing a jailhouse orange jumpsuit.

There's a warrant out for the lanky 31-year-old Fort Wayne man, subpoenaed twice in the case of Derrick Martin – a 29-year-old felon accused of unlawful possession of a firearm and possession of marijuana.

Pierson has run afoul of the courts twice – first by walking out of a scheduled deposition at the Allen County Prosecutor's Office and then again when he did not show up for a rescheduled deposition on Nov. 9. Depositions – recorded interviews of what witnesses intend to say at trial – are important for trial preparation on both sides of a case.

The first time, Pierson received a lecture from Allen Superior Judge Fran Gull – standing before her in his slippers, looking inconvenienced. The second time he was charged with felony obstruction of justice.

Allen County's judges, prosecutors and defense attorneys are fed up with the lackadaisical attitude many seem to have for the criminal justice system. And they've been cracking down in recent weeks, ordering witnesses held for contempt of court or in the case of Pierson and another scheduled witness in the Martin trial, Mario Gray, filing criminal charges.

"This isn't a joke. This is serious business," Gull said. "You have an obligation as a citizen … to participate in the life of the community."

And that is just the beginning of this lengthy and important story.

Posted by Marcia Oddi on Tuesday, November 17, 2009
Posted to Indiana Courts

Monday, November 16, 2009

Ind. Courts - Lugar and Sessions on Judge Hamilton

Jessia Brady of Roll Call reported at 3:49 PM this afternoon:

Senate Judiciary ranking member Jeff Sessions (R-Ala.) said Monday that he will filibuster the nomination of David Hamilton to serve on the 7th U.S. Circuit Court of Appeals.

“I think I will support not going forward,” Sessions told reporters, criticizing Hamilton’s record as a district court judge in southern Indiana.

Sessions said Hamilton’s past rulings on abortion rights and prayer present “extraordinary” circumstances for a Senate filibuster, although he predicted the nomination will still be approved by the Senate this week. Senators are scheduled to vote on a procedural motion Tuesday to begin considering Hamilton’s nomination. The Judiciary Committee approved the pick along party lines in June.

Sessions also dismissed claims that Republicans are stalling action on judicial nominees or trying to run the clock on floor time to stem action on health care reform. In the case of Dawn Johnsen, President Barack Obama’s controversial choice to lead the Office of Legal Counsel, Sessions noted that bipartisan opposition has kept Majority Leader Harry Reid (D-Nev.) from pushing her confirmation.

“They complain about that one. Why don’t they file cloture? They probably don’t have the votes,” Sessions said.

Maureen Groppe of the Gannett New Service reported a few minutes later:
WASHINGTON -- Sen. Richard Lugar defended Indiana Judge David Hamilton on Monday against criticism from fellow GOP senators that Hamilton is outside the mainstream. * * *

Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, said Hamilton's nomination should be stopped because he's used his position as a federal district judge “to drive a political agenda.”

But Lugar, R-Ind., said a closer look at Hamilton's record shows he has not been a judicial activist and “has ruled objectively and within the judicial mainstream.”

One of Hamilton's rulings that has been most criticized is his 2005 decision that prayers said at the start of the Indiana House of Representatives sessions must not mention Jesus Christ or advance any religion.

Sessions said that while Hamilton prohibited specific mentions of Jesus, he allowed prayers that mentioned Allah.

Lugar said Hamilton's ruling was clear that legislative prayer advancing the religion of Islam would be prohibited, but that using Allah as a generic reference to the deity could be used in a non-sectarian prayer the way the word God is generically used.

“I support a more permissive approach to public prayer than Judge Hamilton,” Lugar said, “but clearly his ruling comports with Supreme Court authority.”

With Lugar's support, Democrats need all but one of the Senate's 58 Democrats and two Independents to vote for Hamilton to stop the filibuster.

After that vote, Republicans can insist on 30 hours of floor debate before a final vote on the nomination, which needs the support of only 50 senators. * * *

Lugar said in his floor speech that the confirmation process “should not be based on partisan considerations” and he has known David Hamilton since Hamilton's childhood and Hamilton's father was the Lugar family's pastor.

“Knowing first-hand his family's character and commitment to service,” Lugar said, “it has been no surprise to me that David's life has borne witness to the values learned in his youth.”

[More] Here is Sylvia A Smith's report, Smith is the Washington editor of the Fort Wayne Journal Gazette. Her story comparing the positions of the two Senators begins:
WASHINGTON – The leading critic of a Hoosier nominee for federal judge has it all wrong, Sen. Richard Lugar, R-Ind., told his colleagues Monday.

Lugar said David Hamilton, President Obama’s first nominee for a federal appeals court post, "has not been a judicial activist and has ruled objectively and within the judicial mainstream."

The allegation was made by Sen. Jeff Sessions, R-Ala., who said Hamilton is unqualified, pushes a political agenda from the bench and should be rejected. Sessions is the senior Republican on the Judiciary Committee.

The Senate is expected to vote Tuesday on whether to stop a filibuster on Hamilton’s confirmation. Since June, Republicans have refused to permit a vote on Hamilton’s confirmation. Lugar will vote to end debate and allow the confirmation vote.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Indiana Courts

Ind. Courts - "Death Row Offender Wrinkles Waives Clemency"

A press release just issued by the Indiana Dept. of Correction:

Michigan City, Indiana (November 16, 2009) - The Indiana Parole Board received communication from Matthew Eric Wrinkles’ (DOC #952132) attorneys today. Wrinkles was provided notice of his legal rights to clemency on Monday, November 9th, 2009 by the Indiana Parole Board. Wrinkles was briefed, as well, by his attorneys via telephone and letter as to his rights to clemency , and subsequently, today, authorized his attorneys to waive the clemency process. The Indiana Parole Board received both written and telephonic communication today, November 16, 2009, from the attorneys representing Matthew Eric Wrinkles advising he had waived his right to clemency.

The waiving of the right to clemency terminates the statutory responsibility of the Indiana Parole Board. All previously scheduled hearings, interviews, and proceedings are hereby officially canceled.

Earlier ILB entries on Eric Wrinkles.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Indiana Courts

Ind. Courts - Supreme Court weighing use of tests in sentencing

A decision is pending in the case of Malenchik v. State, which was argued before the Supreme Court on Oct. 22, 2009. Here is a list of ILB entries on the case, which include the briefs filed with the Supreme Court.

Today the AP's Charles Wilson has a lengthy story on the issue presented by the case. It begins:

INDIANAPOLIS - A felon's friends and hobbies could influence how much time he spends behind bars if the Indiana Supreme Court upholds a lower-court ruling.

At issue is a type of psychological test commonly used by probation officers to assess whether an offender is likely to commit more crimes and determine the level of supervision and type of treatment needed. A Tippecanoe County judge cited Anthony Malenchik's high test score in sentencing him to six years out of a possible 7 1/2 for receiving stolen property and being a habitual offender.

Malenchik appealed, but the appeals court upheld the judge's decision. Now, the Supreme Court is considering whether such tests have a place in the sentencing process. It heard arguments last month and is expected to rule in coming months.

Supporters say sentencing should be based on scientific, objective data and the tests -- often called scoring models or risk/needs assessments -- measure that.

But critics say the test used in Malenchik's case -- the Level of Service Inventory-Revised or LSI-R -- isn't intended to be used to determine prison time. They also say some of its 54 questions -- which ask about leisure activities, friends, family, marital relations and income -- should have no bearing on a judge's decision.

"The fact that he has relatives in jail or lives in a high crime area should not be given any weight in determining the length of his sentence," Melenchik's attorneys argued in their brief. "He should not be more severely punished because he came from a broken home, he is poor, or he is dissatisfied with his parents."

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Ind. Sup.Ct. Decisions

Law - Some legislators in Maryland are shocked! shocked! at expansive definition of "slot machines"

Some quotes from a story today in the Washington Post, reported by John Wagner:

When Maryland legalized slot machines last year, the state stopped short of welcoming blackjack, roulette and other table games because of qualms about building full-scale casinos.

But Marylanders are likely to get something a bit closer to Caesar's Palace than the simple slots parlor many voters and lawmakers imagined when they authorized five venues: State officials say they probably will allow electronic versions of the banned games when casinos start opening next year. * * *

The games do not use actual cards, chips or dice but in most other ways mimic the real thing. Players who gather around electronic blackjack tables, for instance, can double down or buy insurance with the press of a button as they try to beat the hand of a computerized dealer, sometimes wagering hundreds of dollars.

The virtual table games are classified as slots in most states largely because the chances of winning are determined and monitored by a computer with no direct human interaction.

Allowing live table games was never seriously discussed during the years of acrimonious legislative debate over bringing slots to Maryland, given lawmakers' skittishness about expanding gambling. Slots were considered more palatable, in part, because the games are less susceptible to fraud. And little was said about electronic versions of the games, which have become popular only in recent years.

"It's no surprise this industry would stretch the definition as far as it will go, but I don't think that was the understanding of voters or the General Assembly," said Del. Tom Hucker (D-Montgomery), who said he voted to put the slots measure on the ballot last year because he feared school budget cuts loomed as an alternative. He later campaigned against the ballot proposal.

During the campaign, supporters played up the hundreds of millions of dollars that could be generated for education, and opponents warned of gambling addiction and other social ills. Neither side focused on the kinds of games that would be allowed, but there was nothing secret either, some lawmakers said.

"People should have done their homework if they thought this was some quaint little industry coming to Maryland," said Del. Justin D. Ross (D-Prince George's), a slots opponent. "As far as I can tell, these machines are perfectly legal. It's getting close to the line for sure, but it's on this side of the line." * * *

At an Indiana casino
operated by the same firm that has proposed a 4,750-machine casino at a mall in Anne Arundel County, real-life employees often greet players at the virtual blackjack tables. They serve beer and offer high-fives when a player beats the computerized dealer.

Gamblers at Indiana Live!, about 25 miles southeast of Indianapolis, also play an electronic version of roulette and compete at electronic poker tables. Next month, the casino plans to unveil its latest offering: electronic craps. Players will wager on virtual dice that they pretend to throw onto a large screen.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to General Law Related

Environment - More on: Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner

"'99 report raised concerns about waste, environment: No official inquiries in last 10 years on potential impact" is the headline today to engthy Pthe lart 2 of Gitte Laasby's story in the Gary Post-Tribune on special treatment by IDEM of a massive waste pile at Arcelor Mittal's Burns Harbor facility.

A second story today by Laasby is headed "Public records on waste missing." A quote:

When the Post-Tribune visited IDEM's Indianapolis file room in 2007, IDEM staff found at least 6 feet of paperwork related to Bethlehem Steel. But during a visit in mid-May 2009, IDEM staff found only 2 feet of documents. Others had a similar experience.

"I just went down and asked where the Bethlehem Steel files are," said Larry Davis, an ArcelorMittal worker and member of Save the Dunes Council. "It used to be anything to do with waste was never supposed to be purged. There used to be heaps of files. You'd spend a short lifetime down there going through a big company like that. None of that is on the virtual file cabinet. I don't know what happened to those files."

IDEM is scanning files from its archives into its searchable database online. During the transition, many files have disappeared from the archives.

"Prior to scanning records into the virtual file cabinet, all records were reviewed so that duplicative records and records past their retention schedule were not scanned. New records are added daily to the virtual file cabinet," IDEM spokeswoman Amy Hartsock said.

Hartsock said IDEM began entering documents into a virtual file cabinet starting with drinking water records and is still adding records for the air, land and water programs.

Yet, ArcelorMittal Burns Harbor appears to be the only Northwest Indiana steel mill for which only records related to air are available when one does search for the facility's name.

Searches for U.S. Steel Gary Works and ArcelorMittal's Indiana Harbor plant yield records about air, landfills, hazardous waste sites and water quality.

To find any information on ArcelorMittal Burns Harbor's proposed landfill, requestors have to search for "Deerfield Storage Facility" or a specific document number provided by IDEM staff.

However, even the company's landfill application doesn't address whether the company intends to landfill the waste.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Environment

Courts - "New Justice Sotomayor Emerges as Frequent -- and Tough -- Questioner"

So writes Tony Mauro in this article for The National Law Journal. A sample:

As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take.

All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."

What's notable is that Sotomayor has tuned into the high court's wavelength so early in her tenure. The memo about new justices being seen more than heard must have gotten lost in the interoffice mail. During the final oral argument last week, Hertz v. Friend, Sotomayor asked 16 questions, more than any other justice.

And from Speakeasy, the WSJ "blog about media, entertainment, celebrity and the arts," this item from Jess Bravin:
Last month, I advised my Twitter followers that noted photographer Annie Leibowitz had announced plans to shoot Justice Sonia Sotomayor for Vogue. Coming days after GQ featured Chief Justice John Roberts, it seemed like the birth of a whole new style epoch–haute cour couture, if you will.

Regrettably, the high court is not yet that fashion forward. After Leibowitz’s remarks at the California Women’s Conference in Long Beach, Calif., we checked with the Supreme Court. Despite the anticipation coming off her cover shoot for Latina magazine, Sotomayor had declined to pose for Vogue. Because of the justice’s heavy workload, she is “limiting commitments as she settles into her new responsibilities at the court,” a spokeswoman said.

Perhaps Leibowitz isn’t used to being turned down. “It was a miscommunication and a misunderstanding,” said Vogue spokesman Patrick O’Connell. Leibowitz had been excited by the thought of photographing the newest justice, he said, and did not know the invitation had been declined . “We would love to work with the justice in the future ,” he added.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 7 today (and 4 NFP)

For publication opinions today (7):

In Lawrence E. Nunley v. State of Indiana, an 18-page opinion, Judge May writes:

Lawrence E. Nunley appeals his convictions of four counts of Class A felony child molesting and one count of Class D felony dissemination of matter harmful to minors. We conclude an interview conducted a year after the molestation lacks sufficient indicia of reliability; therefore, the videotape of the interview and the witness testimony that repeated the contents of the interview should not have been admitted. Because this was the only evidence supporting Counts 3 and 4, we reverse those convictions. However, we find no reversible error as to the remaining convictions. Therefore, we reverse in part and affirm in part.
In Bonita G. Hilliard, et al. v. Timothy E. Jacobs , a 14-page, 2-1 opinion, Judge Mathias writes:
The Greene Circuit Court ordered Bonita G. Hilliard (“Bonita”), in her capacity as the Trustee of the H. David and Bonita G. Hilliard Living Trust, to pay post-judgment interest to Timothy E. Jacobs (“Jacobs”). Bonita appeals and argues that the trial court erred in ordering her to pay post-judgment interest because the court had not entered a money judgment subject to the post-judgment interest statute, Indiana Code section 24-4.6-1-101 (2006). We reverse and remand. * * *

In conclusion, the trial court's order returning to Jacobs the insurance policies was not a “judgment for money” subject to post-judgment interest under Section 101. It was instead an order granting ownership of the policies to Jacobs. The trial court therefore erred in awarding Jacobs 8% in post-judgment interest pursuant to Section 101. Reversed and remanded.

ROBB, J., concur.
DARDEN, J., dissents with opinion. [that concludes] In other words, the facts of this case have long dictated certainty in the amount of the judgment, to wit: the face values of the insurance policies. Accordingly, I would find the order of that date to be a money judgment.

In Frederick D. Fox v. State of Indiana , a 6-page opinion, Judge May writes:
Frederick D. Fox appeals his sentence for Class D felony possession of a controlled substance. Fox asserts the trial court abused its discretion by denying his request for alternative misdemeanor sentencing. He also argues we should use our authority under Ind. Appellate Rule 7 to modify this conviction to a Class A misdemeanor. We affirm.
Jerell Owens v. State of Indiana - "The trial court did not deny Owens his right to due process when the court re-sentenced Owens on his murder conviction to a sentence that is five years greater in length, but did not exceed the aggregate sentence originally imposed on both convictions at issue. In addition, the trial court did not abuse its discretion when it imposed consecutive sentences because it identified sufficient aggravating circumstances to support the imposition of such sentencing. Finally, Owens's seventy-three year sentence is not inappropriate in light of the nature of the offense and the character of the offender."

In Kenya Lee v. State of Indiana , a 4-page opinion, Sr. Judge Garrard writes:

On appeal, Lee contends the court abused its discretion by admitting hearsay evidence regarding the identity of the woman he was prohibited from contacting. * * * [Citing Evid. R. 901(b)(5)] Thus, it was proper for Detective Carter to testify on the basis of his familiarity with Washington’s voice, that she was the person whom Lee called and was speaking to from the jail on September 21st and 22nd. The trial court did not err in admitting evidence. Affirmed.
In Jerold Jackson and Virginia Jackson v. The Board of Commissioners of the County of Monroe, Vova Johnson, et al, a 15-page opinion, Judge May writes:
Jerold and Virginia Jackson appeal the trial court’s determination that a road running through their property is a public road. We reverse. * * *

However, because Segment AB is not a public road, the remainder of the road is inaccessible to the public. Segments BC and CD are located entirely on one property and are not open on either end. No purpose can be served by finding Adams dedicated one or both of them to the public. Such a holding would serve only to upset the expectations of the Jacksons, who are the record title holders of this property and had no indication from other public records that the road may be a public road. Therefore, we conclude the entire disputed portion of Baxter Branch is a private road.

In Thomas L. Vandenburgh v. Candace A. Vandenburgh, a 14-page opinion, Judge May concludes:
We decline to address Father’s allegations of error that are not supported with cogent argument, references to the record, or support from legal authorities and we accordingly affirm the trial court. However, we find sua sponte that the modification order must be clarified to the extent it did not explain in detail how the court arrived at the amounts it awarded. We therefore remand for clarification of that matter and for resolution of the apparent inconsistency as to the $4,210.00 credit the trial court gave Mother. Affirmed and remanded.

NFP civil opinions today (1):The Invol. Term. of the Parent-Child Rel. of K.A., J.L. v. Marion Co. Dept. of Child Svcs., et al. (NFP)

NFP criminal opinions today (3):

Jennifer Leonard v. State of Indiana (NFP)

Christopher Macy v. State of Indiana (NFP)

Johnie B. Moody, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In Ameritech Publishing, Inc. v. Indiana Dept. of State Revenue, an 11-page opinion, Judge Fisher writes:

Three years ago, this Court issued an unpublished decision in which it held that, during a portion of the 1998 through 2003 tax years, Ameritech Publishing, Inc.'s (API) out-of-state purchases of paper and printing services and its in-state use of telephone directories were not subject to Indiana use tax. * * *

The Department asserts that it has presented new arguments in this case but, in distilling those arguments, the Court finds that they are nothing more than reiterations of the Department's arguments in API I. Accordingly, pursuant to the facts as stipulated to by the parties and the relevant law as codified at Indiana Code § 6-2.5-3-2, the Court holds that API's in-state use of its telephone directories, during the years at issue, were not subject to Indiana use tax. Therefore, the Department's final determination is REVERSED and the Department is ordered to refund to API the use taxes it paid during the years at issue.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Ind. Tax Ct. Decisions

Environment - "Porter County Commissioners OK regulations for wind turbines" [Updated]

Updating this list of earlier ILB entries on wind turbines in Porter County, Jane Huh of the Gary Post-Tribune reports today:

A new energy source for Porter County is blowing in the wind.

Porter County Commissioners laid out the welcome mat for alternative energy projects when they approved two amendments to the county's unified development ordinance last month.

The new set of standards specifically addresses wind energy conversion systems like the one developing in the southeast part of the county.

The LaCrosse Wind Farm project, which straddles Porter and LaPorte counties, initiated the regulations on wind turbines.

"By having an ordinance in place, we'll know how to deal with (large wind energy farms)," said Bob Thompson, executive director of the Porter County Plan Commission.

But ultimately, "it's up to (the companies to decide) if it's profitable for them to develop this in the county," Thompson said.

TradeWind Energy, an energy development company based in Lenexa, Kan., has been plugging away to secure agreements with local landowners for a potential wind turbine farm in Pleasant Township.

Landing contracts for financing, gathering meteorological research and acquiring more land are under way to "set the stage for a sale," said Duane Enger, project manager.

TradeWind Energy is looking at just under 30,000 acres of land to lease, he said.

"The turbines have to be in an area contiguous to the project for us to lease their ground and generate revenue stream."

Enger expects the project to "come to fruition in three to five years."

"Right now, we're getting the front-end work completed," he said.

The amendments outline parameters for large industrial wind farms and on-site residential wind energy systems.

Among the general requirements, large wind energy conversion systems must meet particular standards of height, appearance, clearance, lighting and noise.

All wind energy conversion systems must be "of uniform design, including tower type, color, number of blades, and direction of blade rotation," the ordinance states.

Wind energy technology is already established in Benton County with its Fowler Ridge Wind Farm in Earl Park.

The wind farm, which became operational earlier this spring, is under way with a project to bolster its capacity to 600 megawatts and become the largest wind farm in the Midwest.

The story is accompanied by a side-bar about the ordinance:
* Turbines cannot exceed 500 feet in height and the minimum distance between turbines must be two times the total height.

* Large wind energy systems must also be at least 600 feet away from the boundaries of any wetland.

* The system must be designed "such that shadow flicker will not fall on, or in any existing occupied building."

* Shadow flicker, defined as the "on-and-off flickering effect of a shadow caused when the sun passes behind the rotor of a wind turbine," is acceptable depending on circumstances.

The ordinance allows shadow flickering as long as it doesn't exceed 10 hours per day, falls within 100 feet from an existing residence and doesn't fall on an intersection. The flickering is also permissible when traffic volume is fewer than 500 vehicles a day on a roadway.

If those conditions are not met, the system must be "shut down until the flicker is remedied," the ordinance states.

* For the smaller, on-site systems, used mainly for residential purposes, the minimum lot area must be 2.5 acres large.

* On-site turbines that sit on property that is at least 15,000 square feet but less than an acre, cannot exceed 50 feet in height. The total height cannot exceed 75 feet on property one acre large or greater.

[Updated] This afternoon a story from the Lafayette Journal Courier, reporting:
The Carroll County Commissioners approved an ordinance today detailing rules and regulations for commercial wind energy developers.

The ordinance details what is expected of companies that want to install wind turbines in the county. Setbacks, height restrictions and pre-construction requirements, such as governmental clearance, are part of the county's first ordinance about wind energy.

Miriam Robeson, a volunteer with the Carroll County Zoning Steering Committee who helped write and research the ordinance, said Carroll County does not have turbines but expects there will be interest to lease land.

Already, Benton County has more than 300 wind turbines operated by two separate companies.

In Clinton and Tipton counties, there are plans to install and operate up to 200, 2.5-megawatt windmills. Another wind farm is under way north of Lafayette near Chalmers in White County.

"If someone is interested in our county, they see that we are already to go," Robeson said.

The commissioners unanimously approved the ordinance at their regular meeting in Delphi.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Environment

Ind. Gov't. - More on "State government began laying off employees today in order to cut costs"

Updating this ILB entry from Friday the 13th, Eric Bradner of the Evansville Courier & Press has a story headed "Layoffs part of state's effort to trim budget." From the story:

Meanwhile, Indiana is dipping into a wide range of state funds, including several devoted to improving or protecting the environment and natural resources.

Twenty-three dedicated funds are on an initial list that Daniels' administration expects to tap to combat the revenue shortfall — and a quarter of those have missions related to the state's environment or natural resources.

Those include funds that promote recycling, help remove invasive aquatic plants clogging some of the state's lakes and support efforts to redevelop old industrial sites.

State Budget Director Chris Ruhl said environmental groups aren't being targeted and that the Indiana Department of Environmental Management maintains more such funds than most other agencies.

"Its target list is larger than other agencies, and frankly, IDEM has a lot of funds where there's excess or surplus monies," he said.

The AP has a longer story headed "State environment funds feel pinch of budget cuts."

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Environment | Indiana Government

Law - "Indoor Tanning Association dispatches lawyer to Muncie"

Seth Slabaugh reports today in the Muncie Star-Press in a long story that begins:

MUNCIE -- Delaware County's proposed ordinance to regulate tanning salons has caught the attention of the Indoor Tanning Association, a national trade group based in Washington, D.C., which sent one of its attorneys here last month to express concern.

The county health department plans to start inspecting tanning facilities, with an emphasis on protecting minors.

ITA is hopeful that once county officials hear both sides of the issue they will conclude that local regulation "is something that really isn't necessary," said ITA president John Overstreet.

"Indiana is already one of the more heavily regulated states," Overstreet said. "We're just not seeing any problems justifying the health department getting involved with it.

"With all sorts of big public health concerns like AIDS and swine flu that health departments are facing, we're a little bit mystified why they would want to pull away precious resources to address something that's not a real problem."

But even after meeting with ITA's attorney, county health officials still hope that county commissioners will enact the ordinance, which is being drafted.

While tanning salons already are licensed by the State Board of Cosmetology Examiners, that agency lacks the manpower to inspect tanning facilities and enforce state laws.

What prompted local health officials to take action was the International Agency for Research on Cancer's classification of the use of ultraviolet-emitting tanning devices as "carcinogenic to humans."

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Indiana Law

Courts - "A showdown is set for Tuesday with Judge David Hamilton's nomination"

Here is a companion to the story posted here yesterday from The Hill. David G. Savage of the LA Tmes reports today in a story headed: "For Obama judicial nominees, confirmation is slow process: Senate Republicans have quietly used their minority power to block candidates to the lower federal courts. A showdown is set for Tuesday with Judge David Hamilton's nomination." A quote from the long story:

But liberal activists have voiced growing irritation that Republicans are quietly using their minority power to block Senate votes on Obama's judicial nominees. They note that during the Bush administration, Republicans insisted the president's nominees deserved up-or-down votes. * * *

The dispute is due to come to a head Tuesday, when the Senate votes on whether to cut off debate on Judge David F. Hamilton of Indiana, Obama's first court nominee.

In mid-March, the White House trumpeted Hamilton’s nomination to the U.S. 7th Circuit Court of Appeals in Chicago and cited the choice as an example of "setting a new tone" and putting "the confirmation wars behind us."

A veteran trial judge with the reputation of a moderate, Hamilton was the son and grandson of Methodist ministers in southern Indiana. The state's well-respected Republican Sen. Richard G. Lugar also said he "enthusiastically supported" the nomination.

But Hamilton ran into a buzz saw of criticism from conservative activists in Washington. They noted he had worked for the American Civil Liberties Union before becoming a judge in 1994.

[More] See this lengthy Nov. 14th story by Charlie Savage in the NY Times, headlined "Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away."

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Courts in general

The Indiana Law Blog: Catch-up: What did you miss over the weekend?

The Monday feature - "What did you miss over the weekend?"

From Sunday, Nov. 15, 2009:

From Saturday, Nov. 14, 2009:

From afternoon of Friday, Nov. 13, 2009:

Posted by Marcia Oddi on Monday, November 16, 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 11/16/09):

Tuesday, November 17th

Next week's oral arguments before the Supreme Court (week of 11/23/09):

Tuesday, November 23rd

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 11/16/09):

Tuesday, November 17th

Next week's oral arguments before the Court of Appeals (week of 11/23/09):

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

The past COA webcasts which have been webcast are accessible here.

Posted by Marcia Oddi on Monday, November 16, 2009
Posted to Upcoming Oral Arguments

Sunday, November 15, 2009

Ind. Law - "Getting off (nearly) scot-free: Is the penalty too light for convicted embezzlers?"

That is the headline to this story by Laurie Wink in the Sunday Michigan City News-Dispatch:

LA PORTE - Local and area businesses, churches and organizations have lost thousands of dollars to trusted employees turned embezzlers. The embezzlers usually don't pay back all the money, and they're rarely incarcerated.

Embezzlers initially are charged with Class D felony theft but, through plea agreements, charges can be reduced to Class A misdemeanors, with time served on probation. Terms are reached in pre-trial negotiations between the prosecutor's office and the defendant's attorney.

Such discussions are under way between La Porte County Deputy Prosecutor Alan Sirinek and defense attorney Steve Snyder in the case of Sara Suppa, 22, La Porte.

"The pre-trial conference is to see if the attorney and I can see if we can reach a plea agreement. It's just a sharing of ideas with respect to the case," Sirinek said.

Suppa was charged in September with multiple counts of Class D felony theft for embezzling $49,000 from Moore's Auto Repair, 942 Greene St., and pleaded not guilty. Business owner Steve Moore hired Suppa as the company's bookkeeper in May 2008. He said the thefts began that August, and he didn't catch on to them until this August.

Karen Ashcraft, a former employee of Naturally Wood Furniture Center, was convicted in 2007 of embezzling from the company. President Mark Schoonaert said she stole more than $100,000 over a four-year period. Through a plea agreement, Ashcraft did not go to jail and was ordered to pay Schoonaert less than $12,750. To date, Schoonaert has received a total of $4,350, mostly in small amounts that come in monthly.

Schoonaert received $3,200 in June this year when Ashcraft cashed in a 401k - the one he contributed to as an employment benefit. He said the after-tax amount was $4,930 so he's left wondering what happened to the extra $1,730.

"Another interesting thing about the whole situation is, I know several cases when they (embezzlers) gambled," he said. "There's no (court) restriction to avoid casino gambling. In my case, she was one of those special club members at the casino."

The only way Schoonaert finds out about what is happening in Ashcraft's case is when he calls the probation department. He's trying to stop thinking about the money he lost.

"I don't know where the case is now," he said. "I have to distance myself from it."

La Porte County Prosecutor Robert Beckman said the charge for embezzlement is Class D felony theft "because that's what it is." Beckman said the sentence imposed in each case is based on facts ­- the defendant's prior criminal record, the amount of money taken and the period of time it took place. Indiana law states a person who commits a Class D felony could receive a sentence from six months to three years, with an advisory sentence of one and a half years.

Plea agreements aren't unique to embezzlement cases, according to Beckman, who said 99.9 percent of criminal cases involve a plea agreement and about 90 percent of sentences don't involve jail time. With some 6,000 criminal cases filed in La Porte County each year, Beckman said it comes down to economics.

"Taxpayers can't afford to have enough courts and courthouses and jails," Beckman said.

La Porte County Circuit Court Judge Tom Alevizos, formerly a deputy prosecutor, has seen his share of embezzlement cases. He sympathizes with victimized business owners because he comes from a family of business owners.

Alevizos said that, as a judge, he's able to reject a plea that he believes is unwarranted.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Indiana Law

Courts - "Conservatives split over filibuster of Obama court pick"

That is the headline to this story by Alexander Bolton, reporting for The Hill. The long story begins:

Leading conservative activists are split over whether to filibuster Judge David Hamilton, whose nomination to the 7th Circuit will serve as a test case for President Barack Obama’s more controversial appellate court picks.

Twenty four leading conservatives have signed a memo urging Republican senators to filibuster Hamilton, setting the stage for the first protracted Senate fight over one of Obama’s judicial nominees.

Hamilton will likely receive an up-or-down vote because Democrats control 60 seats, but conservative and liberal advocates say a filibuster would be significant because it would serve as a precedent for Obama’s future judicial nominees.

But the effort to build momentum for a filibuster has become snagged on dissent within conservative circles over whether it is the right strategy. The outcome of the debate may influence how Senate Republicans, such as Sen. Jeff Sessions (R-Ala.), proceed on other controversial nominees.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Courts in general

Law - "Prostitution Now Outlawed In R.I."

