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Thursday, December 31, 2009

Ind. Decisions - Concluding its year-end push, Court of Appeals issues 7 today (and 17 NFP)

For publication opinions today (7):

In The Guardianship of S.M. and N.M.; S.M. v. S.G. , a 7-page opinion, Judge Bailey writes:

S.M. (“Father”), an Illinois resident, appeals the trial court's order appointing S.G. (“Aunt”), an Indiana resident, as the permanent guardian of S.M., age ten, and N.M., age eight (“Boys”).

Issue. Whether the trial court had subject matter jurisdiction. * * *

The trial court lacked subject matter jurisdiction. Its orders are void ab initio. Reversed and remanded with instructions.

In Jennifer L. Mogg v. State of Indiana , a 16-page opinion, Judge Robb writes:
Jennifer Mogg pled guilty to operating a vehicle while intoxicated, a Class A misdemeanor, and her jail sentence was suspended to probation. Following an admitted violation of her probation, which included as a condition that she consume no alcoholic beverages, the trial court extended Mogg's probation and imposed a further condition that she continuously wear a Secure Continuous Remote Alcohol Monitor (“SCRAM”) bracelet. Following subsequent allegations of probation violations, the trial court revoked Mogg's probation on the basis of findings she consumed alcohol as evidenced by positive readings while on SCRAM. Mogg now appeals the revocation of her probation, raising a single issue that we expand and restate as: 1) whether the trial court abused its discretion in admitting evidence of Mogg's alcohol consumption generated by the SCRAM system; and 2) whether sufficient evidence supports the revocation of Mogg's probation. We conclude the trial court, based upon the uncontroverted expert testimony and evidence before it, did not abuse its discretion in determining the SCRAM readings were sufficiently reliable to be admissible as evidence of Mogg's alcohol consumption for purposes of a probation revocation. As a result, sufficient evidence supports the revocation of Mogg's probation, and we affirm the judgment of the trial court.
In Adoption of S.A.; M.H. & C.H. and IDCS v. C.R., a 17-page opinion, Chief Judge Baker writes:
Appellant-petitioner M.H. and C.H. and appellant Indiana Department of Child Services (DCS) (collectively, the appellants) appeal the denial of their motion to correct error after the probate court denied M.H. and C.H.’s petition to adopt S.A. and granted appellee-cross-petitioner C.R.’s petition to adopt. Specifically, the appellants argue that the adoption decree cannot stand because the findings were incomplete, the probate court did not enter any findings regarding DCS’s consent to the adoption, and C.R. failed to present sufficient evidence satisfying the requirements for interstate adoption, and that the evidence was clear and convincing that M.H. and C.H.’s petition to adopt S.A. should have been granted. Concluding that the evidence was sufficient to support the probate court’s granting of the adoption petition in favor of C.R., and finding no other error, we affirm. * * *

In this case, the evidence presented at the December 10, 2008, hearing established that C.R. is able to support S.A. financially. Moreover, S.A.’s biological siblings who live with C.R. do well in school, aspire to attend college in the Chicago area, and spend time together as a family. S.A. has also interacted with her siblings on a number of occasions.

In contrast, M.H. and C.H. have had twenty-three different foster children in their home over the past four years. Id. at 88-93, 143. They could not remember the names of many of the children, and they could not provide proof as to their financial ability to support S.A.

Although M.H. and C.H. presented evidence establishing that they were “the only family S.A. knows,” that they would continue to provide for S.A.’s needs, and that they were not “prohibited from adopting due to criminal history,” their request to set aside the adoption order in C.R.’s favor and enter judgment for them amounts to a request for us to reweigh the evidence, which we will not do. Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied. Thus, after reviewing the evidence, we conclude that the probate court properly determined that granting the adoption in C.R.’s favor was in S.A.’s best interest.

In Allied Property & Casualty Ins. Co. v. Linda Good and Randall Good , a 21-page opinion, Judge Vaidik writes:
We conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find that the party engaged in egregious misconduct that causes a mistrial. We review a trial court‘s sanctioning power for an abuse of discretion. Here, the trial court did not abuse its discretion in (1) concluding that Allied Property and Casualty Insurance Company intentionally violated its order in limine when Allied‘s own employee referenced a party‘s criminal history and (2) awarding over $26,000 in attorneys‘ fees and expert witness fees to Plaintiff Linda Good and Third Party Defendant Randall Good and jury costs to the county as compensatory damages. We therefore affirm the trial court.
Newland Resources, LLC, et al. v. The Brenham Corp. - "Newland Resources, LLC (Newland) appeals from the trial court's judgment on the jury's verdict in favor of The Branham Corporation (Branham) on Branham's breach of contract claim against Newland. Broadly speaking, the following issue is presented for our review: Did the trial court err in its interpretation of the contractual provisions triggering the entitlement to and calculation of a success fee? We affirm."

Tina Condor v. RDI/Caesars Riverboat Casino, Inc., et al. - "Appellant-plaintiff Tina Conder appeals the trial court's dismissal of her complaint against appellants-defendants RDI/Caesars Riverboat Casino, Inc., and M/V Glory of Rome (collectively, Caesars). Conder argues that we should reconsider our opinion in the prior appeal in this matter and that the trial court erroneously dismissed her claim against Caesars based on her alleged status as a Sieracki seaman. Declining to reconsider our prior opinion and finding no error in the dismissal of her Sieracki claim, we affirm."

In Alan Hoover v. State of Indiana , a 19-page opinion, Judge Vaidik writes:

Alan Hoover was charged with murder, felony murder, and Class A felony robbery. Robbery was the predicate offense for the alleged felony murder. A jury acquitted Hoover of murder, deadlocked on felony murder, and convicted him of robbery. Indiana's double jeopardy statutes bar retrial for the same offense if “the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.) . . . .” Ind. Code § 35-41-4-3(a). We therefore conclude that Hoover's conviction for the underlying robbery precludes retrial on the greater, mistried count of felony murder. We further hold that the jury verdicts are not inconsistent, and in making that determination we do not take into account hung counts. Further, there is sufficient evidence to sustain Hoover's robbery conviction, Hoover is unable to show prejudice from the trial court's allegedly deficient felony-murder instruction, and the trial court did not err by refusing to instruct the jury on the lesser-included offense of theft. We affirm Hoover's robbery conviction but remand with instructions to dismiss the felony-murder count with prejudice.
NFP civil opinions today (5):

The Guardianship of C.D.; C.W. v. D.M. (NFP)

Town of Cedar Lake, Indiana v. Cedar Lake Ventures I, LLC (NFP)

David Baumberger v. Review Board, and Best Buy Stores (NFP)

Nightingale Care Services, Inc. d/b/a Nightingale Home Healthcare v. Luisi Enterprises, Inc., et al. (NFP)

Term. of Parent-Child Rel. of M.T.; and K.M.T. v. Tippecanoe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (12):

Hershell L. Sparks v. State of Indiana (NFP)

Raphael Israel Miles v. State of Indiana (NFP)

David B. Adams v. State of Indiana (NFP)

Aaron Hillard v. State of Indiana (NFP)

Michael Gray v. State of Indiana (NFP)

Jerry Turner v. State of Indiana (NFP)

Brandon Serna v. State of Indiana (NFP)

Giavonni Williams v. State of Indiana (NFP)

Donald Salyers v. State of Indiana (NFP)

Joshua L. Warner v. State of Indiana (NFP)

Willie E. Jones v. State of Indiana (NFP)

Phillip Reeves v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Several Indiana papers look back on 2009

Updating this ILB entry from this morning, Laurie Wink reports today in the Michigan City News-Dispatch:

MICHIGAN CITY - The staff of The News-Dispatch has selected the top 10 news stories of 2009.

1. Superior Court 3 judge indicted

The fallout from suspended La Porte Superior Court 3 Judge Jennifer Evans-Koethe's Dec. 22, 2008, shooting incident is about to spill into another year. She is scheduled to go on trial Monday in Lake Superior Court in Crown Point on charges she obstructed justice by trying to get a police officer to destroy the note she wrote the night a bullet grazed her head in her home in La Porte.

She also faces three judicial misconduct charges that could lead to her removal from the bench or disbarment by the Indiana Supreme Court. The charges were brought by the Indiana Commission on Judicial Qualifications, based on evidence Evans-Koethe changed her story in two different interviews with police and tried to get rid of the note, evidence related to the shooting.

She reportedly told a police officer to "get rid of" the note she wrote to her husband, Stephan, just before she fired a 9mm handgun and grazed her head. She told police she wanted to make her husband think she was going to commit suicide. The contents of that note have not been made public.

St. Joseph County authorities conducted an independent investigation after La Porte County Prosecutor Rob Beckman turned the case over to them because Evans-Koethe had been a deputy prosecutor in his office. She ran for judge as Jennifer Evans and was elected Nov. 4, 2008. The shooting took place days before she was sworn in as judge Dec. 31. The evidence was presented to a grand jury, which indicted Evans-Koethe and her husband May 7. The Supreme Court suspended her from office May 8. Stephan Koethe's indictment indicates he and his wife were intoxicated at the time of the shooting.

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to Indiana Courts

Ind. Courts - "LaGrange County Commissioners Create Public Defender Board"

From WLKI 100.3 News today:

(LAGRANGE) - LaGrange County will soon have a three person public defender board.

County Commissioners approved an ordinance creating the public defender board on Tuesday in hopes of getting some state reimbursement of local public defender costs.

Commissioner George Bachman called it a no-lose scenario for the county. Under state law, the county can receive up to 40 percent reimbursement for all non-capital felony cases if it meets state standards for public defender caseloads.

Assistant county attorney Casey Cox said the commissioners will appoint one of the three board members, with judges choosing the other two. The county can opt out of the program if standards require the hiring of more public defenders.

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to Indiana Courts

Courts - "FaceBook App Maker Hit With Data-Breach Class Action"; Indiana connection

David Kravets of Wired's Threat Level has this entry about a lawsuit filed in federal court in California that begins:

RockYou, the popular provider of third-party apps for Facebook, Myspace and other social-networking services, is being hit with a proposed class-action accusing the company of having such poor data security that at least one hacker got away with 32 million e-mails and their passwords.

The suit accuses the maker of apps like “Slideshow” for MySpace and “Superwall” for Facebook of making its unencrypted customer data “available to even the least capable hacker.”

“RockYou failed to use hashing, salting or any other common and reasonable method of data protection and therefore drastically exacerbated the consequences of a hacker bypassing its outer layer of web security,” according to the Monday complaint in San Francisco federal court.

Indiana connection. The press release issued by the attorneys filing the lawsuit begins:
December 29, 2009 / San Francisco, Calif. / An Indiana man filed a class action lawsuit Monday against RockYou, the developer of popular online applications and services for use with social networking sites such as Facebook and MySpace, after RockYou failed to safeguard the highly sensitive personal information of him and 32 million others. * * *

The lawsuit is brought by Alan Claridge, Jr., of the Evansville, Ind., area. According to the suit, only after the media began reporting about the data breach did RockYou notify Mr. Claridge and others of the data breach.

The complaint is available here.

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to Courts in general

Environment - More on Environment - "Indiana Attorney General Zoeller to support Michigan in Asian carp lawsuit"

Updating yesterday's ILB entry, the latest word is that "Wisconsin joins other states in Asian carp battle." This map from Wikipedia shows only two Great Lake states outstanding -- Pennsylvania and New York.

SCOTUSBlog's great law reporter, Lyle Denniston, had this story Dec. 22nd, headed "Michigan sues Illinois over fish migration: State seeks to reopen prior decree." The entry includes links to a number of valuable documents, including Michigan's 39-page motion for a preliminary injunction, dated Dec. 21, 2009, that has, on the final page, a color map showing river entrances to Lake Michigan, including Indiana Harbor and Burns Harbor. The 142-page appendix filed with the petition could make you a total expert on the ship canal and the carp.

[ILB Note] It may just be a difference in reporting, but it looks like Indiana has expressed an intention to file an amicus brief ("The deadline for filing Zoeller’s amicus brief on the overall merits of the case is Feb. 19, 2010"), while the other states listed -- Wisconsin, Minnesota, Ohio, have actually filed briefs. See this AP story from today.

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to Environment

Ind. Law - Several Indiana papers look back on 2009

"Floyd County Top Stories of 2009," compiled in the News & Tribune, leads off with:

David Camm’s conviction overturned; headed to third trial

The State of Indiana decided earlier this month to try David Camm for the third time for the murders of his wife and two children..

Camm, the 45-year-old former Indiana State Police trooper, has twice been convicted of murdering Kimberly, 35, Bradley, 7, and Jill, 5, in September 2000 at their home in Georgetown. The Indiana Court of Appeals overturned the first conviction based on the inclusion of testimony of Camm’s extramarital affairs and that the testimony prejudiced the jury.

A jury in Warrick County then found Camm guilty in 2006 during a second trial. That conviction was overturned in a 4-1 Supreme Court decision June 26 because of statements from the prosecutor that Camm had molested his daughter. The court voted 3-2 this month to deny Indiana Attorney General Greg Zoeller’s request for a rehearing on that appeal.

Camm would have walked home a free man if Floyd County Prosecutor Keith Henderson chose not to prosecute.

A site and date for a third trial has yet to be determined, but will likely begin in 2010.

The Terre Haute Tribune-Star reporter Arthur Foulkes' story, "Reflections: Political Battles & City Moves," begins:
TERRE HAUTE — Mayor Duke Bennett surviving a legal challenge launched by former Mayor Kevin Burke may have been the single biggest city government news story of 2009.

The Indiana Supreme Court ruled in June that Burke’s challenge to Bennett’s eligibility for the 2007 election, which Bennett won by 110 votes, came too late — after the election was over. The justices’ 5-0 decision, which also expressed reluctance to overturn an election based on “formal or technical objections,” ended a 19-month legal battle.

Posted by Marcia Oddi on Thursday, December 31, 2009
Posted to General Law Related

Wednesday, December 30, 2009

Law - Cost of parking meters in Chicago to climb again

The Chesterton Tribune reports today:

CHICAGO (AP) — Starting next week, the price of metered parking on city streets will climb. Chicago Parking Meters says that the cost of parking in the Loop will climb from $3.50 to $4.25 an hour. The price to park outside the Loop but in the central business district will rise from $2.00 to $2.50 an hour. And parking everywhere else in the city will be $1.25 an hour instead of the current $1.00 an hour.
Remember, Mayor Dailey privatized Chicago's parking meters a year ago. See this ILB entry from June 1, 2009.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to General Law Related

Environment - "Indiana Attorney General Zoeller to support Michigan in Asian carp lawsuit"

The Chesterton Tribune is quoting a press release on its website late this afternoon:

INDIANAPOLIS – Indiana Attorney General Greg Zoeller said today he will file a friend-of-the-court brief supporting Michigan’s effort to keep Asian carp from invading Lake Michigan through Illinois waterways.

Zoeller plans to draft an amicus brief siding with Michigan in its lawsuit against the State of Illinois and the U.S. Army Corps of Engineers. The brief will be filed in the United States Supreme Court, which hears disputes between states.

Last week, Michigan Attorney General Mike Cox filed a lawsuit seeking to require Illinois and the Corps of Engineers to take steps to prevent the invasive Asian carp from migrating from Illinois waterways into Lake Michigan and becoming established there.

Detected within six miles of Lake Michigan, non-native Asian carp – also known as bighead carp and silver carp -- are voracious and compete for food resources against native fish species. If introduced into the Great Lakes ecosystem through shipping locks and canals, Asian carp could deal a severe blow to the commercial and recreational fishing industry of Lake Michigan.

“The immediate environmental threat to the Great Lakes requires Indiana to support our sister states in this case before the U.S. Supreme Court. The U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago have failed to halt the invasion of the Asian carp that threatens the freshwater ecosystem supporting one of the greatest fishing bodies of water on earth; and so legal action is unfortunately necessary,” Zoeller said.