NPR's Weekend Edition this morning had this story by Iam Donnis. It begins:

Until earlier this month, Rhode Island was the only place in the country where prostitution was legal across an entire state — because of an unintended loophole in the law. But the move to close that loophole is fueling concerns that victims of the sex trade are being put at even more risk.

Back in 1980, the Rhode Island General Assembly passed a law meant to speed the prosecution of streetwalkers. But in the process, legislators unwittingly decriminalized prostitution that took place indoors. This loophole didn't attract much notice for years.

Then, in 2003, a court case made it clear that prostitutes were free from prosecution if their sex trade occurred behind closed doors. The result has been a growing number of so-called Asian spas that critics say are thinly veiled brothels.

And it turns out the WSJ had a story Nov. 3 that includes this quote:
State lawmakers inadvertently opened the loophole in 1980 when they passed legislation trying to crack down on prostitutes and their customers creating havoc in the West End of Providence. They adopted a law targeting those who sold sex in public, but it was silent on indoor prostitution. Judges would later rule the change had the effect of legalizing paid sex in private.

That legal gap allowed dozens of suspected brothels to operate in the state's cities and suburbs, including many thinly disguised as Asian spas advertising services such as body rubs and table showers in a weekly newspaper. Until recently, police had struggled to prosecute those involved in the trade.

In 2003, a state judge dismissed charges against prostitutes working just blocks from City Hall. Their lawyer admitted the women offered sex for cash, but he said it didn't matter because indoor prostitution was legal.

A 154-page senior honor paper by Melanie Shapiro of the U. of R.I., titled "Sex Trafficking and Decriminalized Prostitution in Rhode Island" gives the history of the provision, and discusses the court cases. See also this Nov. 3, 2009 release from the Roger Williams School of Law.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to General Law Related

Environment - Gary Post-Tribune alleges steel company gets special treatment because of IDEM commissioner

"Fate of 'Easterly's pile' at ArcelorMittal remains unknown" is the headline to this story by Gitte Laasby of the Gary Post-Tribune, the first of two parts. The lengthy story begins:

The heaping mounds of metallic-gray, lumpy steelmaking waste and rusty metal pieces tower up to 35 feet in the air, spread across a 33-acre sandy area in the northeast corner of ArcelorMittal's Burns Harbor property.

Parts of the massive, dirty heaps have sat directly on the ground for up to 24 years, exposed to the elements with no protection of air, soil or the groundwater that flows north to Lake Michigan just a foot below. The waste contains toxics like lead, chromium, cadmium, silver and nickel in concentrations high enough to require disposal in a landfill.

Hidden behind a row of trees 200 feet from the Indiana Dunes National Lakeshore and the waters of Lake Michigan, the waste doesn't attract much attention. Even at the Indiana Department of Environmental Management, managers have turned a blind eye -- perhaps because ArcelorMittal representatives say the piles have a connection to the man in charge of IDEM.

"They said, 'We call this "Easterly's pile" because he's the one who started it.' And it's never stopped growing," said a confidential source within IDEM.

The name of the piles refers to IDEM Commissioner Tom Easterly, the state's highest environmental official. From 1994 to 2000, he was the top environmental manager at one of ArcelorMittal's predecessors, Bethlehem Steel Corp.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Environment

Law - "Special report | Fighting domestic violence in Kentucky"

The Louisville Courier Journal today has a number of stories on fighting domestic violence in the state. Here is the lead story by Andrew Wolfson. Other stories today linked from that lead story:

# Graphic: How GPS monitoring works
# Efforts to extend protection to daters stall in legislature
# Protective order didn’t stop man from shooting girlfriend, mother
# 12 states use GPS monitoring
# Domestic-violence slayings in Kentucky
# The proposed GPS monitoring law
# Slain abuse victims who had protective orders
# EPO vs. DVO: What’s the difference?
# Fighting domestic violence: What you can do
Indiana, as of July 1, 2009, is one of the states that allows GPS monitoring.* See the LCJ graphic on how GPS monitoring works.
____________
* The ILB will have more about the Indiana statute in another entry.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to General Law Related

Ind. Courts - "Cap n’ Cork owner sues state over wine laws"

Niki Kelly of the Fort Wayne Journal Gazette reports today in a long story that begins:

INDIANAPOLIS – For more than 20 years, Cap n’ Cork liquor stores in Fort Wayne have shipped wine using a third-party delivery company to area customers who have joined wine clubs.

Until May.

That’s when the Indiana State Excise Police showed up and cited Cap n’ Cork for violating its alcohol permit. State law prohibits home delivery of alcohol by liquor stores unless they use their own employees.

And now Andy Lebamoff, co-owner of Cap n’ Cork, has filed suit, challenging the law as unconstitutional and claiming another law allowing wineries to ship using a third-party common carrier is discriminatory.

“It’s a good business. We collect sales tax for Indiana,” he said, noting $110,000 a year in taxes from the practice. “We’re just looking for fairness.”

Lebamoff claims he received permission from the then-Alcoholic Beverage Commission in the 1980s. He said the wine comes from an out-of-state retailer to an in-state wholesaler. Then it is sent to Cap n’ Cork for delivery by UPS.

Even the chairman of a legislative study committee on alcohol issues recently admitted at a hearing that he has received wine from Cap n’ Cork by UPS after joining a wine club while visiting Napa Valley in California.

But the Indiana State Excise Police said they received a complaint about the practice and began an investigation. The excise police have cited one other liquor store in the state for similar shipping violations.

“There is no record at the ATC of Cap n’ Cork receiving permission to ship their product via common carrier,” said Jennifer Fults, spokeswoman for the excise police. “The scope of a package store permit would prohibit them from doing so.”

Lebamoff complains that he was caught in a sting by the Wine and Spirits Distributors of Indiana in what has essentially become a turf war.

Jim Purucker, Wine and Spirits executive director, laughs at the accusation of a sting. After all, he is the one who made the complaint, and he said he had no idea a Fort Wayne liquor store would become involved.

It started when he received a direct-mail solicitation from a California retailer to join the NRA Wine Club. He signed up as a lark, expecting the club to follow the law and deny him shipping.

He said the shipment is illegal for several reasons.

First, a retailer does not have shipping privileges under Indiana law. And second, while wineries have limited direct-shipping rights, the customer must first have a face-to-face transaction with the winery.

To Purucker’s surprise, he was accepted into the club, and a box of wine from Cap n’ Cork showed up on his porch by way of UPS.

So he reported it to the Alcohol and Tobacco Commission.

More from the story:
The lawsuit was originally filed in Marion Superior Court on behalf of Lebamoff Enterprises and two central Indiana Cap n’ Cork customers who want wine shipped to their home.

The suit came days after the state won another wine-shipping battle upholding the state’s face-to-face transaction requirement for wineries.

It has since been moved to federal court, and Cap n’ Cork attorney Robert Epstein is preparing a motion for summary judgment – akin to a dismissal of the case.

He claims the state restrictions violate the Commerce Clause of the U.S. Constitution and discriminate against liquor stores in favor of wineries.

“This is an archaic state,” Epstein said. “Thirty-five states allow direct shipment of wine without hassle. But not here.”

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Gov't. - "Late tax bills force counties to borrow millions"

Mike Smith of the AP has this long story that begins:

INDIANAPOLIS — Nearly every Indiana county has failed to send property tax bills on time this year, forcing many local governments and schools to borrow millions and providing further proof that Indiana’s tax system is still a work in progress more than a decade after a court ordered a massive overhaul.

Only two of the state’s 92 counties sent tax bills on time, and 17 were more than six months late sending out the first of this year’s two bills, according to an Associated Press review of data from the Department of Local Government Finance, which regulates the property tax system.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Indiana Government

Ind. Gov't - Access to Power: How lobbyists buy legislators' time and attention

Many Indiana papers today have stories and editorials on lobbying and legislative eithics, including:

Here are the "Proposed reforms, and state newspapers that support them."

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to Indiana Government | Legislative Benefits

Law - "Financial Decisions to Make as You Divorce"

The NY Times' Ron Liber had a very useful article in his "Your Money" column this week - it could form the basis of a checklist.

Posted by Marcia Oddi on Sunday, November 15, 2009
Posted to General Law Related

Saturday, November 14, 2009

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

Updating this ILB entry from Oct. 28, 2009, Joseph Gerth of the Louisville Courier Journal reported yesterday in a story headlined "King's ex-wife asks judge to reconsider order opening court files" - here are some quotes:

The former wife of Louisville mayoral candidate Jim King has asked a judge to reconsider her order to open their 1981 and 1988 divorce cases, which contain allegations that Jim King abused his wife.

In the motion for reconsideration, Rebecca King also asked the judge – if the judge rules against her – to delay enforcement of the order unsealing the records for another 10 days. That would give Rebecca King time to appeal, if she wishes.

The Courier-Journal is fighting in court to keep the file open. It has argued that Jim King's past actions require scrutiny because King is running for the city's highest office.

In her decision on Nov. 3, Judge Patty Walker FitzGerald ordered just a few documents sealed, including psychologists' evaluations of Jim and Rebecca King, an affidavit relating to one of the couple's children and some financial information.

FitzGerald agreed to delay enforcement of her order until after Friday, giving lawyers for the Kings time to appeal her ruling to the state Court of Appeals.

Rebecca King's lawyer waited until the last day for appeals and then, instead of appealing the matter, asked FitzGerald to change her mind.

Tim Napier, a lawyer for The Courier-Journal, called it an attempt to delay the release of the records. "It's the same arguments they made before," he said. "They're rehashing their arguments in an effort to delay."

More from the story:
The Kings had originally asked jointly to have the file sealed but, after a Courier-Journal editorial criticized him for being secretive, he announced that he would not appeal whatever FitzGerald ruled.

Jim King did not join in Rebecca King's request for FitzGerald to reconsider. * * *

In requesting FitzGerald to reconsider her ruling, Rebecca King's lawyer, Don Cox, argued that FitzGerald's original ruling was wrong.

Specifically, he suggested that the judge didn't conduct a "document by document" review of the file before making her ruling.

FitzGerald clearly noted in her ruling that she had "reviewed those documents specifically identified by the parties" and that state law doesn't allow for them to be sealed.

Cox also argued that FitzGerald's order to destroy certain documents 30 days after her order took affect [ILB - sic] is an acknowledgement that the documents were "not public components of the civil trial" and therefore should not be released at all.

Posted by Marcia Oddi on Saturday, November 14, 2009
Posted to Courts in general

Ind. Law - "Boxes of medical files found abandoned in South Bend"

Tom Moor reports in the South Bend Tribune:

SOUTH BEND - An agent with the Indiana attorney general's office removed 21 boxes of medical records from a downtown office building Friday that contain the personal information of hundreds of local people.

The boxes, consisting of thousands of sheets of paper, contain patients' Social Security numbers, addresses, phone numbers, diagnoses and prescriptions.

Dave Niesel, who owns The Business Center Inc., which has a suite in the office building at 328 N. Michigan St., noticed the boxes when he moved his business there in January.

Although the records appeared to be locked safely in a storage closet in the basement of the building, it appears the medical practice that was in the building years ago moved out and left them.

“I'm sure it's something the patients would be concerned about,” said Niesel, noting the building had been vacant for about 10 years.

It appears from several of the medical records that a man named Dr. Armand J. Rigaux owned the business, called Family Medicine of Michiana or Health Designs Inc. The last date included in most of the paperwork is 1993. * * *

John Bowlby, 80, and his wife Clara, 81, say they were patients of Rigaux in the late 1980s and maybe early '90s when he had a practice on Angela Boulevard. Clara's name was on a medical record a Tribune reporter found among the documents. After hearing that the documents had been locked away, John Bowlby said it didn't concern him much.

“I'd still like to see them shredded, though,” he said.

The Tribune alerted the state attorney general's office about the records this week - which led to the removal of the records - and the department's ID Theft Unit will investigate, spokesman Bryan Corbin said. Corbin added that the boxes will be taken to the attorney general's evidence room at the Indiana Government Center in Indianapolis for further review.

The ID Theft Unit will conduct an inventory of the records to determine what type of information is included and how many individuals were affected.

Corbin added that it's too early to say what could happen in this case.

“Generally speaking, when unsecured data is discovered, our ID Theft Unit will review the files to determine if it contains any consumers' personal data and if their privacy was compromised,” he said.

Under Indiana codes, owners of databases have certain legal obligations to notify customers of a privacy breach within a reasonable period of time, or face financial penalties.

In similar cases, Corbin said, the office of the attorney general has reached an agreement of voluntary compliance with each physician. Each doctor agreed to notify the affected patients, take various measures to secure patients' and employees' personal data, and pay civil penalties and court costs. One doctor in 2007 paid $750, while another in 2008 paid $1,250.

Corbin said in the South Bend case, the notification requirement and time frame for notification appear to hinge upon discovery of the breach, even if the records were abandoned before the effective date of the statute. It is unclear whether Rigaux would face any penalties. * * *

Meanwhile, this is at least the second time this year in St. Joseph County that records containing people's personal information were found.

At least 80 files of personal loan applications were found in a Dumpster behind Town & Country Shopping Centre in Mishawaka in June.

Included in the files were names, Social Security numbers and even bank account numbers. Corbin said this week this case is ongoing.

He said the files reportedly belonged to a former employee at a South Bend loan bank. When the man's house was foreclosed, the files apparently were thrown in the Dumpster, Corbin said.

See also this June 21, 2009 ILB entry on the Misawaka records, and this one from April 3, 2009 re "Goshen lawyer's confidential files found in trash."

Posted by Marcia Oddi on Saturday, November 14, 2009
Posted to Indiana Law

Friday, November 13, 2009

Ind. Gov't. - Daniels appoints child services ombudsman

From the press release:

INDIANAPOLIS (November 13, 2009) – Governor Mitch Daniels has named an Indianapolis woman with more than 25 years of child welfare, social work and family counseling experience as the state’s first Department of Child Services Ombudsman.

Susan Hoppe will begin the role on December 14. She is a child welfare professional who has spent her career as a caseworker, manager and counselor on child and family issues such as custody evaluations, child abuse and neglect and family advocacy.

Daniels lauded Hoppe’s long career of commitment to child welfare, saying “Huge improvements and national honors are nice, but we can never do enough to protect our little ones from the selfishness or even brutality of irresponsible parents.”

Most recently, Hoppe has spent the last nine years as a social worker with Marion County Circuit and Superior Courts, providing evaluation services to families involved in contested custody cases. She also has served as the court’s appointee to the Marion County child protection team.

The law regarding the Department of Child Services Ombudsman is found at IC 4-13-19, and took effect July 1, 2009.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Indiana Government

Ind. Decisions - Supreme Court issues one opinion today

In State of Indiana ex rel. Adrian D. Kirtz v. The Delaware Circuit Court No. 5 and the Hon. Thomas A. Cannon, Jr., a 6-page per curiam decision, the Court explains the reasons why it agreed to grant a permanent writ of mandamus and prohibition on Oct. 16th

requiring the Respondents, the Delaware Circuit Court No. 5 and the Honorable Thomas A. Cannon, Jr., the judge thereof, to vacate the order appointing J. A. Cummins as special prosecutor in the criminal case pending below against Kirtz and to appoint a different person to serve as special prosecutor pursuant to Indiana Code Section 33-39-1-6.
Here is the Oct. 16, 2009 Permanent Writ of Mandamus and Prohibition, which itself provided:
The Court takes under advisement whether to issue later an order or opinion explaining the reasons for granting this writ. In light of the scheduled trial date approaching, the present order serves as the permanent writ, effective immediately. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One case granted transfer Nov. 12th

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, November 13, 2009
Posted to Indiana Transfer Lists

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

For publication opinions today (2):

In Curtis Colvin v. State of Indiana , a 7-page opinion, Judge Najam writes:

Curtis Colvin appeals his conviction for Resisting Law Enforcement, as a Class A misdemeanor, following a bench trial. He presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We reverse. * * *

One of the officers ordered Colvin to take his hands out of his pockets, but Colvin did not comply. Colvin refused to comply with any of the officers' commands, and the officers “physically had to place him on the ground and handcuff him.” * * *

The evidence does not support a reasonable inference that Colvin did more than passively resist the officers. * * * We hold that the evidence is insufficient to support Colvin's resisting law enforcement conviction.

Brea Rice v. State of Indiana , a 16-page opinion, Judge Robb writes:
Brea Rice was charged with possession of marijuana, a Class A misdemeanor, and possession of methamphetamine, a Class D felony, after a search conducted in the course of executing an arrest warrant issued for receiving stolen property uncovered the drugs in her purse. Rice filed a motion to suppress, alleging there was no probable cause to support the issuance of the arrest warrant and the drugs, as fruits of an illegal arrest, should be suppressed. The trial court agreed the arrest warrant should not have been issued but found the police conduct was not “sufficiently deliberate [such] that exclusion can meaningfully deter it,” and therefore denied Rice's motion to suppress. Rice sought and received permission to pursue this interlocutory appeal, raising the sole issue of whether the trial court abused its discretion in applying the good faith exception to the exclusionary rule and denying her motion to suppress. Concluding the trial court did abuse its discretion because Indiana's good faith exception does not apply under these circumstances, we reverse.
NFP civil opinions today (3):

Rebecca S. McClure v. Anthem, Inc. (NFP) - "Rebecca McClure filed an application for adjustment of claim with the Worker’s Compensation Board of Indiana (the “Board”) against her employer, Anthem, Inc. (“Anthem”). A Single Hearing Judge denied her claim, concluding that McClure had not suffered any injury arising out of and in the course of her employment with Anthem. McClure petitioned the full Board, which affirmed the Single Hearing Judge’s decision. Due to McClure’s blatant disregard of the appellate rules, we do not reach the merits of her appeal. We dismiss."

James L. Lynn v. The Estate of Jon L. Lynn, et al. (NFP) - "James presents a single dispositive issue for our review, namely, whether the trial court erred when it found that a Family Settlement Agreement giving James a right of first refusal to buy certain real estate was unenforceable. We affirm."

D.K. v. M.P. (NFP)

NFP criminal opinions today (3):

State of Indiana v. Clay Crick and Jeffrey K. Watts (NFP) - "The State has failed to show that the trial court’s rulings on the motions to suppress were contrary to law. See State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008), reh’g denied. Our original opinion is affirmed in its entirety."

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

William E. Riley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "State government began laying off employees today in order to cut costs"

"Indiana state workers get layoff notices" is the headline to this just-posted Friday the 13th story by Mary Beth Schneider of the Indianapolis Star.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Indiana Government

Ind. Decisions - "The Mezuzah case" is decided en banc by 7th Circuit [Updated]

This is not an Indiana case, but the ILB has had several entries about it in the past, including this one from May 13th which included this quote from a May 13th AP story by Mike Robinson, headed "Arguments before full 7th Circuit in mezuzah case may put Judge Wood and Williams in spotlight":

In the case before the court, the Shoreline Towers Condominium Association repeatedly removed a mezuzah from the front door of Chicago condo owner Lynne Bloch. The association said it violated a rule against placing any objects, religious or otherwise, on doors or in common halls.

Bloch, who helped write the rule, sued, saying she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out the case and the appeals court affirmed his decision 2-1.

Chief Judge Frank Easterbrook, writing for himself and Senior Judge William Bauer, said the rule was "neutral" and "potentially affects every owner" without regard to religion and thus was not discriminatory.

"It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants," he wrote.

[Judge Diane P.] Wood dissented, saying it could been seen as a violation of federal housing law because observant Jews would be unable to live in a condo with no mezuzah.

"Thus in a real sense, Hallway Rule 1 makes condominium units at Shoreline Towers functionally unavailable to observant Jews like the Blochs and, if it could be enforced, the rule would effect their constructive eviction," Wood wrote.

Today the 7th Circuit has issued an en banc decision in Bloch v. Shoreline Towers (ND Ill), written by Judge Tinder - some quotes:
In this case, we consider whether condominium owners can sue their condo association under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq., for alleged religious and racial discrimination that took place after the owners bought their condo unit. We highlight the word “after” because based on a prior opinion from this court, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir. 2004), the district court concluded that condo owners couldn’t rely on the FHA to safeguard their rights from any post-acquisition discrimination. We took this case to the full court to consider this important question. Upon careful review of the FHA and our prior opinion in Halprin, we conclude that in some circumstances homeowners have an FHA cause of action for discrimination that occurred after they moved in. On the facts of this case, we conclude that Lynne, Helen, and Nathan Bloch have offered enough evidence to allow a trier of fact to decide whether they suffered intentional discrimination at the hands of the Shoreline Towers Condo Association and its president Edward Frischholz. We therefore reverse the summary judgment granted against the Blochs.
EASTERBROOK, Chief Judge, and BAUER, POSNER, KANNE, WOOD, EVANS, SYKES, and TINDER, Circuit Judges, participated in the decision. "Circuit Judges Flaum, Rovner, and Williams took no part in the consideration of this case."

[Updated at 2:15 PM] "Court revives Chicago ‘mezuzah’ case: Ruling vindicates Obama favorite Judge Diane Wood" is the heading of this newly posted story by Abdon M. Pallasch of the Chicago Sun-Times. Some quotes:

The ruling vindicates federal appellate Judge Diane Wood, a former colleague of President Obama who has been on his shortlist for the U.S. Supreme Court.

Though criticized by conservatives as “hostile to religious rights,” it was Wood’s impassioned dissent in this case that the appellate court relied on to revive the Bloch family’s claim of religious discrimination.

Two of Wood’s more conservative colleagues on the 7th Circuit Court of Appeals — Frank Easterbrook and William Bauer — had earlier voted 2-1, prevailing over Wood on a three-judge panel, to dismiss the claim, arguing, among other reasons, that the federal Fair Housing Act, under which the lawsuit was brought, cannot be used to allege discrimination after a condominium is sold.

Today’s ruling by eight of the court’s judges reversed that finding and said the FHA can apply to alleged discrimination after a sale.

The court did not rule that The Shoreline Towers Condominium Association and its president, Edward Frischholz discriminated against the Bloch family, but the court said the Blochs offered enough evidence that a jury ought to be able to hear the case. * * *

“So the Blochs must proceed on a showing of intentional discrimination,” Tinder wrote. “Although the Blochs’ case is no slam dunk, we think the record contains sufficient evidence, with reasonable inferences drawn in the Blochs’ favor, that there are genuine issues for trial on intentional discrimination.”

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Supreme Court Hears $125,000 Gambling Debt Case: Woman Claims Casino Knew About Addiction"

Updating this ILB entry from yesterday, Nov. 12, the Louisville Courier Journal today has a 10-picture photo gallery of yesterday's oral argument before the Indiana Supreme Court.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Barnes & Thornburg enters top 100 on list of largest law firms"

So reports Scott Olson in this Indianapolis Business Journal story today that begins:

A spate of office openings and an acquisition have helped catapult Barnes & Thornburg LLP into the upper echelon of the nation’s largest law firms, at a time when the slumbering economy has forced most other big firms to cut staff.

The Indianapolis-based law firm ranked 87th in The National Law Journal’s most recent annual listing of the nation’s 250 largest firms, marking the first time it has cracked the top 100.

Barnes & Thornburg moved up from its 109th-place ranking in 2008, by increasing its lawyer numbers 8 percent, to 483, in offices in seven states and Washington, D.C. The firm has 233 lawyers in Indianapolis and is the second largest in the city, according to the most recent IBJ statistics.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Indiana Law

Ind. Decisions - "Indiana appeals court upholds axing of Obama suit"

The Court of Appeals decision yesterday in the case of Steve Ankeny and Bill Kruse v. Governor of the State of Indiana (ILB summary here) is the subject of a story in the Indianapolis Star, reported by Jon Murray. Some quotes:

The Indiana Court of Appeals today affirmed a Marion County judge's dismissal of a lawsuit by two Hoosiers challenging President Barack Obama's eligibility to hold office.

One of dozens of similar lawsuits across the country that so far have been unsuccessful, the Indiana case disputed Hawaii-born Obama's status as a "natural born citizen." Steve Ankeny, New Castle, and Bill Kruse, Roselawn, represented themselves in the suit, which Judge David Dreyer dismissed in March. * * *

A three-judge Court of Appeals panel ruled in today's 19-page decision that the plaintiffs failed to state a claim upon which relief could be granted.

But the decision, authored by Judge Elaine B. Brown, also weighed in on the debate over the citizenship status requirement: "We conclude that persons born within the borders of the United States are 'natural born Citizens' for (constitutional) purposes, regardless of the citizenship of their parents."

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "New federal courthouse dedicated in downtown Terre Haute"

Howard Greninger reports today in the Terre Haute Tribune-Star:

A new federal courthouse was officially dedicated Thursday amid federal judges, Terre Haute attorneys and city officials.

The new courthouse at 921 Ohio St. rests on a 1.9-acre site at 91/2 and Ohio streets. The one-story brick building with stone facade has 14,310 square feet, according to a fact sheet at the ceremony from the U.S. General Services Administration.

The courthouse was built by Thompson Thrift Development Corp., which will pay property taxes. Thompson Thrift is leasing the facility to the federal government under a 20-year lease. The annual rent is $570,598, according to the GSA fact sheet.

U.S. Bankruptcy Court Judge Frank J. Otte said the courthouse “is a success story, the result of the work of very many people. It was brought about, things like this just don’t happen, but it was brought about because there were people in the community” who worked to keep the courts, he said.

Otte said the former courthouse, at Seventh and Cherry streets, which will become part of Indiana State University, was made in the Art Deco style of the 1930s, while the new courthouse has a “Williamsburg look.” * * *

Otte and U.S. District Judge Larry J. McKinney each thanked Sen. Evan Bayh, D-Ind., for working to secure the new courthouse in Terre Haute. McKinney, who served as chief judge of the Southern District of Indiana from 2001 to 2007, was part of a group that worked closely on the project.

“The very fact of this building’s existence is a slap in the face of cynics and naysayers and nabobs of negativism, if you don’t mind me quoting Spiro Agnew,” McKinney said, saying approval had to be made from numerous federal agencies.

“Our goal was to have a quality facility that is not an insult to the taxpayer and one that is within the budget that we had. There were serious perimeters. This building had to be within the same cost perimeters to the court as the old building,” he said.

“The process of getting this building here is not unlike pulling Excalibur out of the stone. Only those who were hard-working people of goodwill and had some vision of the future could pull that sword out of the stone. I am telling you there were a lot of them” who made the courthouse happen, McKinney said.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Indiana Courts

Ind. Decisions - "Driving infraction sentences slashed for Elkhart man"

The COA Nov. 10th NFP decision in the case of Ray Bean, Jr. v. State of Indiana is the subject of a story today in the Elkhart Truth. Justin Leighty reports:

ELKHART -- The Indiana Court of Appeals upheld two driving convictions against an Elkhart man this week, though they cut his sentence drastically because he made significant efforts to comply with the law.

The convictions against Ray Bean, Jr., 50, formerly of 2410 Wood St., came from two traffic stops in Elkhart in 2007.

When an Elkhart Police officer stopped Bean on Harrison Street that June, Bean told the officer the Yamaha Zuma was legal for him to drive and qualified as a "motorized bicycle," which habitual traffic violators can drive under the law.

The officer tried to explain that the scooter's engine was too big to qualify. That officer didn't arrest Bean at the time, but got prosecutors to file a charge.

Two months later another officer stopped Bean, again on the scooter, and arrested him on the warrant and on a second charge of driving with forfeited driving privileges.

Elkhart Superior Judge George Biddlecome convicted him of both charges and sentenced him to nine years in prison.

However, the appeals court pointed out that when Bean bought the scooter, the salesman told him it would be legal and Bean also double-checked with the Bureau of Motor Vehicles.

The Zuma's cylinder size, 49 cubic centimeters, would be legal, but the horsepower was 4.9, far higher than the 2-horsepower maximum specified under state law.

"We are convinced from the record that Bean was attempting to comply with the law by purchasing the Zuma," the three-judge panel ruled.

"Altogether, a total of nine years in the Indiana Department of Correction is inappropriate for Bean's offenses. He was operating a vehicle that, at least initially, he had reason to believe was legal for him to operate," they wrote. They ordered Biddlecome to reduce the sentence to four years in prison, two on each charge.

Posted by Marcia Oddi on Friday, November 13, 2009
Posted to Ind. App.Ct. Decisions

Thursday, November 12, 2009

Courts - "Conservatives Oppose Judicial Nominee"

Kate Phillips writes this evening in "The Caucus," a NY Times blog, at the start of a lengthy analysis piece:

Conservative groups have been rallying their troops to urge senators to oppose the nomination of Judge David F. Hamilton of Indiana to the Seventh Circuit Court of Appeals.

As recently as Thursday morning, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, labeled Judge Hamilton as too liberal during a speech before the Federalist Society. Advocates and supporters of Judge Hamilton have also jumped into the fray.

The moves afoot followed a decision by the Senate Majority Leader, Harry Reid, to file a procedural motion on Tuesday night that will likely force a vote early next week that will require the support of 60 members to push the nomination forward.

Since then, conservative bloggers like Erick Erickson at RedState and anti-abortion and religious conservatives have ramped up calls for their supporters to raise objections to Judge Hamilton, citing his rulings in federal court in Indiana on abortion and prayer.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Courts in general

Law - "If BigLaw is Changed For Good, What Happens to Law School?" [Updated]

Fascinating. Ashby Jones of the WSJ Law Blog looks at:

a piece that takes a harder look at what might become of the legal academy if BigLaw undergoes dramatic and permanent changes, as many suspect it might. Earlier this week, however, over at the Conglomerate blog, University of New Mexico law professor Erik Gerding offered up a little “what if?” piece, in which he hypothesized about potential changes to the law-school world if and when law-firm hiring practices prove inexorably changed.
[Updated 11/13/09] This today from Above the Law.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to General Law Related

Ind. Courts - "State suing local landlords over lead levels in home" [Updated]

Mark Wilson reports today for the Evansville Courier & Press in a long story -- some quotes:

In a lawsuit filed this morning in Vanderburgh County, two Evansville landlords are being targeted for allegedly refusing to fix a house in which a tenant's child was found to have elevated levels of lead in his blood.

The lawsuit by Indiana Attorney General Greg Zoeller's office and the Vanderburgh County Health Department is a first-of-its-kind. Using environmental laws aimed at halting a public nuisance, it charges landlords Mark R. Bryan and Tammy A. Bryan allegedly ignored multiple warnings to correct a lead-paint hazard in a rental house that could endanger the health of any occupants living there, including children.

"This is the first time the Attorney General's office has brought such a suit on behalf of a county, but the case could be a template for other counties to follow in taking action when landlords refuse to correct lead-paint hazards," Zoeller said. * * *

The lawsuit is seeking an injunction ordering the landlords to remediate the nuisance. Remediation techniques may include removal of the paint from the house by a licensed contractor or encapsulation of the lead-based paint by properly repainting it with latex paint.

The suit also seeks reimbursement of the government's costs, attorneys' fees and other relief.

While other states have pursued lead-paint public-nuisance actions, this is the first time Indiana has filed such a suit. The Attorney General has partnered with the Vanderburgh County Health Department to compel the landlords to correct a lead-paint hazard posed by their rental property.

The story includes a link to the 33-page "Complaint to Compel Remediation of Lead Hazard."

[More] Here is the AG's press release on the suit.

[Updated 11/13/09] Here is an updated version of the C&P story, with photo.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Environment | Indiana Courts

Ind. Decisions - "Supreme Court Hears $125,000 Gambling Debt Case: Woman Claims Casino Knew About Addiction" [Updated]

Indy 6 News has the first story I've seen on the oral argument this morning before the Indiana Supreme Court in the case of Caesars Riverboat Casino. LLC v. Genevieve Kephart. Some quotes:

INDIANAPOLIS -- A case involving a woman who gambled and lost $125,000 at Caesars Riverboat Casino in 2006 has reached the Indiana Supreme Court.

Jenny Kephart, of Nashville, Tenn., said the casino knew she had a gambling addiction, but still lured her to the facility to take advantage of her.

Initially, Caesars sued Kephart in an effort to recover the gambling debt. Kephart countersued, and the casino filed a motion to dismiss.

The motion to dismiss was argued before the Supreme Court Thursday morning.

Kephart's attorney, Terry Noffsinger, claimed the casino went to great lengths to entice his client.

"They offered her free transportation from hundreds of miles across two states. They offered her plane rides. They offered her suites with butlers," Noffsinger said. "It's pretty amazing what they do once they know somebody's got this issue. You are so well-liked by the casinos until you are out of money."

You may watch the videocast here.

[Updated at 1:34 PM] Here is Grace Schneider's story for the Louisville Courier Journal. A quote:

A lawyer for a Tennessee woman who has accused the former Caesars Indiana of taking advantage of her gambling addiction told the Indiana Supreme Court on Thursday that Hoosier casinos shouldn’t be immune from liability for harming such customers.

When a casino intentionally targets someone who has money to burn and is a compulsive gambler, it has a responsibility to protect that person from harming herself, attorney Terry Noffsinger told five justices during a morning hearing.

“The law protects the sick, it protects the helpless,” Noffsinger said. Therefore, he said. casinos have an implied responsibility not to prey upon customers who can’t control themselves.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Kristy Humpery, et al. v. Duke Energy Indiana, Inc. , a 16-page opinion, Judge Najam writes:

Kristy Humphery, as personal representative of the estate of Charles Mandrell, Jr., appeals from the trial court's summary judgment for Duke Energy Indiana, Inc. (“Duke Energy”). Humphery alleged in her complaint that Duke Energy acted negligently when it placed a utility pole near an intersection in Johnson County, which became a proximate cause of Mandrell's death. On appeal, the parties dispute only whether Duke Energy could have reasonably foreseen Mandrell's collision with its utility pole.* * *

In sum, we hold that the trial court erred when it granted summary judgment to Duke Energy. It is for a jury, not a court, to determine whether Duke Energy could have reasonably foreseen a motorist's collision with the Pole. There is a genuine question of material fact as to whether the location of the Pole was inherently dangerous. Reversed and remanded.

Steve Ankeny and Bill Kruse v. Governor of the State of Indiana , is a 19-page opinion by Judge Brown where plaintiffs have challenged Gov. Daniels' certification of Indiana's vote for electors in last Nov's election. The opinion includes a number of footnotes, including this one:
16 We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen. See THOMAS C. REEVES, GENTLEMAN BOSS, THE LIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a rumor “that [Arthur] had been born in Canada, rather than in Vermont as he claimed, and was thus constitutionally ineligible to become the Chief Executive.” Id. at 3. Although President Arthur's status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur's father was an Irish citizen he was constitutionally ineligible to be President. See generally id.
The opinion concludes:
The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court's interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs' arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120. Thus, we cannot say that the trial court erred when it dismissed the Plaintiffs' case.[16] See generally McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind. Ct. App. 2007) (holding that the plaintiffs' arguments had been sufficiently addressed by Indiana Supreme Court precedent and therefore the trial court did not err when it granted the defendant's motion to dismiss for failure to state a claim upon which relief can be granted); see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).

For the foregoing reasons, we affirm the trial court's grant of the Governor's motion to dismiss.

Dennis Barnett v. State of Indiana - "Dennis Barnett appeals his convictions for two counts of child molesting as class C felonies. Barnett raises two issues which we revise and restate as: I. Whether the trial court abused its discretion by denying Barnett's motion for mistrial; and II. Whether the trial court abused its discretion by excluding Barnett's videotaped statement to the police. We affirm."

NFP civil opinions today (1):

Larry R. Rother v. Ann M. Curtis (NFP) - "For the foregoing reasons, we affirm the trial court‟s order granting petition for modification of maintenance."

NFP criminal opinions today (5):

Jason W. Doyle v. State of Indiana (NFP)

Edward E. Ward v. State of Indiana (NFP)

Doug H. Wilson v. State of Indiana (NFP)

Douglas Thompson v. State of Indiana (NFP)

Donald C. Grevenstuk v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Oct.25th, the story has taken an even stranger turn.

"Chicago Judge Lambastes Sidley Lawyers Over Brief"
is the headline to this Nov. 11th story by Lynne Marek of The National Law Journal - some quotes:

A court hearing on Tuesday in Chicago at which former Northwestern University journalism students planned to fight a subpoena for their records and grades turned into a judicial lambasting of their Sidley Austin lawyers.

It started when Judge Diane Gordon Cannon of the Cook County Circuit Court called the lawyers, partner Richard O'Brien and associate Linda Friedlieb, to the bench before prosecutors from the Cook County State's Attorney's Office had even arrived. She asked who had written the brief she was holding. O'Brien and Friedlieb responded that they had submitted the reply supporting the motion to quash the subpoena. * * *

The judge said an imprisoned pro se litigant had submitted a more appropriate brief in another case earlier that day and added that Karen Daniel, a Northwestern University School of Law professor who represents McKinney, had never submitted such a brief. O'Brien had difficulty interrupting her to call attention to the attorney names on the last page with Friedlieb's signature.

"You have to put your name on it as an officer of the court," Cannon said, explaining that the brief must start with "now comes petitioner" so-and-so. When O'Brien tried to speak, Cannon cut him off and told him to put his response in writing. Another hearing was scheduled for January.

Following the hearing, O'Brien, who specializes in media and intellectual property law, said that the brief was similar to thousands he has filed over his 30-year career, adding, "We stand by our advocacy." He had never come before Cannon in the past. Daniel declined comment as did Sally Daly, a spokeswoman for the state's attorney's office.

"I'm very sorry. I apologized to the judge," O'Brien said at a later press conference. "I'm sure I can work with Judge Cannon."

Above the Law has this entry from later the same day. It includes a link to the brief at issue. ATL notes:
Setting aside the signature block issue, was the Sidley brief appropriate? Judge Cannon condemned it as “reprehensible” and “dripping with sarcasm.” But based on our quick read, the brief didn’t seem particularly intemperate.
Yesterday the blog Chicago Law by Ameet Sachdev had arap-up.

Readers may recall that Ice Miller Attorney Michael A. Wilkins was initially suspended from the practice of law for one month by the Indiana Supreme Court because of a footnote in a brief. For more, see this ILB entry from April 5, 2004, along with several links.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Courts in general

Courts - "Attorney sues over comments posted on Kentucky.com"

The ILB has had a number of entires on impacts of and access to anonymous posts and comments, the most recent being a case of New Hampshire argued last week before their Supreme Court.

The Lexington Herald-Leader has a story today by Valarie Honeycutt Spears that begins:

The former attorney for accused killer Steve Nunn has filed a lawsuit against unnamed defendants who posted comments about her on Kentucky.com, a Web site operated by the Lexington Herald-Leader.

In a lawsuit filed Monday in Fayette Circuit Court, Lexington attorney Astrida Lemkins contends someone wrote false, defamatory comments about her in response to a Sept. 18 article about Nunn.

Lemkins subpoenaed the Herald-Leader to produce the e-mail addresses of any individual who used the screen name "supercalifragilistic" to make comments about Lemkins.

"I'm just trying to find out who wrote those defamatory comments," Lemkins said in a telephone interview Wednesday. "I'm trying to find out who it is so I can pursue further action."

Herald-Leader editor Peter Baniak said the comments in question have been removed from the site, and the user name has been blocked from Kentucky.com for violating the Web site's terms of service.

"At this time, we are attempting to contact the commenter to see if he or she wishes to object to the subpoena and assert his or her First Amendment right to anonymous speech," Baniak said in a statement Wednesday.

In her lawsuit, Lemkins is seeking damages of an unspecified amount, including those incurred for her pain and suffering.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Courts in general

Courts - "I’m Innocent. Just Check My Status on Facebook"

That is the headline to this story by Damiano Beltrami of the NY Times who reports today on social network sites being used as evidence in court cases.

The first example involves a defendent whose alibi evidence was that he couldn't have been at the scene of the crime because:

The message on Rodney Bradford’s Facebook page, posted at 11:49 a.m. on Oct. 17, asked where his pancakes were. The words were typed from a computer in his father’s apartment in Harlem.

His defense lawyer, Robert Reuland, told a Brooklyn assistant district attorney, Lindsay Gerdes, about the Facebook entry, which was made at the time of the robbery. The district attorney subpoenaed Facebook to verify that the words had been typed from a computer at an apartment at 71 West 118th Street in Manhattan, the home of Mr. Bradford’s father. When that was confirmed, the charges were dropped.

More from the lengthy story:
“This is the first case that I’m aware of in which a Facebook update has been used as alibi evidence,” said John G. Browning, a lawyer in Dallas who studies social networking and the law. “We are going to see more of that because of how prevalent social networking has become.”

With more people revealing the details of their lives online, sites like Facebook, MySpace and Twitter are providing evidence in legal battles.

Up to now, social networking activity has mostly been used as prosecutorial evidence, Mr. Browning said. He cited a burglary case in September in Martinsburg, Pa., in which the burglar used the victim’s computer to log on to Facebook and forgot to log off. The police followed the digital trail to Jonathan G. Parker, 19, who was arrested.

As part of his defense, a suspect in an Indiana murder case, Ian J. Clark, claimed he was not the kind of man who could kill his girlfriend’s child. But remarks he was found to have posted on MySpace left him vulnerable to character examination, Mr. Browning said, contributing to his conviction and a sentence of life in prison without parole.

The ILB had a number of entries last month on the Ian J. Clark MySpace decision.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Courts in general

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

The SCOTUS opinion in the Indiana case of Stump v. Sparkman is in the news again today. Here is the SCOTUS 1978 opinion. (For more background, see this ILB entry from March 28, 2007.)

The most recent ILB entry is from Oct. 30, 2009.

And today Ashby Jones of the WSJ writes under the headline "New Lawsuits Try to Pierce Shield of Judicial Immunity." Some quotes from the long column:

People who believe they have been wronged by a judge can ask the judge to reconsider, appeal to a higher court or, if they suspect judicial wrongdoing, ask a bar association to investigate.

But one thing people can't generally do is sue. The rationale behind the notion -- called absolute judicial immunity -- is straightforward: Judges shouldn't have to defend themselves in court whenever they issue a ruling that makes someone unhappy.

But a set of civil lawsuits filed against two former Pennsylvania judges is testing the doctrine of judicial immunity.

The doctrine doesn't protect judges from facing criminal charges. * * * After the criminal charges, several lawyers filed civil suits seeking monetary damages on behalf of dozens of children and their families against the judges and other defendants. They alleged, among other things, that the judges violated their civil rights. * * *

In filings, the judges argued that judicial immunity insulated them from suits. A ruling on the motions is pending. Both judges declined to comment.

Legal experts say the plaintiffs face an uphill battle in piercing the immunity shield. Dating to 1872, the U.S. Supreme Court has repeatedly supported the notion that judges should express their legal convictions without having to worry about personal consequences. In perhaps the most widely cited Supreme Court case on judicial immunity, the court in 1978 rejected a suit filed by a woman against an Indiana judge who had years earlier ordered the woman -- who was then 15 and allegedly mentally impaired -- sterilized without her knowledge.

The story also has some interesting points on the case of the Texas judge (Sharon Keller, the chief judge of the Texas Court of Criminal Appeals), who "declined to keep the courthouse doors open after hours to allow a death-row inmate extra time to file an appeal." He was executed.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Courts in general

Ind. Courts - Still more on: Interesting disciplinary decision filed Nov. 3rd by the Supreme Court

Updating this ILB entry from Nov. 10th, Ben Zion Hershberg reported in a Louisville Courier Journal story dated Nov. 11th headlined "Fee from private practice leads to reprimand." Some quotes:

[Daniel] Moore said he should have been more aware of the requirements in the rule about increasing fees.

“Had I been more aware of the technicalities of that rule, I would have documented it better,” he said.

In addition to typical divorce issues, he said, the case also involved other complications, including an unusual appeal of a pre-nuptial agreement.

“All the work was done in the case,” Moore said. In tabulating his time and effort for the commission, he said, the value of his work totaled more than $30,000.

The disciplinary commission’s Nov. 3 order did not identify Moore’s client, and he declined to identify her.

In its order, the commission said Moore “diligently and competently worked” on the case. The order said that after agreeing to charge a flat $15,000 fee, Moore asked his client for an additional $5,000 in May 2005 and $1,500 more in April 2006, and the higher amounts were paid.

“In neither instance” did Moore tell his client “to consult with an independent counsel” before agreeing to the increases, as required by the professional rule, the order said.

As a result, the disciplinary commission decided to issue a public reprimand. The order did not require Moore to refund the additional money, and Moore said he does not plan to do so.

Here is the Order itself, which is worth reading.

Posted by Marcia Oddi on Thursday, November 12, 2009
Posted to Indiana Courts

Wednesday, November 11, 2009

Ind. Courts - Showdown on Judicial Nominee Set for Next Week: David Hamilton's 7th Circuit nomination

David Ingram of The Blog of Legal Times has this story on the long-stalled David Hamilton nomination:

Senate Majority Leader Harry Reid (D-Nev.) is following through on a plan to cut off debate on President Barack Obama's most contentious circuit court nominee so far.

Late Tuesday, Reid filed a so-called cloture motion seeking to end debate on the nomination of Judge David Hamilton for the U.S. Court of Appeals for the 7th Circuit. Hamilton, now a district court judge in the Southern District of Indiana, has been awaiting confirmation since March.

Reid needs 60 votes to end debate, and his motion is a sign that he believes he has enough. At least one Republican, Indiana Sen. Richard Lugar, has said he supports Hamilton. If the motion succeeds, which could happen as soon as Tuesday, a vote to confirm Hamilton could occur immediately or later in the week.

Democrats have portrayed Hamilton as a moderate, noting the support he’s received from the Indiana legal community and his well-qualified rating from the American Bar Association. He has drawn criticism from religious conservatives for his rulings on abortion and in an establishment clause case about prayer in Indiana’s legislature.

Obama’s first circuit court nominee, Hamilton also did pro bono work for the Indiana chapter of the American Civil Liberties Union in the 1980s, and he served as chief counsel to Indiana’s then-Gov. Evan Bayh, now a Democratic senator.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Indiana Courts

Ind. Courts - Two stories in one: Linda Pence and Timothy Morrison

"Southern Indiana U.S. Attorney Candidate Bows Out" is the headline to this entry by Andrew Ramonas in the Main Justice blog, "covers insider news about the U.S. Department of Justice. We are an independent news organization and not part of the government."

It quotes from this entry by Terry Burns in the Indianapolis Times blog re the Pence withdrawal.

But then it continues with this unexpected news:

The Southern District hasn’t had a presidentially appointed U.S. Attorney since Susan W. Brooks resigned in October 2007. Interim U.S. Attorney Timothy Morrison has led the office since her departure. Morrison has recently come under fire in the blogosphere for subpoenaing Philadelphia-based news Web site Indymedia.us for its visitor information.
The first link in the quote above leads to an entry in the CBS News blog, Taking Liberties, by Declan McCullagh. Some quotes from the long entry:
In a case that raises questions about online journalism and privacy rights, the U.S. Department of Justice sent a formal request to an independent news site ordering it to provide details of all reader visits on a certain day.

The grand jury subpoena also required the Philadelphia-based Indymedia.us Web site "not to disclose the existence of this request" unless authorized by the Justice Department, a gag order that presents an unusual quandary for any news organization. * * *

The subpoena (PDF) from U.S. Attorney Tim Morrison in Indianapolis demanded "all IP traffic to and from www.indymedia.us" on June 25, 2008. It instructed Clair to "include IP addresses, times, and any other identifying information," including e-mail addresses, physical addresses, registered accounts, and Indymedia readers' Social Security Numbers, bank account numbers, credit card numbers, and so on. * * *

Still unclear is what criminal investigation U.S. Attorney Morrison was pursuing. Last Friday, a spokeswoman initially promised a response, but Morrison sent e-mail on Monday evening saying: "We have no comment." The Justice Department in Washington, D.C. also declined to respond.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Indiana Courts

Courts - "'I Believe' tag fails test in court Judge says S.C. religious plate based on discriminatory law"

The headline is from this story by Adam Parker today in the Charleston South Carolina Post & Courier.

The ILB has had a number of entries on "Choose Life" and other specialty license plates.

Yesterday the U.S. District Court for the District of South Carolina rejected an "I Believe" plate. Here is a photo of the plate, here is the opinion, and here is an How Appealing entry listing a number of stories on the ruling.

Recall that the SCOTUS last month, per this report by Adam Liptak of the NY Times, turned down an Illinois "Choose Like" plate appeal:

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 Wednesday, November 11, 2009
Posted to Courts in general

Law - "ABA Proposes Law Student Loan Relief"

That is the heading of this story today by Karen Sloan of The National Law Journal. It begins:

The American Bar Association is lobbying the Obama administration and Congress to extend relief to recent law school graduates who went into debt to finance their legal educations but haven't been able to find a job because of the recession.

The ABA wants the government to let unemployed graduates convert private loans into federal ones. The change could allow them to defer repaying those loans for as long as three years.

More:
Debt is a huge issue for many law school graduates, particularly given the difficult legal job market. The average public law school graduate borrows $59,324 for law school, according to the ABA. That figure is $91,506 for graduates of private law schools. Many law students take out a combination of federal and private loans.

Different rules apply to federal and private students loans. Federal loans can be deferred for as long as three years if the borrower is unemployed. Private loans generally don't come with that deferral flexibility, said Peter Halle, a senior counsel at Morgan, Lewis & Bockius and a member of the economic crisis committee. He is spearheading the ABA's efforts on the student debt issue.

"There's a fair number of people of people who have private loans, and they don't have the flexibility they need today," Halle said. "Without doing anything radical, we're looking to see if we can increase the amount of money a law student can borrow from the federal government and make that retroactive."

Essentially, the ABA proposes allowing law graduates to borrow from the federal government to immediately pay off any private debt, since most private loans carry no prepayment penalty. Borrowers then could enjoy the deferral benefits of federal loans, such as not having to start repaying loans when they're out of a job.

"The point of the program is to provide a temporary bridge by swapping out the private loan for a public one," Halle said.

Picking up on the story, Elie Mystal of Above the Law has this commentary that concludes: "This makes way too much sense. Let’s hope nobody screws it up."

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to General Law Related

Ind. Courts - "Hancock County prosecutor's post stirs fuss among GOP hopefuls"

Bill McCleery has the report today in the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Indiana Courts

Ind. Decisions - "Sex offender registry [may be] reduced by 1/3"

So reported Megan Stembol of WANE Fort Wayne in this story yesterday. Some quotes:

ALLEN COUNTY, Ind. (WANE) - A landmark case at the Indiana Supreme Court may decrease the number of people in Allen County that have to register as a sex offender by more than a third.

The Indiana Supreme Court overturned a ruling by a Marion County judge in the case of Richard P. Wallace vs. the State of Indiana . It's a decision that could echo across the state.

In 1988, Wallace pleaded guilty to a Class C felony Child Molesting charge. He completed his sentence in 1992, two years before state legislators passed the Sex Offender Registration Act into law. It required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders, among other things. The law was later amended to include all offenders, regardless of conviction date. The Indiana Supreme court ruled making Wallace register as a sex offender is unconstitutional because it violates the state's ban on ex post facto laws.

Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."

On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.

The story is about the Indiana Supreme Court decision in Richard P. Wallace v. State, decided last April. See this ILB entry from April 30th, headed "Supreme Court decides two today re ex post facto challenges to the Indiana Sex Offender Registration Act." The second case was Todd Jensen v. State.

A May 3rd story in the in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, gives a good summary of the rulings - the ILB summary is here. Some quotes:

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry. * * *

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender.

Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law.

In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender.

Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years.

But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

Confusing differing results? The story goes on to report on how the rulings would be implemented:
For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes.

“It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County.

He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office.

“As police officers, we’re the gatekeepers of the criminal justice system,” Shimkus said. “We enforce the law the way it’s written.”

The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.”

This entry from May 6th headed "Charges dismissed as a result of last week's Supreme Court decision" indicates that one case was dismissed pursuant to the Wallacedecision. But how is Wallace being implemented statewide? The JG story from early May indicates that the State DOC planned to comply.

Now back to the WANE story, published yesterday Nov. 10th, more than 6 months after the Wallace ruling. It continues:

The Allen County Sheriff's Department makes contact with about 200 registrants per month, knocking on their doors to confirm their address is correct. Shimkus admits, reducing the number of registrants by a third would reduce the work for police, who are dramatically taxed by the requirement of the Sex Offender Registration Act. Since it's conception in 1994, the law has been amended time and time again, to include more offenses, and more monitoring of offenders.

The Indiana Department of Corrections , the state registry administrative body, has a message to offenders on its website , regarding the Wallace case. It advises offenders to seek legal counsel if the Wallace case applies to them. [Allen County Sex Offender Registry Administrator, Detective Jeff Shimkus] says locally, offenders have to file a motion to have themselves removed from the registry. A handful of people have already done that in Allen County.

Here is the DOC page referenced in the story. The statement:
On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.
In other words, individual affirmative action is required to remove a name from the list, even though, as reported in the WANE story, in "Allen County Sex Offender Registry alone, the [Wallace] case potentially affects about 245 of the 650 people registered."

[More] The Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision. See the FAQ on who is required to register.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Fort Wayne family's "Malpractice case can proceed: Court says facts about ’04 death allow for reversal"

Yesterday's COA decision in the case of Dharam Bhatia v. Anuradha Kollipara, M.D. (ILB entry here) is the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The family of a Fort Wayne woman who died in 2004 won a court ruling from the Indiana Court of Appeals on Tuesday allowing their medical malpractice suit to go forward.

Allen Superior Court Judge Stanley Levine previously dismissed the case against Dr. Anuradha Kollipara, granting summary judgment in her favor this year.

But the family of Parminder Kaur Bhatia argued there are factual issues in dispute and the case should be allowed to go to trial.

According to court records, Bhatia went to Kollipara – a doctor in internal medicine – from 2000 through 2004. Medical charts during that time indicate the doctor recommended Bhatia schedule a Pap smear, a test designed to diagnose cervical cancer. * * *

Bhatia’s husband filed a medical malpractice complaint with the Indiana Department of Insurance, claiming Kollipara failed to advise Bhatia to get a Pap smear.

A state medical review panel said the evidence didn’t show Kollipara failed to comply with the accepted standard of care.

The family then sued in court, presenting evidence from a forensic document examiner alleging that a different pen had been used to make entries on Pap smear recommendations on three of six reports.

And Bhatia’s husband and daughter filed affidavits that said they accompanied her to the doctor on all occasions and Kollipara never recommended a Pap smear.

The appellate court ruled that the family had brought enough evidence to raise a genuine issue of fact and reversed the case dismissal.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - "Linton golf cart ordinance still on the table; changes suggested"

The ILB has entries on Linton's consideration of allowing cart carts on city street that go back more than a year. Nick Schneider of the Greene County Daily World had this story yesterday that begins:

The operation of golf carts on the streets of Linton drew discussion from the city council members again on Monday night, but no action was taken on a pending ordinance that has been on the table for several months.

Council member Linda Bedwell presented a revised draft of the ordinance for the council's review and said she hoped action might be taken at next month's meeting.

Linton Police Chief Troy Jerrell was asked by council member Bedwell to look over the ordinance and said his department will inspect the carts, if the ordinance is adopted.

"To the best of my knowledge, it (the proposed ordinance) goes by state law and regulations," he said.

Councilman Charlie Cox said there's still some uncertainty in the draft ordinance whether operators will be allowed to cross the intersections of State Roads 54 (A-Street) and State Road 59 (South Main Street).

As written, the ordinance states that no person may operate a golf cart for any reason on any street where operation is prohibited by a posted sign; State Roads 54 and 59 on their entire length; any of the above streets except State Road 54 and 59 may be driven across from one side to the other at the intersection.

Cox suggested striking the last part of that statement saying, "You have to be able to cross it."

He pointed out that an ordinance drafted by the city of Bristol allows for the crossing of a state roads at designated and marked golf cart crossings.

"I think law has allowed for it personally, Cox said.

Council member Bedwell sided with Cox and said, "I just don't think that when the state says the cities and towns could make their own ordinances that they just made the law so you can't cross the highway. I just don't think that is what the state intended for them to do."

City Attorney Tim Shonk disagreed and said he had some question about whether this is legal.

"I don't think we have the authority to allow them onto the state highway," Shonk told the council. "That's not our (the city's) highway, that's the state's highway."

He continued, "I didn't find anything that will allow you to run across. It is not our highway, it's the state's highway. I didn't see anything that will allow us to give people permission to run across it."

Bedwell speaking to Shonk said, "That is what we pay you for, you find it out for us."

To that Shonk replied, "There isn't anything to find out about what they intended. If you want to go against my advice, put it in there and say they can go across (the intersection), but I am not going say they can cross it because I can't find anything that clearly says they can."

Here is a long list of all ILB entries relating to golf carts.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Indiana Law

Courts - "NJ Supreme Court committee to look at what can be done to make e-discovery cost-effective and accessible to all"; "Evidence on Social Networking Sites"

For the first article, see this Nov. 10th article from the New Jersey Law Journal, which deals in the main with criminal cases.

The second article, "Evidence on Social Networking Sites," by Ken Strutin (director of legal information services at the New York State Defenders Association), published in the New York Law Journal, looks to be very useful. It begins:

Social networking sites offer an abundance of exculpatory and impeaching evidence that may not be obtainable without some undercover detective work. Unfortunately, discovery rules and ethical guidelines have not kept pace with the digital sprawl of MySpace and Facebook. In the absence of explicit direction from the Rules of Professional Conduct and the laws governing online behavior, flying a false flag in these uncharted waters may be hazardous.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Courts in general

Ind. Law - Still more on "Key to safe-haven law is spreading the word"

The ILB has had a number of entries on Indiana's "safe haven" law, dating back to 2004. The most recent is this entry from Feb. 8, 2009 (which is a good companion to today's entry).

Sadly, yesterday another story, this one reported by Angela Mapes Turner of the Fort Wayne Journal Gazette, headed "Help was available for mom: Advocates cite ignorance of state’s safe-haven law." Some quotes:

AUBURN – A young mother in jail, facing a charge of attempted murder.

A newborn girl, wrapped in a flowery yellow blanket put inside a black plastic garbage bag left to die.

Those who advocate for Indiana’s safe-haven laws see Alison Lesch’s case as a tragedy lessened, but not quite averted. Advocates say better education – and funding behind it – is needed to promote the law, which allows a child up to 45 days old to be left, no questions asked, with emergency services workers at any hospital emergency room, fire station or law enforcement agency in Indiana. * * *

National Safe Haven Alliance board member Bob Floyd said he had a terrible feeling when he heard of Lesch’s arrest today.

“This is completely unnecessary, had she known about the law,” he said.

Floyd has been trying for several years to get word out about the program in Indiana – part of a nationwide patchwork of volunteers.

Dawn Geras of Illinois is another. The national organization’s vice president, Geras said Illinois’ Safe Haven law was drafted around her dining room table.

The National Safe Haven Alliance relies heavily on volunteers such as Geras to track how many infants are affected by the safe haven laws. Since the first law was enacted in 1999 in Texas, all U.S. states and the District of Columbia have passed similar safe-haven legislation. The National Safe Haven Alliance estimates that more than 1,000 infants have been saved by the laws.

Since Indiana’s law took effect at the start of this decade, six babies have been turned in under Indiana’s Safe Haven law, Geras said.

During that same time, at least 23 have been abandoned illegally, not counting the infant Lesch allegedly abandoned. At least seven lived, but eight died; Geras is unsure about the fate of the rest.

Indiana isn’t doing well, but neither is the rest of the country, Geras said. She recently attended a conference of judges in Illinois, where many of the judges tasked with upholding the law were unfamiliar with it.

“Everyone knows the words ‘adoption’ and ‘abortion,’ ” Geras said. “They should know ‘safe haven,’ too.”

Volunteers such as Geras and Floyd have been trying to get every safe-haven site in their states outfitted with signs publicizing the law. About 14 states, not including Indiana, have done that, Geras said.

Publicity and training attempts have been stunted by lack of funding. Non-profit Stop Child Abuse & Neglect, or SCAN, has a free workshop to train professionals on Indiana’s safe-haven law.

Because of cuts in funding to SCAN’s “Prevention Through Education” program, that and other programs offered outside Allen County were discontinued last month, SCAN Communications Director Stephanie Jentgen said.

From 2004 until the start of this month, SCAN educated more than 2,300 professionals on the law and how to assist people to drop off infants, Jentgen said.

But while knowledge may have increased among professionals, cases such as Lesch’s show it’s lacking among parents, National Safe Haven Alliance board member Floyd said.

Indiana's Safe Haven Law is found at IC 31-34-2.5.

Posted by Marcia Oddi on Wednesday, November 11, 2009
Posted to Indiana Law

Tuesday, November 10, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 20 NFP)

For publication opinions today (5):

In Dharam Bhatia v. Anuradha Kollipara, M.D. , a 7-page opinion, Judge Bradford writes:

In this medical malpractice action, Appellant/Plaintiff Dharam Bhatia appeals from the trial court’s grant of summary judgment in favor of Dr. Anuradha Kollipara, M.D. We reverse and remand. * * *

Because Dharam has sufficiently rebutted the MRP’s opinion with expert testimony, we conclude that the trial court incorrectly granted Dr. Kollipara’s summary judgment motion. We therefore reverse and remand for further proceedings.

In George A. Scott v. Malissa Elizabeth Retz, R.N., and Indiana University , a 14-page opinion, Judge Robb writes:
George Scott, a Clarian Health Partners, Inc. (“Clarian”) safety and security investigator, was stuck by a used uncapped syringe while investigating missing narcotics at Indiana University Hospital, which is operated by Clarian. Scott sued Malissa Retz, R.N., for negligence and Indiana University (“IU”), Retz's employer, for respondeat superior and negligent retention and supervision. Scott appeals the trial court's grant of summary judgment to Retz and IU on all of Scott's claims, raising the single issue whether the trial court properly granted summary judgment. IU cross-appeals the trial court's order striking part of its affidavit designated in support of summary judgment, raising the issue whether the trial court properly concluded the affidavit contained impermissible hearsay. We conclude, based on the undisputed facts of Clarian's control of the uncapped needles prior to the needle stick, that Retz's and IU's actions were not a proximate cause of Scott's injury. Therefore, we affirm the trial court's grant of summary judgment to Retz and IU, and we need not address the merits of IU's cross-appeal.
In Marvin Jay Miller, M.D. v. Tiffany Brook Yedlowski, et al., an 11-page opinion, Judge Vaidik writes:
In the interlocutory appeal of this medical negligence case, Marvin Jay Miller, M.D., appeals the trial court’s denial of his motion for summary judgment. According to established Indiana law, when a nonmoving party fails to respond to a motion for summary judgment within thirty days by either filing a response, requesting a continuance under Indiana Trial Rule 56(I), or filing an affidavit under Indiana Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the thirty-day period. In this appeal we clarify that when a nonmoving party has received an enlargement of time pursuant to Trial Rule 56(I), any response, including a subsequent motion for enlargement of time, must be made within the additional period granted by the trial court. Because the nonmovants in this case filed their second motion for enlargement of time six days after the deadline set by the trial court, the trial court’s order granting their second motion for enlargement of time was a nullity, and the court was precluded from considering their response to Dr. Miller’s motion for summary judgment. Because this leaves no evidence to oppose Dr. Miller’s motion for summary judgment, we remand this case with instructions for the trial court to enter summary judgment in favor of Dr. Miller.
R.H. v. State of Indiana

Sean Wright v. State of Indiana - "Having concluded that the trial court did not abuse its discretion in admitting R.A.'s and Wright's statements into evidence, and having concluded that Wright's 165-year sentence is appropriate and does not warrant the protections of section 35-50-2-9, we affirm Wright's convictions and sentence."