The amicus brief Zoeller’s office is drafting will argue that the Corps of Engineers and Illinois should be required to take all necessary steps to stop the immediate risk of environmental harm to Lake Michigan. Zoeller’s office is researching legal and technological options available to halt the spread of carp from the Chicago River and man-made channels while not unduly impeding commercial barge traffic near Northwest Indiana.

“I am sensitive to concerns about the free flow of commerce along the waterways. In this case, however, the Lake Michigan fishing industry -- which affects Hoosiers in Northwest Indiana -- is at stake. Under the principle of state sovereignty, our office has an obligation to stand with the other state attorneys general to act swiftly to prevent an environmental hazard in one state from spreading to another state,” Zoeller said.

The Indiana attorney general represents the state’s legal interests in court. By filing his friend-of-the-court brief in support of Michigan, Zoeller can propose legal alternatives for the Supreme Court justices to consider as they decide the dispute between Michigan and Illinois.

The deadline for filing Zoeller’s amicus brief on the overall merits of the case is Feb. 19, 2010. The U.S. Supreme Court has been asked by Michigan to consider a preliminary injunction before that time.

Michigan is asking the nation’s highest court to reopen a century-old case to which Indiana was not a party, so Indiana’s best option is filing an amicus brief, Zoeller noted.

So that makes Michigan, Minnesota, Ohio, and Indiana. (See ILB entry from Dec. 26th.) What of Wisconsin? This story today by Adnrew Beckett of Wisconsin Radio, headed "Asian carp lawsuit a dilemma for Doyle."
As states work to stop the spread of Asian Carp into the Great Lakes, Wisconsin continues to ponder its role in the debate.

Several states have filed lawsuits with the US Supreme Court to close the Chicago Sanitary and Ship Canal, where Asian Carp have been found. They’re urging the high court to grant an injunction. Several groups, including Milwaukee Mayor Tom Barrett, have called on Wisconsin to join the legal fight.

Governor Jim Doyle says it’s a tricky issue for Wisconsin to get involved in. He says the state has a priority to prevent the carp from entering the Great Lakes. However, Doyle says lawsuits don’t always turn out the way people hope and the legal battle could actually pull attention away from other crucial efforts to prevent the spread of the carp.

Doyle says whether or not Wisconsin gets involved in the legal battle is up to the Department of Justice. If there’s a firm legal basis and it can be helpful, he says they should join efforts to close the canal.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to Environment

About this Blog - Words from an annual ILB supporter

Earlier today I posted this entry, urging ILB readers to help support this 7-year-old endeavor.

I have just received, and will share with you, this welcome note of encouragement from a current supporter of the ILB:


Thanks for another year of excellent work with ILB. I find it to be an invalueable resource and my firm is pleased to be a sponsor.

I hope that several other firms will step up to the plate and help defray your overhead and maybe even pay you a little something for the myriad hours I’m certain you are devoting to it.

In addition to our firm’s modest monetary contribution, I just wanted to offer a word of personal thanks for all you’ve done and continue to do for Indiana’s legal community. All the best in 2010.

Bill Groth

William R. Groth, Esq.
Fillenwarth Dennerline Groth & Towe, LLP

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit decides RLUIPA case today

Illinois cases, but a much-debated federal law are at the center of these two combined decisions today by the 7th Circuit.

In World Outreach v. City of Chicago / Trinity Lutheran v. City of Peoria, a 17-page opinion, Judge Posner writes:

We have consolidated for decision two cases presenting the recurring issue of the rights of religious organizations to avoid having to comply with local land-use regulations. Analysis requires threading our way through a maze of statutory and constitutional provisions and we begin there, which is to say with the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq., Illinois’s Religious Freedom Restoration Act, 775 ILCS 35/1 et seq., and the Constitution’s free exercise, establishment, and due process clauses. * * *

So we move to our second case, which involves a challenge under the Religious Land Use and Institutionalized Persons Act to the application of Peoria’s landmark law to the building shown in the photograph at the end of this opinion. The Trinity Evangelical Lutheran Church is located on property at the edge of downtown Peoria. In 1989 it bought an adjacent parcel that contained the building in the photo. Trinity applied to the city in 2000 for a permit to demolish the building. A neighborhood group filed an application to have the building designated a landmark under the City’s preservation ordinance. Peoria Municipal Code §§ 16-61, 16-86. The City granted the landmark application. Six years later Trinity again sought the City’s permission to demolish the building so that it could build on its site a “Family Life Center.” The City refused, and the refusal, Trinity argues, has imposed a substantial burden on its religious activities in violation of section 2000cc(a)(1) because the building is not suitable for the family-life center that Trinity envisages. The district court, disagreeing, granted summary judgment in favor of the City.

Any land-use regulation that a church would like not to have to comply with imposes a “burden” on it, and so the adjective “substantial” must be taken seriously lest RLUIPA be interpreted to grant churches a blanket immunity from land-use regulation. [ILB emphasis] * * *

The burden imposed on Trinity, a substantial religious organization, by the landmark designation that disables it from demolishing the apartment house is modest. The building has not been rendered uninhabitable by the designation. Trinity can sell it and use the proceeds to finance the construction of its family-life center. It argues that it “lost money renting the building prior to seeking demolition” and that the building is “not economically viable for residential use,” but there is no support in the record for these contentions. The prohibition against demolition could harm Trinity only if there were no suitable alternative site for building a family-life center. But there is—a 50-foot-by-80-foot empty lot on Trinity’s campus. Trinity complains that it would need certain zoning permits to build there which the City might deny it—but the City has committed itself in its brief and at oral argument to granting them. We imagine that the real purpose of this litigation is to extract a commitment from the City to allow Trinity to build the family-life center on the empty lot, and so viewed the suit has succeeded.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Still continuing its year-end push, Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In A. Stemer & E. Stokar Partnership v. Excel Development I, LLC , a 7-page opinion, Judge Friedlander writes:

Intervenor-Appellant, A. Stemer & E. Stokar Partnership (Stemer & Stokar), a fifty-percent member of Excel Development, LLC (Excel), appeals from the trial court’s order of December 4, 2003, in which the trial court ordered, among other things, that partial payments of rents from tenants be immediately allocated and distributed by Excel to Dr. Larry Wolff, the other fifty-percent member of Excel. Stemer & Stokar presents five issues for our review. We need not reach the merits of the issues raised, however, finding the following issue dispositive: Did Excel have authority to initiate the underlying legal proceedings? We reverse and remand. * * *

Excel’s Operating Agreement does not provide for a manager or otherwise provide for how to settle a dispute between the equal members. Thus, the consent of a majority in interest of the members was required to decide a matter connected with the business of Excel, including whether to institute the eviction actions against the Defaulting Tenants on behalf of Excel. In this case, the majority in interest of the members includes both members as each member has an equal fifty-percent share in the LLC.

We conclude that the trial court must first resolve the issue of Excel’s authority. If the members are at an impasse, then Excel was not authorized to file the underlying eviction actions against the Defaulting Tenants.

In City of New Albany v. K. Lee Cotner, et al., an 18-page opinion, Judge Vaidik writes:
K. Lee Cotner, Richard R. Fox, Steve Gustafson, and the Law Offices of Fox & Cotner (collectively, “Fox & Cotner”) represented the City of New Albany (“the City”) in connection with its sewer fee dispute with the Town of Georgetown (“Georgetown”) on a contingency fee basis. Georgetown ultimately paid the City pursuant to a settlement agreement, but the City refused to pay Fox & Cotner the contingent fee based on the entire amount of the settlement and instead sued Fox & Cotner for a determination of whether a valid fee contract existed, and if so, whether the fee was reasonable. Fox & Cotner counterclaimed for enforcement of the fee contract. The City now appeals from the trial court's grant of summary judgment in favor of Fox & Cotner. Specifically, the City contends that the scope of Fox & Cotner's representation, whether estoppel applies, and the reasonableness of the fee are genuine issues of material fact that preclude the entry of summary judgment in favor of Fox & Cotner. We affirm.
In Mark McKeighan v. Daviess County Fair Board and Rob Webster , a 12-page opinion, Judge Friedlander begins:
Mark McKeighen appeals a judgment in favor of the Daviess County Fair Board and Rob Webster (hereinafter collectively referred to as the Fair Board) in McKeighen's small claims action against the Fair Board stemming from his disqualification from the Daviess County Demolition Derby. McKeighen presents the following restated issues for review: 1. Did the Fair Board breach its contract with McKeighen? 2. Did the trial court err in refusing McKeighen's request for findings and conclusions? 3. Was the Fair Board guilty of conversion for failing to award McKeighen first-place prize money? 4. Did the Fair Board defame McKeighen? We affirm.
In Powers & Sons Construction Co., Inc. v. Healthy East Chicago , an 11-page opinion, Judge Robb writes:
Powers & Sons Construction Company, Inc. (“Powers & Sons”) filed a motion for summary judgment alleging Healthy East Chicago, Inc. (“Healthy East Chicago”) filed its complaint outside the applicable statute of limitation. The trial court denied Powers & Sons's motion for summary judgment. Powers & Sons appeals, raising one issue for our review, which we restate as whether the trial court properly denied summary judgment. Concluding the complaint is governed by the ten-year statute of limitation applicable to written contracts and Healthy East Chicago's complaint was filed within that time, we affirm.
Steven Allen Gellenbeck v. State of Indiana - "Appellant/Defendant Steven Gellenbeck appeals from his convictions of and sentences for five counts of Class D felony Child Seduction. We affirm."

In Dale Bowling v. State of Indiana , a 10-page opinion, Judge Darden writes:

Dale Bowling brings this interlocutory appeal of the trial court’s order that denied his motion to dismiss the criminal charge pending against him. We affirm.

Issue. Whether the trial court erred in not dismissing the charge pursuant to the Interstate Agreement on Detainers Act (“IAD”). * * *

Thus, there was no evidence that any notice was sent to the trial court, and no evidence as to what was sent to the prosecutor’s office. Accordingly, the record cannot establish that Bowling “caused to be delivered” to either the trial court or the prosecutor’s office his IAD early trial request. Fex, 507 U.S. at 47 (quoting IAD Art. 3(a))d).5 The IAD “unquestionably requires delivery,” and without delivery, the IAD’s 180-day clock “does not commence.” Id. at 52. Therefore, the trial court did not err when it denied Bowling’s motion to dismiss the Indiana charge pending against him.

NFP civil opinions today (5):

Term. of Parent-Child Rel. of M.H., D.M-H. v. IDCS (NFP)

Bobbie Sellers v. Wells Fargo, Inc., et al. (NFP) - "Bobbie Sellers, pro se, appeals the trial court’s dismissal of his case against Wells Fargo, Inc., Wells Fargo Home Mortgage, Wells Fargo & Company, Thomas P. Shippe, Richard Kovacevich, Peter A. Velde, and Kightlinger & Gray, LLP (collectively “the Defendants”). Sellers presents several issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it denied Sellers’s motion for a default judgment against the Defendants and ultimately dismissed his complaint. * * *

"Here, Sellers’s complaint contains seventeen pages of confusing and convoluted language. His sentences are vague and disjointed and nowhere can we find a short plain statement of what exactly his claim may be. Similar to the trial court, we are completely unable to discern what set of facts and circumstances, even if true, would entitle him to any type of relief, much less relief in the amount of $75,000,000. Although given ample time and instruction to do so, Sellers failed to file an amended complaint as ordered by the trial court. Accordingly, the trial court properly dismissed his complaint for failure to state a claim upon which relief could be granted. Affirmed."

Starlite Communications, LLC and Amy Bryan v. CVS Systems, Inc. (NFP) - "In this interlocutory appeal, Starlight Communications, LLC, and Amy Bryan (collectively, “Starlight”) appeal the trial court’s denial of their motion to transfer venue regarding a complaint filed by CVS Systems, Inc. (“CVS”). We affirm. * * *

"Venue of CVS’s complaint against Starlight was proper in Grant County. The trial court properly denied Starlight’s motion to transfer venue to Allen County."

Paternity of M.A.B. & C.B.; B.B. v. W.T. (NFP)

Bowman Heintz Boscia & Vician, P.C. v. Barbara Borns and Spangler, Jennings & Dougherty, P.C. (NFP) - "In sum, summary judgment in favor of Borns and Spangler Jennings was appropriate on the claims for defamation and tortious interference with business relationships because they are not viable claims. Finally, summary judgment was appropriate as to the claim for tortious interference with contractual relationships because collateral estoppel bars the claim."

NFP criminal opinions today (12):

Ronny L. Johnson v. State of Indiana (NFP)

Michael Payne v. State of Indiana (NFP)

Alan G. Loosemore, Jr. v. State of Indiana (NFP)

Jeffrey Arthur v. State of Indiana (NFP)

Morris W. Soward v. State of Indiana (NFP)

Monica Hicks v. State of Indiana (NFP)

Eric W. Lampkin v. State of Indiana (NFP)

Cyrus Brown v. State of Indiana (NFP)

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

Joseph Kent Sowder v. State of Indiana (NFP)

Kenneth Ricks v. State of Indiana (NFP)

Darrell Collins Eller v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Question re dissent in COA opinion yesterday

If you read the dissent in the Court of Appeals opinion yesterday in the case of Lisa A. Leever v. Doug R. Leever, you may have had the same question as the ILB. The first paragraph of Judge Riley's dissent is set entirely in boldface type, which some might consider, particularly in a court opinion, the web equivalent of shouting. Surely this was a typo? The ILB has been unable to receive a response to its inquiry, presumably because of the holidays.

[Updated at 10:41 AM] The ILB has received two messages.

First, from Steve Lancaster of the Indiana Courts:


Judge Riley did not intend for the first paragraph of her dissent in Leever v. Leever to be set in bold-face. It will be corrected to standard type.

Second, from Ted A. Waggoner, a Rochester attorney:
I also noticed that the dissent talked about dividing the marital real estate, while the majority held that the trial court was to divide the marital estate. That seemed odd to me.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to Ind. App.Ct. Decisions

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Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to About the Indiana Law Blog

Law - "IU professor Dawn Johnsen's nomination to legal post sent back to White House"

ILB readers first learned the news in this December 24th ILB entry. And there have been a number of ILB entries before and since.

Yesterday, Dec. 29th, Andy Graham of the Bloomington Herald-Times has this story ($$). Some quotes:

Dawn Johnsen’s nomination to head the Office of Legal Counsel in the Barack Obama administration is now back in the hands of the White House.

The Indiana University School of Law professor was one of six Obama nominees who hadn’t received a vote by the time the Senate recessed last week.

Senate rules require that nominees not voted upon by the end of a session must get unanimous consent to have their nominations carry over to the next session, or their names are sent back to the White House for possible renomination.

Johnsen was initially nominated last January, and was approved by the Senate Judiciary Committee along party lines in March, but never received a vote by the full Senate. If the administration chooses to resubmit her nomination, the whole confirmation process begins again. She would again have to clear the judiciary committee, which could choose whether or not to conduct another confirmation hearing, but would have to conduct another vote regarding her nomination. * * *

John Hamilton, Johnsen’s husband and former Monroe County Community School Corp. board member, was shepherding nieces and nephews around the Air and Space Museum in Washington D.C. this afternoon and said he couldn’t speculate on what the administration’s decision might be regarding renominating his wife, but chose to remain hopeful. “We’re enjoying our vacation, looking forward to health care being done, and looking forward to the conformation process continuing,” he said via cell phone.

Johnsen and her family have moved to Washington and she has commuted between there and Bloomington in recent months.

Today's (Dec. 30th) Indianapolis Star now has a story, albeit quoting the Bloomington paper.