NFP civil opinions today (5):

Kenneth E. Smith, Jr. and Cathy Smith v. Jeffrey Harbrecht (NFP)

Term. of the Parent-Child Rel. of B.C.; A.C., et al. v. IDCS (NFP)

Marcus Burnside v. Tosha Burnside (NFP)

Darin W. Chamberlain v. Kyle A. Daugherty (NFP)

Envirotech Pump Systems d/b/a Wemco Pumps v. DW Squared, Inc. (NFP)

NFP criminal opinions today (15):

State of Indiana v. Evan Von Hendrix (NFP)

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

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

Jerome McKinney v. State of Indiana (NFP)

David A. House v. State of Indiana (NFP)

Bernard M. Jones v. State of Indiana (NFP)

Ray Bean, Jr. v. State of Indiana (NFP)

Cleverly Lockhart v. State of Indiana (NFP)

Daniel Ray Moore v. State of Indiana (NFP)

Michael John Neely v. State of Indiana (NFP)

Reynaldo Forelo Pinlac v. State of Indiana (NFP)

James C. Frazee v. State of Indiana (NFP)

Kelvin Dewan Bogan v. State of Indiana (NFP)

Corey L. Meyer v. State of Indiana (NFP)

David Frohwerk v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Boney Grants Exclusive Interview: Convicted Killer Gives First TV Interview In 5 Years"

WLKY out of Louisville has the story today with numerous links, including a 3-part TV interview with Charles Boney.

Here is a long list of earlier ILB entries on Charles Boney.

The most recent ILB entry on David Camm is from August 21st.

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Indiana Decisions

Ind. Courts - Discussion of upcoming gambling addiction case

Ed Feigenbaum, editor of Indiana Gaming Insight, was interviewed yesterday afternoon by Steve Simpson of WIBC on the case of Caesars Riverboat Casino. LLC v. Genevieve Kephart. In the 8-minute interview, Ed makes some interesting points and also talks about the overall gaming situation in Indiana and the upcoming session.

There does not seem to be a direct link. but you can go to the audio archives page and scroll through the stories listed under "Steve Simpson" (left column, second program down).

See this ILB entry from Nov. 9th for more on Kephart, which will be argued this Thursday.

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Upcoming Oral Arguments

Ind. Courts - "Deputy Allen County prosecutor quits over pot charge"

From a story by Rebecca S. Green in the Fort Wayne Journal Gazette:

A deputy Allen County prosecutor has resigned, about two months after being caught with marijuana at a concert.

David B. LeBeau, 41, was issued a ticket for possessing less than 30 grams of marijuana, a Class A misdemeanor.

According to Allen County Chief Deputy Prosecutor Michael McAlexander, LeBeau entered the pretrial diversion program in Hamilton County and verbally resigned from the local prosecutor’s office late last month. * * *

LeBeau, assigned as the section chief for Allen County Circuit Court, handled predominantly cases involving drunken-driving offenses.

According to a police report from the Indiana State Excise Police, LeBeau was standing near the rear of a car in the parking lot of the Verizon Wireless Music Center in Noblesville before the Dave Matthews Band concert on Aug. 1.

Excise officers walking the parking lot saw Lebeau “holding and smoking a hand-rolled cigarette.” One of the people he was talking to pointed out the officers and LeBeau walked toward his car, according to the report.

The officers identified themselves and ordered him to drop the cigarette, which he did. The officers noticed a clear plastic bag containing marijuana and cigarette rolling papers sitting in plain view on the console. When asked whether there was anything else in the car, a woman with LeBeau handed officers a paper wrapper that contained four additional hand-rolled marijuana cigarettes and one partly rolled cigarette.

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Indiana Courts

Ind. Law - Indiana store-front law offices

The ILB would like to publish a poster of "Indiana store-front law offices" featuring photos of unique locations. For examples of what I'm aiming at, here are photos I took last weekend of two Indianapolis locations:

And here are two locations friends have suggested, no photos yet, but the Google Street Views shows them to be likely subjects:

Suggestions? Photos?

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Indiana Law

Ind. Courts - More on: Interesting disciplinary decision filed Nov. 3rd by the Supreme Court

On Nov. 5th, the ILB posted this entry about a public reprimand issued by the Supreme Court in In the Matter of Daniel E. Moore.

According to the Order, by which the Court approved a settlement agreement, a client had retained Moore "to represent her in a dissolution of marriage action. Client paid Respondent $15,000 pursuant to an agreement that this would be his total 'flat' or 'fixed' fee." Later "Respondent requested Client pay him an additional $5,000, which Client paid. In April 2006, Respondent requested Client pay him an additional $1,500, which Client paid in two installments. In neither instance did Respondent advise Client to consult with independent counsel before agreeing to amend the fee agreement to his advantage."

The Court issued a public reprimand to "Respondent" for charging an unreasonable fee, and for amending the fee agreement without advising the client in writing about the desirability of seeking independent advice. Justice Dickson dissented:

Dickson, J., dissents and would reject the agreement, believing a period of suspension is in order in the absence of any showing that Respondent refunded the fees received above his initial quote of $15,000 for a "flat" or "fixed" fee.
Last evening Matt Thacker of the Jeffersonville / New Albany Evening News & Tribune reported under the headline "Clark Judge Moore reprimanded for fees charged as attorney." From the story:
Clark County Circuit Court Judge Dan Moore was publicly reprimanded last week by the Indiana Supreme Court for his handling of a divorce case that began in 2004.

The court found that Moore — who became judge in January — violated Indiana Professional Conduct Rules by charging an unreasonable fee and amending the fee agreement with his client without advising her in writing the desirability of seeking advice from independent counsel.

Moore said he was representing a woman who had been battered at the start of her divorce. He said the work, which lasted 2 1/2 years, included a premarital agreement, protective order case, interlocutory appeal work and advice and service on a criminal case against her husband.

“Documents pertaining to modifications in our agreement, in hindsight, did not meet technical requirements of Supreme Court Rules,” Moore said in a statement to The Evening News.

According to the Supreme Court ruling, Moore was retained by an unnamed client to represent her in a dissolution of marriage. The client paid Moore $15,000 that, according to an agreement, would be his “fixed” fee, the decision states.

In May 2005, Moore reportedly asked his client to pay an additional $5,000 and another $1,500 in April 2006.

The Supreme Court Disciplinary Committee found that Moore never advised his client to consult with independent counsel before agreeing to amend the fee to his advantage.

“I made a mistake in not tracking those requirements more clearly in the midst of my work on those cases,” Moore said. “I respect the final resolution of these matters by the Supreme Court.”

The court found also stated that Moore had no disciplinary history and was cooperative with the commission. It states that Moore worked “diligently and competently” on the case.

Six of seven justices [ILB - sic.] concurred with the decision to reprimand Moore. Justice Brent E. Dickson dissented, arguing that Moore should face a period of suspension without any evidence Moore refunded the additional $6,500 paid by the client.

Moore will have to pay any costs for the Supreme Court proceedings.

Here is how the matter is recorded on the Indiana Roll of Attorneys.

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on "I&M fight costs Fort Wayne $300,000 for lawyers"

The Fort Wayne Journal Gazette, whose story is quoted in this ILB entry from Nov. 7th, today has an editorial discussing the legal fees. Some quotes:Local residents should not be surprised that the city has spent nearly $300,000 on legal fees in the ongoing battle with Indiana Michigan Power over the City Light lease. Nor should they be surprised when the city spends more – perhaps much more – to make sure citizens are well represented.

Though I&M has, for various reasons, won the upper hand in the public relations battle, Mayor Tom Henry and his administration do have a responsibility to defend the city’s interests in the high-stakes faceoff. They also have a responsibility to inform the public of how much they are spending on the matter; so the release of the totals last week was a welcome, if belated, response to The Journal Gazette’s request for the information.

Unfortunately for the Henry administration, I&M has no similar legal responsibility to tell its ratepayers how much the company is paying for lawyers. To further add to the city’s underdog position in the public-relations battle, mediation efforts limit what either side should say publicly about the status of negotiations, leaving city officials unable to tell the public exactly what is behind the city’s strategy.

If the issue were not complicated enough, city officials also have to keep in mind that whatever I&M pays will come from the company’s customers, including those in Fort Wayne.

Yet city officials also have a responsibility to make sure its residents receive a fair value for what is left of the former municipal electric company. So far, the city has paid the law firm of the city’s corporate counsel, Tim Haffner, nearly $200,000 in 2008 and 2009. The city cannot be faulted for also hiring an Indianapolis law firm with expertise in electric utility matters (nearly $80,000 over the two years), and with one court case already filed, a separate litigation firm (nearly $15,000.)

With tens of millions of dollars at stake, the $300,000 the city has spent over the past two years appears justified.

At issue is the current value of the “assets” of the former City Light utility, which provided electric service to much of the city’s central core until the city leased the system to I&M in 1974. Now that the lease is about to run its course, both I&M and the city hope the electric company will permanently buy out what is left of the system. The question is the price.

Numerous legal issues are involved, and there is no comparable lease in Indiana that sets a precedent. Considering no real movement has arisen yet in two mediation sessions, residents can likely assume the sides remain at odds over the main point of contention: I&M believes it should pay only for what little equipment still exists, while city officials believe the company must pay a premium for the 30,000-plus customers City Light served. City officials have said that it believes the utility is worth up to $100 million; I&M is likely offering much, much less.

Posted by Marcia Oddi on Tuesday, November 10, 2009
Posted to Indiana Government | Indiana Law

Monday, November 09, 2009

Ind. Courts - More on "Red Spot Paint may have to pay $26 million for cleanup"

Updating this ILB entry from August 6th, Dan Shaw of the Evansville Courier & Press is reporting this evening:

A lawsuit alleging that Red Spot Paint & Varnish contaminated an Evansville site is heading toward a settlement out of court.

On Thursday, the U.S. District Court for the Southern District of Indiana was to consider a request to order Red Spot to spend nearly $26 million in cleaning the site, which comprises seven acres west of U.S. 41 and between Columbia and Virginia streets. Red Spot instead reached an understanding with the plaintiff, a real-estate partnership named 1100 West LLC and connected with Jack Rogers Realty.

Thomas Barnard, an attorney for 1100 West, said the understanding will likely lead to a dismissal of the lawsuit. The judge overseeing the case has given the two sides 60 days to reach a final settlement.

Barnard declined to say what that settlement will entail. Emilee Hille, a representative of Red Spot, declined to comment for this article. * * *

The lawsuit against Red Spot dates to 2003. In June, a federal judge ruled that Red Spot and its lawyers had withheld evidence in the case. The upshot was a default judgment, ending Red Spot’s opportunity to argue in its own defense and making it responsible for cleaning 1100 West’s site.

Red Spot has paid for the lawsuit, in part, from money raised last year when it was sold to a subsidiary of the Japanese firm Fujikura Kasei. Of the proceeds from the sale, about $14 million was set aside for the defense of Red Spot.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Indiana Courts

Courts - Still more on Judge David Hamlton's nomination to 7th Circuit

Updating this ILB entry from earlier today, which quoted from the Baltimore Sun story today headed "Long wait may soon end for appeals court nominee from Md: Federal judge in Baltimore could get confirmed today," the news this evening is that Judge Andre M. Davis was indeed today confirmed by the Senate to the 4th Circuit.

Kate Phillips reports in the NY Times blog, "The Caucus" that:

The Senate on Monday voted 72-to-16 to confirm Judge Andre M. Davis to a seat on the Fourth Circuit Court of Appeals, which is based in Richmond.

Mr. Davis’s appointment to the seat has been a long time coming — nine years, to be exact. President Clinton first nominated him to the seat in October 2000, but the nomination languished in the end months of the Democratic administration. He was nominated again to the seat — which had been vacant all those years — by President Obama in early April. * * *

While Mr. Davis, 60, cleared the Senate Judiciary Committee by a vote of 16-3 several months ago, other judicial nominees are still waylaid — some tangled in partisan or ideological disputes about their rulings or philosophies along Republican and Democratic lines.

Next up for a circuit court vote on his confirmation may be Judge David Hamilton, whose judicial rulings in Indiana on abortion and prayer cases have made him a a target for anti-abortion groups and Republican senators. Senate Democratic leaders plan to file a procedural motion to cut off debate this week, but a vote on Mr. Hamilton isn’t likely to take place until next week, after the Veterans Day recess.

[More] Also see this just-filed story from Roll Call.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending November 6, 2009

There is no Clerk's transfer list for the week ending November 6, 2009.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Indiana Transfer Lists

Environment - "Is New York’s Marcellus Shale Too Hot to Handle?"

The ILB has had several entries on "a new technique that taps previously inaccessible supplies of natural gas" by drilling in shale, along with issues about its potential environmental impact, particularly with respect to groundwater contamination.

Today Abrahm Lustgarten of ProPublica has a lengthy report that begins:

As New York gears up for a massive expansion of gas drilling in the Marcellus Shale, state officials have made a potentially troubling discovery about the wastewater created by the process: It's radioactive. And they have yet to say how they'll deal with it.

The information comes from New York's Department of Environmental Conservation, which analyzed 13 samples of wastewater brought thousands of feet to the surface from drilling and found that they contain levels of radium-226, a derivative of uranium, as high as 267 times the limit safe for discharge into the environment and thousands of times the limit safe for people to drink.

The findings, if backed up with more tests, have several implications: The energy industry would likely face stiffer regulations and expenses, and have more trouble finding treatment plants to accept its waste -- if any would at all. Companies would need to license their waste handlers and test their workers for radioactive exposure, and possibly ship waste across the country. And the state would have to sort out how its laws for radioactive waste might apply to drilling and how the waste could impact water supplies and the environment.

What is less clear is how the wastewater may affect the health of New Yorkers, since the danger depends on how much radiation people are exposed to and how they are exposed to it. Radium is known to cause bone, liver and breast cancers, and the EPA publishes exposure guidelines for it, but there is still disagreement over exactly how dangerous low-level doses can be to workers who handle it, or to the public.

[Update] See also this story posted Nov. 11th by Pro Publica, headed "Congress Tells EPA to Study Hydraulic Fracturing."

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Environment

Courts - More on "Justices Weigh Life in Prison for Youths Who Never Killed " [Updated]

Updating this ILB entry from yesterday, stories are now coming in re the oral arguments this morning in the two cases, Graham v. Florida, argued at 10, and Sullivan v. Florida, argued at 11 AM.

Here is Joan Biskupic's long story for USA Today, headed "Justices appear torn over youth offenders." It begins:

WASHINGTON — The lawyer for a Florida man serving life in prison without parole for a crime committed when he was 16 told the Supreme Court Monday that such a sentence tells a youth he is forever unfit to live in society, and is unconstitutionally cruel.

To that, Justice Anthony Kennedy, a likely key vote in the dispute, asked, "Why does a juvenile have a constitutional right to hope, but an adult does not?"

Lawyer Bryan Gowdy responded, "Because the juvenile is different than the adult ... (and) has an inherent capacity to change."

[Updated 11/10/09] How Appealing has a list of post-argument stories here.

Listen to the 6-minute report, "Supreme Court Weighs Life Sentences For Juveniles," by Nina Totenberg, broadcast by NPR's All Things Considered last evening.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Courts in general

Ind. Courts - "Funds Available to Help Those In Legal Profession Who Need Mental Health or Dependency Treatment"

A press release today from the Indiana Supreme Court begins:

Judges, attorneys and law students in need of mental health or dependency treatment have a new resource for getting help. Chief Justice Randall T. Shepard announced the creation of two funds that will help pay for needed treatment and educational outreach.

“The JLAP Treatment and Grant Fund” and “The Friends of JLAP Fund” are being created by the Indiana Supreme Court’s Judges and Lawyers Assistance Committee (JLAP), the Indiana Bar Foundation (IBF) and the Indiana State Bar Association (ISBA). Chief Justice Shepard explained, “It cannot be easy to seek help for mental health or dependency troubles, so when someone comes to JLAP and is trying to find a path to recovery we want to provide them with the best possible resources. Creating these funds will allow us to help those in our profession who need our assistance.”

The JLAP Treatment and Grant Fund will be used to make grants to lawyers who are in need of treatment but cannot afford it. Approximately $30,000 from attorney registration fees has been used to start the fund. JLAP also plans to solicit donations from attorneys, law firms, malpractice carriers and others. The Friends of JLAP Fund will be used to support JLAP’s mission in general. The money will be used for treatment grants, educational outreach and volunteer training.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Joshua P. Lindsey v. State of Indiana , a 19-page opinion, Judge Vaidik writes:

In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse's actions in opening wider Joshua P. Lindsey's car door and visually inspecting the car's interior. Officer Kruse saw Lindsey run into a store, brandish a weapon, and leave the store heading in the direction of the car, which had its driver's side door ajar. Given these facts, it was reasonable for Officer Kruse to believe that the car may have been Lindsey's getaway car and that an accomplice, possibly also armed, may have been inside. Because the contents of the car were concealed by its tinted windows and the door was ajar, it was not unconstitutional for the officer to open the door wider and look inside. We affirm the trial court on this issue as well as those concerning jury selection and the appropriateness of Lindsey's sentence.
In Zachariah Holden v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
Zachariah H. Holden appeals his conviction for Class B felony robbery and adjudication as a habitual offender. Holden moved for mistrial when a juror asked the State's firearms expert a question (which the expert had already answered on direct examination) outside the courtroom during a recess in the trial. Without questioning that juror outside the presence of the other jurors, the trial court put the expert back on the stand and posed the same question to the expert. Because the expert testified substantially the same both on direct examination and when put back on the stand and because the expert's communication to the juror outside the courtroom was in fact favorable to Holden, we conclude that the trial court did not abuse its discretion in denying a mistrial, and we therefore affirm.
NFP civil opinions today (1):

Constance V. Spence v. Michael J. Spence (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on Judge David Hamlton's nomination to 7th Circuit

Updating this ILB entry from Nov. 5, which included this quote from the Washington Post:

WASHINGTON -- Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees. * * *

It's primarily two federal judges - one from Indiana, the other Maryland - who've been waiting five months for Senate Majority Leader Harry Reid, D-Nev., to bring their nominations for appeals court promotions to the Senate floor. * * *

The Republican stall at this point is focused on two appellate court judges whose nominations were sent by the Judiciary Committee to the full Senate on June 4:

- David Hamilton of Indiana, a U.S. district judge and nephew of former Democratic Congressman Lee Hamilton, chosen for the Chicago-based appeals court. Reid said he wants a vote on Hamilton by Veterans Day. He'll probably need a super majority of 60 to get one.

- Andre Davis, a district judge in Maryland, nominated for a seat on the appellate court headquartered in Richmond, Va.

The good news today comes from this story in the Baltimore Sun headed "Long wait may soon end for appeals court nominee from Md: Federal judge in Baltimore could get confirmed today."

The potentially bad news, as least as far as Indiana's Judge Hamlton, who is not mentioned in the story, is concerned, is evident starting with the first paragraph of the story:

WASHINGTON - It has been nine years since federal District Judge Andre M. Davis of Baltimore was first nominated to fill the so-called Maryland seat on the U.S. Court of Appeals in Richmond, Va.

It's been seven months since President Barack Obama renominated Davis for the same position - which has remained vacant because of the political stalemate in Washington since the death of Judge Francis D. Murnaghan Jr. in August 2000.

And it has been more than five months since the Senate Judiciary Committee, on a bipartisan vote, cleared Davis for confirmation by the full Senate. Again it was politics - delaying tactics by Senate Republicans, who are waging a relatively unnoticed, but largely successful, blocking campaign against Obama nominees - that forced Davis to wait some more.

Soon, however, the Baltimore native, having spent his 50s waiting for the promotion to come through, could finally be able to move up.

Senate debate on Davis' nomination is scheduled to begin today, with a confirmation vote expected later in the day. The timing could slip, but not the result: With the solid Democratic majority, his confirmation seems a foregone conclusion when senators finally get to vote.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Courts in general

Courts - More on "If Chicago cop caught you with LIDAR, go to court: Judge will dismiss it"

Updating this ILB entry from Nov. 6th, Megan Twohey of the Chicago Tribune reports today in a story headlined: "Speeding tickets: Use of laser guns in Chicago to catch speeders is questioned - Many tickets are thrown out if use of lidar is challenged." Some quotes:

Many motorists nabbed for speeding by a laser gun, instead of radar, are seeing their tickets thrown out at Chicago's traffic court because of a legal issue that the city's law department has been unable to overcome.

Within the past year judges in Cook County Traffic Court in Chicago determined that speeds captured by lidar were not admissible because the devices had not been proven scientifically reliable in an Illinois court, said Jennifer Hoyle, spokeswoman for the law department, which prosecutes most speeding tickets in the city.

The judges brushed aside the office's position that such a legal hearing was unnecessary because lidar devices, which use a light beam instead of radio waves, have been used by police departments across the country with no problems for a long time and because some courts outside Illinois already had found them to be scientifically sound. * * *

The legal procedure required to prove a technology is scientifically reliable -- a Frye hearing, as it is known in Illinois -- is laborious and expensive, experts said. The hearing requires witnesses and can stretch for days.

That's the reason the city law department was reluctant to initiate one against a defendant, Hoyle said.

Since last month the department has begun seeking such a hearing in the small percent of speeding cases in which the defendant has a defense attorney, she said. But each time the defendant has chosen to pay the fine rather than participate.

The department hopes the Cook County state's attorney's office will secure a Frye hearing because that office handles the most serious speeding cases in which the defendant has more invested.

If they fail, Hoyle said, the prosecutors will seek a state law that explicitly recognizes lidar as scientifically reliable.

Meanwhile, the Chicago Police Department plans to continue using the device, said Roderick Drew, a spokesman for the department. "We believe it to be reliable and accurate," Drew said.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Courts in general

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, Nov. 8, 2009:

From Saturday, Nov. 7, 2009:

Posted by Marcia Oddi on Monday, November 09, 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 11/9/09):

Thursday, November 12th

Next week's oral arguments before the Supreme Court (week of 11/16/09):

Tuesday, November 17th

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 11/9/09):

Monday, November 9th

Thursday, November 12th

Next week's oral arguments before the Court of Appeals (week of 11/16/09):

Next Tuesday, November 17th

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

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, November 09, 2009
Posted to Upcoming Oral Arguments

Sunday, November 08, 2009

Courts - "Kentucky's troubled death-penalty system lets cases languish for decades"

Like the Gary Post Tribune, quoted in the entry below, the Louisville Courier Journal today has devoted a lot of space to the death penalty, but in this case to the length of time it takes to complete the appeals. R.G. Dunlop has a long story headed "Killer's appeals drag on 29 years," that concludes:

No single reason explains why [Karu Gene] White's case has dragged on so long. Interviews with more than three-dozen people familiar with it, and a review of the voluminous court file, suggest a variety of factors that include:

The successive involvement of eight circuit court judges, who had to review the increasingly vast record and understand the array of issues before taking action.

A protracted dispute between McNally and the state Department of Public Advocacy over his compensation that contributed to the case lying dormant for more than seven years. During that time, no one — not the prosecution, not the defense, not the court — made any effort to move the case forward.

A drawn-out legal battle over funding for the defense to hire expert witnesses.

A relatively new avenue of appeal resulting from a 2002 U.S. Supreme Court decision that barred the execution of mentally retarded defendants.

Despite the unusually slow progress of his case, its conclusion appears to be years away — with several avenues of appeal still left for White to exhaust.

Death-penalty cases are “terribly complex,” involving an array of necessary safeguards designed to protect innocent people from being executed, former Kentucky Supreme Court Chief Justice Joseph Lambert said in a recent interview. But Lambert also conceded: “It's difficult if not impossible to defend 29 years for a case to be in the courts.”

A long companion story by the same reporter is headed "Kentucky's troubled death-penalty system lets cases languish for decades." It begins:
Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed.

Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole. * * *

“The death penalty has a symbolic meaning beyond reason in this society,” said Ed Monahan, the state's public advocate. “Usually, the facts in the case are very difficult, and widely publicized, especially in rural communities. Elected officials have the weight of the community on them. … That weight means pressure to pursue the ultimate penalty.”

Despite the many shortcomings in the state's system of capital punishment, there has been little political sentiment in Kentucky to address them — as other state's have done. The governor's office and legislative leaders have been careful to criticize the delays without questioning the value of capital punishment itself, which remains relatively popular with the public. * * *

David Sexton, who formerly prosecuted death-penalty appeals for the state Attorney General's office, said it is inappropriate to apply a cost-benefit analysis to crimes that may be “too reprehensible … to reduce the equation to some sort of business decision.”

Sexton, now an assistant Jefferson County attorney, also said that while the deterrent factor of executions is debatable, he believes that they provide “an outlet for society to express its moral outrage to certain crimes. The only way we can express (it) is through the ultimate penalty.”

Related, and cited by the LCJ, is this Oct. 20, 2009 report of the national Death Penalty Information Center, titled "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis."

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Courts in general

Ind. Courts - "Bill for capital cases delivered to taxpayers"

The subheading of Andy Grimm's lengthy feature in the Gary Post-Tribune today is "Lake County, state have spent combined $2.7M defending death penalty defendants since 1990/"

A long side-bar to the story is headed "Defense Costs in Capital Cases," and begins:

The costs of putting a defendant to death are high, with taxpayers almost always footing a six-figure bill for extra attorneys, expert witnesses, psychiatrists and added investigators. Here are the costs just for defense attorneys in recent Northwest Indiana death penalty cases.

Edward Earl Williams -- Cost: $593,697

Sentence: Williams was charged in the 1992 murders of Carver Elementary School teacher Michael Richardson, Debra Ann Rice and Robert Hollins in Gary. His conviction was upheld on appeal to the state Supreme Court, but the federal 7th Circuit Court sent the case back to Lake County for re-trial. Williams, who changed his name to Akeem Aki-Khuam, pleaded guilty a few days before his new trial, and was sentenced to 120 years in prison.

Rufus Averhart

Cost: $521,668

Sentence: Averhart was charged with killing Gary police Lt. George Yaros during a 1981 bank robbery. Averhart, who changed his name to Zolo Agona Azania, was found guilty in 1982, but his death penalty sentence was overturned -- twice. In 2007, weeks before another trial, he pleaded guilty to armed robbery charges and received a 60-year sentence.

Eugene V. Britt -- Cost: $403,676 (Lake County costs only)

Sentence: Britt was charged with six counts of murder in Lake County in 2000, four years after he entered a guilty plea and was sentenced to life without parole for the 1995 rape and murder of Sarah Paulsen in Porter County. Prosecutors and defense lawyers fight over whether or not Britt is retarded and fit to stand trial for six years. Britt pleads guilty to the six murders and is sentenced to six life terms. He later pleads guilty but mentally ill to three other rape-murders.

Darryl Jeter -- Cost: $427,727

Sentence: Jeter was charged with the 2003 murder of Indiana State Trooper Scott Patrick, but jurors spared him from execution, sentencing the 21-year-old to life without parole in 2006 after hearing testimony about Jeter's troubled childhood and a "frontal lobe impairment" that effected his judgment.

Here are some quotes from the long main story:
A death sentence is the ultimate penalty, reserved for the worst defendants accused of the most heinous crimes. And it isn't cheap.

The Lake County Public Defender's office has asked to add $200,000 to its budget this year for expert witnesses and attorneys to defend Kevin Isom, a Gary man who faces the death penalty in the murder of his wife and her two teenage children in 2008, as well as two cases in which prosecutors are seeking the lesser sentence of life without parole.

Last week, Isom's attorneys asked the court for approval to hire defense experts who charge $80 to $100 an hour, and might log 1,000 hours over the course of the trial that will determine his guilt and the penalty phase that follows to determine whether he is to be executed.

It's a cost county officials can't deny, even as the county budget shrinks. When authorizing defense attorneys for Isom to hire experts, Lake County Judge Thomas Stefaniak lamented that county employees already face layoffs in 2010 as the county struggles to close a $17 million shortfall.

"Legally we are bound to do whatever we need to do," said Lake County public defender David Schneider. "If, God forbid, your loved one were standing trial in a death penalty case, that's what you would want.

"We're not going to skimp to defend our clients."

The state and county have jointly funded the defense of death penalty cases since the early 1990s, when the state Supreme Court mandated higher standards for attorneys in capital cases after a wave of successful appeals in the 1980s -- with nearly every case challenged successfully on grounds of ineffective assistance from appointed counsel.

The more expensive defense teams -- and requirements for detailed background investigations and psychological examinations of capital defendants -- have meant far fewer executions in Indiana.

Statewide, no one has been put to death in more than two years, the longest span without an execution in 15 years. No Northwest Indiana capital defendant has been executed since 1985 when Hammond killer William Vandiver died in the electric chair.

"Every time we have a death penalty case, the county spends a million dollars with the defense and prosecutors and the appeals," said Lake County Council President Larry Blanchard, who has presided over a series of contentious county budget cuts this year.

"And no one is ever executed. It makes you question whether it's worth the cost."

That is just the start of the article. Here is another quote:
"Whatever you say about the cost of defending these cases now, taking a case through the state appeals and federal court is not cheap either," said David Vandercoy, a Valparaiso University law school professor and criminal defense attorney. "The court seemed to think the thing to do was to get it right the first time."

The state Supreme Court in 1989 adopted Criminal Rule 24, which mandated experience levels and training for lawyers in capital cases and allowed the state to pay half the cost of the defense.

Since 1990, Lake County and the state have combined to spend more than $2.7 million defending 16 defendants in death penalty cases -- $168,000 per case. Lake County rivals only Marion County in the number of death penalty cases filed, and the amount spent defending them.

See also this ILB entry from Feb. 25th, headed "Citing Cost, States Consider End to Death Penalty."

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Courts

Ind. Laws - More on "Lawmaker to push texting-driving ban"

Updating this ILB entry from Nov. 3rd, the Fort Wayne Journal Gazette has an editorial today that concludes:

Research from the American Automobile Association’s Foundation for Traffic Safety found about one in five U.S. drivers said they texted while driving in the past month. Nearly 90 percent of Americans support bans on texting while driving, according to research.

Bans work, according to the AAA. The incidence of texting while driving decreased in California after it was banned there in January. New York’s statewide ban went into effect a week ago. In all, 18 states have outlawed texting while driving, and six have banned all hand-held cell phone use while driving.