Newsweek's Tim Fernholz had an informative entry yesterday, on Johnsen and the Senate confirmation process generally, on the Newsweek blog, The Gaggle. Some quotes:

If you have some passing familiarity with the way things work in Washington these days, you've heard complaints—from bloggers, columnists, and even President Obama—about how increasing use of the filibuster, and the gridlock it causes in the Senate, is a real impediment to making public policy. The upper chamber's antidemocratic trend undermines the basic workings of government in other ways, though: the slow pace of approving the president's nominees to the executive branch because individual senators can put "holds" on nominees, forcing votes that often turn into filibusters. When a president's nominees aren't confirmed in a legislative session, they are typically allowed by unanimous consent to continue as nominees into the next. This year, a handful Republicans objected to three nominees, including Dawn Johnsen.

Johnsen is a University of Indiana law professor nominated to be the head of the Department of Justice's Office of Legal Counsel, an obscure but important organ that determines whether or not the president's decisions are legal. During the Bush administration, the OLC produced a number of memos justifying torture and other expansions of executive power. Johnsen penned critiques of these expansions, and Obama nominated her to set the executive branch back on the straight and narrow.

Republicans immediately threatened a filibuster because Johnsen seemed inclined to address the last administration's dirty laundry, including policies that led to torture, extraordinary rendition, and human-rights violations at Guantánamo Bay. Several Democrats, including Nebraska Sen. Ben Nelson, were concerned about Johnsen because she had previously worked for NARAL, the abortion-rights organization.

Nonetheless, the administration had 57 votes in favor of confirming Johnsen to her post. A minority of senators prevented it from happening—for an entire year. She's not the only one; many nominees have been held up, including Martha Johnson, the proposed head of the General Services Administration, which handles vital government management operations. She's being held up because Missouri Sen. Kit Bond wants a new federal building in Kansas City. Some 226 of 500 appointed positions remain held up in the Senate; that's some 275 officials who aren't at work for taxpayers.

However, only six of the "held-up" nominations, including Johnsen's (as ILB readers are aware), were not "rolled-over" by the Senate for consideration next year, but instead bounced back to the White House.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to General Law Related

Ind. Decisions - "Indy Northwest side residents win lawsuit over sewer hookups"

The City of Indianapolis, et al v. Christine Armour, et al, one of the opinions issued by the Court of Appeals on Dec. 18th, was the subject of a story yesterday at WTHR 13 Eyewitness News. Some quotes:

Indianapolis - Residents of a northwest side neighborhood have found it can pay to take on city hall.

The Indiana Court of Appeals has ordered the city to issue refunds of $8,968 to 30 households in the Northern Estates subdivision.

It stems from a class action lawsuit filed more than two years ago over sewer assessments. In 2004 the city assessed property owners $9,278 apiece to go from septic tanks to city sewers. The 30 families paid the assessment up front, while several neighbors chose the installment plan. They paid $309 apiece before the city adopted a new policy on assessments, abandoning the so-called Barrett Law in favor of a flat fee of $2,500 a piece for future hook-ups.

Those who made partial payment were forgiven the balance.

William Main was one of the residents who paid in full. Main and others asked the city for a partial refund. When the city refused, they filed suit, represented by Ron Waicukauski and Davy Eaglesfield of the Price Waicukauski & Riley, LLC.

At the time Main told Eyewitness News, "because you can or can't afford to pay shouldn't have anything to do with the assessment."

Paul Whitmore, a spokesman for the Department of Public Works said then he understood "their frustration. But there has to be the end of one program and the beginning of another."

Main said while he didn't have anything against the neighbors who were forgiven their debt, "You shouldn't be penalized for paying promptly."

The court agreed it was unfair, saying the different treatment of similarly situated homeowners violated the Equal Protection Clause of the U.S. Constitution.

The court affirmed an early ruling by an Marion Superior Court judge requiring the city to refund the lump sum payers the same amount forgiven by those on the installment plan.

Reached Thursday afternoon, Main said, "You feel vindicated after you go through all of it so hopefully the city will not take this to the Supreme Court but that's their right if they want to do it."

Main said the city could have saved "considerable money if they had settled."

The court also ordered the city to pay the plaintiffs' interest and attorney fees.

Judge Najam's 30-page opinion concludes:
On the facts of this case, and following the unanimous decision of the Supreme Court of the United States in Allegheny Pittsburgh, we hold that the City's disparate treatment of the Homeowners does not approach a “rough equality in tax treatment of similarly situated property owners.” See Allegheny Pittsburgh, 488 U.S. at 343. Equality in tax treatment requires that a tax be applied uniformly among similarly situated property owners including both the assessment and the collection. Here, the relevant class is all property owners within Northern Estates who were subject to the same July 2004 Barrett Law assessment. We hold that the City has failed to demonstrate a rational relation to a legitimate state interest for discriminating against those property owners who had paid that assessment in full before the Resolution forgave all assessments due and owing from and after November 1, 2005. We also hold that, in light of the City's unconstitutional discrimination against the Homeowners, established equal protection case law entitles the Homeowners to relief through a refund.

And, like the Supreme Court of Michigan in Armco Steel, we conclude that the Resolution here arbitrarily creates two classes of Barrett Law property owners: those whose property was assessed and who—at the City's invitation— paid the assessment in full, and those whose property was assessed but whose assessment was forgiven because—also at the City's invitation—they opted for an installment payment plan. See Armco Steel, 358 N.W.2d at 843-44. The City's disparate treatment, based entirely on the chance election to pay or not to pay the assessment in full as of November 1, 2005, has no rational relation to a legitimate state interest.

Accordingly, we affirm the trial court's summary judgment for the Homeowners on their Equal Protection claim, and we affirm the court's denial of the City's motion for summary judgment. We also affirm the money judgment entered by the trial court for the Homeowners, the amount of which the City does not dispute on appeal. And we remand this case to the trial court with instructions to determine the appropriate amount of prejudgment interest to which each Homeowner is entitled.

Affirmed and remanded with instructions.

Posted by Marcia Oddi on Wednesday, December 30, 2009
Posted to Ind. App.Ct. Decisions

Tuesday, December 29, 2009

Environment - "Ever since the fish started heading north, ecologists have warned about the devastation that awaits if they get loose in the Great Lakes, unchecked by natural predators and muscling out every competing species"

That is a quote from this editorial today in the NY Times, updating this ILB entry from earlier today.

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Environment

Ind. Courts - George B. Hoffman, Jr., a former Chief Judge of the Court of Appeals of Indiana, has died

See the news release here. Some quotes:

The Honorable George B. Hoffman, Jr., a former Chief Judge of the Court of Appeals of Indiana, passed away on December 25, 2009. A public memorial service will be held on Saturday, January 9, 2010, at 2 p.m. at the Bartlett Chapel United Methodist Church, 4396 East Main Street, Avon, Indiana, 46123. * * *

Recognizing Judge Hoffman’s accomplishments, Chief Judge John G. Baker of the Court of Appeals of Indiana reflected: “For almost 41 years our Court was blessed by Judge Hoffman’s dedication and service. He has affected generations of young lawyers and judges in Indiana and beyond. Although he will be absent in person, we know that his spirit of commitment will endure.” * * *

Judge Hoffman was the first judge of the Court of Appeals of Indiana to author 2,000 opinions, a milestone he reached in October, 1989. Prior to his retirement in 1998, he authored more than 3,000 opinions and participated in over 9,000 appeals. After his retirement and until his death, he served as a Senior Judge on the Court of Appeals.

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Indiana Courts

Ind. Decisions - Continuing its year-end push, Court of Appeals issues 7 today (and 15 NFP)

For publication opinions today (7):

Wurster Construction Co. v. Essex Ins. Co., Kane Construction, Inc., et al. - "Finding that the trial court's belated grant of Essex's motion to correct error is void by the instant appeal, we vacate that order. On cross-appeal, we reverse the trial court's initial order, and we remand with instructions to enter summary judgment in favor of Essex as against Kane and Wurster."

In Lisa A. Leever v. Doug R. Leever , a 12-page, 2-1 opinion, Chief Judge Baker writes:

Appellant-petitioner Lisa A. Leever appeals the trial court’s order dissolving her marriage to appellee-respondent Doug R. Leever. Lisa argues that the trial court erred by refusing to consider certain real estate as part of the marital estate, instead placing the real estate in an equitable constructive trust in favor of Doug’s parents. Finding that the trial court properly placed the real estate in constructive trust but should have assigned the real estate a value and included it in the marital estate, we affirm in part, reverse in part, and remand with instructions to assign a value to the real estate, include it in the marital estate, and re-divide the marital estate consistent with Indiana Code section 31-15-7-5. * * *

FRIEDLANDER, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 11] I respectfully dissent from the majority’s decision to remand this cause to the trial court with instruction to re-divide the marital real estate consistent with Indiana Code section 31-15-7-5. While I agree with the majority that this cause should be remanded to the trial court with instruction to assign a value to the residence located at 211 North 8th Street and include it in the marital estate, I would instruct the trial court to equally divide the marital estate between Doug and Lisa.

In Steven Thomas, et al. v. Mitchell E. Roob, Anne Walterman Murphy, et al. , a 19-page opinion, Judge Mathias writes:
We consolidate the issues raised by the Plaintiffs and restate them as whether the trial court erred in determining that the issues were not ripe for determination. Finding no error, we affirm. * * *

The trial court determined that the Plaintiffs’ request for a preliminary injunction preventing the DMHA from placing criminal defendants lacking sufficient comprehension to stand trial in a state institution “when the medical and psychiatric treatment professionals recommend placement in a less restrictive setting” is “purely hypothetical and, therefore, not ripe for adjudication.” The trial court noted that the Plaintiffs were asking for a community placement “if and when their treatment team determines such placement appropriate.” * * *

The civil trial court did not err when it determined that the Plaintiffs’ claims were not ripe for adjudication. Under the facts and circumstances before us, we also conclude that the DMHA is not required to continue the provision of competency restoration services to Dausman. Affirmed.

In Michael L. Robinson v. State of Indiana , a 5-page opinion, Judge Bradford writes:
Appellant/Defendant Michael Robinson appeals following his conviction for Escape, a Class D felony.1\ On appeal, Robinson contends that the trial court erred in denying his motion for discharge after the State failed to bring him to trial within seventy days after receiving notice of his properly filed Motion for an Early Trial pursuant to Indiana Rule of Criminal Procedure 4(B)(1). We reverse. * * *

We acknowledge the State's argument that it allegedly did everything it could to ensure that Robinson received a timely trial, but are unpersuaded by the same because diligence on the part of the State is not a listed exception to Criminal Rule 4(B). Therefore, we conclude that the escape charges filed against Robinson in the instant matter should be discharged for failure by the State to prosecute within seventy days pursuant to Criminal Rule 4(B). See Poore v. State, 685 N.E.2d 36, 41 (Ind. 1997) (providing that the proper remedy is discharge when the State fails to bring a defendant to trial within Criminal Rule 4(B)'s prescribed seventy-day time limit and none of the Rule's exceptions excuse or explain the delay).

In West Bend Mutual Insurance Co. v. 1st Choice Insurance Services, a 13-page opinion, Judge Riley writes:
Appellant-Intervenor/Defendant, West Bend Mutual Insurance Company (West Bend), appeals the trial court’s grant of summary judgment in favor of Appellee-Third Party Defendant, 1st Choice Insurance Services (1st Choice), with respect to insurance coverage for a fire loss. * * *

Based on the foregoing, we find that there is a genuine issue of material fact whether Block, the insurance agent, was negligent in completing the insurance application for Brenda. Reversed and remanded for further proceedings.

In Steven Herron v. State of Indiana , a 5-page opinion, Sr. Judge Sharpnack writes:
Defendant-Appellant Steven Herron appeals the trial court’s order affirming his lifetime obligation to register in Indiana as a sex offender because of his 1984 Arizona conviction for sexual conduct with a minor. We affirm. * * *

Herron contends that he cannot be required to register under Indiana’s Sex Offender Registration Act (the “Act”) because the offenses he committed in Arizona are not substantially equivalent to any Indiana offense. However, it is clear that the Act requires a sex offender who is required to register in another state to register in Indiana. Ind. Code § 11-8-8-5(b)(1). Indeed, the Act defines a “sex offender” as “a person who is required to register as a sex or violent offender in any jurisdiction.” IBecause he is required to register for life as a sex offender in Arizona, Herron is a “sex offender” who is required to register for life under the Act. See Ind. Code § 11-8-8-19(f) (noting that a person required to register as a sex offender in any jurisdiction shall register in Indiana for the period required by the other jurisdiction).

Herron further contends that the trial court erred because the trial court’s order results in retroactive punishment forbidden by the Ex Post Facto Clause of the Indiana Constitution. In support of this contention, Herron cites Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which our supreme court held that the Act may not apply to a defendant who committed an offense before the Act was enacted. * * *

We note that Herron has waived his ex post facto argument because he did not present the issue to the trial court. * * * Waiver notwithstanding, the Act is not an ex post facto law as applied to Herron. On the same day that it handed down Wallace, our supreme court handed down Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009), a plurality decision supporting the proposition that portions of the Act requiring lifetime registration may be applied retroactively if the offender was already required to register at the time of his offense. This is the case with Herron, who was required by Arizona to register as a sex offender when he committed his offense. Wallace, unlike Herron, was not required to register when he committed his offense and therefore could not be subjected to the entirety of the Act. Affirmed.

In Kody B. Hoeppner v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Kody Hoeppner appeals the sentence imposed by the trial court after he pleaded guilty to Auto Theft, a class D felony, Institutional Criminal Mischief, a class C felony, and Arson, a class D felony. Hoeppner argues that the trial court should have considered his youth as a mitigator and that the trial court erred by ordering consecutive sentences without first specifying a valid aggravator. Additionally, Hoeppner argues that a condition of probation requiring admissibility of lie detector results and specifying that a positive result constitutes a probation violation is invalid. Finding no error with respect to sentencing but finding that a part of the condition of probation should be struck and amended, we affirm in part, reverse in part, and remand with instructions.
NFP civil opinions today (3):

Western Consolidated Technologies, Inc. v. RMJ Svcs., Inc. (NFP) - "Western Consolidated Technologies, Inc. (“Western”), appeals an order granting the motion to correct error filed by RMJ Services, Inc. (“RMJ”), arguing that the trial court clearly erred in finding that Western owed RMJ $45,707.85 for services performed by RMJ prior to the cancellation of their contract on August 31, 2003. We affirm."

Rodger Dale Hammack v. Susan Lorene Hammack (NFP) - A 2-1 NFP opinion: "Appellant/Respondent Rodger Hammack appeals from the trial court's disposition of his motion to correct error following the dissolution of his marriage to Susan Hammack. Rodger contends that the trial court's order violates a stay issued in his pending personal bankruptcy case and that the trial court abused its discretion in disposing of several items of personal property. We affirm in part, reverse in part, and remand with instructions."

James T. Ferguson, Dependable Sandblast & Deburring Corp. v. Charles D. Candler, et al. (NFP) - "James T. Ferguson appeals the trial court's amended findings of fact, conclusions thereon, and judgment entering an award of damages in favor of Ferguson in part, Dependable Sandblast & Deburring Corporation in part, and Charles and Kenneth Candler in part, regarding this dispute relating to the parties' ownership of Dependable, a closely-held Indiana corporation. * * * We affirm in part, and reverse and remand in part."

NFP criminal opinions today (12):

Dawn Elizabeth McDowell v. State of Indiana (NFP)

Travis A. Smith v. State of Indiana (NFP)

Troy R. Ashley v. State of Indiana (NFP)

Robert Lee Smith v. State of Indiana (NFP)

Michael Smith v. State of Indiana (NFP)

David Atkins v. State of Indiana (NFP)

David Gardner v. State of Indiana (NFP)

A.N. v. State of Indiana (NFP)

Herman Russell v. State of Indiana (NFP)

Bruce Anderson v. State of Indiana (NFP)

Jermaine Reaves v. State of Indiana (NFP)

Jeanne Jimenez v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Invader’s sentence halved for young age: 70 years reduced to 32 in wake of appeals order"

The May 18, 2009 Court of Appeals opinion in the case of Malcolm K. Ellis v. State of Indiana (NFP) is the basis for stories today in both Fort Wayne papers.