Holdman’s bill [Sen. Travis Holdman, R-Markle] deserves quick and unanimous support in the Indiana General Assembly.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Law

Ind. Courts - How it is going in Valparaiso's Courthouse, what with it hosting the Marion County attempted murder trial?

James D. Wolf Jr's story today in the Gary Post Tribune is headlined: "High-profile trial proceeds despite ongoing courthouse work: Exterior cleaning, wiring upgrade doesn't faze change-of-venue trial." Some quotes:

VALPARAISO -- While television crews from Indianapolis parked vans outside the Porter County Courthouse, people going in and out dodged spray from a high-pressure hose cleaning the building's upper reaches.

Inside, the trial of Brian Reese, 37, for the attempted murder of an Indianapolis police officer was being held in Porter County due to excessive publicity in Marion County.

And Northwest Communications Inc. continued updating the courthouse's wiring to last the next 20 years.

Despite everything going on, most agreed the disruptions were minor.

"It hasn't kept us from doing anything," Judge Roger Bradford, whose courtroom is across from the Reese trial, said. "There's more hustle and bustle, more activity on the floor." * * *

Lt. Bob Paulson said that it's been smooth working with other law enforcement agencies on security, including Indianapolis Metropolitan Police, the Gary Police Department and the Indiana State FOP Critical Incident Team.

Sheriff David Lain said, "It's pretty much business as usual because this is the business we're in."

David Shircliff, a defense attorney from Marion County, said Porter has been gracious and accommodating, from the jail staff allowing access to Reese to Harper's staff helping his people with what they need to do.

Marion County Prosecutor Carl Brizzi said he couldn't be more appreciative of the court staff, police officers and Porter County officials who made him feel at home again.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Courts

Ind. Law - Newspapers to join fight for ethics reform

According to the Indianapolis Star today:

Next Sunday, 23 Indiana newspapers, led by The Star's Editorial Board, will launch an editorial campaign for major ethics reform in the General Assembly.

The newspapers, with a combined readership of 1.5 million, will wage the campaign throughout the 2010 legislative session.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Law

Ind. Gov't - Yet more on: "State no longer holds all cards"

Updating this ILB entry from Nov. 5th, editorials in two papers today don't accept that the gambling industry in Indiana is too big to allow to fail.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Government

Courts - "Justices Weigh Life in Prison for Youths Who Never Killed "

Adam Liptak reports today in the NY Times about tomorrow's upcoming oral argument before the SCOTUS in the case of Graham v. Florida and Sullivan v. Florida. It begins:

TALLAHASSEE, Fla. — There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.

On Monday, the Supreme Court will hear appeals from two such juvenile offenders: Joe Sullivan, who raped a woman when he was 13, and Terrance Graham, who committed armed burglary at 16. They claim that the Eighth Amendment’s ban on cruel and unusual punishment forbids sentencing them to die in prison for crimes other than homicide.

Outside the context of the death penalty, the Supreme Court has generally allowed states to decide for themselves what punishments fit what crimes. But the court barred the execution of juvenile offenders in 2005 by a vote of 5 to 4, saying that people under 18 are immature, irresponsible, susceptible to peer pressure and often capable of change.

A ruling extending that reasoning beyond capital cases “could be the Brown v. Board of Education of juvenile law,” said Paolo G. Annino, the director of the Children’s Advocacy Clinic at Florida State University’s law school. Judges, legislators and prosecutors in Florida agree that the state takes an exceptionally tough line on juvenile crime.

But they are deeply divided about when sentences of life without the possibility of release are warranted.

Lyle Denniston of SCOTUSBlog posted a lengthy argument preveiw Friday, headed "Inquiring into the juvenile mind." It begins:
At 10 a.m., and again at 11 a.m., on Monday, the Supreme Court will examine the latest question on the punishment of juveniles who commit crimes — this time, crimes that do not lead to the death of the victim. Similar but not identical, the cases are Graham v. Florida, being argued at 10, and Sullivan v. Florida, at 11. * * * The briefs and other filings in the cases can be found on ScotusWiki, here and here.

Argument Preview. Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed. The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16. Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Courts in general

Ind. Courts - “You can’t arrest him. He works on my car for free”

The Jeffersonville News & Tribune has this story today, reported by Matt Thacker, and headed "Former drug court officer questions timing of firing: Some say judge was upset over mechanic’s arrest."

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Courts

Ind. Law - What is being done in Indiana to deal with foreclosures?

David Smith has a lengthy story today in the Lafayette Journal Courier dealing with this issue. A quote:

Stories like the [Sheila] Reitz's are not uncommon in Indiana, which in 2008 saw 45,394 foreclosure complaints filed, 47 percent more than were filed in 2004.

Amid the fast-growing number of foreclosures, state lawmakers this year approved a new law that provides procedures aimed at demystifying foreclosure and giving homeowners more time and options for foreclosure prevention.

At the same time the Indiana Supreme Court launched a program to train lawyers, judges and mediators to better handle foreclosure cases.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Law

Ind. Courts - State bar honors Allen Superior Court Judge Charles Pratt as the state’s Outstanding Judge

From this brief report in today's Fort Wayne Journal Gazette:

The Indiana State Bar Association named Allen Superior Court Judge Charles Pratt as the state’s Outstanding Judge after he was nominated by local attorneys.

Pratt, who serves in the Family Relations Division of Allen Superior Court, handles domestic relations cases, adoptions and child abuse and neglect cases.

Elected to the bench in 1998, Pratt has served as chairman of the Indiana Juvenile Justice Improvement Committee and recently completed service on a national juvenile restorative justice task force.

Over the years, Pratt has introduced a number of measures such as mediation processes and a process known as “Family Group Decision Making.”

Some of his changes have been replicated in other Indiana counties, according to an Allen Superior Court statement.

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Indiana Courts

Ind. Decisions - "Gambler gets second shot in suit against Ind. casino"

Caesars Riverboat Casino. LLC v. Genevieve Kephart, which will be argued before the Supreme Court this Thursday, Nov. 12th, is the subject of a long story today by Grace Schneider of the Louisville Courier Journal. Some quotes:

Jenny Kephart said she remembers her night of gambling at Caesars Indiana in March 2006 for how she ended it — exhausted and staggering back to her room at sunrise after losing $125,000.

This week, the Tennessee woman who claims the casino took advantage of her blackjack addiction to win a chunk of her $1 million inheritance hopes to persuade the Indiana Supreme Court that she should be allowed to argue in court that Caesars knew of her weakness and lured her into losing the money.

The court is scheduled Thursday to review the case of Kephart, an unemployed suburban Nashville resident who still owes the $125,000 to the Harrison County riverboat, now renamed Horseshoe Southern Indiana.

Kephart, 54, contends she gambled away more than $900,000 during more than a year of lavish betting, making her a target for complimentary stays in luxury hotel suites, dinners at fine restaurants and limousine service offered only to high rollers like her.

The case is being closely watched by the casino industry and gaming law experts, in part because courts in several states have rejected arguments that casinos have a “duty of care” responsibility to prevent compulsive gamblers from giving in to their addiction.

Because casinos have overwhelmingly prevailed in those cases, the decision by the Indiana high court to hear Kephart’s case may signal a shift in philosophy, said Joseph M. Kelly, a law professor at the State University of New York in Buffalo and a gambling law authority who wrote about the Kephart case in a recent law review article.

“Generally, the Indiana Supreme Court wouldn’t grant review if it was simply going to rubber stamp what had been going in on prior cases,” Kelly said in a telephone interview. “So there’s something about (Kephart’s) petition for review that must have interested somebody there.” * * *

But Horseshoe’s lawyers have argued the casino doesn’t have to protect Kephart from herself and that she could have asked the gambling boat to ban her — but she didn’t.

Kephart declined to be interviewed last week. But in a brief statement relayed through her lawyer, Terry Noffsinger of Evansville, she said most people don’t understand how casinos operate because “they’re in a world of their own, making their own rules. I hope we get to court to expose and change these practices.” * * *

In March, the Indiana Court of Appeals ruled 2-1 for the casino. The majority said the riverboat isn’t legally obligated to protect Kephart from casino marketing and hosting and blamed Kephart for not cutting her ties to the casino in light of “her proclivity towards compulsive gambling.”

Still, even the majority judges — Paul D. Mathias and Carr Darden — wrote that they were “troubled” that the casino would allow Kephart to lose all the money, and they expressed sympathy for her because the casino can recoup triple losses.

Appeals Judge Terry Crone wrote a stinging dissent, calling the casino’s actions morally “repugnant.” Crone said the state failed to set high standards for casinos while reaping millions of dollars in financial gains from the industry. * * *

If the state Supreme Court rules in favor of Kephart, the case would return to Harrison Circuit, where Noffsinger said he hopes to show how the casino set its sights on Kephart and her money and that its actions were negligent. He said he’ll also ask the judges to consider whether Indiana law should be giving immunity to a business that takes advantage of a person known to be a compulsive gambler.

For more, here is a long list of earlier ILB entries, including this March 20 ILB summary of the Court of Appeals decision (2nd case).

Posted by Marcia Oddi on Sunday, November 08, 2009
Posted to Upcoming Oral Arguments

Saturday, November 07, 2009

Ind. Law - "Keeping track of sex offenders is not easy"

I thought this was a great story in the Nov. 6th Greene County Daily World, reported by Anna Rochelle. It gives a picture of all that is involved in keeping tabs on 70 sex offenders in a rural Indiana county:

Denise Andrew probably knows more convicted sex offenders and murderers than anyone else in Greene County, and they know her. She sees them or talks to them on a regular basis. It's all part of her job.

As the Records Clerk at the Greene County Sheriff's Department, Andrew also serves as the Greene County Registrar for the Indiana Sheriff''s Sex and Violent Offender Registry.

"There's 70 people in Greene County right now who are registered," said Andrew.

She's the one who has been keeping track of them, for over 10 years now, and it's not a simple job.

"I think the public would be amazed if they knew how often we check on these people -- it's not just once a year," said Andrew, standing before several tall cabinets filled with files on each offender, past and present.

Click on the following link to see the location of the individuals in Greene County on the registry.

Most of the offenders who are required to register must register annually but Andrew says that's a minimum. They do not just show up once a year. The contact is far more frequent.

"Every three months, I send an update form to them by mail. They must sign the form and then they have to deliver it back to me, in person, here at the sheriff's department," said Andrew. "This way I know they are receiving mail at the registered address, and we see them. They have 10 days to come in here with the form."

In between mailings, someone will be knocking on their door to see if they are still living at the residence they registered.

"Deputy John Fowler goes out on a lot of the checks, also Deputy Rick Marques. They'll have another update form that both the offender and the deputy must sign, then the deputy delivers it back to me," said Andrew.

If the offender can't be located, or if they do not show up to return a mailing, Andrew contacts a detective to investigate.

"To stay out of trouble, they have to turn these updates in to me on time and let me know what's going on, if they have changes. I'm not exactly their friend, but I'm not their enemy either. I just try to maintain a good working relationship with them. They have to work with me," said Andrew.

Andrew says if an offender calls her and asks for an extra day or two to turn something in due to sickness or car trouble, she will agree to a short extension because they are staying in contact, but if they don't show up and fail to communicate, she doesn't wait around to hand their case over to an officer.

"As long as they keep in compliance with me, they won't be running in to a detective," said Andrew. "I've had a few who start out being very defiant with me."

Once they figure out all the reasons why it's in their best interests to get along with their registrar, Andrew says they become more cooperative.

"Some are so scared of getting in trouble again, if the last picture I have of them is with a beard and they shave it off, they'll call and tell me they shaved their beard," said Andrew.

Their picture is taken regularly. In some cases, the offender's photo is updated every 90 days.

Besides basic information on where they live, work or go to school, mailing addresses, phone numbers and photos, their file includes their physical description and any scars, marks or tattoos, their e-mail addresses, probable cause affidavits and other information from the courts on both new and old cases, descriptions of their vehicles with license plate numbers, as well as names of spouses and people they live with.

"We keep a lot more information on them than what the public sees online," said Andrew, referring to the Web site.

Andrew is logged in constantly to the Indiana Sheriffs' Sex and Violent Offender Registry online and makes daily updates.

"Seventy-two hours is the big thing -- they have 72 hours to notify me if they move. I'm very accessible. They know I'm here Monday through Friday from 8 a.m. until 4 p.m. and they have my card with my e-mail address and phone number. If they move or make a change, I update the online registry immediately," said Andrew.

She also maintains a "Lobby List" for the public. It's a binder containing color pictures of each offender in Greene County who is required to register along with their status and basic information. A copy of the list is sent regularly to all law enforcement agencies in the county.

"Anyone who does not have Internet access is welcome to come in anytime and look through the Lobby List," said Andrew.

Andrew is available during regular office hours to answer questions not only from offenders but from the public.

"If you have a question or some concerns about an offender, or one seems out of place, call in. If you know of a violation, you need to call in, and someone will investigate," said Andrew.

Posted by Marcia Oddi on Saturday, November 07, 2009
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Decisions - More on: Supreme Court sets Dec. 11, 2009 as execution date for Matthew Eric Wrinkles

"Wrinkles murder case is topic on 'Oprah' Tuesday" is the headline of a brief story today in the Evansville Courier & Press:

EVANSVILLE — A segment about the July 21, 1994, triple murder in Evansville by Eric Wrinkles will air on Tuesday's episode of "Oprah."

The show is at 4 p.m. weekdays on 14WFIE-NBC.

Wrinkles killed his wife, Debra Jean Wrinkles, 31; her brother, Mark "Tony" Fulkerson, 28; and Fulkerson's wife, Natalie "Chris" Fulkerson, 26.

Ira McIntire, the mother of Debra Jean Wrinkles and Mark Fulkerson, along with other family members and witnesses flew to Chicago for a taped interview.

They had an opportunity to interact with Eric Wrinkles, who appeared via satellite from the Michigan City, Ind., prison where he sits on death row. He is scheduled to be executed Dec. 11.

Posted by Marcia Oddi on Saturday, November 07, 2009
Posted to Indiana Decisions

Ind. Law - "I&M fight costs Fort Wayne $300,000 for lawyers"

Benjamin Lanka reports today in the Fort Wayne Journal Gazette in a story that begins:

Fort Wayne has paid nearly $300,000 to attorneys since last year to battle Indiana Michigan Power over the value of the former City Light electric utility.

The city released its I&M legal expenses Friday, nearly two months after they were requested by The Journal Gazette. The expenses show the city has employed three firms to help it manage the often contentious negotiations with the private utility.

The largest recipient has been the Baker & Daniels law firm. Tim Haffner, the city’s corporate counsel, works for that firm and has been a part of the electric negotiations since last year. His firm received $197,464 through Tuesday.

The city also hired Michael Cracraft, of Hackman Hulett & Cracraft, because of his experience working with utility law. The Indianapolis firm earned $79,592 since 2008.

The final attorney hired was Wayne Turner, of Bingham McHale, who will lead the city’s litigation efforts against I&M. The Indianapolis firm earned $14,881 from the city, the bulk of that coming this year.

Haffner said hiring different firms was necessary to match the array of attorneys to be used by the utility.

Kumar Menon, City Utilities director, said the money for the attorneys is being paid from proceeds from the city’s lease with I&M. Under the lease signed in 1974, the city’s electric power grid – formerly run by City Light – was turned over to Indiana & Michigan Electric Co. That lease expires in March.

Mayor Tom Henry has said the city will seek bids from electricity providers to get the best deal for residents and customers, prompting public sparring between I&M and the city.

At stake in the negotiations is how much I&M is willing to compensate the city for its former electric utility. City officials previously said the difference between the sides was between $50 million and $100 million.

The private utility sued the city last month in the case, but both sides said they hope to reach a deal through mediation.

Posted by Marcia Oddi on Saturday, November 07, 2009
Posted to Indiana Government | Indiana Law

Ind. Law - Services set for IU Law Prof. Mary Hart Mitchell, 56, who died Nov. 4

Updating this ILB entry from Nov. 4th, the Indianapolis Star today has the obituary for Indiana University-Indianapolis Law Professor Mary Harter Mitchell. Access it here. It concludes:

Mary's sudden and untimely death leaves all who knew her in a state of shock and grief—but also with boundless gratitude for the gift of her life and for her compassionate, passionate, and ever generous spirit.

A memorial service will be at First Friends Meeting, Kessler Blvd. East Dr., Indianapolis on Sunday November 8, 2009 at 4:30 p.m. Reception to follow.

As an alternative to flowers, the family encourages charitable donations to Doctors without Borders.

See also this story from IndyLaw News, headed "Law School Mourns Professor Mary Harter Mitchell" (which is also linked here).

Posted by Marcia Oddi on Saturday, November 07, 2009
Posted to Indiana Law

Friday, November 06, 2009

Courts - "Comment decision in New Hampshire high court’s hands"

Adding against to the ILB's list of entries on impacts of and access to anonymous posts and comments, Ashley Smith reported in the Nov. 5th Nashua NH Telegraph. Some quotes from the lengthy story:

CONCORD – The New Hampshire Supreme Court heard arguments Wednesday in a free-speech case that calls into question whether media outlets can protect the identities of anonymous online commenters.

The case also has potentially broad implications in determining who constitutes the media in an Internet age that has blurred the line between traditional news outlets and bloggers or citizen journalists. * * *

The complex case centers around a mortgage-industry watchdog Web site Mortgage Lender Implode-O-Meter that posts news from other sources about the housing finance crisis. Last fall, the site posted a story about a New Hampshire company, The Mortgage Specialists Inc., that was being investigated by banking officials for a number of alleged violations, including forging signatures, destroying documents and unfair or deceptive 
business practices.

Along with the story, Implode-O-Meter staff posted a confidential financial document MSI had prepared for the New Hampshire Banking Department, which was provided to them by an unnamed source. Some time later, a writer using the pseudonym “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI asked the site’s publisher, Implode-Explode Heavy Industries, to take down the document and comment, which it did. But the publisher refused to identify the person who leaked the chart or the commenter. It also refused to promise that it wouldn’t repost the chart in the future.

MSI eventually sued, and won.

A Rockingham County Superior Court judge ordered the publisher to reveal its anonymous sources to the company and not to post confidential documents in the future. The Web site appealed that decision to the state’s Supreme Court, which agreed to take on the case.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 1 NFP)

For publication opinions today (2):

In Robert P. Koors, et al. v. Walter W. Steffen, et al. , a 10-page opinion, Judge Bradford concludes:

Having determined that the parties agreed that any and all issues arising out of the Contract, including issues relating to liens, shall be submitted to binding arbitration, and that the Steffens have not waived their right to demand arbitration, we now consider Koors’s contention that the trial court abused its discretion in dismissing the instant matter rather than staying the matter pending arbitration. * * *

Here, the record demonstrates that although the entire controversy between Koors and the Steffens arose out of and related to the Contract, further action by the trial court could potentially be required if the arbitration panel were to find for Koors and determine that foreclosure is a proper remedy. We note that had we concluded that the parties’ Contract was a no lien contract, then we would agree that dismissal of the instant action would have been proper. However, having concluded that the parties’ Contract did provide for the possibility that a lien could arise out of the parties’ Contract, and in light of Indiana Code section 32-28-3-6 (2009) which requires that a complaint for foreclosure “must be filed not later than one year after the date the statement and notice of intention to hold a lien was recorded,” we conclude that the proper action would have been to stay the matter pending arbitration.[2] Therefore, under these circumstances, we conclude that the trial court abused its discretion in dismissing rather than staying the matter pending arbitration.
______________
[2] In concluding that the dismissal of the instant matter constituted an abuse of the trial court’s discretion, we note that although Indiana Code section 34-11-8-1 (2009) provides that a plaintiff’s action that is subsequently dismissed for any cause except plaintiff’s negligence in the prosecution of said action may bring a new action within three years after the date of the dismissal of the prior action, and the new action shall be considered a continuation of the plaintiff’s original action, we observe that while remote, it is possible that arbitration proceedings may not conclude within three years and as a result, Koors could potentially be left without the ability to foreclose as a proper remedy.

Teddy L. Garcia v. State of Indiana - "The conviction of Operating a Motor Vehicle While Intoxicated, as a Class A Misdemeanor is affirmed. The elevated conviction as a Class D Felony is reversed, as is the Habitual Substance Offender enhancement. The cause is remanded for further proceedings."

NFP civil opinions today (0):

NFP criminal opinions today (1):

Kevin N. Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case, and an interesting voter registration / privacy case from Illinois

In USA v. James Owens (SD Ind., Judge McKinney), an 8-page opinion, Judge Kanne writes:

James Owens pled guilty to transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Owens’s plea agreement included a stipulation of the sentencing guidelines offense level calculation, including all aggravating and mitigating sentencing factors, except for one enhancement. The parties could not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B), which comes into play when a defendant expects to receive a thing of value in exchange for his distribution of child pornography. Owens maintains that he should receive only a two-level enhancement because he did not expect to receive anything of value, and even if he did have an expectation, that expectation was of “role play” and not of a sexual encounter. The government maintains that Owens did expect to receive a sexual encounter, and accordingly, the five-level enhancement was appropriate. The district court agreed with the government and sentenced Owens to a term of 360 months’ imprisonment. Owens appealed the enhancement to his sentence, and we now affirm. * * *

Owens transmitted child pornography with the end goal of receiving a thing of value, namely sex, from the recipient. Because Owens’s ultimate goal was a sexual encounter with Erica and her children, and because neither the statute nor our precedent contain a temporal component in conjunction with the transfer, we AFFIRM the sentence.

In Joseph Lake v. Neal (ND Ill.), a 6-page opinion, Judge Evans writes:
The Duck Test holds that if it walks like a duck, swims like a duck, and quacks like a duck, it’s a duck. Joseph Lake, the plaintiff in this suit, flunks the Duck Test. He says, in effect, that if it walks like a duck, swims like a duck, and quacks like a duck, it sure as heck isn’t a duck.

The crux of Lake’s argument in this appeal is that a voter registration form is actually a motor vehicle record. He argues that the Chicago Board of Election Commissioners (Board) violated the Driver’s Privacy Protection Act (DPPA)—which regulates motor vehicle records—by disclosing personal information it obtains from voter registration records that were completed at an office of the Illinois Department of Motor Vehicles (DMV). After a parallel claim in state court was dismissed with prejudice, Lake instituted this class action suit against the Board. Recognizing a fatal flaw in Lake’s argument, the district court granted the defendants’ motion to dismiss for failure to state a claim. * * *

In 1998, Lake applied for a driver’s licence at an office of the Illinois DMV. Pursuant to the National Voter Registration Act (NVRA), he exercised an option to register to vote at the same time. He filled out and submitted a voter registration form, which was attached to the driver’s license application. The completed voter registration form was transmitted to the Board. In 2007, a fellow named Peter Zelchenko acquired Lake’s personal information—he says it was his name, date of birth, sex, address, former address, phone number, and social security number—by simply asking the Board for it. Zelchenko informed Lake that he acquired his personal information from the Board.

Lake raises two issues on appeal, but we need only discuss one: Did his complaint state a cause of action under the DPPA? * * *

Since a voter registration form filled out at the DMV is not a motor vehicle record under the DPPA, the Board could not have violated the DPPA by disclosing Lake’s personal information to the extent that it did.

Accordingly, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - "Court blocks Illinois' parental notification law: State panel had cleared enforcement of law, but hours later a judge grants ACLU restraining order"

This NY Times story from Nov. 3rd, reported by Monica Davey and headed "Illinois Curb on Minors’ Abortions Nears ," provides background. It begins:

CHICAGO — Illinois officials are expected to decide Wednesday when to begin enforcing a state law requiring doctors to notify a parent of anyone under 18 who seeks an abortion. The decision could prove to be a concluding chapter in the state’s debate, more than a quarter-century old, over parental notification.

But enforcement of such laws has long been blocked in the courts in a handful of other states, of which Illinois was one until this summer. Then a federal appeals court resolved a constitutional challenge by finding that a notification law enacted in Springfield in 1995 could indeed take effect. Enforcement has since been delayed by procedural issues that are to be addressed in Wednesday’s decision.

Opponents of abortion say they view the possibility of compliance at last, perhaps by late this week, as a chance to end what they perceive as an unwelcome magnet in the nation’s middle. Illinois, they say, has become a place that attracts young women from around the Midwest who are seeking abortions because, unlike neighboring states, it has not been able to enforce parental notification. * * *

Under the law, doctors are required to notify a parent or an adult guardian of anyone under 18 who seeks an abortion, or risk action by the state’s Medical Disciplinary Board.

Exceptions are allowed for medical emergencies and cases in which the minor states in writing that she is a victim of sexual abuse, physical abuse or neglect by a parent or other adult family member, circumstances that abortion rights advocates say many young women will be unwilling to acknowledge.

The law also allows those under 18 to seek a waiver from a judge, who could find them mature enough to make their own decision or find that telling a parent would not be in their best interest.

Critics have questioned the notion of waivers, arguing that young women may be unprepared to navigate the legal system, that their privacy could be jeopardized and that the process could take too long.

It was in part because of a challenge to the constitutionality of a waiver system that the Illinois law was enjoined by the courts for 14 years. Then, after this summer’s federal appellate decision, the state’s Department of Financial and Professional Regulation added a 90-day grace period for doctors while the state developed such a system. Last week state officials extended the grace period until at least Wednesday, when the Medical Disciplinary Board is expected to consider whether an adequate system now exists.

Should the decision be to have enforcement of the law begin immediately, those pursuing the new challenge in state court say, they will seek a temporary restraining order Wednesday afternoon.

And indeed they did, as this story by Sara Olkon in yesterday's Chicago Tribune reports. Some quotes:
In a dramatic turn of events, a Cook County Circuit Court judge halted Illinois' parental notification law on abortion just hours after a state agency gave it the all-clear.

Judge Daniel Riley granted a temporary restraining order sought by the American Civil Liberties Union of Illinois in the late afternoon, hours after Illinois' medical disciplinary board decided the state could begin enforcing the law. It requires physicians to notify parents or guardians when those 17 or younger seek abortions.

The restraining order was based on an October lawsuit filed by a Chicago physician and a Granite City women's medical clinic who believe the 1995 law is unconstitutional and would harm minors by preventing them from obtaining safe abortions or force them to carry their pregnancies to term. * * *

Critics of the delay say teens from neighboring states with stricter rules drive to Illinois to avoid talking to their parents about a pregnancy. Iowa requires notification, and with some exceptions, doctors performing abortions in Indiana, Michigan, Missouri and Wisconsin must have parental consent before doing the procedure.

The NY Times story includes this graphic showing the status of the various states.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Courts in general

Ind. Decisions - Anthony J. Wallingford suspended from Indiana practice

Here is a long list of ILB entries on :New Albany attorney Anthony Wallingford, who on Aug. 9, 2008 pleaded guilty to sexual battery involving a 16-year-old girl, and on Dec. 5, 2008 was suspended pendente lite from the practice of law in Indiana.

Here is an Supreme Court Order filed earlier this week, Nov. 3, 2009, in In the Matter of Anthony J. Wallingford. Some quotes:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state without automatic reinstatement, effective October 24, 2008. Respondent may seek reinstatement two years after the effective date of his suspension or the date he successfully completes his term of criminal probation, whichever is later, 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). Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). * * *

All Justices concur, except Dickson, J., who dissents.
Dickson, Justice, dissents, and would reject the Conditional Agreement, believing that the Respondent, by engaging in conduct resulting in his felony conviction, has demonstrated his unfitness to responsibly represent, advise, and serve future clients.

[More] The Legal Profession Blog, a member of the Law Professor Blogs Network, posted an entry on the Wallingford order yesterday. Access it here. Here is the comment I posted, objecting to the lack of attribution to the LCJ quote.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court decides one yesterday

The case is Enhanced Telecommunications v. Ind. Dept Revenue. In a 15-page opinion, Judge Fisher writes:

Enhanced Telecommunications Corp. (ETC) challenges the Department of State Revenue's (Department) imposition of Indiana's utility receipts tax (URT) on certain monies it received during the years ending December 31, 2003, December 31, 2004, and December 31, 2005 (the years at issue). The issues for the Court to decide are: I. Whether money ETC collected from its customers in “subscriber line charges” and “federal universal service contribution recoveries” is subject to the URT; and II. Whether distributions ETC received through various federal and state subsidy programs are subject to the URT. * * *

For the foregoing reasons, the Department has erroneously subjected ETC's SLCs, FUSCRs, and distributions to the URT. The Department's final determination in the matter is therefore REVERSED.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Ind. Tax Ct. Decisions

Courts - "If Chicago cop caught you with LIDAR, go to court: Judge will dismiss it "

The Chicago Sun-Times column today, by Mark Brown, is headed: "How to beat a speeding ticket: If city cop caught you with LIDAR, go to court: Judge will dismiss it." Some quotes:

It was with some fanfare that the Chicago Police Department announced three years ago that all city police districts were being supplied with high-tech LIDAR speed detectors to help crack down on speeders on neighborhood streets.

What nobody has bothered to make public, however, is that for at least the past year, speeding tickets produced by Chicago police officers using LIDAR have been routinely dismissed in Cook County Traffic Court for any defendant bothering to show up to contest the case.

The tickets are being voluntarily waived by the city's Law Department because of legal challenges to the laser technology underlying the LIDAR (light detection and ranging) equipment.

The city began taking the approach after Traffic Court judges started ruling in favor of defense attorneys who contend local prosecutors must hold a special hearing to prove the scientific basis behind LIDAR before using it as evidence.

This has not kept the city from continuing to accept the guilty pleas -- and cash the checks -- from the vast majority of accused speeders who dispose of their tickets by just mailing in the fine or going to traffic school.

For those who go to court, on the other hand, it's simply a matter of waiting for their name to be called and the judge to hand them back their driver's license, no questions asked and little if any explanation given.

"This is a LIDAR case," an assistant Corporation Counsel told Judge George Scully Jr. one day last week as the next defendant's name was called. With that, Scully pulled the driver's license from the ticket to which it was stapled and returned the license to the defendant, sending her on her way. * * *

Some defendants had hired the hallway lawyers who hang around Traffic Court to represent them, not realizing they were receiving the same outcome as those who didn't have a lawyer, except they had to pay the lawyer.

"Hey, I make a living off this stuff," one lawyer told me when I brought it up.

He said he deserves to continue to make money from such clients because he "invented" the defense now being used to squelch all the LIDAR cases -- by citing a Downstate appellate court opinion that was the first to call for a scientific review of the LIDAR technology.

That case actually involved a Naperville lawyer, Michael Canulli, who was driving with his family to a girls' softball tournament in Springfield nine years ago when he was ticketed on I-55 near Lincoln, where State Police had sprung a massive speed trap. Incensed by their tactics, Canulli took the case to court. Now he's cited as the basis for beating every LIDAR ticket in Chicago, which is fine by him. * * *

ndeed, there seems little known basis for questioning the reliability of LIDAR. Nobody has been able to cite for me any jurisdiction where the technology has been shown deficient. But the city hasn't gotten around to putting on its own legal case, known as a Frye hearing.