Rebecca Green reports in today's Journal Gazette:

With respectful disagreement to the appellate court for ordering him to do so, Allen Superior Judge John Surbeck on Monday more than cut in half the 70-year prison sentence of a man convicted in a pair of violent home invasions.

In May, the Indiana Court of Appeals ordered Surbeck to resentence 19-year-old Malcolm Ellis for his role in a pair of violent home-invasion robberies committed in mid-February 2007. * * *

After initially pleading guilty under an agreement that would have given him 36 years in prison, Ellis and two of his co-defendants withdrew their guilty pleas, refusing to testify against Wright in spite of their promise to do so.

After Wright was convicted of his role in the robberies, and sentenced to 80 years, Knight, Ellis and Walker again pleaded guilty, this time without the benefit of an agreed-upon sentence.

Knight, Ellis and Walker were all sentenced to 70 years and the appellate court turned down Knight’s request to revisit his sentence earlier this year.

While Knight is only eight months older than Ellis, the court found that Ellis’ sentence was too harsh for someone his age and ordered Surbeck to redo it.

In its split decision, the court cited the prosecution’s earlier offer of 36 years as a reason to give a shorter prison sentence.

That, Surbeck said during Monday’s hearing, is inappropriate, asking the state to be held to its end of the agreement, but not requiring the same of the defendant.

“I still believe the original sentence I passed was accurate and proper,” Surbeck said.

Aaron Organ of The News-Sentinel reports today:
In the end, Malcolm K. Ellis will go to prison for the term he would have been sentenced to originally, had he held up his end of the Allen County Prosecutor’s bargain two years ago.

Ellis, 19, was resentenced Monday by Allen Superior Judge John F. Surbeck to 32 years – a far cry from the 70 years Surbeck sentenced the then-16-year-old to in 2007 on convictions of 11 felony counts ranging from robbery and burglary to criminal confinement.

In February 2007, along with three other men, Ellis was involved in the brutal robbery and shooting of one woman, and then the stripping and ordering of another woman to have sex with her boyfriend’s brother. The Indiana Court of Appeals called Ellis’ punishment for the crimes “inappropriate” and said that despite his involvement, such a lengthy sentence would make the city teen “less susceptible to redemption,” the May order read.

On Monday, after following the appellate court’s orders, Surbeck made his disagreement a matter of record.

“I still believe the original sentence I passed was accurate and proper,” said Surbeck. “I respect each of the folks on the Indiana Court of Appeals, and, just for the record, I respectfully disagree.” * * *

On Monday, Surbeck questioned why the local court was bound by a deal that did not bind Ellis.

Deputy Prosecutor Adam Mildred voiced his displeasure too, saying he had to explain to one of the victims that Ellis would be sentenced to the same term he was offered in a deal.

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions

Ind. Decisions - Two Indiana rulings today from 7th Circuit, including one remanded because of a typo [Updated]

In U.S. v. Marion (SD Ind., McKinney), a 4-page opinion, Judge Kanne writes:

The district court denied Kelvin Marion’s motion to reduce his sentence under § 3582(c)(2) on a form order with a single sentence of explanation: “As directed by 18 U.S.C. § 3581(c)(2)1 the Court has considered the relevant factors in U.S.S.G. § 1B1.10(b) and 18 U.S.C. § 3553(a) and determined a sentence reduction is not appropriate.” Because we find the district court’s written analysis a bit too terse to allow this court to meaningfully review its decision, we must remand. * * *

Some statement of the district court’s reasoning is necessary for this court to be able to meaningfully review its decision.

In ruling on the motion to reduce, the district court did not supply any reasons for its decision. The district court aptly considered and thoroughly explained the relevant factors at the time of Marion’s original sentencing; however, several years have passed since then. We think that a district court’s order on a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) should at least address briefly any significant events that may have occurred since the original sentencing. If the district court believes that nothing particularly noteworthy has changed concerning the basis for the defendant’s original sentence, some simple explanation to that effect will apprise both the defendant and this court of that fact.

Our opinion in this case should not be read to expand what is required of a district court when sentencing a defendant or considering a motion to reduce a sentence under § 3582(c)(2). We have no intention of counting words or applying some rigid formulation to statements of reasons, particularly on a motion to reduce a sentence. The problem with the order here is not that the district court used a form order, or even that the order contained only a one-sentence explanation. The problem arises from the fact that it is impossible for us to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion. Some minimal explanation is required.

We REMAND to the district court to provide a brief statement of reasons, consistent with this opinion, for denying Marion’s motion for a sentence reduction.

In U.S. v. David Neighbors, et al (SD Ind., Young). a 24-page opinion, Judge Flaum writes:
In 2008, a grand jury indicted David Neighbors, LaFrederick Taylor, Kamal Sims and Trevor Perry for participating in a conspiracy to distribute crack cocaine and powder cocaine. After an eight-day trial, a jury convicted Neighbors, Taylor, Sims and Perry of conspiracy to possess and distribute crack cocaine, finding each responsible for various levels of drugs involved in the conspiracy. The jury also found Neighbors guilty of three additional drug charges and Taylor guilty of a gun charge. The jury acquitted Perry of a felon in possession of a weapon charge and acquitted one of their co-defendants completely. Neighbors, Taylor, Sims, and Perry now appeal various aspects of their consolidated trial and Perry appeals his sentence. For the reasons set forth below, we affirm on all counts.
[Updated at 6:36 PM] Sentencing Law Blog notes today's U.S. v. Marion opinion here.

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

Law - another entry on: Dawn Johnsen and two other Assistant AG nominees "rejected" by Senate

Updating this ILB entry from Dec. 27th (where I noted the parallels between Loni's Guinier's nomination and that of Ms. Johnsen), Brian Beutler of Talking Points Memo had an entry yesterday headed "Will President Obama Renominate Dawn Johnsen To Top DOJ Post?" Some quotes:

It seems like eons have passed since newly-inaugurated President Obama nominated the Indiana University law professor to serve as head of the Justice Department's Office of Legal Counsel, but in reality it's been about 10 months. After months of sitting in limbo, Johnsen has not received a confirmation vote in the Senate. And now, if Obama still wants her to serve in has administration, he will have to renominate her and start the confirmation process largely from scratch.

Senate rules require that nominees who have not received a vote by the end of the legislative session must either be carried over to the following session by unanimous consent, or be resubmitted by the administration. At the end of last week--presumably unable to achieve universal agreement--the Senate returned a handful of nominees to the White House, including Johnsen. * * *

Johnsen will certainly face at least a couple more hurdles. First, it's up to Obama to decide whether to send her nomination back to the Senate. White House spokesman Bill Burton could offer no guidance today as to what the President plans to do. If he taps her again, though, she'll have to clear the Judiciary Committee again, and then get 60 votes on the Senate floor to overcome an expected Republican filibuster.

There are 60 members in the Democratic caucus. Of them, the one major holdout has been Sen. Ben Nelson (D-NE). Months ago, Sen. Arlen Specter (D-PA) was also threatening to join a filibuster, but he has since moved considerably to the left as he fends off a primary challenge from Rep. Joe Sestak (D-PA).

Assuming Specter's arm can be twisted, Democrats have 59 votes. They also have a pledge from Johnsen's home state Senator, Dick Lugar (R-IN), to support her confirmation. In other words, Democrats are very close. Presumably they can get her confirmed. The questions now are, will they have a chance? And, if so, will they (finally) pull the trigger?

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to General Law Related

Ind. Courts - "Man arrested after confrontation with Tippecanoe Judge Michael Morrissey" at a cash machine

Sophia Voravong had this report yesterday in the Lafayette Journal Courier:

The incident began after [Judge] Morrissey went to an ATM during the lunch hour at Lafayette Bank & Trust at Third and Main streets, diagonal from the Tippecanoe County Courthouse. * * *

Morrissey said he was trying to withdraw cash when the ATM malfunctioned. Though the screen prompted the judge to remove the money, no bills came out.

After about 30 seconds, Morrissey decided to get a bank manager.

He said the suspect, who was leaving the bank at that time, suddenly stopped after passing the ATM. Morrissey said he saw the man reach down and pull money from where the machine's bills are dispensed.

"I walked out immediately and told him that was my money," Morrissey said. "He said, 'You walked away. It's my money now.' ... The profanity kept up. "

Morrissey said McGrew eventually handed him the money, but words were exchanged between the two men. That's when McGrew allegedly threw a cup of coffee at Morrissey.

McGrew, whom Morrissey later spotted walking on the courthouse lawn, was then stopped by courthouse security bailiffs and Lafayette police officers.

"I told him he was committing a crime already by taking money and that I was going to call police," Morrissey said. "I'm fine, though - just have some dirty clothes and smell strongly of coffee."

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Indiana Courts

Environment - Still more on "Michigan asks U.S. Supreme Court to close shipping locks near Chicago to prevent Asian carp from invading the Great Lakes" What of Indiana?

Updating this ILB entry from Dec. 26th, where the ILB's inquiry to the Attorney General's press office about whether Indiana would join the lawsuit received the response:

We will reserve comment on it, for now.
Today the Gary Post-Tribune has a story reporting:
The Indiana Attorney General's Office is waiting to weigh in on Michigan's fight to keep Asian carp from getting into Lake Michigan and the other Great Lakes.

Michigan asked the U.S. Supreme Court to sever a century-old connection between the Great Lakes and the Mississippi River system to prevent Asian carp from invading the lakes and endangering their $7 billion fishery, according to The Associated Press. * * *

Minnesota and Ohio's attorney general offices have joined Michigan in filing briefs asking the nation's highest court to review measures taken by the Army Corps and Illinois to stop the spread of Asian carp into the Great Lakes.

Indiana was not a part of the original litigation, according to the attorney general's office. However, they are following the case closely and hope to make an announcement later this week, spokesman Bryan Corbin said. * * *

"Obviously we are as concerned as anyone about the potential impact of the Asian carp getting into the Great Lakes," said Indiana DNR spokesman Phil Bloom.

Posted by Marcia Oddi on Tuesday, December 29, 2009
Posted to Environment

Monday, December 28, 2009

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

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

Nearly 6 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, December 28, 2009
Posted to Indiana Transfer Lists

Courts - "The Recession Begins Flooding Into the Courts "

William Glaberson's lengthy story in today's NY Times begins:

New York State’s courts are closing the year with 4.7 million cases — the highest tally ever — and new statistics suggest that courtrooms are now seeing the delayed result of the country’s economic collapse. The Great Recession may be showing signs of easing, but the legal fallout from the financial troubles, the numbers suggest, may have only just begun.

And the increase in New York offers a preview of the recession-related cases showing up in courts across the nation.

New York’s judges are wading into these types of cases by the tens of thousands, according to the new statistics, cases involving not only bad debts and soured deals, but also filings that are indirect but still jarring measures of economic stresses, like charges of violence in families torn apart by lost jobs and homes in jeopardy.

Contract disputes statewide in 2009 are projected to be up 9 percent from the year before. Statewide home foreclosure filings increased 17 percent, to 48,127 filings. Cases involving charges like assault by family members were up 18 percent statewide. While serious crime remains low, misdemeanor charges in New York City were up 7 percent and lesser violations were up 18 percent in 2009.

What about Indiana?Chief Justice Randall Shepard testified before the Indiana Commission on Courts on Oct. 15th, According to the minutes: "He stated that despite the recent recession, case filings continued to increase in Indiana trial courts. He stated there were more than 2,000,000 cases filed in 2008."

Here is a comparison of Indiana cases filed from FY 1999 to 2008. The number for 2008 is 2,001,731, up 123,189 from 2007. The Table breaks down the cases by category such as "mortgage forclosure", "civil collections", "domestic relations", etc. Civil collections cases filed, for example, have increased from 82,139 to 101,615 from 2007 to 2008.

Posted by Marcia Oddi on Monday, December 28, 2009
Posted to Courts in general | Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Terms. of Parent-Child Rel. of D.M., T.M., and W.M.; S.M. v. The Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (8):

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

Stuart M. McAlkich v. State of Indiana (NFP)

Gary Payton v. State of Indiana (NFP)

Guillermo Samaniego-Hernandez v. State of Indiana (NFP)

Michael Miller v. State of Indiana (NFP)

Jason Roar v. State of Indiana (NFP)

Jose Cuevas, Jr. v. State of Indiana (NFP)

Patrick McGuffin v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 28, 2009
Posted to Ind. App.Ct. Decisions

Environment - Michigan environmental agency files suit against Vreba-Hoff dairies

A December 27th story in the Richmond Paladium-Item reports:

LANSING, Mich. -- The Michigan Department of Environmental Quality filed a lawsuit last week alleging hundreds of new permit violations at Vreba-Hoff dairies in Hudson.

"Once again we find ourselves having to ask the court to enforce the numerous agreements that Vreba-Hoff has failed to live up to, and enough is enough," DEQ Director Steven E. Chester said in a press release. "Most CAFOs (Concentrated Animal Feeding Operation) in Michigan work hard to be environmentally responsible members of their communities. It is unfortunate that Vreba-Hoff refuses to adhere to the most fundamental laws that we have in Michigan to keep our precious water resources safe."

The violations of the company's National Pollutant Discharge Elimination Systems permit stem from its alleged failure to meet treatment limits established in the permit.

The limits were imposed through the June 2007 modification of a previous court order requiring Vreba-Hoff to treat all waste produced by its two CAFOs. Collectively the two CAFOs house about 5,000 animals. * * *

This lawsuit is the fourth the state has filed against Vreba-Hoff Dairy Development, which is headquartered in Ohio and has several dairies in Indiana, over its management of CAFO waste.

See also this Dec. 23rd ILB entry headed "Lawyers target [Indiana] pig, dairy farms: Attorneys seek justice for neighbors allegedly injured by pork and dairy producers."

Posted by Marcia Oddi on Monday, December 28, 2009
Posted to Environment

Ind. Decisions - Appeals Court tells Hammond tavern to pay up

The NFP Court of Appeals decision Dec. 22nd in the case of Flat Rock Tap, Inc., and Michael G. Repay v. Mererdo Villarreal (NFP) was the subject of a story last Wed. in the NWI Times. Dan Carden wrote:

A man who nearly lost a finger at a Hammond tavern is entitled to a $275,000 judgment, the Indiana Court of Appeals ruled Tuesday.

Mererdo Villarreal was trying to leave Flat Rock Tap in Hammond at 2 a.m. March 18, 2007, when his finger was slammed in the door as owner Michael Repay was kicking out another patron.

Villarreal's finger required reconstructive surgery and nerve repair to avoid amputation.

Repay appealed the $275,000 judgment awarded to Villarreal in a Lake County civil trial, claiming the court should not have allowed Villarreal's brother, Lake County Detective Alfred Villarreal, to testify. Detective Villarreal assisted his brother at the hospital and repeatedly called Hammond police to have a report taken about the incident, court records show.

The appeals court ruled Detective Villarreal's testimony concerning the Hammond police was irrelevant, but that neither his testimony nor the police report substantially influenced the jury's decision, the court said.

The court also rejected Repay's claim that the $275,000 judgment was excessive.

Villarreal's medical bills totaled nearly $45,000, and his finger is still permanently damaged despite his surgery, court records state.

"Presented with this evidence, we cannot say that the jury's verdict was outside the scope of evidence or that it was motivated by passion or prejudice," Chief Judge John G. Baker wrote in the court's 3-0 decision.

Posted by Marcia Oddi on Monday, December 28, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on "Casino takes card-counting case to Indiana Supreme Court"

Updating this ILB entry from Dec. 7th, and this one from Dec. 14th, both re the Court of Appeals decision Oct. 30th in the case of Thomas P. Donovan v. Grand Victoria Casinio & Resort, L.P, the South Bend Tribune has an editorial today headed "Playing fair." It reads:

The Indiana Supreme Court has better things to do than take up the case of the Grand Victoria Casino v. Thomas P. Donovan. It should decline.

The casino industry in Indiana would like to shut its doors on mathematically gifted people with good memories. These players, with practice, can turn a game of luck and strategy into a game of skill.

The game is blackjack and the skill is counting cards.

Unlike all other casino games (which are designed to assure that you'll lose if you play long enough), the longer a gifted card counter plays blackjack, the more likely he is to win. That's why casinos want to be able to turn away people with Donovan's talent.

When Donovan was ejected from Grand Victoria in Rising Sun, Ind., in 2006, he sued and lost. The Marion Superior Court decided that any private business has the right to refuse service to anyone, as long as it isn't discriminating on illegal grounds.

Donovan turned to the Indiana Court of Appeals and won — for good reasons, it seems to us.

First of all, remembering what cards have been played, and then mentally calculating the odds of a high card being dealt, isn't cheating. Unless Indiana outlaws mental processes, which doesn't seem likely, it never will be cheating.

The appellate judges further decided that Indiana casinos aren't like other private businesses. They're heavily taxed, regulated and supervised by the state. It's hard to see why casinos should be able to ban people who play by the rules.

Counting cards has been glamorized by Hollywood. In reality, it doesn't make very many people rich. Donovan, for example, says he has to spend most of a day playing blackjack to win about $100.

If casinos choose to offer a game with a skill element, then they should accept that some players will be more skilled than others and that they may lose once in a while. This isn't a case for the Supreme Court.

Where is this case? The petition for transfer, an amicus brief on behalf of the transfer petition, and the appellant's response brief all have been filed now -- the response was filed Dec. 22, 2009. It remains for the Supreme Court to act to grant or deny transfer (or it may schedule an oral argument before deciding).

ILB: Many of us play gin rummy or bridge and keep track of cards. That is part of the game. These games aren't offered in casinos. Blackjack is, but, the casinos say, only if you don't keep track of the cards -- if you do they will refuse to let you play ...

Posted by Marcia Oddi on Monday, December 28, 2009
Posted to Ind. App.Ct. Decisions

Catch-up: What did you miss over the long Christmas weekend from the ILB?

Here is the answer to "What did you miss over the weekend from the ILB?"

From Sunday, Dec. 27, 2009:

From Saturday, Dec. 26, 2009: From Friday, Dec. 25, 2009: From Thursday, Dec. 24, 2009:

Posted by Marcia Oddi on Monday, December 28, 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 12/28/09):

Next week's oral arguments before the Supreme Court (week of 1/4/10):

Next Thursday, January 7th

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 12/28/09):

Next week's oral arguments before the Court of Appeals (week of 1/4/10):

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, December 28, 2009
Posted to Upcoming Oral Arguments

Sunday, December 27, 2009

Law - Still more on: Dawn Johnsen and two other Assistant AG nominees "rejected" by Senate

Updating this ILB entry from Dec. 24th, which began "I'm not sure what this means," and this one from Dec. 25th, there has been little additional news on the Senate's action on the morning of Dec. 24th re the Dawn Jonsen nomination to head the DOJ's Office of Legal Counsel.

Sylvia A Smith, Washington editor of the Fort Wayne Journal Gazette, had a brief story today, Dec. 27th, reporting:

The Senate confirmed the nomination of Hoosier Anne Slaughter Andrew to be ambassador to Costa Rica on Thursday before leaving until mid-January. But another Hoosier whose nomination to a Justice Department position was one of President Obama’s first was sent back to the White House.

Dawn Johnsen, a professor at the Indiana University law school, was nominated to run the Office of Legal Counsel, essentially the administration’s internal legal team. Some Republicans said she was a liberal activist and should not be part of the administration. During the Bush administration, she criticized the Justice Department as being “tainted” by political considerations.

Both Indiana senators supported Johnsen’s nomination.

The White House must now decide whether to renominate Johnsen and five other nominees.

The liberal blog, Firedoglake, has this entry posted the evening of Dec. 25th. A few quotes from the lengthy post:
The nomination of Dawn Johnsen to be the head of the Office of Legal Counsel at DOJ, a critical post, is now truly dead. If Ms. Johnsen is to serve, she will have to be renominated by Barack Obama and start over. She never got the up or down vote promised as soon as the Senate had done healthcare, she never got an ounce of support from the Administration that nominated her, and a year of her life was taken in what certainly appears to be a cowardly and demeaning political ploy.

There is a bit more than meets the eye to unpack here. Harry Reid held over several nominations for the return to session in January, but Dawn Johnsen was not one of them. The implication is that he could only do so by a “unanimous consent” approval by the Senate and that, golly gosh, he just could not get it. * * *

Even assuming Harry Reid had no alternative but to return the nomination, the better question is how did it get to this point, and why has the White House and Senate been so disingenuous about it? The only rational conclusion at this point is that killing Johnsen’s nomination is precisely what the Obama White House desired. The White House intentionally left to rot, and then outright killed, their own nominee.

The evidence of this is pretty damning. Dawn Johnsen’s nomination had languished, twisting in the wind, for 280 days as of the time her nomination was killed by Harry Reid, far longer than any other Obama nominee. The only notable recent support for Johnsen from the White House came in a statement by White House Counsel Greg Craig on October 11, 2009, a weak statement saying only that the White House “would not withdraw” her nomination. Craig was subsequently fired and, hilariously, attempted to be scapegoated by Rahm Emanuel for – wait for it – not getting nominations like Johnsen’s confirmed. * * *

There is a lot of detritus in the wake of the Obama White House duplicity on the Dawn Johnsen nomination. They humiliated Dawn Johnsen by letting her twist in the wind, wasted a year of her life, disrupted the faculty and student body of the Indiana University School of Law and sold out a huge block of liberal and progressive voters who were the very voters and ground organizers carrying Obama to election in the first place.

Barack Obama and Harry Reid owe an explanation to both Dawn Johnsen, and the voters who worked so hard to elect them, as to why they intentionally left Johnsen’s critical nomination out in the cold so long, and then killed it outright. The main media in the United States owe their readers the duty to ask the questions and demand answers. That much, at a minimum, is owed to the citizens.

Some observations from the ILB. Not only Ms. Johnsen's, but two other Assistant Attorney nominations, and three other nominations, were "returned to the White House" on Christmas Eve:
Dawn E. Johnsen: Assistant Attorney General for Office of Legal Counsel

Mary L. Smith: Assistant Attorney General for Tax Division

Christopher H. Schroeder: Assistant Attorney General for Legal Policy

Craig Becker: National Labor Relations Board board member

Edward Chen and Louis Butler, U.S. District Court nominees for California and Wisconsin, respectively.

What to make of all these rejections?

Re Dawn Johnsen, President Clinton's Loni Guinier nomination keeps coming into my mind. I looked back for the parallels. Guinier was nominated by Clinton on April 29, 1993 to be Assistant Attorney General in charge of the Civil Rights Division of the Justice Department. Clinton withdrew her nomination a little over a month later, on June 3, 1993. [NYT accounts from 1993]

Thus, the parallels are few. Johnsen was nominated by President Obama on Jan. 5, 2009. It is now nearly a year later, her nomination was approved by the Senate Judiciary Committee on March 19th, and has been awaiting a vote of the full Senate since that date. Until Dec. 24th, when the nomination was "returned to the White House."

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to General Law Related

Law - "Stand Your Ground Law vexing Florida courts"

Reminiscent of the Yalanda Parrish trial in Clark County earlier this year (some earlier entries here, and this one from Aug. 21st, 2009), a long story in the Miami Herald today, headed "Florida's 2005 Stand Your Ground law, which broadens a citizen's right to use deadly force, is vexing courts across the state." A quote:

The statute eliminated a citizen's duty to retreat from a deadly threat and bestowed ``immunity'' on people protecting themselves with lethal force.

Legislators said the law was necessary to give law-abiding citizens more rights to protect themselves outside their home. But critics say the law encourages vigilantism and provides cover for unjustified violence.

Lawyers say the statute is befuddling.

``The law has created a massive amount of confusion as to what exactly constitutes self-defense and exactly how to apply the new law,'' said defense attorney Bill Mathewman, who hopes the Florida Supreme Court will grant immunity to a client currently facing trial for aggravated assault in Palm Beach County.

Ultimately, because the law isn't specific and state appeals courts can't agree, the Florida Supreme Court will have to iron out how judges grant immunity and under what standard of proof.

Already, the First and Fourth District Courts of Appeal have issued conflicting rulings on how the Stand Your Ground should be applied.

For more about Indiana's statutes, see this ILB entry from June 21, 2008.

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to General Law Related

Courts - "Oversight of Pa. judges is wrapped in secrecy: The Judicial Conduct Board, created to protect citizens from errant judges, is criticized as doing just the opposite"

More fallout surrounding the two Luzerne County Pennsylvania judges who sent thousands of juveniles to detention centers in return for kickbacks -- a "what did they know and when did they know it?", and "why didn't they act?" story Dec. 26th in the Philadelphia Inquirer, reported by William Ecenbarger. Some quotes from the lengthy story:

HARRISBURG - One of state government's most secretive agencies is housed near the end of a hallway on the third floor of the Pennsylvania Judicial Center, just across Commonwealth Avenue from the Capitol.

A piece of ordinary white bond paper, tucked into a protective plastic sleeve and taped to a window at the entrance, says "Judicial Conduct Board" in half-inch letters.

There is a small waiting room in Suite 3500, but the door leading to the inner offices is marked with two signs: "Confidential Area. Do Not Enter Beyond This Point" and "The Procedures of the JCB Are Confidential. The Use of Cameras and All Recording Devices Is Prohibited."

The board was created in 1993 to protect Pennsylvania citizens from judges who abuse their power, either ethically or criminally. But recent revelations about its procedures and activities have led some critics to suggest a role reversal in which the JCB's focus is to look after the interests of Pennsylvania's 1,200 judges.

"The outrage is that the JCB believes it is more important to protect members of the judiciary than to protect the citizens the judiciary is supposed to serve," says Tim Potts, executive director of Democracy Rising PA, a nonprofit governmental-reform group.

"The judges don't need protection," adds Robert L. Byer, a former Commonwealth Court judge. "They already have lots of that. They're even immune from being sued for almost anything they do in the courtroom. It's the public that needs protection from rogue judges."

The impetus for the criticism has been the failure of the JCB to disclose what, if anything, it did about two Luzerne County judges who have been charged by federal authorities with taking $2.8 million in kickbacks from a prison-management firm.

The JCB received a complaint about the two judges, Michael T. Conahan and Mark A. Ciavarella Jr., in September 2006.

Here are some other ILB entries about the Luzerne County judges.

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to Courts in general

Ind. Decisions - Still more on "Flying J plans can proceed after high court ruling"

Updating a long list of ILB entries, including most recently this one from Dec. 23rd, Amanda Iacone has this report today in the Fort Wayne Journal Gazette, headlined "New Haven doesn’t rue losing battle: Spends $110,000 to halt truck stop." The long story begins:

NEW HAVEN – New Haven has spent more than $110,000 during the past five years fighting three lawsuits over its decision to prevent fuel-supply company Flying J from building on the city’s east end.

At least one resident questioned the expenses, but city officials say the legal fight is worth the time and taxpayer dollars because they want to protect the community from what they believe are the project’s adverse effects.

The city and Flying J have wrangled since the Utah company unsuccessfully asked the city’s Board of Zoning Appeals in 2005 for permission to build a 17-acre plaza at Minnich Road and Indiana 930 near Interstate 469.

Since then, the Indiana Supreme Court has twice ruled against the city and in favor of Flying J, most recently this month when the high court declined to hear the case, ending the city’s appeal efforts.

That court decision paves the way for Flying J to build the truck plaza. The next step for the company would be to file a development plan with the city planning commission.

“Flying J intends to preserve the highest and best use of the property,” the company said in a written statement. “This means that it will be developed as a travel plaza or some other highway hospitality business.”

All of that legal wrangling comes with a price. As of early December, the city has paid three law firms a total of $110,948 to defend its position.

In comparison, the city has spent far less on this case than it did to close Adams Center Landfill. That 10-year legal battle, which formally ended in early 2003, cost more than $1 million, Mayor Terry McDonald said.

Fort Wayne has spent about $300,000 during the past year arguing over the value of the former City Light electric utility with Indiana Michigan Power.

Attorneys with McTurnan & Turner, and now Bingham McHale, received the largest share of New Haven’s legal fees, according to information provided by the city and its local legal counsel, Van Gilder and Trzynka.

Since 2005, the city has paid those two firms, which have since merged, more than $77,000.

The city has paid Van Gilder and Trzynka more than $33,000 on work related to Flying J.

Flying J had spent $195,000 through 2008, according to court filings. But that number has likely increased as the case has gone through the appeals process a second time, said the company’s local attorney, James Federoff.

Another quote:
City Council President Harold West, R-2nd, said most residents wouldn’t mind if Flying J built one of its gas and convenience store plazas elsewhere along the I-469 corridor. But residents don’t want the truck plaza built on the edge of the city.

West has concerns about the proposed location because of the traffic problems that trucks would cause when navigating a busy intersection and the criminal activity the plaza could create.

Truck stops tend to draw prostitution and other crime, said Highland Terrace resident Shelia Berning, who helped gather signatures petitioning city officials to halt the project in 2005.

She believes the city should be able to control zoning matters and growth. If the city were to expand east beyond I-469, she said, the truck plaza could be in the middle of the city.

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - More on "Justices Revisit Rule Requiring Lab Testimony"

Updating this ILB entry from Dec. 20th, the Jan. 2010 issue the ABA Journal has an article by Mark Hensen headed "Taking Techs to Trial: Two terms in a row, justices weigh bringing lab analysts into court." It begins:

It’s one thing to demand that the prosecutor produce a technician to testify on the lab report at a criminal trial. It’s quite another to shift the burden to the defendant to find and bring in the lab tech.

Those two issues underlie a U.S. Supreme Court ruling handed down during the court’s last term, and they provide the basis for a follow-up case this month. The court’s June 25 decision in Melendez-Diaz v. Massachusetts held that the Sixth Amendment’s confrontation clause requires the analyst who prepared a crime lab report to appear at the trial and be subject to cross-examination.

But on Jan. 11 the justices will hear arguments in the case of Briscoe v. Virginia, which challenges the constitutionality of a Virginia law that allows such a report to be admitted without the testimony of the analyst who prepared it, but gives the defendant the opportunity—at the state’s expense—to subpoena the analyst to testify.

There’s a big difference between a simple notice-and-demand statute, which the court appeared to endorse in Melendez-Diaz, and the Virginia law, which places the burden of calling witnesses on the defendant.

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to Courts in general

Ind. Law - "State hopes database will curb meth"

Angela Mapes Turner has a long story today in the Fort Wayne Journal Gazette on planning for a statewide meth database. Some quotes:

Indiana’s methamphetamine problem continued to flummox law enforcement this year, as state police seized more meth labs in 2009 than ever.

The agency’s meth unit hopes the launch early next year of a long-discussed database to track methamphetamine-related information will drive down the blight. The effectiveness of similar programs in other states is still being evaluated, however.

The Indiana Meth Intelligence System would put data from pseudoephedrine sales into a database searchable by law enforcement agencies. It will also track tips from the state police tip line and law enforcement officers. * * *

One key ingredient remains the common cold medicine pseudoephedrine, sold under the brand name Sudafed or a store brand. Since 2005, the drug has been kept behind pharmacy counters, and limits have been placed on the amount a customer can buy within a given time.

Pharmacists are required by law to take a customer’s information, but in most cases, that information has been kept in paper logs that officers must spend hours searching by hand, [Indiana State Police 1st Sgt. Niki Crawford, who heads the state’s Meth Suppression Section] said. * * *

If someone buys medicine for a cold or sinus infection, that information will not be available to law enforcement. Crawford said only sales deemed suspicious under the parameters of the program will be included in the database, based on state and federal law and a few other red flags, such as past methamphetamine-related crimes.