A Law Department spokesman said one of the problems is that -- in the cases where it has called a defendant's bluff and agreed to a Frye hearing -- the defendant gives up rather than put up a huge legal fight over a little speeding ticket.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Courts in general

Courts - "Rethinking Prosecutorial Immunity"

The Supreme Court oral argument Nov. 4th in the case of Pottawattamie County v. McGhee, the subject of this ILB entry from Nov. 4, is the focus of this interesting "Argument Recap" by Erin Miller of SCOTUSBlog, dated Nov. 5th. A sample:

Justice Stevens depicted the petitioners’ view of immunity as “a strange proposition” – and Deputy Solicitor General Neal Katyal, arguing for the United States and the petitioners, agreed it “seems a little odd.” The idea everyone found so strange was that the closer an officer is to a wrongful conviction, the more immune she is for it. Two hypotheticals Justices Ginsburg and Kennedy posed to Stephen Sanders – also arguing for the prosecutors – zeroed in on that strangeness: Could a policeman be held liable for fabricating evidence? Or could a prosecutor from another case? Sanders was forced to admit that both the policeman and the second prosecutor could be held liable, though the prosecutor of the case himself could not.

Posted by Marcia Oddi on Friday, November 06, 2009
Posted to Courts in general

Thursday, November 05, 2009

Law - "Shudder speed: Rise of the stealthy traffic camera fuels drivers' disgust"

Adding to a by now long list of ILB entries on red-light cameras, Neely Tucker reports in the Washington Post in a very long story today. A sample:

There's something that doesn't smell right about these tickets, but you're not quite sure what.

Is it the huge profits the government and their cohorts, the camera manufacturers, make on them? The District doubling the number of tickets it issued just two years ago, raking in $36 million last fiscal year? The fact that Redflex, one of the big manufacturers of these cameras, posted a 48 percent jump in revenue last year while the rest of the economy tanked?

People get worked up. Put these cyborgs on a ballot, and the voters beat them to the pavement.

Three cities Tuesday -- two in Ohio, one in Texas -- voted to rip the things down. In College Station, Tex., the camera manufacturer and their subcontractors reportedly spent $60,000 campaigning to keep them in place, more than five times the amount raised by the opposition, and lost anyway. Voters in Chillicothe, Ohio, went against the cameras at a rate of 72 percent. In Heath, Ohio, the mayor got caught removing anti-camera campaign signs from an intersection. He, and the cameras, got sent packing.

"I'm ecstatic," Jim Ash, the guy in College Station who led the anti-camera campaign.

Nationwide, there have been something like 11 elections on automated enforcement. Your vote total: Revolting Peasants 11, Machines 0.

Yet the cameras multiply like something out of science fiction, like that robot Mr. Smith in a sequel to "The Matrix," like the red weed in "War of the Worlds."

A handful of cities used them a decade ago. Now they're in more than 400, spread across two dozen states. Montgomery County started out with 18 cameras in 2007. Now it has 119. Maryland just took the program statewide last month, and Prince George's is putting up 50. The District started out with a few red light cameras in 1999; now they send out as many automated tickets each year as they have residents, about 580,000.

"They make too much money for cities to just stop using them," says Joe Scott, a D.C. entrepreneur who has developed Phantomalert, a downloadable software for GPS units and an app for smart phones that is updated by subscribers who spot new cameras sprouting up. He started it a few years ago by logging in a couple of hundred cameras in the D.C. region. Subscribers have since uploaded 200,000 more. It's like "Terminator," humans against machines.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to General Law Related

Courts - More on: "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"

Updating this Oct. 19th ILB entry, this issue is now before the California Supreme Court, according to a story today by Mike McKee of The Recorder. Some quotes from the story about Tuesday's oral arguments:

At issue in People v. Robinson , S158528, is whether an unknown suspect's DNA profile -- as opposed to a physical description -- can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment's protection against unreasonable searches and seizures.

[Cara] DeVito represented Paul Robinson, an alleged serial rapist found guilty of an August 1994 assault on a Sacramento woman who wasn't sure of his race and had only a vague physical description.

Four days before the six-year statute of limitations for filing charges expired on Aug. 25, 2000, prosecutors filed a "John Doe" complaint describing the then-unknown defendant from a DNA profile developed from semen at the assault site. The next day, an arrest warrant was issued, tied to the DNA profile.

The warrant for Robinson's arrest was executed three weeks later based on a match from the state's DNA databank.

The defense argued that a DNA profile lacked the statutory requirement that a warrant contain "sufficient descriptive material" -- such as race, height, body build -- to indicate "with reasonable particularity" the identification of the proposed arrestee.

Sacramento County Superior Court Judge Peter Mering disagreed, as did Sacramento's 3rd District Court of Appeal in 2007.

The California Supreme Court appears headed for a similar outcome, with most of the justices, particularly Carol Corrigan, Ming Chin and Marvin Baxter, seemingly OK with a warrant based on a DNA profile.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Courts in general

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

For publication opinions today (0):

NFP civil opinions today (3):

In Re the Marriage of K.H. v. J.L.H. (NFP) - "Mother has not shown that the evidence positively requires the opposite conclusion reached by the trial court. The custody order is not clearly erroneous. Affirmed."

Dale Albert Christ v. Susan Maginn Christ (NFP) - "We do not believe that Dale violated any order of the trial court, ambiguous or not, by the mere act of pre-registering the children at a school other than that set out in the parties’ agreement and the trial court’s order. The act of pre-registering the children did not interfere in any way with where the children would attend school and did not prevent them from attending Harrison Parkway Elementary as provided for in the order. It merely had the effect of providing an option to the parties. Nothing in the parties’ agreement or the trial court’s order prohibited Dale from pre-registering the children in another school in order to allow an option if the parties changed their minds. We therefore conclude that the trial court abused its discretion when it found Dale to be in contempt. Reversed."

Edward R. Hall v. Allied Waste Services, Inc. (NFP) - Interesting facts in this NFP 2-1 opinion by Judge Barnes that concludes:

While we express no opinion as to the enforceability of evergreen provisions in general, under the circumstances of this case, Hall's arguments fail. The consent decree did not make the automatic renewal provision of the contract between Hall and Allied Waste unenforceable. The small claims court did not err by enforcing the contract and ordering Hall to pay liquidated damages based on the contract. We affirm.

NAJAM, J., concurs.
KIRSCH, J., dissents without opinion.

NFP criminal opinions today (3):

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

Maurice Patterson v. State of Indiana (NFP)

Eddie J. Richardson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit issues one Indiana opinion, and one interesting copyright decision

The Indiana case is U.S. v. Kevin R. Schhultz (ND Ind., CJ Miller), a 9-page opinion. Judge Bauer writes:

Kevin Schultz was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges his conviction. We affirm.

On February 25, 2005, Schultz pleaded guilty to one count of trafficking in counterfeit telecommunications instruments, in violation of 18 U.S.C. § 1029(a)(7), an offense punishable by fine and/or imprisonment not to exceed ten years. Schultz was sentenced to two years probation, with the first six months to be served on home detention.

On December 7, 2007, pursuant to a search warrant, federal agents searched Schultz’s residence and found a 12-gauge Remington shotgun and ammunition in the attached garage. Thereafter, a two-count indictment was filed against him: Count One for violating 18 U.S.C. § 922(g), which makes it unlawful for one convicted of a crime punishable of a term exceeding one year to possess a firearm (“felon-in-possession”); and Count Two for making a false statement regarding his ownership of the shotgun, in violation of 18 U.S.C. § 1001.

Schultz filed a motion to dismiss the indictment and a motion to suppress both the shotgun and his statements; the district court denied both motions. Thereafter, a bench trial was held on stipulated facts for Count One; and the government moved to dismiss Count Two. The district court found Schultz guilty and sentenced him to eighteen months of imprisonment, to be followed by three years of supervised release.

The coyright case is Schrock v. Learning Curve International (ND Ill.), a 27-page opinion by Judge Sykes that begins:
HIT Entertainment (“HIT”) owns the copyright to the popular “Thomas & Friends” train characters, and it licensed Learning Curve International (“Learning Curve”) to make toy figures of its characters. Learning Curve in turn hired Daniel Schrock, a professional photographer, to take pictures of the toys for promotional materials. Learning Curve used Schrock’s services on a regular basis for about four years and thereafter continued to use some of his photographs in its advertising and on product packaging. After Learning Curve stopped giving him work, Schrock registered his photos for copyright protection and sued Learning Curve and HIT for infringement.

The district court granted summary judgment for the defendants, holding that Schrock has no copyright in the photos. The court classified the photos as “derivative works” under the Copyright Act—derivative, that is, of the “Thomas & Friends” characters, for which HIT owns the copyright—and held that Schrock needed permission from Learning Curve (HIT’s licensee) not only to make the photographs but also to copyright them. Because Schrock had permission to make but not permission to copyright the photos, the court dismissed his claim for copyright infringement.

We reverse. We assume for purposes of this decision that the district court correctly classified Schrock’s photographs as derivative works. It does not follow, however, that Schrock needed authorization from Learning Curve to copyright the photos. As long as he was authorized to make the photos (he was), he owned the copyright in the photos to the extent of their incremental original expression. In requiring permission to make and permission to copyright the photos, the district court relied on language in Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), suggesting that both are required for copyright in a derivative work. We have more recently explained, however, that copyright in a derivative work arises by operation of law—not through authority from the owner of the copyright in the underlying work— although the parties may alter this default rule by agreement. See Liu v. Price Waterhouse LLP, 302 F.3d 749, 755 (7th Cir. 2002). Schrock created the photos with permission and therefore owned the copyright to the photos provided they satisfied the other requirements for copyright and the parties did not contract around the default rule.

We also take this opportunity to clarify another aspect of Gracen that is prone to misapplication.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - In Pennsylvania, "Women begin to dominate state appellate courts"

That is the headline to this story today, reported by Debra Erdley, in the Pittsburgh Tribune-Review. Here is a quote from the middle of the story:

In a state where outraged voters ousted a Supreme Court justice four years ago amid anger over a legislative and judicial pay raise, Orie Melvin repeatedly told voters she returned her raise to the state Treasury every month for the past four years.

"Voters in the Keystone State understand the pay raise and understand that the high bench was involved in engineering it," DiSarro said. He said it was a populist issue that tapped into lingering voter resentments, as well as the voter anger evidenced in so-called Tea Party rallies this year.

Political scientist and pollster Chris Borick of Muhlenberg College said repeated wins for women on statewide courts, where female candidates took four or five appellate court positions in 2007, suggests gender could be a factor to some voters.

"It seems like there's more than just happenstance. When women voters don't have a lot of other prompts to affect their decision, gender might be a key factor," Borick said. But he noted the court election results are an anomaly in a state that has never elected a female governor or U.S. senator and usually ranks among the lowest in the nation in terms of female legislators.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Courts in general

Courts - Sex offender laws before several courts

Nov. 2nd ILB entry discussed recent decisions of the Indiana and Kentucky Supreme Courts relating to the ex post facto impact of sex offender residency restriction laws.

In California, this Nov. 4th story by Bob Egelko of the San Francisco Chronicle reports:

The California Supreme Court appeared to be searching for a middle ground Tuesday in a dispute over whether thousands of formerly imprisoned sex offenders must live at least 2,000 feet from parks and schools, a voter-approved restriction that would exclude them from most of the state's urban areas. * * *

A state lawyer argued that Proposition 83, a November 2006 initiative, imposed the residency restriction on all 65,000 registered sex offenders in California and subjected them to prosecution for violations.

An attorney for four paroled offenders, two from the Bay Area, said the restrictions covered, at most, only those who committed sex crimes after Prop. 83 passed - and made little sense even for that group. * * *

The state says about 6,800 registered sex offenders are now on parole. Nine months after Prop. 83 passed, parole officers began ordering them to leave their homes if they lived less than 2,000 feet from a park or school, and arresting them for parole violations if they stayed.

Under those rules, "San Francisco is one big exclusion zone," Galvan said. Because authorities have refused to let parolees move to other counties, he said, their only choices are homelessness or prison.

Baxter noted, however, that Galvan's four clients had all been paroled before Prop. 83 passed, and would not be subject to the residency restrictions if the court interpreted the measure to cover only post-November 2006 parolees. That was the most logical interpretation of the measure, said Baxter, generally the court's most conservative justice.

But Mennemeier said the state's ballot pamphlet, which included arguments by Prop. 83 supporters to create "predator-free zones" around schools and parks, showed that voters intended to apply the limits to all registered sex offenders.

Justice Joyce Kennard appeared skeptical, noting that ex-offenders who were barred from living near parks or schools "can still mingle out there."

Galvan's attempt to limit Prop. 83 to those who committed sex crimes after its passage was questioned by Baxter and Justice Carol Corrigan, who appeared willing to apply the restrictions at least to those who were imprisoned for sex crimes in November 2006.

James Nash of the Columbus Ohio Dispatch reports today in a story that begins:
Thousands of registered sex offenders would be subject to less-stringent reporting requirements if defense lawyers succeed in challenging parts of a 2007 state law intended to crack down on sexual criminals.

The attorneys told the Ohio Supreme Court yesterday that the get-tough law was applied illegally to more than 26,000 sex offenders who were sentenced before it took effect.

In addition, the lawyers said, the measure penalizes people who commit sex offenses before they turn 18 by requiring them to continue to register as sex offenders well into adulthood.

The state's highest court heard four cases yesterday challenging Senate Bill 10, which created a new system for classifying sex offenders based more on the severity of the crime than the likelihood of committing future offenses.

More than half of the offenders were placed in the most-serious category -- sexual predators -- who are required to register every 90 days for life.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Courts in general

Ind. Gov't - Still more on: "State no longer holds all cards"

On Sept. 13th Niki Kelly of the Fort Wayne Journal Gazette had a lengthy story on what l noted in this ILB entry:

looks to be an interstate "gambling race," oddly paralleling the intercontinental nuclear arms races during the cold war, but with no way out.
Kelly's story began:
Sixteen years ago, Indiana ventured into casino gambling for the first time, banking on the idea that riverboats in border communities would spur economic development and fill tax coffers.

But now, surrounding states are catching up. Ohio will have horse tracks with video slots next year, and Michigan is adding tribal casinos.

This entry the next day quoted from a NY Times story that in turned quoted from a new report:
The data shows that states take a real chance in depending on gambling because this revenue is not likely to keep pace with growing budgetary needs,” said Lucy Dadayan, a senior analyst at the Nelson A. Rockefeller Institute of Government at the State University at Albany, which will release a report on the subject next week.
The 20-page report is now out, it is available here, titled "For the First Time, a Smaller Jackpot: Trends in State Revenues from Gambling."

Yesterday, Lesley Stedman Weidenbener and Tom Loftus of the Louisville Courier Journal had a long story headlined "Ohio casino vote stirs sense of urgency in Kentucky, Indiana." Some quotes:

Top officials in Kentucky and Indiana urged quick action Wednesday to protect their states’ interests in response to Tuesday’s decision by Ohio voters to authorize casino gambling.

Kentucky Gov. Steve Beshear joined horse racing leaders in pushing lawmakers to move quickly to expand gambling, now that casino construction can move ahead in Cincinnati and three other Ohio cities. * * *

In Indiana, which could lose $100 million in tax revenue to new Ohio casinos, Senate Appropriations Committee Chairman Luke Kenley said the Ohio vote increases the urgency for Hoosier lawmakers to bolster the state’s casino industry and shield the taxes it generates.

“It will push us,” said Kenley, R-Noblesville. “The state gets a little over $800 million in taxes from casinos and local governments get $300 million. There’s going to be a desire to protect that revenue stream.”

The Hoosier gambling industry wants tax breaks to help expand, build new amenities or bolster promotions in advance of the projected 2012 opening date of the new downtown Cincinnati casino.

The new Ohio gambling venues — one each in Cincinnati, Columbus, Cleveland and Toledo — will be the state’s first foray into casinos, although the issue has been debated there for years. The proposed constitutional amendment — approved 53 percent to 47 percent — marked the fifth time that Ohio voters have considered gambling.

The Ohio legislature now has six months to pass casino development legislation. Groundbreaking is expected to begin in about a year, and barring major problems the four casinos could open in 2012. * * *

In Indiana, the new Cincinnati casino is expected to take a significant bite out of business at three Ohio River casinos: Hollywood at Lawrenceburg, Grand Victoria at Rising Sun and Belterra near Vevay.

A study by the Indiana Legislative Services Agency predicts the three southeastern Indiana casinos could lose as many as 38 percent of their customers and as much as $260 million of their $680 million in annual wagering revenue to the operations in Cincinnati and Columbus.

In all, Indiana could lose $100 million in annual tax revenue to the Ohio casinos — about one-ninth of its annual take from 13 casinos.

“It’s a big, big chunk of the tax dollars that Indiana receives,” said Ernest Yelton, executive director of the Indiana Gaming Commission.

Indiana legislators already have been studying how best to protect the state’s wagering tax revenue and help the casinos weather competition not just from Ohio, but from planned or proposed new gambling venues in Michigan and Illinois.

Casino owners have urged a number of possible options, including new tax breaks and the elimination of rules that force many of the casinos to be located on water.

“We have to make sure the state gives us all the tools we need to be competitive,” said Mike Smith, executive director of the Casino Association of Indiana.

Lawmakers should strive to help Indiana’s casinos become regional destinations with amenities including spas, golf courses and high-end restaurants and shops, Smith said. That can be achieved through tax breaks that encourage national gambling companies to invest their capital in Indiana rather than other states, he said.

Kenley said the challenge will be determining how to help casinos facing significant out-of-state competition while not harming other in-state gambling operations.

"High stakes for Indiana casinos: The state's gaming industry must adapt quickly to a new reality: competition from Ohio," is the heading to Bill Ruthhart's long story today in the Indianapolis Star. It begins:
Ohio voters' decision Tuesday to legalize casinos will hit Indiana where it hurts: the wallet.

Four Hoosier casinos could lose nearly $300 million a year from the added Ohio competition. The state stands to lose as much as $103 million in taxes, and the communities that will lose gambling visitors already are preparing for smaller budgets and belt-tightening.

"I was really hoping this wouldn't pass in Ohio," said Bill Marksberry, mayor of Rising Sun, the small southeastern Indiana city where the Grand Victoria Casino is located. "We're going to have to buckle down and do whatever we can to keep people coming here."

The forecasts aren't encouraging.

A study of casinos in Indiana by the state's Legislative Services Agency predicts that three casinos in southeastern Indiana -- Grand Victoria Casino, Belterra Casino near Vevay and Hollywood Casino in Lawrenceburg -- will lose 30 percent to 38 percent of their customers, resulting in a total revenue loss of $202 million to $260 million a year.

Anderson's Hoosier Park Racing & Casino would lose 14 percent of its customers and $28 million a year in revenue, according to the projections.

"There is definitely reason for concern," said Ernie Yelton, executive director of the Indiana Gaming Commission, which regulates casinos.

"If there's any silver lining here, it's that there's time to adjust."

It will be at least 2012 before any of the Ohio casinos would open on their downtown parcels in Cincinnati, Cleveland, Columbus and Toledo. Indiana's casino operators said that time should be used by state lawmakers to approve measures -- such as land-based casinos and tax breaks -- that would allow them to become more competitive.

"I'd say everything is on the table right now," said Sen. Luke Kenley, R-Noblesville, a key fiscal leader who serves as chairman of a gambling study committee.

"In my mind, what's happened in Ohio creates a sense of urgency."

Here is the 24-page Oct. 19, 2009 LSA report mentioned in the two stories: "Estimates of the Fiscal Impacts from Out-of-State Casino Competition and Movement of Casino Licenses in Indiana."

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Indiana Government

Ind. Decisions - Still more re "Inmates' sexual romps not a crime"

Lisa Trigg reports in the Terre Haute Tribune Star:

TERRE HAUTE — A security-improving project in the Vigo County Security Center is solving a design flaw that had allowed some jail inmates to crawl through the ceiling to visit other cells.

Eight pods in the 7-year-old addition to the original jail are getting sturdier ceiling panels to prevent excursions by inmates. And best of all, according to county officials, the updates are costing the county zero dollars.

A negotiated settlement with the original architect is covering the $500,000 cost of the project, Sheriff Jon Marvel said.

“The ceiling system in those cells was inadequate,” Marvel said during a recent tour of the facility. “That’s obvious due to problems we have had.”

He explained that inmates in a top bunk could kick upward against the perforated metal ceiling panels, bending them and stripping out screws that held the ceiling system together. Once a panel could be lifted far enough, a person could slip through the gap and roam around in the crawl space above the cells.

The same type of ceiling was installed at a jail in Lake County, Marvel said, and that ceiling system also failed.

This is not the same jail as was involved in the Oct. 7th Court of Appeals decision - that was the Greene County Jail - see this Oct. 8th ILB entry.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Ind. App.Ct. Decisions

Courts - Update on Judge David Hamlton's nomination to 7th Circuit

A long analysis by Larry Margasak of the AP is published by the Washington Post today. Some quotes:

WASHINGTON -- Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees. * * *

It's primarily two federal judges - one from Indiana, the other Maryland - who've been waiting five months for Senate Majority Leader Harry Reid, D-Nev., to bring their nominations for appeals court promotions to the Senate floor. * * *

"It would be wrong for us to be a rubber stamp for each nominee," Alabama Sen. Jeff Sessions, the senior Republican on the Judiciary Committee, said in a recent confirmation dustup in the Senate. * * *

The Republican stall at this point is focused on two appellate court judges whose nominations were sent by the Judiciary Committee to the full Senate on June 4:

- David Hamilton of Indiana, a U.S. district judge and nephew of former Democratic Congressman Lee Hamilton, chosen for the Chicago-based appeals court. Reid said he wants a vote on Hamilton by Veterans Day. He'll probably need a super majority of 60 to get one.

- Andre Davis, a district judge in Maryland, nominated for a seat on the appellate court headquartered in Richmond, Va.

Sessions made it clear his party will put up a fight against confirming either. He cited Hamilton's position in the late 1980s as a vice president for litigation and board member of the Indiana chapter of the American Civil Liberties Union. Sessions also complained about Hamilton's judicial rulings.

"Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard," Sessions said. * * *

"Most of the nominees ... will go through in an expeditious manner," Sessions said.

Okay, now take a look at this editorial in the Washington Times. The headline: "Jesus, no, but yes to Allah: Another immoderate judge nominated by Obama." It begins:
Senate Democrats are proving once again that no judicial nominee is too extreme for them to stomach. A move seems to be afoot to open debate on the Senate floor this week on the nomination of David Hamilton of Indiana to the 7th Circuit U.S. Court of Appeals. This judge is a radical's radical.

Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, sent a letter on Friday to his fellow senators outlining his objections to Mr. Hamilton, who is a federal district judge.

The editorial continues with an outline of Senator Sessions' objections.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Courts in general

Ind. Courts - Interesting disciplinary decision filed Nov. 3rd by the Supreme Court

Although they are public documents and are all available online here at "Orders and Opinions Regarding Final Resolution in Attorney Disciplinary Cases," the ILB doesn't often write about individual rulings unless they are of general interest.

This one, In the Matter of Daniel E. Moore, meets that criterion. For Respondent's professional misconduct, the Supreme Court here agrees to a Public Reprimand proposed by the Indiana Supreme Court Disciplinary Commission and Respondent. From the Order:

Stipulated Facts: In May 2004, Respondent was retained by a client ("Client") to represent her in a dissolution of marriage action. Client paid Respondent $15,000 pursuant to an agreement that this would be his total "flat" or "fixed" fee. By letter dated June 16, 2004, Respondent told Client: "My office agrees to accept your case in consideration of the payment of our minimum non-refundable retainer fee in the amount of $15,000 . . . ."

Respondent diligently and competently worked on Client's case. In May 2005, Respondent requested Client pay him an additional $5,000, which Client paid. In April 2006, Respondent requested Client pay him an additional $1,500, which Client paid in two installments. In neither instance did Respondent advise Client to consult with independent counsel before agreeing to amend the fee agreement to his advantage.

Respondent has no prior disciplinary history, he was cooperative with the Commission, he is remorseful, and he has served as a volunteer in various community and legal organizations. The parties agree there are no facts in aggravation.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

  • 1.5(a) (2004): Charging an unreasonable fee.
  • 1.8(a)(2) (2005): Entering into business transactions with a client (amendments of a fee agreement) unless the client is advised in writing of the desirability of seeking, and is given reasonable opportunity to seek, advice from independent counsel.
All the justices concur, except for Justice Dickson:
Dickson, J., dissents and would reject the agreement, believing a period of suspension is in order in the absence of any showing that Respondent refunded the fees received above his initial quote of $15,000 for a "flat" or "fixed" fee.

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "But for luck, lawmaker Ed Delaney says, attacker would have killed him

Mary Beth Schneider today has a lengthy interview with Indianapolis attorney and legislator Ed DeLaney, victim of an attack last Saturday morning (earlier stories here). Here are a few quotes, don't miss reading the entire story:

[L]ast weekend, Augustus Mendenhall sought out DeLaney, who speaks Russian. The lawmaker said Mendenhall -- using a fake name -- asked for his legal help on a potential real estate deal for Russian investors.

On Saturday, DeLaney picked up Mendenhall from a church parking lot and drove a short distance to look at the property, on Catherine Drive near 131st Street in Carmel.

There, DeLaney said, Mendenhall reached into a large zippered bag, ostensibly to get a retainer check DeLaney already had declined. He pulled out a gun, wrapped in a plastic bag.

"I thought that I was in a lot of trouble, and I didn't know why," DeLaney said. "He asked me if I was right with God, and I said, 'That's between me and him or her.' "

Then, he said, Mendenhall asked him if he'd ever hurt anyone in a lawsuit.

"I explained a little bit why I didn't think so," DeLaney said.

As DeLaney talked, he said, "the whole time" he fully expected to die.

The gun was aimed at his head, and then his attacker appeared to pull the trigger.

DeLaney saw later that it had jammed, but at that moment, all he knew was that his attacker was having trouble grappling with the gun through the plastic bag.

"I said goodbye or whatever to my Lord. I whispered goodbye to my wife. I was afraid I was dead. I said, 'OK, you're dead. If you've got any chance of coming back . . . you'd better go for the gun.' So I went for the gun."

Posted by Marcia Oddi on Thursday, November 05, 2009
Posted to Indiana Law

Wednesday, November 04, 2009

Courts - Former Indiana University administrator and "non-traditional" law student argues before SCOTUS as a Meyer Brown associate [Updated again]

Here is the story, from the Chicago Law blog. It begins:

Fourth-year associates at big law firms rarely find themselves making an argument before the U.S. Supreme Court. But that's where Steve Sanders of Mayer Brown was Wednesday morning.

He represents Pottawattamie County, Iowa, and two former county attorneys who are trying to protect their prosecutorial immunity. The issue is whether proescutors can be held liable for wrongful conviction for allegedly procuring false testimony against criminal defendants. For a full recap of the case, Pottawattamie County v. McGhee, click here.

I caught up with Sanders a few days ago to chat about how he came to appear before the high court and how he was preparing for the biggest moment in his legal career so far. (Full disclosure: Sanders was an intern at the Chicago Tribune several years ago. I did not know this before I talked to him.)

Here's some highlights from our conversation:

Chicago Law: Hi, Steve. Tell me about yourself?

Sanders: Law is a second career for me. I went to Indiana University and ended up working in the administration there. I left in 2002 and went to law school at the University of Michigan. I started at Mayer in October 2006.

I found my age (he's 46) to be an enormous asset in law school. It made me more focused. Once I got to a law firm, I also had some sense of how to understand how a place works. When I was a summer at Mayer Brown, I knew what I wanted to do (he does appellate litigation) and I built relationships with partners who have that kind of work.

Re the case itself, here is Nina Totenberg's NPR Morning Edition report. It began:
Do prosecutors have total immunity from lawsuits for anything they do, including framing someone for murder? That is the question the justices of the Supreme Court face Wednesday.

On one side of the case being argued are Iowa prosecutors who contend "there is no freestanding right not to be framed." They are backed by the Obama administration, 28 states and every major prosecutors organization in the country.

On the other side are two black men — Terry Harrington and Curtis McGhee — men who served 25 years in prison before evidence long hidden in police files resulted in them being freed.

The State of Indiana joined an amicus brief supporting the prosecutors. It is currently #2 on this list.

[More] Here is Nina Totenberg's post-argument report, from this evening's NPR's All Things Considered.

[Updated 11/5/09] For much more on the oral argument and the issues, see this entry from the WSJ Law Blog.

How Appealing collects many of the news reports here. (Headlines include "When Is It Legal To Frame A Man For Murder?")

[Updated 11/6/09] Here is a long post-argument piece headed "A Mayer Brown Associate’s Supreme Court Debut: A Post-Argument Recap," from David Lat of Above the Law.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Courts in general

Ind. Courts - Disciplinary Commission Executive Secretary Donald R. Lundberg resigns effective Jan.1, 2010 to join Barnes and Thornburg

Here is the announcement, which begins:

The Indiana Supreme Court Disciplinary Commission Executive Secretary Donald R. Lundberg will resign as head of the agency that investigates and prosecutes alleged attorney misconduct effective January 1, 2010. Chief Justice Randall T. Shepard announced Lundberg’s departure and congratulated him on his new position with an Indianapolis law firm, "Don Lundberg's service over these last two decades as Indiana's chief of lawyer ethics has exemplified the very best in splendid leadership and committed public service. All of us have learned a great deal from his thoughtful stewardship of the profession's values. He's done much to help Indiana lawyers and judges do our best for the clients and citizens who rely on us for navigating the legal system."

Mr. Lundberg has been the Executive Secretary of the Indiana Supreme Court Disciplinary Commission since December of 1991. He is leaving the position to join Barnes and Thornburg LLP as a partner and deputy general counsel to the firm.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Indiana Courts

Ind. Law - IU-Law Indianapolis Professor Mary Harter Mitchell has died

From a message sent by Dean Gary Roberts earlier today:

Professor Mary Mitchell passed away early this morning from liver failure. This is shocking and devastating. Mary was a beloved member of our family who will be missed in ways that cannot be described. Our hearts, thoughts, and prayers are certainly with Mary’s husband Frank and her daughters Sally and Clara. I am sure there is more I should say but I’m too shaken to know what it is. We will keep everyone informed about services and other events that will take place in celebration of Mary’s life as we learn of them.
From the IU Alliance of Distinguished and Title Professors website:
Mary H. Mitchell, Alan H. Cohen Professor of Law, Indiana University, Indianapolis

Professor Mary Harter Mitchell has been teaching at the Indiana University School of Law at Indianapolis for 25 years.

She grew up in Anderson, Indiana, and received her B.A. from Butler University in Indianapolis, where she was Butler's Most Outstanding Female Student, editor of the literary magazine, and involved in many activities. She then earned her J.D. from the Cornell Law School, where she won the Fraser Prize, served as Editor on the Cornell Law Review, and published her student Note. She taught for two years at the I.U. Law School in Bloomington before moving to the Indianapolis law school.

Professor Mitchell regularly teaches first-year Contracts, a seminar on the Law and Religion, and Prison Law. She also teaches Law and Literature and a Seminar on Law and Rape. She has taught Family Law, Seminar on Law and Education, Seminar on Contracts, Law and the Elderly, and Legal Research and Writing. She has won teaching awards at the law school and served on almost every committee in the school. She has published in the area of law and the elderly and law and religion. She is working to develop courses and programming related to prison law, prison reform, and prisoners' rights. She is also participating in development of a new course on Women and Law.

Professor Mitchell is also a published poet, a Quaker peace activist, and a feminist, with special interest in the intersections of law with literature, peace, women's issues, American studies, religion, and legal reform. She has been active in many community organizations and has taught Practical Peace-making at Peace House in Indianapolis. She takes a special interest in encouraging law students to remain whole persons in law school and in their careers.

Here is Professor Mitchell's faculty profile.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Indiana Law

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

For publication opinions today (2):

In Robin Lovitt v. State of Indiana , a 10-page opinion, Judge Mathias writes:

Concluding that the trial court acted within its discretion when it excluded the testimony of Lovitt’s witness, but that his Class D felony maintaining a common nuisance conviction is not supported by the evidence, we affirm in part, reverse in part and remand. * * *

However, the broader question is the intent of the statute as a whole. Zanders v. State, 800 N.E.2d 942, 944 (Ind. Ct. App. 2003). We believe that the statute is intended to apply to an offender who uses his or her vehicle to facilitate manufacture, sale, delivery or to finance the delivery of a controlled substance, not to an offender who has personal use quantities of controlled substance(s) on his or her person or even loose in the vehicle. To hold otherwise would make every drug arrest after a traffic stop subject to an additional charge of maintaining a common nuisance. We do not believe this to be the intent of our General Assembly.

In Michael Jackson v. State of Indiana (NFP), a 6-page opinion, issue #1 is: "Whether the trial court erred and violated Jackson’s right to a fair trial when it ordered that Jackson was not permitted to take copies of the jurors’ questionnaires with him to jail." Judge Najam concludes:
In sum, Jackson does not explain what use he would have made of the jurors’ questionnaires had he had access to them prior to trial. He has not demonstrated that the trial court’s order is in conflict with Jury Rule 10 or the discovery rules. And Jackson has not shown that he suffered any prejudice or was denied a fair trial as a result of the trial court’s order. * * *

KIRSCH, J., concurs in result in Part I, without separate opinion, and concurs in Parts II and III.
BARNES, J., concurs.

[ILB note] Of related interest here are two ILB entries that appear to be right on point, from March 25th and March 26th, 2009.

NFP civil opinions today (2):

Annette Baker v. Heartland Food Corporation (NFP) - "Whether the herniation was caused by her work-related activity or was due to an underlying condition, as Heartland alleged, has not been resolved by the evidence. Without any such evidence, we cannot say that the Board erred when it determined that her injury was not sustained by accident arising out of and in the course of her employment. Affirmed."

In Clayton C. Miller v. City of Indianapolis, et al. (NFP), a 16-page opinion involving a zoning variance in an Indianapolis historic neighborhood, Judge Friedlander writes:

This case involves the grant of a zoning use variance in favor of Larry Jones and Teagen Investments II, LLC (collectively, Jones) by the Indianapolis Historic Preservation Commission (the Commission) for property located at 901 North East Street (the Real Estate) in the historic residential neighborhood of Chatham-Arch near downtown Indianapolis. Clayton C. Miller, one of the remonstrators below and a homeowner whose property adjoins the Real Estate, appeals the grant of the use variance, which was affirmed by the trial court. We affirm.

Although the Real Estate is zoned D-10 for residential use, it has not been put to such a use since at least 1971. Rather, a forty-bed nursing home was built on the Real Estate by a former owner in 1971, pursuant to a zoning use variance issued that same year. * * *

The Chatham-Arch neighborhood, however, is not exclusively residential and has a number of non-contributing structures, several of which are on East Street along the western boundary of the neighborhood. While the CAMA Plan offers a site-specific recommendation for redevelopment on the Real Estate, as well as recommendations for other non-contributing structures, the plan specifically provides that such recommendations “are meant to guide, not mandate, and are to be used as tools in developing actions and strategies for future decisions.” * * *

It is clear from the record before us that the Commission carefully considered the proposed variance. The Commission‟s decision to grant the variance was neither arbitrary, capricious, nor an abuse of discretion.

NFP criminal opinions today (2):

Quaterris Franklin v. State of Indiana (NFP)

Michael C. Trimble v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana decision today from the 7th Circuit

In U.S. v. Anthony Hampton (SD Ind., Judge Tinder), a 22-page opinion, Judge Williams writes:

A series of 911 calls reporting shots fired in broad daylight led police officers to a busy area in Indianapolis to arrest the gunman. One caller fingered the occupants of a white sports utility vehicle (“SUV”), which carried defendant Anthony Hampton. When officers stopped Hampton and the driver, they recovered two guns. After applying enhancements be cause of Hampton’s previous felony convictions, the court sentenced him to 387 months’ imprisonment. We affirm Hampton’s conviction because we conclude that the officers had reasonable suspicion to stop the SUV in which Hampton was riding and that there was sufficient evidence to show that Hampton constructively or actually possessed the gun. As to his sentence, although we agree with the district court that a conviction for residential entry in Indiana qualifies as a “violent felony” for the purposes of the Armed Career Criminal Act (“ACCA”), we conclude that Hampton’s prior conviction for criminal recklessness in Indiana does not qualify, and therefore, Hampton must be resentenced.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Ind. (7th Cir.) Decisions

Law - "Missing Georgia Lawyer and Her Husband Are Declared Dead" [Updated]

This is pretty scary (especially in light of recent news here in Indiana). From the ABA Journal Blog:

A Savannah lawyer and her husband have been declared dead by a Georgia judge, more than a year after they disappeared after a meeting with a bookkeeper they suspected of stealing from them.

A memorial service for Elizabeth Calvert, 45, and her husband John, 47, is planned later this month following the ruling late last month by a DeKalb County judge, reports the Island Packet. Elizabeth Calvert practiced as a tax attorney at HunterMacLean in Savannah.

The individual the couple suspected of stealing from them, Dennis Ray Gerwing, 54, was considered a person of interest in their March 2008 disappearance. He committed suicide approximately one week after the Calverts' disappearance.

Another story, this one from Indiana's 6 News, headed "Judge Says He Found Man Beating Woman In Court."
SPENCER, Ind. -- A judge told police he heard a commotion coming from his central Indiana courtroom and rushed inside to find a man beating up a woman.

Police said Mark Winders, 31, and the woman were at the Owen County Courthouse for a child custody hearing and were alone in the courtroom when the attack happened Thursday.

A police report indicated that Winders kicked the woman several times and then stomped on her face after she fell to the floor before Judge Frank Nardi approached them.

Winders was being held in the Owen County Jail on domestic battery charges and a drug possession charge after guards reported finding he had a small amount of marijuana.

No word on how the prisoner ended up alone in the courtroom with the woman.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to General Law Related

Courts - Still more on "Cancer Patients Challenge the Patenting of a Gene"

On May 13, 2009 the ILB posted an entry quoting from a NY Times story by John Schwartz about "a lawsuit against Myriad and the Patent Office, challenging the decision to grant a patent on a gene to Myriad and companies like it." More from the story:

The lawsuit, believed to be the first of its kind, was organized by the American Civil Liberties Union and filed in federal court in New York. It blends patent law, medical science, breast cancer activism and an unusual civil liberties argument in ways that could make it a landmark case. * * *

Dr. Chung and others involved with the suit do not accuse Myriad of being a poor steward of the information concerning the two genes at issue in the suit, known as BRCA1 and BRCA2, but they argue that BRCA testing would improve if market forces were allowed to work.

Harry Ostrer, director of the human genetics program at the New York University School of Medicine and a plaintiff in the case, said that many laboratories could perform the BRCA tests faster than Myriad, and for less money than the more than $3,000 the company charged.

Laboratories like his, he said, could focus on the mysteries still unsolved in gene variants. But if he tried to offer such services today, he said, he would be risking a patent infringement lawsuit from Myriad.

This ILB entry from May 15th included links to the complaint.

Yesterday David Kravets of Wired's "Threat Level" had a long story headed "Judge OKs Challenge to Human-Gene Patents." Some quotes:

A federal judge ruled Monday that a lawsuit can move forward against the Patent and Trademark Office and the research company that was awarded exclusive rights to human genes known to detect early signs of breast and ovarian cancer.

The first-of-its-kind lawsuit by the American Civil Liberties Union and the Public Patent Foundation at the Benjamin Cardozo School of Law claims that the patents violate free speech by restricting research.

U.S. District Judge Robert W. Sweet of New York, in ruling that the case may proceed to trial, noted that the litigation might open the door to challenges of a host of other patented genes. About one-fifth of the human genome is covered under patent applications and claims.

The story includes a link to the 88-page opinion in Ass'n. for Molecular Pathology et al. v. U.S. Patent & Trademark Office, et al. (SD NY). (Here also is the complaint.)

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Courts in general

Courts - "Flipping off Illinois judge gets homeless man new digs -- jail"

Carolyn Rusin reports in the Chicago Tribune:

A homeless McHenry County man in trouble with the law will have a roof over his head for the next six months after making an obscene gesture to the judge who was trying to decide how high to set his bail.

"He flipped off the judge," said McHenry County State's Attorney Lou Bianchi. "I think he's got a serious anger-management problem." * * *

The hearing had already gotten off to a bad start, when Zopp asked if Kellet had an attorney. Kellet uttered a four-letter response that was even less polite than the bird.

Assistant State's Attorney Patrick Kenneally suggested that Zopp wash out Kellet's mouth with a contempt citation -- and six months in jail. The judge obliged.

"It's our position to uphold that those appearing before a judge be very respectful," Bianchi said. "I hope this sends a message."

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Courts in general

Environment - More on: "Indiana participates in Dana cleanup with $2 million stock distribution"

An interesting side-note to this Oct. 13th ILB entry - WLKI 100.3 News had this item yesterday, headed "City Council Sets Dana Stocks Parameters For Future Sale":

(ANGOLA) - The Angola City Council decided on Monday night to sell half of the over 262,000 shares of Dana stock the city is getting if the price drops to $4 a share. The city would sell the other half of the shares if the price continued to drop to $3.

The state of Indiana will get about $2 million in stock from Dana Corporation to help pay for the clean up of the former Dana-Weatherhead site in Angola.

The Indiana Department of Enviromental Management got about 300,000 shares of stock from the reorganized Dana Corporation. IDEM transfered 50,000 shares to Univertical with the rest going to the city of Angola.

The stock is intended to reimburse the city and Univertical for their contributions towards the enviromental clean up.

The Dana stock price has gone up in recent months thanks to the Wall Street rally after it had been as low as 19 cents a share. It's currently selling at about $5.50.

Angola Mayor Dick Hickman said he was not worried about setting a high end parameter at this time.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Environment

Courts - State of Indiana co-authors amicus brief in Melendez-Diaz challenge

From a press release issued yesterday:

INDIANAPOLIS -- Following a landmark U.S. Supreme Court decision in June that abruptly required crime-lab analysts to start testifying at criminal trials, Indiana Attorney General Greg Zoeller’s office has co-authored a friend-of-the court brief asking that the decision be limited or even overturned.

The Supreme Court’s ruling in last term’s Melendez-Diaz v. Massachusetts case potentially requires prosecutors to call lab analysts as witnesses in every case where crime-lab reports are relevant, rather than simply introduce the certified report at trial as prosecutors have done in the past. Such an interpretation of the Sixth Amendment right to confront witnesses threatens to increase laboratory-testing backlogs and needlessly imperil criminal prosecutions, Zoeller said.

“Left unchecked, the Melendez-Diaz precedent would give defense attorneys limitless opportunities to game the system and create procedural excuses for suppressing the evidence against their clients, when in fact there is usually no dispute over the lab evidence itself. The burden to taxpayers in manpower and lost productivity for lab technicians to travel constantly to courthouses to testify would be enormous,” Zoeller said.

This term, the U.S. Supreme Court will consider another case, Briscoe v. Virginia, questioning whether states can place reasonable restrictions on defendants demanding lab analysts testify in person when prosecutors use lab reports as evidence.

In the Briscoe case, Zoeller’s office has co-authored a friend-of-the-court brief – called an ‘amicus curiae’ brief in legal terminology – submitted to the Supreme Court, arguing defendants should have to give advance notice to the prosecution if they intend to put a crime-lab technician on the witness stand. Alternatively, the brief asks the Supreme Court to overturn its recent 5-4 Melendez-Diaz decision before it becomes too deeply engrained in the U.S. legal system.

“Criminal trials in the real world are not like ‘CSI’ or ‘Law & Order,’” Zoeller said. “Crime-lab analysts are not witnesses to the actual crime. In Indiana, only two laboratories handle forensic testing for the entire state and have only 24 drug chemists between them. They should not have to testify in every one of the 13,900 drug cases they received last year. If the Melendez-Diaz precedent remains in place, the backlog of cases to be tested will only worsen and many drug charges will get dismissed because the analyst is not available to testify. This can only serve as a detriment to the judicial system and the public’s safety.”

Intended to support the Commonwealth of Virginia’s position in the Briscoe case, the friend-of-the-court brief filed Monday was co-authored by the Attorney General’s offices of Indiana and Massachusetts and signed by the attorneys general of 24 other states and the District of Columbia. Drafting the brief were Indiana Solicitor General Thomas M. Fisher and Indiana deputy attorneys general Stephen Creason, Heather Hagan and Ashley Tatman. The brief borrows from an amicus brief authored by Alabama and joined by Indiana in last term’s Melendez-Diaz case. Alabama joined Indiana’s brief in the Briscoe case.

“We zealously support the Sixth Amendment protection that all defendants have the constitutional right to confront and cross-examine witnesses. But no right is absolute; and we are hopeful once the U.S. Supreme Court sees the havoc Melendez-Diaz has unleashed on the criminal justice system, that it will limit its ruling – to the benefit of crime victims and law enforcement,” Zoeller said.

Zoeller added that his office authors or co-authors amicus briefs on issues of legal and public-policy importance and signs onto others authored by other state attorneys general to send a united message in cases heard before the U.S. Supreme Court.

Here is the 58-page brief, submitted by:
THE STATES OF INDIANA, MASSACHUSETTS, ALABAMA, ARIZONA, COLORADO, CONNECTICUT, DELAWARE, FLORIDA, IDAHO, IOWA, KANSAS, MARYLAND, MICHIGAN, MINNESOTA, NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OHIO, OKLAHOMA, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, WASHINGTON, WISCONSIN, WYOMING AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF RESPONDENT
Here is an ILB entry from July 15th, headed "Impact of the crime lab testimony decision," and one from July 1st, headed "Is Melendez-Diaz already endangered?"

In addition, our Supreme Court has acted on several Melendez-related challenges. See this ILB entry from Sept. 29th, headed, "'Supreme Court upholds conviction of South Bend molester'; some comments on Melendez-Diaz' application in Indiana" for background.

Briscoe is set for argument Monday, Jan. 11, 2010. Here is the ScotusBlog Wiki page.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Courts in general | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Ind. Gov't. - Dispute about lowering twp. trustee salary in northern Indiana township

The Kankakee Valley Post-News (Newton-Jasper counties) had a story last week by Cindy Ward headed "Board president tries to reduce trustee's salary." From the story:

This summer Keener Township Advisory Board President John Boissy said at a township meeting that he wanted to do some workshops, one hour Saturday workshops to go over things, meet with the chief and go over EMS issues, no decisions would be made, they would simply get together for informational workshop sessions.

Then at a Saturday meeting Aug. 22, Boissy and board member Bill Recker met, as Keener Township Trustee Diana Haberlin was going to be out of town and board member Al Ooms was going to a funeral and could not make it. The two men met and made a salary resolution to lower the township trustee's salary from $21,000 to $16,000. The trustee is challenging whether or not the meeting was legal and whether or not the board can reduce her salary.

Boissy believes Haberlin is getting paid too much for the work that she is actually doing, especially if she's not in charge of EMS. Boissy expects a ruling from the Indiana Attorney General by November as to who is in charge of EMS. On at least two different occasions, during the squabble of who is in charge, when answers from governmental agencies that the trustee was in charge, weren't good enough for Boissy, an attorney was hired by Haberlin to give legal advice as to who is in charge of EMS. And on both occasions the lawyer also said the trustee is in charge of EMS. * * *

Boissy says the salary reduction meeting was legal because it was advertised properly and he did not have to state what the meeting was going to be about, or what actions would be taken at the meeting. * * *

The township is riddle with strife. * * *

The township meetings are excessively burdened with the recitations of IC codes, statutes, and haggling over interpretations, legal opinions and definitions. After being peppered with IC codes, the trustee gathers opinions from the Indiana Public Access Councilor, The State Board of Accounts, the Department of Local Government Finance and other governmental agencies. Boissy has yet to be satisfied with the written answers received from those sources, or from the hired legal attorney specializing in local government.

The Indiana codes can be confusing. The following is the full text of the Indiana Code dealing with the trustee's salary. Boissy says section (c) give him the power to reduce the trustee's salary. But at the Oct. 19 budget meeting Haberlin read a letter from the Indiana Public Access Councilor that explained that special meeting notification must include written 48 hour notice to board members and 48 hour notice at the meeting place which must include the subject to be discussed or action to be taken. Haberlin also had a letter from the Indiana Township Association that stated the board can not reduce the trustee's salary with out her consent. Boissy says the salary resolution meeting was not a special meeting and the township association is only a lobby group and dismissed both opinions. Haberlin said she had also spoken to the state board of accounts and they said he can not lower her salary. Boissy told Haberlin to get it in writing.

The story includes the complete text of IC 36-6-6-10 and a link to the PAC's Oct. 13th opinion.

Posted by Marcia Oddi on Wednesday, November 04, 2009
Posted to Indiana Government

Tuesday, November 03, 2009

Ind. Courts - "Calif. High Court Reflects on Brief Policy"; What About Indiana?

That first clause is the heading to this story today by by Mike McKee of The Recorder, whose report begins:

Hoping to avoid a potential copyright fight, the California Supreme Court might soon stop shipping copies of attorneys' briefs to Westlaw and LexisNexis and, instead, post them online for all takers.

"It's still a work in progress, but it's something I'm giving my attention to," Beth Jay, principal attorney to Chief Justice Ronald George, said Thursday. "We're looking to be in a neutral position, providing information to the public."

The Supreme Court was called on the carpet in July when Irvine lawyer Edmond Connor wrote to complain about the court's practice of providing copies of the legal briefs attorneys file with the state's six appellate courts to legal publishers, which, in turn, make them available to the public for a charge.

"The briefs provided to the Supreme Court," the Connor, Fletcher & Williams partner wrote, "are valuable public resources which should be used for the public good, not given away to large corporations to enable them to reap sizable profits."

What about Indiana? See this April 30, 2005 ILB entry, which includes the following:

On April 14th David C. Lewis, Clerk of the Supreme and Appeals Courts, issued a press release announcing "Indiana Appellate Briefs Now Available Online through Westlaw." Some quotes:

Westlaw subscribers have several options for adding this service to their current subscriptions. Individuals who are not Westlaw subscribers may access the service with a credit card, paying on a per-use basis. * * *

"West's online briefs project takes us another step closer to providing the public with greater access to court records," said Clerk David Lewis. "We applaud West's commitment to this project. Not only does it provide Indiana's attorneys with a significant new tool, but it promotes our office's goal of openness and accountability in the judicial system." [ILB - emphasis added]

ILB - I'm not out to burn any bridges here, but I just don't think so. I think promoting West's project to sell the briefs makes it unlikely that they will ever be available online to the public at no cost.

Who, other than the parties in the case (who already are on the distribution list) might be interested in reading Indiana appellate briefs, if they were freely available?

  • People (scholars, students, attorneys interested in keeping up in an area, the interested public) who watch the oral arguments online would benefit greatly from being able first to review the briefs, and the lower court's opinion.
  • People who are interested in a contentious case, such as the recent same-sex marriage case before the Court of Appeals, and the post-Blakely/Booker cases before the the Court of Appeals and Supreme Courts, who need ready access to ALL the documents -- here we are talking about dozens of briefs.
  • People who read a decision and want to read the parties' arguments, and people who want to see a cross-section of arguments made, and cases cited, about a particular issue.
In short, the same people who read the courts' opinions and listen to oral arguments on the Court's public website should be able to access the briefs there. Is is disappointing that they can't.
Nearly 5 years have passed since that decision was made.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Kohlmeyer v. Second Injury Fund, a 7-page, 5-0 decision, Justice Dickson writes:

Indiana's statutory worker's compensation scheme enables certain totally disabled work-ers who have exhausted the maximum benefits from their employers to seek additional compen-sation from the Second Injury Fund. The principal disputes in this case are (1) whether a work-er's Social Security Act disability benefits are includable in calculating whether the worker quali-fies to access the Second Injury Fund, and (2) whether the language in the award stipulation of the worker and his employer, which was approved by the Worker's Compensation Board, is binding upon the Board as to the worker's right to access benefits from the Second Injury Fund. * * *

Although the Indiana Worker's Compensation Act does not direct that a worker's receipt of Social Security Act benefits be included in determining his eligibility for Second Injury Fund compensation, the Worker's Compensation Board's express approval of the parties' stipulation in this case operates to establish that the worker, James Kohlmeyer, was permanently and totally disabled from work related injuries and that he met the maximum benefits prerequisite for Second Injury Fund eligibility. The Order of the Full Worker's Compensation Board, affirming the Single Hearing Member's decision, is hereby reversed.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court sets Dec. 11, 2009 as execution date for Matthew Eric Wrinkles [Updated]

Updating this ILB entry from August 13, 2008, headed "7th Circuit rules in Indiana case where defendant wore stun-belt throughout trial," the Indiana Supreme Court today issued a 12-page, 4-1 order titled "Order concerning successive petition for post-conviction relief" in Wrinkles' case, plus an "Order setting date for execution of death sentence."

The Evansville Courier & Press has posted the two documents, plus a story:

The Indiana Supreme Court today set an execution date for Eric Wrinkles, the Evansville man convicted in the 1994 slayings of his estranged wife and two relatives.

Wrinkles will be executed before sunrise the morning of Dec. 11, according to an order filed today.

The Indiana Attorney General's Office notified the state Supreme Court in May that Wrinkles' federal appeals were exhausted when the U.S. Supreme Court on May 18 declined to hear his case.

Before setting the date, the Indiana Supreme Court first considered an additional appeal from Wrinkles regarding a 2002 opinion in which it ruled a stun belt he wore during his trial did not bias jurors.

That order, written by Indiana Chief Justice Randall T. Shepard, states that Wrinkles did not "meet his burden of establishing a reasonable possibility that he is entitled to post-conviction relief." It leaves open the possibility for petitioning for rehearing, but says it should "not be sought if Wrinkles intends merely to raise the same arguments (the court) has already addressed."

[Updated Nov. 4, 2009] Here is an updated version of the C&S story, reported by Seth Grundhoefer.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Laws - "Lawmaker to push texting-driving ban"

Following up on this earlier ILB today on texting, Niki Kelly of the Fort Wayne Journal Gazette has a report that begins:

INDIANAPOLIS – An area lawmaker hopes to outlaw texting while driving for all Hoosiers during the 2010 legislative session.

Sen. Travis Holdman, R-Markle, sponsored legislation this year that prohibits the practice for teen drivers. [SEA 16] Now he wants to take the next step and ban texting and e-mailing while driving for all drivers.

“A driver’s crash risk doubles when attention is taken off the road for two or more seconds,” Holdman said. “An increasing number of people are texting and e-mailing while driving, which diverts their attention away from the road and endangers other motorists, passengers and pedestrians. This legislation will save lives.”

He filed the bill, which would call for a fine if the ban is violated, last week. Legislators will be in session Jan. 5.

Indiana would join 18 other states and the District of Columbia in banning motorists from texting while driving.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Law

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

For publication opinions today (2):

In Larry D. Smith v. State of Indiana , a 6-page, 2-1 opinion, Judge Barnes writes:

Larry Smith appeals his conviction for Class C felony sexual misconduct with a minor. We affirm.

Smith raises one issue, which we restate as whether there is sufficient evidence to support his conviction for sexual misconduct with a minor. * * *

The repeated touching and the location of the touches combined with the viewing of pornographic images is sufficient evidence from which the jury could infer Smith’s intent. We affirm.

NAJAM, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] In the absence of legitimate inference, we can only speculate as to what Smith’s intention was. I do not believe that speculation can constitute proof beyond a reasonable doubt. Accordingly, I respectfully dissent.

In Dustin Neff v. State of Indiana , an 18-page opinion, Judge Barnes writes:
I. General suifficiency of the evidence. * * * The State in this case clearly could have more precisely alleged that the child solicitation occurred on April 29, 2006, as well as or even instead of May 2, 2006. Nevertheless, the precise date of the alleged solicitation is not of “the essence of the offense” of child solicitation, nor was Neff misled into believing that the State would not present or rely upon evidence related to the April 29, 2006 chat. As such, there was no fatal variance between the charging information and proof at trial with respect to the precise dates upon which Neff solicited “Lizzy.”

II. Venue. Neff also contends the State failed to prove that proper venue existed in Hamilton County, since all of the IM chats occurred between him at his computer in Madison County and Bedard, who was in Georgia. The State contends that Neff's traveling to Hamilton County, in accordance with his and “Lizzy's” plans, establishes venue there. A defendant has a constitutional and statutory right to be tried in the county in which an offense allegedly was committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). * * *

For all these reasons, we conclude the State failed to present sufficient evidence that proper venue for Neff's prosecution lay in Hamilton County. Madison County is the only county in Indiana where venue would be proper. Having reached that conclusion, we turn to the question of whether Neff can be retried in Madison County for this offense if the prosecutor in that county so chooses. Neither party addressed this question in their briefs, but we did explore the issue at oral argument and we must address it. * * *

We also conclude that permitting retrial of a defendant in the proper county after the State failed to prove venue in another county is consistent with double jeopardy jurisprudence. * * *

The question here, then, is whether our reversal of Neff's conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter. * * * The State's failure here to prove venue in Hamilton County was not a failure to prove an element of the offense and “implies nothing” with respect to Neff's guilt or innocence. See Burks, 437 U.S. at 15, 98 S. Ct. at 2149. As such, we conclude Neff may be retried in Madison County. * * *

Conclusion. There is sufficient evidence that Neff committed Class C felony child solicitation. However, there is insufficient evidence that he committed that crime in Hamilton County. We reverse his conviction because of improper venue and remand with directions that this case be transferred to Madison County for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Calvin Lawson v. State of Indiana (NFP)

In the Matter of The Commitment of R.R. v. Branigan Sub-Acute Unit of Adult & Child Mental Health Center, Inc. (NFP)

NFP criminal opinions today (2):

Daniel Reed v. State of Indiana (NFP)

Shiloh Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: " First, Annex Books, now New Albany DVD"

Updating this ILB entry from Sept. 10th, Harold J. Adams reports today in the Louisville Courier Journal:

The City of New Albany must decide whether to keep fighting following another loss in its long-running battle to shut down an adult bookstore.

The 7th U.S. Circuit Court of Appeals last week denied the city’s request that the full court reconsider a September ruling by a three-judge panel blocking the city from closing New Albany DVD.

The panel’s ruling upheld a U.S. District Court injunction that allowed the store at 601 W. Main Street to remain open to sell sexually explicit movies and books.

Ten of the 11 judges on the Chicago-based appeals court participated in considering the city’s petition for rehearing and voted against it, the court said. The eleventh judge did not participate.

Steven Mason, the attorney representing New Albany DVD, said Monday that for the city, “The significance is that they don’t really have anywhere to go.” * * *

The city’s options include an appeal to the U.S. Supreme Court or taking up the 7th Circuit panel’s challenge to go back to district court to prove the city’s claim that adult bookstores attract thieves and create a problem of pornographic litter.

The appeals panel said no such evidence was presented at the district court level in a 2004 lawsuit filed by the bookstore against a newly-passed city ordinance that ordered the store to close.

U.S. District Judge Sarah Evans Barker granted an injunction against enforcement of the ordinance in January 2005, based on doubts about its constitutionality, and ordered that New Albany DVD be allowed to open.

The 7th Circuit panel upheld the city’s ordinance but kept the injunction against enforcement in place pending a district court hearing on any evidence the city can produce to back up its claims of harmful effects produced by the business.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

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

In U.S. v. Tyrone Vaughn (ND Indd., CJ Miller), a 15-page opinion, Judge Rovner writes:

A jury convicted Tyrone Vaughn of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking crime. He also contests the district court’s determination on sentencing of the amount of drugs he dealt, arguing that his own uncorroborated statement to police officers following his arrest is insufficient to establish the amount of drugs he bought and sold. We affirm.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Ind. (7th Cir.) Decisions

Courts - Oral argument today before the SCOTUS in RICO case in which many states have an interest

According to this entry today in SCOTUSBlog, the SCOTUS today is hearing the following case:

1 p.m. – In Hemi Group, LLC v. City of New York (08-969), the issue is whether a city government can use a civil RICO lawsuit to collect cigarette taxes.
According to our list "Filed State Amicus Briefs 2009 AG Zoeller", the State of Indiana authored a merits brief in this case. According to this SCOTUSBlog entry by Brian Goldman:
The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.
Here is the amicus brief authored by the Indiana Attorney General and joined by the following states: Alabama, Florida, Hawaii, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, Ohio, Pennsylvania, South Carolina, Utah, West Virginia, and Wyoming.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Courts in general

Ind. Decisions - More on: Upcoming oral arguments this week and next

The ILB's weekly "Upcoming Oral Arguments" entry, both this week and last, indicated that NO oral arguments had been posted by our Supreme Court for the month of November.

The ILB has just received, from the Court's press office, a list of the arguments set for the November sitting of the Court. Here are those set for next week, Thursday, Nov. 12 (these also will be included on next Monday's ILB list):

Here is the list for the entire month of November.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Upcoming Oral Arguments

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

Updating this ILB entry from Oct. 29th, which quoted a story about the cost and inconvenience to the City of Bicknell as a result of the Oct. 14th suspension of its judge (no money coming in from fines, plus they have to continue to pay the salary of the suspended judge), the ILB has just received an Order of the Supreme Court, dated Nov. 2, appointing as judge pro tempore, Michael D. Edwards, effective Nov. 16th. From the Order:

This Order shall be sufficient authority for Judge Edwards to continue the employment of court personnel and otherwise discharge the duties of Judge of the Bicknell City Court. Judge Edwards shall be entitled to compensation for this service paid from the funds of the City of Bicknell at the same rate and on the same schedule as the present incumbent, commencing from the effective date of his appointment.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Courts

Courts - More on: Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling; Implications

Yesterday the Louisville Courier Journal, at the behest of the Kentucky Attorney General, published a correction in its printed paper about an editorial it had run on Oct. 31st. But, as far as I can tell, it simply deleted the online version without any comment or explanation. See these ILB entries from Nov. 2nd and Oct. 31st for more.

For some commentary on similar situations, see this Oct. 30th entry by Jonathan H. Adler in The Volokh Conspiracy. The heading: "Revising Web-based Newspaper Articles Without Informing Readers — NYT Edition." Adler writes:

This is not the first time I’ve noticed the web site of a prominent news organization failing to disclose that it had edited the web-based version of a story after initial publication. . . . Is this now common practice? If so, it seems to be a major failing. Responsible bloggers routinely disclose anything more than the most minor stylistic and typographical revisions to published posts. I would think newspaper websites could do the same. Indeed, shouldn’t newspapers at least match the disclosure norms observed by bloggers? After all, they’re the real journalists.
And from a reader's comment on a comment:
Comment: Has it ever not been common practice? Even the dead tree versions of newspaper articles often change without notice between various editions or print runs. Why does this continue to surprise anyone? Should it really bother you?