The program also aims to fight “smurfing” – when people who travel from pharmacy to pharmacy, buying up as much pseudoephedrine as they can within a short period. The database flags people who buy from different pharmacies during a short time and flags associates who might be working together to buy the drug, Crawford said. * * *

The database has been discussed for several years, and the need has grown during that time, police say. The number of meth labs found in Indiana increased by a third last year, the second-highest haul since Indiana State Police began tracking annual totals, Crawford said. * * *

Funding concerns held up the creation of the database, as did debate over what kind of database would be best.

Crawford said Indiana decided to use a program developed in Tennessee because it would cost the state less. All Indiana has to do is build the computer system, and Tennessee gives the program away, she said.

It has other benefits, too, in that any information on the database can be shared with other states that use the program, Crawford said.

Crawford sees that as an advantage over some of the for-profit databases that have been created in recent years. Kentucky uses a for-profit program called MethCheck, but the information MethCheck collects isn’t shared with Indiana.

In March, Kentucky Gov. Steve Beshear announced that some counties in extreme southern Indiana had agreed to a pilot program with Kentucky for free access to the MethCheck program for a year.

Similar to Indiana’s new database, MethCheck connects law enforcement with pharmacies’ pseudoephedrine log data electronically, according to Kentucky-based Appriss Inc., which developed the program.

In 2008, nearly a third of the meth labs found in Kentucky were in two counties bordering Indiana, the governor said at the time.

Posted by Marcia Oddi on Sunday, December 27, 2009
Posted to Indiana Law

Saturday, December 26, 2009

Courts - More on: Ohio Supreme Court rules warrant required for cell phone searches

Updating this ILB entry from Dec. 15th, some quotes from an editorial today in the NY Times:

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

Searches generally require warrants, but courts have carved out limited categories in which they are not needed. One of these is that police officers are allowed, when they arrest people, to search them and the area immediately surrounding them, as well as some kinds of containers in their possession. * * *

Rather than seeing a cellphone as a simple closed container, the majority noted that modern cellphones — especially ones that permit Internet access — are “capable of storing a wealth of digitized information.”

This is information, the court said, for which people reasonably have a high expectation of privacy, and under established Fourth Amendment principles, police officers must get a search warrant before they can look through call logs or examine other data. The court wisely decided that it made no sense to try to distinguish among various kinds of cellphones based on what specific functions they have. All cellphones, the court said, fall under the search warrant requirement.

Few federal courts have considered the issue of cellphone searches, and they have disagreed about whether a warrant should be required. The Ohio ruling eloquently makes the case for why the very personal information that new forms of technology aggregate must be accorded a significant degree of privacy.

Here is the Dec. 15th opinion in State of Ohio v. Smith.

Posted by Marcia Oddi on Saturday, December 26, 2009
Posted to Courts in general

Environment - More on "Michigan asks U.S. Supreme Court to close shipping locks near Chicago to prevent Asian carp from invading the Great Lakes" What of Indiana? [Updated]

This ILB entry from Dec. 22 contained reports that the Michigan attorney general has filed the suit against against Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago. This Dec. 22nd LA Times story by Joel Hood and James Janega reports:

The fight to keep invasive Asian carp out of the Great Lakes reached the U.S. Supreme Court on Monday, as Michigan's attorney general filed a lawsuit seeking closure of two shipping locks near Chicago.

Claiming Illinois officials have been lax, Michigan Atty. Gen. Mike Cox asked justices for immediate action to seal off the most direct route for fish entering Lake Michigan, in hopes of protecting the region's $7-billion fishing industry.

"We don't want to have to look back years later . . . and say, 'What was the matter with us? We should have done something,' " Cox said. Closing the locks, he said, was "the easiest, the most reliable and the most effective" short-term step officials could take. * * *

In addition to closing the locks, the lawsuit seeks creation of barriers to prevent carp from escaping the Des Plaines River or neighboring waterways during flooding. Cox also called for a study of Chicago's water system to understand the size and scope of the Asian carp population.

The lawsuit comes during a period of heightened anxiety over recent DNA research that hinted the voracious fish may have bypassed an underwater electric barrier system -- and could now be within six miles of Lake Michigan. In August, Quinn signed into law a $3-million program giving universities and researchers authority to fish as many varieties of Asian carp as they could find. Last week, Illinois was awarded $13 million in federal funds to deal with the carp problem.

In filing the lawsuit, Michigan was asking that the high court reopen a 100-year-old case sparked by Chicago's reversing the flow of the Chicago River to send its sewage and human waste away from Lake Michigan and toward the Mississippi River.

This story from the Dec. 23rd Minnesota Star Tribune is headed "Minnesota to join Michigan in lawsuit to keep out Asian carp." A quote:
Minnesota Attorney General Lori Swanson said Minnesota on Monday will join Michigan in a lawsuit that would force Illinois and the U.S. Army Corps of Engineers to take action to block the fish from entering Lake Michigan through Illinois.
"Ohio asks US Supreme Court to study carp threat" is the heading of this Dec. 24th AP story that begins:
COLUMBUS, Ohio - Ohio has asked the U.S. Supreme Court to review steps taken to stop Asian carp from invading the Great Lakes.

Ohio Attorney General Richard Cordray asked the court Wednesday to examine measures taken by the U.S. Army Corps of Engineers and the state of Illinois to stop the spread of the fish.

Cordray asked the court to reopen an earlier case examining the legality of several man-made canals and waterways connecting Lake Michigan with the Illinois and Mississippi Rivers.

Michigan, Minnesota, Ohio. What of Indiana? A message sent by the ILB to the Indiana Attorney General's office on Dec. 24th, asking about Indiana's plans, has thus far gone unanswered.

[More at 1:30 PM] Thnaks to AG's office for this message:

Sorry that we were not able to get back to you earlier. State government offices were closed Thursday in observance of the Christmas Eve holiday. Thank you for forwarding the article. We will reserve comment on it, for now. Thanks.

Posted by Marcia Oddi on Saturday, December 26, 2009
Posted to Environment

Ind. Courts - Delaware County Prosecutor Mark McKinney "saga drags into 2010"

The ILB has had many entries on the various aspect of this story. Today Douglas Walker of the Muncie Star-Press features it is #9 in its count of "top ten" 2009 stories. Some quotes:

MUNCIE -- Supporters of Delaware County Prosecutor Mark McKinney had hoped his Drug Task Force-related controversies would officially qualify as old news in 2010.

Unfortunately for McKinney -- a Democrat who intends to seek a second four-year term as prosecutor in next year's election -- the DTF saga lives on, with a nearly two-year-old ethics complaint against him still pending before the Indiana Supreme Court.

The soon-to-be concluded 2009 was not without positive developments for McKinney.

On May 7, a special prosecutor announced that he would file no criminal charges against McKinney over his legal representation of the DTF, in civil forfeiture proceedings, while also working as a prosecutor.

"There appears to have been a good-faith effort by McKinney to comply with the Indiana legislative statutory provisions as well as to the practices and protocols of asset forfeiture as they existed in Delaware County at the time," former Monroe County Prosecutor Barry Brown wrote in a report.

A day later, however, the Indiana Supreme Court's disciplinary commission formally accused the beleaguered Delaware County prosecutor of violating four rules of professional conduct in his dual work as DTF attorney and prosecutor.

McKinney and his attorney, Kevin McGoff, negotiated a proposed settlement of the complaint that called for McKinney's law license to be suspended for 90 days. That deal was later rejected by the Indiana Supreme Court, however, with a majority of the justices apparently feeling the penalty was not harsh enough.

In recent weeks, the Supreme Court appointed a Boone County judge to conduct a trial-like hearing and then issue a recommendation on what action, if any, should be taken in the McKinney case. The ultimate decision rests with the Supreme Court.

Posted by Marcia Oddi on Saturday, December 26, 2009
Posted to Indiana Courts

Courts - "The World's District Attorney: Legendary prosecutor Robert Morgenthau"

A long piece in the opinion section of today's WSJ, that may be freely available (try here), begins:

In the criminal justice system, the people of Manhattan have been represented for 35 years by New York County District Attorney Robert Morgenthau. This is his story.

Mr. Morgenthau, who inspired the original D.A. character on the television program "Law and Order," will retire on Thursday at age 90. Much of the barely fictitious drama is set in his office in Manhattan's Criminal Courts Building. This week, amid half-filled boxes and scattered personal mementos, he sat down to discuss his life's work.

Posted by Marcia Oddi on Saturday, December 26, 2009
Posted to Courts in general

Ind. Courts - ND Indiana jurors contact federal prosecutor via Facebook after trial, with congratulations

Dan Hinkel has the story today in the NWI Times. How did he find out about it? According to the report:

After [Assistant U.S. Attorney Jil] Trumbull-Harris notified [Judge Rudy] Lozano of the first Facebook contact, attorney Arlington Foley, who represents Stanton Cephus, filed a motion asking Lozano to hold a hearing exploring whether the foreman developed a bias toward the prosecution during the trial.

Lozano denied Foley's request, noting the messages were not sent during the trial. Lozano cited 7th Circuit Court of Appeals decisions in declining to probe the two jurors' thought processes during trial.

Lozano shot down Foley's hearing request in a sealed order briefly offered last week on the federal court system's online database. The order was pulled off the Web shortly after prosecutors were told it had been exposed.

From the beginning of the lengthy story:
HAMMOND | Judges already instruct jurors to avoid doing a lot of things during trials -- don't read the news coverage, don't chat with witnesses or lawyers outside court, and so forth -- but the online social media revolution may necessitate one more instruction:

Don't "friend" the prosecutors, the police or the judge on Facebook.

Less than three hours after jurors in Hammond federal court returned guilty verdicts Nov. 20 against accused pimps Justin "Tootie" Cephus, Stanton "Stan" Cephus and Jovan D. "Geo" Stewart, the jury foreman contacted the prosecutor, Assistant U.S. Attorney Jill Trumbull-Harris, on the social networking Web site Facebook, according to court records.

Trumbull-Harris notified federal Senior Judge Rudy Lozano the juror told her through Facebook he had "a lot to say to you and I hope that I get an opportunity to do such. Congratulations."

A second juror also contacted Trumbull-Harris on Facebook to wish her a "very blessed and Happy Thanksgiving," according to court papers. Trumbull-Harris notified Lozano the juror told her she "truly enjoyed listening" to the prosecution in the case. That juror described the prosecutors, Trumbull-Harris and Assistant U.S. Attorney Philip Benson, as "fantastic speakers," according to court records.

Available court records do not explain whether the jurors asked Trumbull-Harris to add them to her online networks as Facebook "friends," but that step isn't necessary to send messages on the site. * * *

This local court battle illustrates a second consequence of Facebook's demographic shift away from college students toward working adults: federal agents and prosecutors can now be found online, and they take different stances toward hiding their information.

A Facebook user chooses how much information from his or her personal profile page is revealed to the general public and to that person's authorized Facebook friends. Trumbull-Harris' Facebook page reveals almost nothing about the federal prosecutor to people she has not accepted as her friends. A passing visitor to her page can only view her profile picture and her list of online friends.

One of Trumbull-Harris' Facebook friends is an FBI special agent who, like many agents, has testified in court against federal defendants accused of brutal violence. That agent leaves much more information public. Visitors, even those the agent has not accepted as friends, can see pictures of the agent's infant daughter, who is mentioned by name in public view. * * *

For lawyers who use Facebook or are considering signing up, New York-based online legal marketing businessman and lawyer Joshua Fruchter advises you avoid "friending" clients or judges. A lawyer should use social media either for personal or professional reasons, not for both, Fruchter said.

"You really can't mix the two," he said. "Or you're asking for trouble."

Posted by Marcia Oddi on Saturday, December 26, 2009
Posted to Indiana Courts

Friday, December 25, 2009

Courts - "Michigan Faces Constitutional Case Over Cash-Strapped Public Defenders"

Tresa Baldas reported Dec. 24th in The National Law Journal, in this story:

Are Michigan's public defenders improperly pushing the poor into copping pleas? The Michigan Supreme Court will consider that question this spring when it hears a case challenging how publicly appointed lawyers represent poor criminal defendants.

At issue is whether cash-strapped public defenders are violating the constitutional rights of defendants by allegedly too eagerly encouraging plea bargains, as opposed to vigorously fighting the charges. Indigent defendants in three Michigan counties -- Muskegon, Berrien and Genesee -- are suing the state over what they claim is an underfunded and inadequate public defender system.

The lawsuit, filed in 2007, got a boost in June when a Michigan appeals court ordered the case to proceed to trial. On Dec. 18, the state Supreme Court agreed to review that decision.

The plaintiffs contend that the public defender systems in their counties are so bad that poor people are pleading guilty because, for all practical purposes, they are given no other choice. The plaintiffs are represented by a team of private lawyers and advocacy groups, including the American Civil Liberties Union and the Brennan Center.

"The systems in those counties are designed to encourage people to plead guilty," said Frank Eaman, a solo criminal defense attorney in Detroit, who is helping represent the plaintiffs. According to Eaman, a team of investigators discovered numerous flaws: Public defenders would often meet their clients for the first time in court; investigations were rarely done; and witnesses were not interviewed.

"The Constitution requires a more rigorous defense," Eaman said.

Officials with the Michigan attorney general's office were not available for comment. In court documents, the state has argued that ineffective lawyering is properly remedied by appealing after a criminal conviction. The state has also argued that the plaintiffs have sued the wrong parties because the counties, not the state, have the responsibility to provide counsel for indigent defendants and that the lawsuit fails to show any damages suffered by the plaintiffs.

According to Eaman, Michigan is one of the few states that leave the expense of public defenders up to the counties. Most states have adopted statewide public defender programs, including in recent years Louisiana, Montana and Georgia, he said. Legislation is pending to create a statewide public defender program in Michigan.

The South Bend Tribune had this story Dec. 24th, reported by C. Draeger Thomas, that begins:
ST. JOSEPH — Berrien is one of three counties named in a lawsuit backed by the American Civil Liberties Union against the state that alleges poor people accused of crimes are not receiving proper legal counsel.

The Michigan Supreme Court recently agreed to hear an appeal in the class-action case that challenges the state's public defender system.

In addition to Berrien, Genesee and Muskegon counties are accused of violating the constitutional rights of defendants through an underfunded system that the ACLU alleges encourages plea bargains instead of a vigorous defense.

But Berrien County's corporate counsel R. McKinley "Mac" Elliott takes exception to the plea bargain complaint.

He said most cases, criminal and civil, are settled by plea bargains in the best interest of both parties and the victims, to avoid clogging up courts with prolonged trials. In addition, with plea bargains, he said, both sides know exactly what the penalties and consequences are.

With trials, a defendant has no idea of how the jury will rule, which makes the outcome a game of chance.

Elliott said the ACLU's case is driven by a national push to create statewide public defender systems, instead of letting counties handle how poor people accused of crimes obtain legal counsel.

In Berrien County various attorneys and law firms bid on contracts to represent the poor.

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Courts in general

Ind. Courts - "Suits allege unscrupulous debt collection tactics"

This Dec. 13th ILB entry was headed "Debt collectors' 'bully' tactics drawing scorn."

Yesterday, Teresa Auch Schultz of the Gary Post Tribune had this report:

Three more people have filed federal lawsuits alleging unscrupulous practices by debt collectors.

The lawsuits, all filed Wednesday in U.S. District Court in Hammond, claim that companies in some way violated the Federal Fair Debt Collection Practices Act.

In one, Serita Bonner, a Lake County resident, claims that American Revenue Corp. gave her new employer a forged court document so the company could garnish her wages. The company had won in 2004 a judgment against Bonner to collect on a debt she owed to The Methodist Hospitals. The company set up a garnishment of her wages with her then-employer Harrah's Casino.

However, she left Harrah's in 2005 and started working for another company, Americall, in 2008. According to the lawsuit, instead of going through the proper procedures to start a new garnishment, American Revenue sent Americall a forged copy of the original garnishment order that listed Americall as Bonner's employer in 2004, even though she didn't work for them until 2008. Bonner filed copies of both garnishment orders with her lawsuit.

Krystina Austin, a Porter County resident, also filed a lawsuit, claiming that FirstSource Financial Solutions added a fee of $270 to her debt for debt collection, even though such a practice is prohibited by state law.

In the third lawsuit, Robert McCord, a Porter County resident, says AFNI, Inc., has continued to bill him even though he declared bankruptcy and had the debt discharged by bankruptcy court.

They follow another lawsuit in which a couple claimed an employee of a debt collector called and harassed them, telling them things such as he would tell their mortgage companies and neighbors about their debt.

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Indiana Courts

Ind. Gov't. - More on "Foster care payments cut by 10 percent"

Updating this ILB entry from Dec. 6th, Tim Evans of the Indianapolis Star reported yesterday, Dec. 24th:

Planned 10 percent cuts in subsidies that adoptive and foster parents use to help pay for their children's needs have prompted a federal lawsuit against the Indiana Department of Child Services.

It's the second lawsuit against the agency and DCS Director James W. Payne in the past week to stop a reduction in payments set to go into effect in January.

The latest suit was filed Tuesday in the U.S. District Court for the Southern District of Indiana. In it, the American Civil Liberties Union of Indiana is seeking class-action status for foster parents and children as well as children adopted through DCS and their adoptive parents.

The lawsuit claims Payne and DCS failed to conduct individual assessments of families and the cost of providing for foster and adoptive children before deciding on the cuts, announced earlier this month.

It says the cuts, prompted by Indiana's worsening budget crisis, will reduce adoption and foster-care subsidies so much that parents won't be able to provide for the children's needs, a violation of federal regulations.

Last week, a consortium of 110 agencies that provide services to about 4,600 children involved with DCS sued Payne and the department in Marion Superior Court to try to stop cuts ranging from 4 percent to 20 percent.

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Indiana Government

Courts - More on: Kentucky sex-offender case appealed to U.S. Supreme Court

Updating this ILB entry from Dec. 24th, quoting a LCJ story that began:

Kentucky Attorney General Jack Conway is asking the U.S. Supreme Court to decide whether the state’s restrictions for sex offenders can be applied retroactively to as many as 5,800 people convicted before the limits went into effect in 2006.
Douglas A. Berman of Sentencing Law Blog wrote Dec. 24th re the Kentucky appeal:
[T]hough the sex offender case from Kentucky presents SCOTUS with a first opportunity to consider sex offender residency restrictions, I have an inkling that the Justices may be inclined to GVR the Kentucky AG's appeal after the Court addresses various ex post facto issues in the pending Carr case (which concerns sex offender registration requirements).
"GVR" = Grant > Vacate > Remand.

From a 2008 Northwestern University Law Review article by Sena Ku on the GVR power:

The GVR is a discretionary practice that has received fairly scant attention from legal scholars. Generally, however, the GVR is characterized as an equitable doctrine that is applied in light of an intervening event ...

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Courts in general

Ind. Law - Get ready for 2010 changes to Child Support Rules & Guidelines

Get ready for 2010 changes to Child Support Rules & Guidelines with these aids:

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Indiana Law

Environment - NY Times posts correction to Duke Energy story

Here is the correction, published Dec. 25, 2009:

An article in some editions on Wednesday about a court settlement requiring Duke Energy, an electric power company, to slash sulfur dioxide emissions from a coal-fired plant in Indiana that were causing pollution in the New York region misstated the amount of money that Duke Energy said it had invested in pollution controls at the plant since 2007. It is $100 million, not $100.

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to Environment

Law - More on: Dawn Johnsen and two other Assistant AG nominees "rejected" by Senate

In light of the Senate's "action" yesterday, this Dec. 9th story by Andrew Ramonas becomes relevant. Some quotes:

Two stalled Justice Department nominees are slated for university teaching jobs again early next year, according to university course schedules for spring 2010.

The teaching jobs give the two nominees a backup plan in case their confirmations continue to be stalled in the Senate.

Office of Legal Counsel nominee Dawn Johnsen, who was nominated Feb. 11, will teach a class at Indiana University’s Maurer School of Law this spring.

Office of Legal Policy nominee Christopher Schroeder, who was tapped June 4, will teach two courses, along with Sen. Ted Kaufman (D-Del.), for the Duke University School of Law in Washington this spring.

Johnsen’s constitutional law seminar is titled, “Congress, the Presidency and the Courts.” The OLC nominee’s course is slated to tackle such topics as “permissible forms of congressional oversight of the Executive, including limitations on the appointment and removal of executive branch officers” and “when may the president assert executive privilege and refuse to comply with requests for information from Congress or the courts,” according to the Indiana University law school’s Web site. Read the full course description here.

The OLC nominee taught a a seminar titled “Sexuality, Reproduction and the Law” this fall, while commuting between Washington and Bloomington, Ind.

Posted by Marcia Oddi on Friday, December 25, 2009
Posted to General Law Related

Thursday, December 24, 2009

Law - Dawn Johnsen and two other Assistant AG nominees "rejected" by Senate today [Updated]

I'm not sure what this means. This item posted this morning by Ed O'Keefe the Washington Post, after the Senate adjourned, reports:

If passing health-care reform was the Senate's Christmas present to President Obama, then the confirmation of more than 30 of his nominees might as well serve as stocking stuffers or a year-end treat.

The Senate confirmed more than 30 Obama administration nominees after voting on health-care reform and the debt ceiling, but also referred six nominees back to the White House for reconsideration, including three for the Justice Department. * * *

Though no formal vote was taken, six nominees were "returned to the White House" for reconsideration and possible renomination.

"They ran into opposition," said Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.). In addition to three Justice nominees, Senators also referred back two picks for federal judgeships in California and Wisconsin.

Senators also confirmed 10 ambassadorships, several U.S. attorney and U.S. marshals nominees and a few military promotions. * * *

The nominees rejected by the Senate were:

Dawn E. Johnsen: Assistant Attorney General for Office of Legal Counsel

Mary L. Smith: Assistant Attorney General for Tax Division

Christopher H. Schroeder: Assistant Attorney General for Legal Policy

Craig Becker: National Labor Relations Board board member

Edward Chen and Louis Butler, U.S. District Court nominees for California and Wisconsin, respectively, were also returned to the White House.

Ambassadorships confirmed by the Senate on Thursday: * * *

Anne Andrew Slaughter, Costa Rica [ILB - presumably they mean Anne Slaughter Andrew]

Just yesterday the Washington Post had an editorial that concluded:
Perhaps the greatest nominations travesty, however, is the one involving Dawn E. Johnsen's selection to head the Justice Department's influential Office of Legal Counsel. Ms. Johnsen was nominated early in President Obama's term and received a favorable vote from the Judiciary Committee in March. Ms. Johnsen has been blasted by some as too liberal on abortion issues, but abortion would not regularly factor into her DOJ job. Besides, even if it did, the president should be given deference in choosing executive-branch officials who share his views. Ms. Johnsen is highly qualified and should be confirmed. At the very least, senators should have the decency to give her an up-or-down vote.

They should extend the same courtesy to two other highly qualified Justice Department nominees who have been kept in limbo for five and six months, respectively: Christopher H. Schroeder, the president's pick to head the Office of Legal Policy, and Mary L. Smith, tapped to lead the tax division.

[Updated at 3:43 PM] Here is what the blog, Main Justice, says, in an entry headed "Back To the Drawing Board for Embattled DOJ Nominees."
President Barack Obama will need to re-nominate three nominees for top Justice Department posts if he wants the Senate to consider them again.

The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.

But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays. * * *

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) had been pushing for the Senate to confirm the nominees before the Senate recessed today.

Posted by Marcia Oddi on Thursday, December 24, 2009
Posted to General Law Related

Courts - Kentucky sex-offender case appealed to U.S. Supreme Court

Updating this list of ILB entries, Andrew Wolfson reports today in the Louisville Courier Journal:

Kentucky Attorney General Jack Conway is asking the U.S. Supreme Court to decide whether the state’s restrictions for sex offenders can be applied retroactively to as many as 5,800 people convicted before the limits went into effect in 2006.

The 2006 statute made it illegal for registered sex offenders to live within 1,000 feet of a high school, middle school, elementary school, preschool, public playground or licensed day care.

The Kentucky Supreme Court in October ruled 5-2 that the statute was improperly imposed on people convicted before the law went into effect because both the U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law’s enactment.

In a prepared statement, Conway, who is seeking the Democratic nomination for U.S. Senate, said: “Allowing convicted sex offenders to live near schools or day cares is a serious public safety concern. As a father and as Kentucky’s attorney general, I will do everything I can to ensure the safety of children and families across the commonwealth.”

Conway’s office on Wednesday filed a petition asking the U.S. Supreme Court to hear the case. The court receives about 10,000 requests a year to review cases and decides only about 80. But the question of the retroactive application of sex offender laws has arisen in several states, making it more likely that the high court will accept the case.

Conway’s office has previously indicated it would appeal. It had asked the state Supreme Court to stay its ruling, but that request was denied.

The 2006 statute subjected all convicted sex offenders to the residency requirements, while the old law applied only to about 1,200 offenders who were on probation or parole.

The Courier-Journal has reported that there were about 5,800 registered sex offenders when the law went into affect, although some of them may no longer be required to register. * * *

In an unsigned opinion, the Kentucky Supreme Court’s majority questioned the rationale of the restrictions, noting that they bar sex offenders from sleeping near a school at night, “when children are not present,” but allow them there during the day, when children are there.

The petition filed by Conway’s office said that the U.S. Supreme Court has never considered whether the retroactive application of a statute imposing a residency restriction on registered sex offenders constitutes punishment prohibited by the ex post facto clause.

The attorney general’s office contends that the new requirements are not a punishment and are thus not covered under that clause.

It notes that a federal appeals court agreed with that view in affirming the retroactive application of Iowa’s sex offender law.

See this Nov, 2, 2009 ILB entry, near then end of the post, for "What about Indiana?"

Posted by Marcia Oddi on Thursday, December 24, 2009
Posted to Courts in general

Ind. Decisions - "John Hancock and Hoosier Energy Settle Litigation"

Updating this ILB entry from Sept. 17, 2009, a press release from John Hancock Life Insurance Company begins:

BOSTON, Dec. 23 /PRNewswire/ -- John Hancock Life Insurance Company and Hoosier Energy Rural Electric Cooperative today said they were pleased that the United States District Court, Southern District of Indiana, has approved a settlement of litigation involving a leaseback transaction between the parties. All parties to the litigation are covered by such settlement.

Terms of the settlement are confidential.

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

Ind. Courts - Obama nominates David Capp to serve as U.S. attorney for the Northern District of Indiana

Andy Grimm reports today in the Gary Post-Tribune in a story that begins:

HAMMOND -- President Barack Obama has appointed David Capp, a career prosecutor with a track record of chasing down corrupt politicians, to serve as U.S. attorney for the Northern District of Indiana, U.S. Sen. Evan Bayh announced Wednesday.

"David Capp has an exemplary record of service on behalf of the people of Indiana and the United States," Bayh said in news release Wednesday.

"He has a well-deserved record as a tough prosecutor, leading efforts to crack down on crime and root out public corruption."

Capp has served as head of the office since 2007, when Republican appointee Joseph Van Bokkelen resigned as U.S. attorney to become a federal judge.

No date yet had been set for confirmation hearings before the Senate Judiciary Committee, which approves all presidential appointments.

Dan Hinkel's story in the NWI Times begins:
HAMMOND | President Barack Obama has nominated veteran federal prosecutor David Capp to the post of U.S. attorney for the Northern District of Indiana after three stints as the job's interim occupant.

U.S. Sen. Evan Bayh, D-Ind., announced Capp's nomination late Wednesday afternoon in a news release. Capp, a graduate of Gary's Lew Wallace High School and Valparaiso University School of Law, will need to be confirmed to the post by the U.S. Senate. Per federal custom, Capp, of Beverly Shores, was recommended for the job by Bayh, the senator from President Obama's party.

Posted by Marcia Oddi on Thursday, December 24, 2009
Posted to Indiana Courts

Ind. Courts - More on: "County library could be endangered legal resource"

On Sept. 21, the ILB had this entry, quoting from a story that day reported by Francesca Jarosz in the Indianapolis Star about the upcoming closing of the Marion County Law Library, one of Indiana's endangered courthouse law libraries. Here is a quote from the story:

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. The City-County Council is scheduled to vote on the city budget tonight.

It would cost $280,800 next year to run the library, which is smaller than many elementary school libraries and is manned mostly by [librarian Zoya] Golban, who tracked more than 8,000 library users last year.

That estimate is low, she figures, because sometimes she gets so busy assisting people she fails to count how many come through. Although she can’t dispense legal advice, Golban fields questions about filing paperwork, points out books that can be used as legal references and guides people through online resources.

Proponents of closing the library say its service is becoming less relevant in an Internet age and when access to other libraries is available.

However, to visitors such as Indianapolis resident Travis Bailey, who used the library last week, the implications of eliminating the service are clear.

“You cut something like that,” he said, “and it’s going to screw the little guy.” * * *

At the Central Library, the Indianapolis-Marion County Public Library staff is not trained to help pro se litigants, said Cheryl Wright, the library’s director. “We couldn’t even provide them with the kind of forms they need,” she said.

Even if those places were better-equipped, their locations could be a problem for people whose access to transportation is often limited. The library’s spot in the City-County Building, where court forms are filed, makes the process simpler for people representing themselves.

Fortunately, although no longer available at the Star website, the entire Sept. 21st story is available online here, and well worth your review.

On Nov. 27th the ILB had this entry quoting from The Connecticut Law Tribune, headed "The Final Chapter for Court Libraries? Budget crunch to force closure of six courthouse law libraries." A quote:

"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.

Earlier this week I learned that the Marion County Law Library will indeed close the end of this year. I contracted the librarian, Zoya Golban, to learn about her thoughts on the Marion County closing, how the changes will affect the library's users, and what her own future will be. Here are Ms. Golban's responses:
The courts will try to set some kind of a small pro se center with computers at the courts and also to create some kind of partnership with the Marion County Public Library to serve this patron category.

However: ( a) I have not been filled in yet on the details. I just learned yesterday that I will be involved in this on a temporary basis. Best people to ask would be the Public Library Director and Marion Court Civil Division Chair Judge Welch. (b) my employment in a different position with a pay cut will continue for a few more months to work on this and other projects.

If the partnership is indeed developed (a big question at this point), it may be a first.

Public libraries – as of today - are not equipped/not staffed with trained professionals to handle pro se; traditionally, this service has been provided by public county or state court law libraries (separate from the municipal public library systems) . Legal reference for pro se, unlike any other reference , is a mine field for a liability and public librarians have traditionally tried to stay away from it or provided a very minimal help.

In Indianapolis, there are a few other libraries that house some legal materials, do legal reference (in general) and open to the general public: Indiana State Library, Supreme Court Library, and local law school library at a state university.

However, none of this institutions has had pro se as the primary focus of their collection development, policies, or services. The latter was my library’s job. With it gone, self-represented litigants will be left with less help, and courts with more people traffic they’d really want and capable of dealing with.

Eventually, not having a centralized location at the court house where people could type their documents, get basic instructions or referred to correct government agencies and such will hurt the courts efficiency and bottom line (budget), let alone limiting access to the justice system to relatively small in our county but fast-growing category of litigants.

As for my own career, I will continue to look for special library jobs. For that , I will most likely relocate to a different state or country. However, I am open to a career change. A different career for me may include program and/or project management, international jobs or higher education administrative/student services. I have gone through a career change before (journalism and some others) so nothing new here.

I think closing the law library is a short-sighted decision that will come back as a problem in the very near future. The law library has been in business 45 years, at first as courts' library and then eventually opened doors to the public in early 60s, I think.

ILB: My thoughts. Closing this library, dismantling the resources, dismissing the librarian -- this is very unfortunate and falls into the "whatever can they be thinking?" category.