Comment on the comment: That perhaps explains why it’s commonly done, but it doesn’t excuse it. When a dead-tree newspaper put out a new edition, the old one didn’t suddenly disappear, but that’s what happens with online newspapers, unless somebody just happens to preserve a copy. There’s no good reason that I can think of why online media shouldn’t archive all previous versions of an article, available from the article’s page. Wikipedia does that now.

Implications. The above may appear to be nit-picking, but think of the implications in the legal world. And these are not uncommon in most jurisdictions.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Courts in general

Not Law - "Newsday Columnist Quits Over Paywall, Wants To Be Read"

TechDirt has an entry on the renewed effort of some newspapers to make their online stories pay-for-view that begins:

One of the reasons why the NY Times eventually did away with its old "paywall" was that its big name columnists started complaining that fewer and fewer people were reading them. We've suggested in the past that newspapers who decide to put up a paywall may find that their best reporters decide to go elsewhere, knowing that locking up their own content isn't a good thing in terms of career advancement. So, with Cablevision deciding to put Newday behind a paywall, it didn't take long for some of its columnists to start to bailing.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to General News

Courts - Still more on: "Kentucky Supreme Court to hear online gambling case"

Updating this Oct. 23rd ILB entry, which quoted from a story on the oral argument that took place Oct. 22, here is an entry from the Kentucky Law Blog that links to a video of the oral argument, plus has links to the briefs filed in the case. Recall that this is the case where the Kentucky governor seized the internet domain names of 141 gambling entities in an effort to stop Kentucky citizens from gambling online.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Courts in general

Law - More on Ed DeLaney attack: $3 million bond set

Robert Annis has a report in today's Indianapolis Star about the arraignment of the accused attacker, Augustus Mendenhall.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Courts

Law - "Driven to Distraction: When Texting Kills, Britain Offers Path to Prison "

The NY Times had a long and moving, front-page story Sunday, by Elizabeth Rosenthal, about texting. "A 24-year-old fashion designer was killed near Oxford when [another young] woman who had just received a text message rear-ended her car at 60 miles an hour."

The story is accompanies by a number of items, including the United Kingdom Sentencing Guidelines Council guidelines on causing death by driving. A quote from the Times:

The independent council's guidelines for sentencing offenders over the age of 18 include the use of mobile devices and text messaging, and is classified under the "avoidable distractions" category. The sentencing guidelines recommend the punishment of imprisonment for texting while driving.
In addition, there is a link to the 6-page judgment of the appeals court. The issue was whether the sentence of 21 months imprisonment for "causing death by dangerous driving" was too lenient. The Lord Chief Justice ruled that it was lenient, but would not be disturbed.

Here are a few quotes from the story:

OXFORD, England — Inside the imposing British Crown Court here, Phillipa Curtis, 22, and her parents cried as she was remanded for 21 months to a high-security women’s prison, for killing someone much like herself. The victim was Victoria McBryde, an up-and-coming university-trained fashion designer.

Ms. Curtis had plowed her Peugeot into the rear end of Ms. McBryde’s neon yellow Fiat, which had broken down on the A40 Motorway, killing Ms. McBryde, 24, instantly.

The crash might once have been written off as a tragic accident. Ms. Curtis’s alcohol level was zero. But her phone, which had flown onto the road and was handed to the police by a witness, told a story that — under new British sentencing guidelines — would send its owner to jail.

In the hour before the crash, she had exchanged nearly two dozen messages with at least five friends, most concerning her encounter with a celebrity singer she had served at the restaurant where she worked.

They are filled with the mangled spellings and abbreviations that typify the new lingua franca of the young. “LOL did you sing to her?” a friend asks. Ms. Curtis replies by typing in an expletive and adding, “I sang the wrong song.” A last incoming message, never opened, came in seconds before the accident.

With that as evidence, Ms. Curtis was sentenced in February under 2008 British government directives that regard prolonged texting as a serious aggravating factor in “death by dangerous driving” — just like drinking — and generally recommend four to seven years in prison.

The case reveals the tensions that arise when law enforcement and the courts begin to crack down on a dangerous habit that has become widespread and socially acceptable. Is texting while driving bad judgment, or a heinous crime? And what is the appropriate punishment?

Upon hearing the sentence, prosecutors — backed by the police and Ms. McBryde’s mother — quickly appealed to Britain’s highest court for a longer prison term, calling 21 months “unduly lenient.”

“She came across as a lovely young girl, and I’m sure it wasn’t a nice feeling for the judge to send someone like this to prison — but someone is dead because of a text message,” said Bill Sykes, the officer who responded to the crash and led the subsequent investigation.

But many young people, among them the dead woman’s own siblings and friends, disagreed, sympathizing also with Phillipa Curtis. “I think Phillipa’s sentence was long enough, as she seemed like such a normal girl,” said Gemma Pancoust, the victim’s cousin and close friend, with whom she liked to sing karaoke to Dolly Parton’s “9 to 5.” “Until Tory’s death I texted while driving, as have most people. I don’t think she realized the danger she was causing.”

Indeed, the victim herself had sent a text message and talked on her cellphone (using the speaker function) while driving before her car broke down, according to the testimony of a friend with whom she had the 20-minute phone conversation. It is illegal in Britain to use a hand-held phone while driving, and drivers using hands-free phones may be fined if they are deemed not in control of the vehicle.

Although most European countries and a minority of American states now ban the use of hand-held cellphones while driving, Britain has become one of the more aggressive countries in attacking the problem, according to Ellen Townsend, policy director for the European Transit Safety Council, which advises the European Commission.

Britain’s new guidelines state that using a hand-held phone when causing a death will “always make the offense more serious” in terms of punishment and lead to prison time. Texting is given special treatment.

Ms. Curtis was found guilty and sent to prison even though she was not texting at the time of the accident, because the new guidelines regard “reading or composing text messages over a period of time” as “a gross avoidable distraction.” Its effect, British judges have ruled, may go beyond the moment of composing a message. Such behavior is categorized the same as driving while drunk or high on drugs, as well as racing another driver.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to General Law Related

Ind. Courts - "Tippecanoe County Judge, Purdue professor take on problem-solving courts in book"

Sohia Voravong's story in the Lafayette Journal Courier Nov. 2nd began:

Becoming a registered voter, signing up for a library card, enrolling in substance abuse or mental health treatment-- those are just some of the requirements for participants in Tippecanoe County's re-entry court for recently released prisoners.

For some, the checklist of stipulations and strict monitoring were seen as overbearing, said former Tippecanoe Superior Court 1 Judge Don Johnson, who helped launch and presided over the intensive program.

But the rules proved successful in reducing the number of repeat offenders.

"Each week, they were held accountable. If they missed a meeting ... there were immediate repercussions if they did not show," Johnson said. "A lot of participants have commented that it's almost like a virtual prison. They're accountable for every moment of the day."

The re-entry program is one of three Tippecanoe County problem-solving courts addressed in "Problem Solving Courts: New Approaches to Criminal Justice." It was written by Johnson and JoAnn Miller, a sociology professor at Purdue University and associate dean for the College of Liberal Arts.

Johnson and Miller will be in Washington, D.C., this week to discuss the book and Tippecanoe County's successes and failures in helping prisoners better transition into the community.

They'll also be part of a panel discussion and book signing in mid-November in Indianapolis.

"In three years, we had only a handful of failures and -- at the time of this book -- 66 success stories," Miller said. "The focus is on the contributions that re-entry can make on a community, from the economy to the quality of life.

Check out the book here, via Amazon.

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Courts

Ind. Courts - Court of Appeals visits Benton Central High School

Meranda Watling reports on a Court of Appeals oral argument held at Benton Central High School in Oxford, Indiana last week. The case was William E. Riley v. State of Indiana, listed in last week's upcoming COA oral arguments. From the Lafayette Journal Courier story:

Judges Patricia Riley of Rensselaer, Margret Robb of West Lafayette and Paul Mathias of Fort Wayne presided over an appeal on a case from Lake County. * * *

About 300 juniors and seniors attended the Benton Central hearing. So did a handful of local attorneys and Benton Circuit Court Judge Rex Kepner.

Audience questions ranged from how accurately the media portrays them -- not very, according to the judges -- to what the visiting judges thought of the school's neighboring windmills -- they were impressed.

Mathias said that although the job can be time consuming, eating as many as 50 to 60 hours a week, it's a privilege.

"Even though we do appeals ... 99.5 percent of the time (the decision on a case) stays the way the trial court resolved them," Mathias said.

"We take our job very seriously because we know the decisions we make change peoples lives."

Robb told the students that what they see on television and in movies is over-dramatized for entertainment purposes. Cases take years to solve, not 50 minutes. There isn't always DNA evidence. And when there is, results don't come back in five minutes.

"Sometimes, (the media) gives a false perception of what goes on," Robb said.

John Koehler, who teaches government and economics at the school, said the ability for his students to see state government action taking place live is a great supplement to their studies. He said often the curriculum in those courses focus on the national level.

"This is beneficial for our kids to see the state-level government like this actually functioning," Koehler said. "It takes court out of the entertainment world and the kids get the behind-the-scenes look."

Posted by Marcia Oddi on Tuesday, November 03, 2009
Posted to Indiana Courts

Monday, November 02, 2009

Courts - Kentucky Supreme Court won't suspend sex offender ruling

The AP is reporting:

FRANKFORT, Ky. -- The Kentucky Supreme Court on Monday denied the state's request to suspend its recent ruling which loosened restrictions on where convicted sex offenders may live.

Attorney General Jack Conway last week asked the state's supreme court to delay implementation of the ruling while the decision was appealed to the U.S. Supreme Court. * * *

An order from the Kentucky court Monday says its ruling would remain in effect during an appeal to the U.S. Supreme Court.

Here is the story by Beth Musgrave of the Lexington Herald-Leader. It begins:

FRANKFORT—The Kentucky Supreme Court has denied a stay of an October ruling that allows sex offenders who were convicted before July 2006 to choose where they live without restrictions.

Kentucky probation and parole officers were enforcing restrictions despite the October ruling after Attorney General Jack Conway asked the Kentucky Supreme Court to suspend its ruling while he asks the U.S. Supreme Court to hear the case.

The Kentucky Department of Corrections made that decision on the advice of its own lawyers. [ILB - This was an issue re the LCJ editorial discussed in earlier ILB entries.]

On Monday, the state Supreme Court, in a one-paragraph order, denied Conway's request for a stay.

Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, said sex offenders who were convicted before July 2006 will no longer have to comply with those living restrictions.

Allison Martin, a spokeswoman for Conway, said the office will ask the U.S. Supreme Court to issue a stay.

"We will be filing a motion with the U.S. Supreme Court for a stay while it considers whether or not it will hear Kentucky's case," Martin said.

See this ILB entry from earlier today and this one from Oct. 31.

What about Indiana? In State of Indiana v. Anthony W. Pollard (6/30/09) our Supreme Court ruled:

The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes.
See this ILB entry from July 1st, plus this list of related entries. Re how the decision is being implemented in Indiana, see this entry from Oct. 14th, headed "Two Lafayette sex offenders told they can go home."

The story today reports the Kentucky attorney general now "will ask the U.S. Supreme Court to issue a stay."

Incidentally, the SCOTUS is already hearing a ND Indiana federal sex offender case - the appeal of the 7th Circuit's decision in Carr v. United States. The question is whether SORNA (the Sex Offender Registration and Notification Act) can be applied retroactively. For more, see this ILB entry from Sept. 30th and this one from Dec. 22, 2008.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending October 30, 2009

Here is the Clerk's transfer list for the week ending October 30, 2009. It is four pages long.

Four transfers were granted last week. They are detailed in this ILB entry from earlier today
__________

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, November 02, 2009
Posted to Indiana Transfer Lists

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

Updating this ILB entry from Oct. 31st (which includes a link to the complaint, posted by the ILB), and this ILB entry from Oct. 30th, ABC News now has a story by Sarah Netter, sub-headlined "ACLU Alleges Teen Athletes Were Unfairly Punished For Sexy Photos Taken on MySpace." A quote:

"I don't think this is a unique problem of trying to define that line as to where the school stops and where student expression begins," Indiana ACLU Legal Director Ken Falk, also the girls' attorney, told ABCNews.com today.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Indiana Courts

Ind. Law - More on "Some fear charter schools may become sports powers"

Updating this ILB entry from Oct. 23rd which quoted an Indianapolis Star story headlined "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", the Star's Kyle Neddenriep reports this afternoon:

Chrishawn Hopkins will play his senior season of high school basketball after all.
The 6-1 Butler University recruit has transferred back to Manual High School and will be granted full athletic eligibility, Indiana High School Athletic Association commissioner Blake Ress said.

Hopkins had transferred to Herron, a Downtown charter school before his senior year, but was his transfer was deemed to be for athletic reasons by the IHSAA, making him ineligible for 365 days since his last game at Manual as a junior.

“We try not to make them ineligible everywhere,” Ress said. “So he had the option to [go] back to Manuel, where we thought he really belonged, and regain eligibility. There had been a hearing scheduled for an appeal, but I guess they decided against it.”

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Indiana Law

Ind. Courts - Two 7th Circuit opinions pending before the SCOTUS

One was before The Court today,Jones v. Harris Associates. See this WSJ Law Blog entry headed "On Tap at the Supreme Court: Posner v. Easterbrook."

The second was just granted cert today, New Process Steel v. NLRB. USA Today's story is headed "High court to decide if two-person Labor Board legal" and begins:

WASHINGTON (AP) — The Supreme Court said Monday it will decide whether two people can do the work of five when it comes to resolving labor-management disputes in the workplace.

The National Labor Relations Board, which for decades has had the responsibility to police many of these disputes, has operated with only two members — and three vacancies — for more than a year. The reason for this is that Democrats who retook control of Congress in 2006 objected to President George W. Bush's labor policies, and thus refused to confirm his nominees.

But the two NLRB members still in place have continued to issue decisions, making about 400 in the last 16 months.

The U.S. Courts of Appeal have split on whether decisions made by only two members of the board are legal. The U.S. Court of Appeals in the District of Columbia said an NLRB decision handed down last year was invalid because it was made by just two members while the 7th U.S. Circuit Court of Appeals in Chicago took the opposite position.

It ruled that a vote by the two members was appropriate and binding.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (3):

Martha Nyatawa v. Corvee, Inc. (NFP) - In a per se appeal of a small claims decision: "It will come as small solace to Nyatawa that many share her frustration and confusion when it comes to matters of insurance. Moreover, we are no better equipped than the trial court professed to be to untie for her the Gordian knot that often results when more than one medical insurer is involved in questions of coverage for medical treatment. Be that as it may, Nyatawa has presented absolutely no basis on appeal for even questioning the trial court's judgment, much less reversing it."

Grange Mutual Casualty Company v. Betty Jean Rady (NFP) - "Quite simply, Grange designated uncontradicted evidence of a waiver of uninsured and underinsured coverage signed by Rady and uncontradicted evidence that the waiver referred to the Policy. Because Rady has failed to carry her burden to show that a genuine issue of material fact remains, we conclude that the trial court incorrectly denied Grange’s summary judgment motion. We remand with instructions to enter summary judgment in favor of Grange."

Term. of the Parent-Child Rel. of A.S.; L.P. v. Tippecanoe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (3):

Daniel A. Robinson v. State of Indiana (NFP)

Terry Smith v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - Update on Ed DeLaney’s medical condition

The ILB has just received this statement re the condition of Indianapolis attorney and legislator Ed DeLaney:

Indianapolis, IN. – In lieu of the previously scheduled press availability, please accept this statement from Ann DeLaney, wife of Representative Ed DeLaney:

“We want to thank everyone for their huge outpouring of support for Ed, including Senator Bayh, Congressman Carson, Speaker Bauer, Senator Simpson, Mayor Ballard, and people around the state. We are so grateful for the strong support and expressions of

Ed is doing quite well considering the circumstances. Ed and I would like to thank the doctors and medical staff at Methodist hospital for their excellent care. He has five broken ribs and broken bones around his eye socket that will require surgery at a later date. He also has several abrasions and bruises.

“He is in a lot of pain, but his spirits are good. We are taking comfort in the prayers and expressions of our friends, family and well-wishers.”

This is good news in what has been a frightening incident for Ed's family and many friends.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to General Law Related

Ind. Decisions - Four cases granted transfer Oct. 29

The Clerk's transfer list should be available later today. Meanwhile, the ILB has received notice that four transfers were granted Oct. 29th:

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Indiana Transfer Lists

Courts - Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling

The Louisville Courier Journal has pulled the editorial included in this ILB post from Oct. 31st. It has published a retraction.

In addition, today's LCJ includes this letter from Kentucky Attorney General Jack Conway, headed "Conway: editorial based on 'factual errors'".

As Kentucky's Attorney General, I understand and accept that some of my positions may occasionally draw criticism from your editorial board. However, when you publish an editorial based on factual errors, I must respond and correct the record.

Your editorial titled “Ignoring the Court” on Oct. 31, is based on an erroneous premise. In that piece, you wrote (regarding the recent state Supreme Court decision striking down a portion of Kentucky's sex offender law restricting where offenders convicted prior to 2006 may live) that “Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's ruling.” You additionally wrote that I and my staff “advise the Corrections Department not to follow a recent state Supreme Court ruling.” These are factually incorrect statements.

Let me be clear — I and my staff have not advised the Corrections Department or its officers on this issue, nor have we been asked to do so by the Corrections Department. The Kentucky Corrections Department has its own general counsel and is acting of its own accord. I would never tell an agency of state government, which has its own general counsel and which I do not represent, to ignore a ruling of the Kentucky Supreme Court. I have too much respect for the court system, and to do so would be completely at odds with my oath as Attorney General and my duty as a lawyer.

Moreover, it is ironic that Andrew Wolfson's article, published the same day as your editorial, got the facts right when he wrote that a spokeswoman for the Corrections Department stated that, “on the advice of its general counsel, the department has told its officers not to follow the ruling until the state Supreme Court decides whether it will be stayed.” Mr. Wolfson also correctly points out that my office has sought a stay of the ruling from the Kentucky Supreme Court as we prepare to ask the U.S. Supreme Court for review.

And I do plan to seek review by the U.S. Supreme Court of this important matter. I have the statutory responsibility to defend laws passed by the General Assembly, and many states have laws similar to Kentucky's that have been upheld by their courts. Therefore, I plan to ask the U.S. Supreme Court to provide clarity on this issue. I understand the constitutional ban on retroactive punishment, but we must also consider the public's interest in its safety and limiting offenders' proximity to areas where children congregate. Only the U.S. Supreme Court can resolve this disagreement among state courts and apply this balancing test.

While you may certainly disagree with my decision to appeal, I would never ignore a ruling by our state's highest court. I respect our justices and the principle of judicial review.

JACK CONWAY
Kentucky Attorney General
Frankfort, Ky. 40601

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Courts in general

Ind. Law - "When a public defender is also a defendant"

That is the headline to this long, front-page story today in the Indianapolis Star, reported by Heather Gillers. Here is the side-bar summary:

The issue: Should a defense attorney who is facing criminal charges disclose that information to a client who is facing charges filed by the same prosecutors?

What we found: Many legal experts believe this is a conflict of interest. Federal courts and the American Bar Association also believe attorneys should disclose such information, but no law requires it -- and neither does the Marion County public defender -- typically leaving such decisions to attorneys. Some attorneys do. But some don't.

The story begins:
When Mark Batey met with his public defender earlier this fall about a pending battery charge, Batey had no idea how well the attorney understood his predicament.

At the same time Batey's lawyer was representing him, that lawyer was fighting the same charge -- battery -- from the same Marion County prosecutor's office.

But Batey didn't find out about the potential conflict back then. He found out late last month.

And he didn't find out from his lawyer or anyone else in the public defender's office. He found out from The Indianapolis Star.

Batey's case is not unique. Because there is no legal requirement to disclose such information, The Star found it is mostly left up to individual attorneys to make that call. And they don't always do so.

All of which troubles legal experts, who think defense attorneys should disclose such potential conflicts of interest to their clients. Federal courts also have held that attorneys need to disclose such information.

The problem, they stress, is the temptation for a defense attorney to defend a client less vigorously either to curry favor with prosecutors or to at least not antagonize them.

Failing to tell a client about a pending charge from the same prosecutor's office, several law professors said, likely violates professional responsibility rules that say clients have a right to know when lawyers' personal interests conflict with those of their client.

"There is no doubt in my mind that the best way to proceed is for the lawyer to fully inform the client," said Charles G. Geyh, associate dean of research at Indiana University Maurer School of Law in Bloomington. "Failing to do so would probably be a violation of the rule."

But individual attorneys have different opinions on just how to define a personal conflict of interest.

Marion County's chief public defender, Robert Hill, said a pending charge -- even from the same prosecutor's office -- is not a conflict of interest and therefore need not be disclosed under professional responsibility guidelines. His predecessor, David Cook, also did not require disclosure.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Indiana Law

Law - "Groups urge Senate leader to move ahead with Dawn Johnsen confirmation"

Updating the ILB's long list of earlier entries on Indiana Universtiy Mauer School of Law professor Dawn Johnsen's long-pending nomination to head the DOJ Office of Legal Counsel, Andy Graham of the Bloomington Herald-Times reported in a story ($$) Nov. 1st:

Harry Reid does have a few other things on his plate right now. Reforming health care comes to mind.

But the U.S. Senate Majority Leader was sent a letter Thursday — signed by the leaders of 39 civil rights, union, education and liberal advocacy groups — urging him to move forward with a floor vote on the nomination of Dawn Johnsen to head up the Obama administration’s Office of Legal Counsel.

Indiana University law professor Johnsen was selected by Obama for the post in January and approved by the Senate Judiciary Committee in March, but still awaits a confirmation vote on the Senate floor.

“This delay is extraordinary and unacceptable,” the letter read, in part, “(and) as you know, the Office of Legal Counsel performs a critical role in guiding executive branch activities, advising the President and his Administration on the constitutionality of proposed policies, legislation and executive orders...

“No one is better qualified for this position than Professor Johnsen.”

Johnsen served as deputy in the Office of Legal Counsel, then as acting head of the office, under President Bill Clinton.

Her boss there, Duke professor Walter Dellinger, spoke highly of his former colleague Friday.

“It is particularly dismaying Dawn Johnsen hasn’t gotten a vote because her credentials to head the Office of Legal Counsel are beyond question,” Dellinger said. “For five years, she was in a leadership position in that office, and her work there won praise across the board from senior officials of the FBI, CIA, the national security agencies and the other major departments with which she dealt.

“There is no guesswork involved in terms of how she would conduct the office. She conducted it in a non-partisan, effective manner that showed devotion to the rule of law.”

Republican objections have been rooted in Johnsen’s work as National Abortion Rights Action League (now NARAL Pro Choice America) legal director from 1988 to 1993.

The Constitution gives the Senate oversight of many presidential appointments. Senate rules allow individual senators or groups of senators to delay that process, perhaps indefinitely, via the filibuster and other mechanisms. Reid apparently hasn’t been able to muster the 60 necessary votes to override an implied filibuster and force a final vote on Johnsen’s nomination.

Historically, the Senate readily acquiesced to administration choices for executive branch jobs, particularly those below cabinet level.

“Going back to the 1990s and before, there was the presumption that presidents got to fill out the positions in their cabinet, sub-cabinet and beyond,” Ted Carmines, Center for Congress research director at IU said Friday. “They weren’t held up for any undue length of time.

“But that has changed the past 10 or 15 years when the minority party, whichever it was, has held up more nominations and blocked more. That’s clearly happening right now. It’s further evidence of the growing polarization and partisanship we’ve seen in the legislative body. These nominations haven’t been pushed to the floor, haven’t been withdrawn and are just waiting for the Senate to deal with them. Usually, finally, they’re dealt with at some point.”

The letter to Reid maintained that in the 60 years since Senate rules changed to permit invoking cloture to close debate on nominations, only 24 executive branch nominations have required that vote to end filibusters — but that five such instances have occurred during the first nine months of the Obama administration.

IU political science professor Marjorie Hershey didn’t question those numbers, but echoed Carmines in saying many of those 24 previous instances likely occurred during the George W. Bush and Clinton administrations. She strongly defended the congressional oversight outlined by the Constitution.

“There are a lot of differing views about this sort of situation,” Hershey said. “One view is that it’s the president’s prerogative to decide who should head these offices and that Congress should rubber-stamp them. But I think that would run counter to the constitutional checks and balances. The president proposes, the Congress disposes.

“It isn’t the case that the president has carte blanche and Senate just bows to his will. The Senate is exercising its constitutional right and authority. And the current Republican minority is exercising its rights.”

Hershey noted that the Senate was created by the Founding Fathers to be a more deliberative body than the House of Representatives.

“The House was always going to have a lot more members and has different rules of operation,” Hershey said. “It’s more difficult to make a decision when there are more people in the room. So the House leadership has more power in determining what comes to the floor and who can offer amendments or comment and so on.

“The Senate has never worked that way. The rules of the Senate don’t permit the leadership to direct legislation, to order how the legislation will be dealt with, nearly as much as their House counterparts. And the Senate has the rule and tradition of the filibuster.”

Hence Harry Reid’s problem regarding Dawn Johnsen, whether to fight a nomination battle he might not win, and delay other key Senate business in the process.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to General Law Related

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, Nov. 1, 2009:

From Saturday, Oct. 31, 2009:

From Late Friday, Oct. 30, 2009:

Posted by Marcia Oddi on Monday, November 02, 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 11/2/09):

Next week's oral arguments before the Supreme Court (week of 11/9/09):

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 11/2/09):

Tuesday, November 3rd

Next week's oral arguments before the Court of Appeals (week of 11/9/09):

Next Tuesday, November 9th

Next Thursday, November 12th

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

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, November 02, 2009
Posted to Upcoming Oral Arguments

Sunday, November 01, 2009

Ind. Law - More on: Indianapolis attorney Ed Delaney reportedly brutally attacked, perhaps by another attorney [Updated]

Updating this ILB entry from yesterday, Indy 6 News now has this more complete account.

[Updated 11/2/09] Today's Indianapolis Star has this story speculating n the cause for the incident.

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to Indiana Law

Ind. Courts - "Change of venue shifts Indy trial to Valparaiso" [Updated]

James D. Wolf, Jr. reports today in the Gary Post Tribune:

VALPARAISO -- Visitors to the Porter County Courthouse this week will find Indianapolis law enforcement officers added to Porter County Sheriff's police security, and Indianapolis television crews outside the building.

Those will be the most obvious differences as the county hosts the trial of a man accused of shooting an Indianapolis police officer.

The trial of Brian Reese, 37, received the change of venue because of extensive media coverage in Marion County.

Superior Court Judge Lisa Borges, the prosecutors and defense attorneys will all come from Marion County, and they will choose Porter County residents as jurors Monday.

The assumption is that Porter County residents have not been tainted by publicity from coverage of the attempted murder charge.

The trial is expected to last into next week and will take place in Superior Court on the second floor of the courthouse in Valparaiso.

Judge Mary Harper, who usually presides over that courtroom, will be gone for the week.

The trial should cost Porter County little more than inconvenience.

Under Indiana law, the county where the charges were filed is required to cover change-of-venue costs.

That includes transportation and boarding of the witnesses and the defendant, cost of prosecution and legal proceedings and cost of increased security.

"Each agency is paying its share for its presentation of the case," said Mario Massillamany, the Marion County prosecutor's spokesman.

He expects to be on hand Monday to work out media access to the courtroom, which will be limited by media passes.

From the Indianapolis Star's "Behind Closed Doors" column today:
Marion County Prosecutor Carl Brizzi's trial calendar has been full after a nearly four-year dry spell.

This month, the Republican tried his first case since winning a second term as prosecutor in 2006.

He spent two weeks in a courtroom as part of a team that won convictions on all counts against Desmond Turner in the Hamilton Avenue slayings of seven people. A judge also granted Brizzi's request for a life sentence without parole.

In the coming week, Brizzi will flex his prosecutorial muscles again, this time at the trial of Brian Reese, which has been moved to Porter County because of publicity.

Reese is charged with attempted murder in the near-fatal wounding in July 2008 of Indianapolis Metropolitan Police Department officer Jason Fishburn during a foot chase.
Advertisement

Brizzi last participated in a trial in December 2005. He has planned on others since then, he says. But as luck would have it, all have ended in guilty pleas.

There will be another reunion, of sorts, at the Reese trial. Marion Superior Court Judge Lisa Borges, a senior adviser to Brizzi during his first term, will preside over the trial.

"I better watch my P's and Q's," Brizzi said last week during a news briefing on the trial. Then again, he said, "I had to watch my P's and Q's when she was my chief of staff."

[Updated 11-2-09] Jon Murray has a long story on the upcoming trial in today's Indianapolis Star. The headline: "Intent to kill officer is the question as trial starts: Jury will be picked in Valparaiso to hear Fishburn shooting case."

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to Indiana Courts

Law - "Digital Data Makes For A Really Permanent Record"

The ILB wrote Oct. 8th on the "Streisand effect", when, for example, an attempt to expunge past criminal records instead creates additional public records.

And even if a record is expunged, often it isn't really. NPR's Martin Kaste had a nearly 8-minute report on All Things Considered Oct. 29 that began:

There was a time when defense lawyer Robert Perez did a brisk business expunging criminal records. People who'd been acquitted of criminal charges could clear the record and start over with their lives.

But no more.

"They find out everything," the suburban Seattle lawyer says. "There's no such thing as privacy of criminal records anymore."

Perez says prospective employers and landlords will find out about the criminal record anyway because they use private database services that are unaffected by a court's expungement order.

"It's a big problem because these people are being confronted by the situation where they've told an employer — as they're entitled to — that this never happened," Perez says. "And the employer has conflicting information. They don't get the job, and they never learn why."

Information doesn't fade the way it used to. Documents that once upon a time could be counted on to be filed and forgotten are now finding an afterlife in digital, searchable form.

This is the last of a 4-part series. The earlier stories were:

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to General Law Related

Law - "GQ Ranks Elizabeth Warren Among D.C.’s Most Powerful"

That from this entry by Jacqueline Palank in the WSJ Bankruptcy Blog.

See the entire list of 50 here, at GQ.

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to General Law Related

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

Updating this ILB entry from Oct. 29th, Chris Sikich reported in the Indianapolis Star Oct. 30th:

The Indiana Department of Labor has issued several fines that total $191,000 against a Noblesville-based company for several safety violations.

The department issued the fines this week against King Systems, 15011 Herriman Blvd., which makes anesthesia and respiratory care products. No one died or was seriously injured in any of the incidents for which the company was fined.

However, the Department of Labor also issued a $240,000 fine against Steel Dynamics’ plant in Jeffersonville. That case did involve a death.

Sean Keefer, deputy commissioner at the Department of Labor, said those are the highest fines since 2006 for any Indiana company. The department does about 2,000 to 2,500 inspections annually, he said. The state had 132 workplace fatalities last year.

Keefer said King Systems’ violations included putting employees at risk from dangerous gases. He said some of the violations were either repeated or knowing in nature.

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to Indiana Government

Environment - "Coal Combustion Residue: Status of EPA’s Efforts to Regulate Disposal"

The Government Accountability Office has issued this 38-page congressional briefing, dated Oct. 30th.

Posted by Marcia Oddi on Sunday, November 01, 2009
Posted to Environment