Posted by Marcia Oddi on Thursday, December 24, 2009
Posted to Indiana Courts

Wednesday, December 23, 2009

Ind. Decisions - One Indiana opinion today from the 7th Circuit

In U.S. v. Bok Young (ND Ind., Judge Lozano), a 17-page opinion, Judge Rovner writes:

Bok Young helped to run a day spa in Highland, Indiana, at which she and other workers provided sexual massages to spa customers. She was arrested when the spa was raided by local and federal agents. Young eventually pleaded guilty to conspiring to use the facilities of interstate commerce to facilitate prostitution, see 18 U.S.C. §§ 371 and 1952(a)(3), and the district court ordered her to serve a prison term of eighteen months, the minimum term called for by the Sentencing Guidelines. Young appeals, contending that the district court made two errors in calculating her Guidelines range: characterizing Young’s role in the offense as that of a manager or supervisor, see U.S.S.G. § 3B1.1(b) and (c), and treating Young’s co-workers as victims whom she had enticed to engage in prohibited sexual conduct, see U.S.S.G. § 2G1.1(d). Young also argues that the court failed to give meaningful attention to the mitigating factors she cited as a basis for a lower sentence, and that the sentence imposed by the court is unreasonable. We affirm. I.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - "Lawyers target pig, dairy farms: Attorneys seek justice for neighbors allegedly injured by pork and dairy producers"

A very interesting, and lengthy, story today from Seth Slabaugh of the Muncie Star-Press, featuring Indianapolis attorney Rich Hailey. Some quotes:

WINCHESTER -- Neighbors who are fed up living next door to factory farms have found three high-powered trial lawyers who vow to make Randolph County "ground zero" in a courtroom food fight over how Indiana produces pork and milk. * * *

The trial lawyers are bringing multiple lawsuits challenging Indiana's industrial or factory model of producing milk and pork in concentrated animal feeding operations (CAFOs) promoted by Gov. Mitch Daniels' agriculture department. * * *

"There is a lot of discontent," said Indianapolis attorney Rich Hailey, a former president of the Association of Trial Lawyers of America, now known as the American Association for Justice (AAJ). "We anticipate the potential filing of a dozen more cases in a short period of time."

The defendants include Vreba Hoff Dairy, an Ohio-based firm that has brought large Dutch dairy farms to Indiana, Ohio and Michigan; Maxwell Foods/Maxwell Farms, a leading, North Carolina-based pork producer that has been expanding into Indiana; Harrisburg, Pa.-based pork producer Country View Family Farms, and various local operators. Most of the cases are being filed in Randolph County, though one is being filed in federal court in Indianapolis.

Hailey specializes in assisting law firms nationwide as local or co-counsel. In this case, his firm is assisting Richard Middleton, another former president of AAJ from Savannah, Ga., and Kansas City attorney Charles Speers, who has won nuisance judgments against large livestock farms in other states.

Middleton said environmental attorney Robert F. Kennedy Jr., the president of Waterkeeper Alliance, encouraged him to get involved in the fight against factory farms, which are "a tremendous insult to the environment and to the neighbors." * * *

Livestock agriculture contributes more than $2.5 billion in cash receipts to the Indiana economy each year.

But one of the downsides is that livestock agriculture can be a nuisance to neighbors.

The Maxwell and Vreba Hoff facilities named in the lawsuits each produce millions of gallons of manure, urine, afterbirth and other hazardous substances annually. The substances are stored in deep pits below the hog barns and in a lagoon adjacent to the dairy barn.

The manure is eventually land applied to farm fields as fertilizer, which the lawsuits say spreads the odor far beyond the farms.

The lawsuits also complain of leakage and spillage of manure onto neighbors'' properties, as well as the composting of dead animals in piles, causing more foul odors.

One of the hog farms has spilled manure on public roads, causing plaintiff Jette Dungan's car "to become fouled with hog waste as she drove through it at night," one lawsuit alleges.

The defendants allegedly did not acquire sufficient land on which to spread their manure and allegedly designed and constructed manure management systems that exacerbate rather than reduce odors.

The lawsuits also claim the defendants failed to take steps to reduce their foul and noxious-smelling odors through the implementation of "reasonable and readily available technologies."

An example of those technologies, Middleton said, is manure digesters that generate digester gas that is burned as fuel to make electricity.

It would be interesting to take a look at some of these lawsuits.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Environment

Ind. Decisions - Tax Court posts one NFP today

Donald F. Elliott, Jr. v. Debra A. Dunning, Marshall County Assessor (NFP) - Here are some quotes from Judge Fisher's opinion:

In this case, the practical effect of the Assessor’s application of the formula produces an unjust and absurd result. Indeed, it produces depth factors and assessed values that are inconsistent with the assessment data regarding other rear lots in the Van Schoiack subdivision contained in the administrative record. * * *

This Court has often explained that an assessor’s misapplication of the guidelines will not necessarily invalidate an assessment; rather, the pivotal question is, notwithstanding the assessor’s misapplication of the guidelines, does the assessment accurately reflect the property’s market value-in-use? See, e.g., Westfield Golf Practice Ctr. v. Washington Twp. Assessor, 859 N.E.2d 396, 399 (Ind. Tax Ct. 2007); O’Donnell v. Dep’t of Local Gov’t Fin., 854 N.E.2d 90, 93-94 (Ind. Tax Ct. 2006); Eckerling v. Wayne Twp. Assessor, 841 N.E.2d 674, 677 (Ind. Tax Ct. 2006). To that end, when a taxpayer challenges his assessment he must do more than merely allege that the guidelines were misapplied; indeed, he must also present objectively verifiable evidence which demonstrates that his assessment is incorrect. See, e.g., Eckerling, 841 N.E.2d at 677 (“Strict application of the [guidelines] is not enough to rebut the presumption that the assessment is correct”). Elliott has met this burden: his interpretation and application of the guidelines’ formula is supported by other objectively verifiable market value-in-use evidence (i.e., the assessment data in the record relating to the Smitson and Rocap properties). See supra pp. 7-8. Consequently, the Court concludes that Elliott established that the 2006 assessment of Parcel 13 was incorrect.[8]
[8] This Court believes that “the most effective method to rebut the presumption that an assessment is correct is through the presentation of a market value-in-use appraisal, completed in conformance with the Uniform Standards of Professional Appraisal Practice (USPAP).” Kooshtard Prop. VI, LLC v. White River Twp. Assessor, 836 N.E.2d 501, 506 n.6 (Ind. Tax Ct. 2005), review denied. As evidenced by the holding in this case, however, the presentation of such an appraisal is not the only way to rebut the presumption that an assessment is correct. See also Lakes of the Four Seasons Prop. Owners’ Assoc. v. Dep’t of Local Gov’t Fin., 875 N.E.2d 833 (Ind. Tax Ct. 2007) (where taxpayer established the market value-in-use of its property without a USPAP appraisal), review denied.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (1):

Brandon B. Wilkerson v. State of Indiana - "Given the circumstances, we cannot say that the trial court abused its discretion in ordering Wilkerson to serve the entire portion of his previously suspended sentence."

NFP civil opinions today (1):

The Marriage of G.M. v. C.M. (NFP) -
"For the foregoing reasons, we reverse the trial court‟s award of parenting time to Mother and the trial court‟s order modifying child support and remand with instructions."

NFP criminal opinions today (2):

William Waggle v. State of Indiana (NFP)

Marcus Chest v. State of Indiana (NFP)

Here is another NFP posted late yesterday, bringing the total up to 50:

J.V. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Proposed rule changes deal with attorney advertising, appellate court procedures and trial court procedures."

From the press release:

The Indiana Supreme Court is interested in receiving comments from judges, attorneys and the public as it considers changes to the Indiana Rules of Court. The proposed rule changes deal with attorney advertising, appellate court procedures and trial court procedures. Details about the specific proposed rule changes can be found here.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Indiana Courts

Ind. Decisions - "Duke to reduce pollution at New Albany plant"

Updating earlier ILB entries, including this one from May 29, 2009, Mireya Howard reported in the NY Times on Dec. 22nd in a story that began:

Air quality in the New York tri-state region stands to benefit from a court settlement requiring Duke Energy, one of the nation’s largest electric power companies, to drastically cut sulfur dioxide emissions from a coal-fired plant in Indiana, state and federal officials said Tuesday.

New York, New Jersey and Connecticut joined the federal government and two environmental groups in a 1999 lawsuit over pollution from the Duke plant, the 560-megawatt Gallagher Station, which blows eastward and brings smog and soot to the Adirondacks and other areas.

Under the terms of the settlement, filed Tuesday in United States District Court for the Southern District of Indiana, Duke Energy commits itself to spending about $80 million to switch to natural gas as fuel in two of the plant’s units and installing the latest pollution control technology in two other units. A 30-day comment period remains before the settlement becomes official.

Federal officials said the measures are expected to reduce sulfur dioxide emissions by 86 percent from last year at Duke.

The company is also expected to pay a $1.75 million civil penalty and spend $6.25 million on environmental projects, including $1 million in the New York region. * * *

In a 2007 report, the Environmental Integrity Project, a legal advocacy group, found the Gallagher plant to be the dirtiest in the nation in terms of sulfur dioxide emissions. It said it generated just over 40 pounds of sulfur dioxide per megawatt-hour of electricity, about double the average among the nation’s 50 top-polluting plants.

From Bruce Henderson of the Dec. 22nd Charlotte Observer:
Duke Energy will spend $88 million to resolve air pollution violations at an Indiana plant, federal authorities said today.

The agreement ends 10 years of litigation over violations at Duke's Gallagher coal-fired power plant in New Albany, Ind.

A federal jury found in May that Cinergy, which merged with Duke in 2006, didn't get required permits and pollution controls before making modifications that increased Gallagher's sulfur-dioxide emissions. A trial to determine Duke's penalties was scheduled to begin Jan. 25.

The jury sided with Duke on similar charges at two other plants in Indiana and Ohio.

The Environmental Protection Agency and Justice Department have brought similar charges – focused on what constitutes “routine maintenance” at power plants – against utilities nationwide, including eight of Duke's Carolinas plants in 2000.

Duke won favorable court rulings on behalf of its Carolinas plants, and in 2006 argued before the U.S. Supreme Court, which sent the case back to a lower court. That litigation remains open.

The Indiana case is the 17th over coal-fired power plant emissions to be settled.

From the Dec. 22nd Louisville Courier Journal, a long story by James S. Bruggers headed "Duke to reduce pollution at New Albany plant." Some quotes from the comprehensive story:
Duke Energy's Gallagher power plant in New Albany, Ind., will either convert two of its four coal-fired units to cleaner-burning natural gas or shut them down under terms settling a 1999 lawsuit brought by the federal government.

The agreement, which also includes new pollution curbs on the remaining two coal-fired units, could cost Duke as much as $85million, the U.S. Environmental Protection Agency and U.S. Justice Department said Tuesday. But the result will be tens of thousands of tons less pollution pumped into the air, just upwind from Louisville.

Both the mayors of New Albany and Louisville were celebrating, but for different reasons. Louisville Mayor Jerry Abramson, whose air quality office had pressed for Gallagher pollution cuts, called the announcement “great news.”

“It is right in line with what we have been requesting of them,” Abramson said. “It certainly will make a difference in the air we breathe in this part of the Ohio River Valley.”

But one city's pollution is another's jobs and tax revenues, so New Albany Mayor Douglas B. England was pleased Duke didn't close the plant altogether.

“It's a good day,” England said. “They are going to stay. I hate they are going to have to make all those financial changes, but they said it's going to help the environment, and helping the environment today costs money.”

The company said 112 people work at the plant. England said it pays between $500,000 and $1million a year in local property taxes. * * *

Duke must decide by Jan. 1, 2012, whether to shut down the two coal-fired units or repower them with natural gas. If the company decides to shut them down, it has to do so by Feb. 1, 2012.

For the two remaining coal-fired units, it must install a new pollution control method that absorbs much of the sulfur dioxide, Protogere said.

An Indianapolis jury found in May that Gallagher plant operators failed to obtain required permits and pollution controls before modifying two of its units, resulting in increases in sulfur dioxide pollution. A trial to determine the remedy was scheduled to begin in January, but that's now been cancelled.

The agreement won't become final until after a public comment period.

Tim Maloney, senior policy director at the Hoosier Environmental Council, praised the federal government for its persistence, saying it deserved credit for pursuing the cases around the country.

The 600-megawatt Gallagher generating station has long been a source of contention in Louisville.

The former Jefferson County Air Pollution Control District — now the Louisville Metro Air Pollution Control District — unsuccessfully sued the EPA nearly 30 years ago to force tougher controls at Gallagher. At the time, regional EPA officials in Atlanta were forcing sulfur dioxide pollution scrubbers on LG&E plants in Louisville, while their counterparts in Chicago were not requiring the same in their jurisdiction for Gallagher.

The plant still has no sulfur dioxide scrubbers.

Louisville tried, unsuccessfully, in 2004 to join the lawsuit, but helped persuade Duke to agree to spend $100million on other controls, including four “bag houses” to help trap soot and other particles.

Louisville Metro Councilwoman Cheri Bryant Hamilton, a Democrat whose 5th District is closest to the plant, called the settlement “an early Christmas present.”

“What happens over there affects the air in west Louisville,” she said. “It will hopefully make the community healthier.”

See also this Dec. 22nd story by David A. Mann of the New Albany News & Tribune.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - More on "Flying J plans can proceed after high court ruling"

Supplementing this ILB entry from Dec. 22nd, Amanda Iacone has this report today in the Fort Wayne Journal Gazette. Some quotes:

An Indiana Supreme Court decision will allow a controversial travel plaza to be built in New Haven.

The latest court ruling could end a five-year legal battle between New Haven and Flying J, a Utah-based company that owns and operates truck plazas across the country.

At issue is whether the proposed 17-acre plaza with a convenience store and fuel station is allowed under the city’s former commercial zoning ordinance or the ammended version.

The property was zoned C-1 commercial when Flying J bought 53 acres at the northwest corner of Minnich Road and Indiana 930. Since then, the city changed its zoning ordinance, limiting the size of service stations to two acres.

Thursday, the high court decided not to hear the case, effectively upholding both an appeals court decision and a lower court ruling.

This is the second time the case has reached the state’s highest court.

The lower court rulings found that the truck plaza is a permitted use under the original zoning, that the new zoning ordinance doesn’t apply and that the project should be allowed, City Attorney David Van Gilder said.

Mayor Terry McDonald said the decision means cities and towns can’t protect their communities.

“I guess now the courts decide for local communities how we are to zone,” McDonald said. “It really opens up any neighborhood in any city for potentially undesirable development. I think the court has overstepped their bounds.” * * *

Now it’s up to company officials to determine what happens next, Van Gilder said, as the city has no other legal options for appeal.

“As a legal matter, the litigation is over,” Van Gilder said.

If the company wants to build the plaza, it would have to file a primary development plan for approval by the New Haven Plan Commission, he said.

As long as the project hasn’t changed since it was last sent to the plan commission in 2007, the commission would have to accept it under the original zoning classification, Van Gilder said.

The city rejected the development plan in 2007, saying it didn’t comply with an updated zoning ordinance, which restricted the size of service stations to 2 acres or less, he said.

That decision kicked off a second round of litigation, said local attorney James Federoff, who represents Flying J. Federoff didn’t know whether the company would file a development plan. That plan could raise other legal issues that could be disputed, he said.

Posted by Marcia Oddi on Wednesday, December 23, 2009
Posted to Indiana Transfer Lists

Tuesday, December 22, 2009

Ind. Decisions - Court of Appeals issues 6 today (and 43 NFP)

For publication opinions today (6):

In Anna Williams b/n/f Randy Williams, et al v. M. Jayne Adelsperger, D.D.S., a 13-page opinion, Judge May writes:

Anna Williams brought a medical malpractice action against Dr. Jayme Adelsperger (“the Doctor”). The Doctor moved for summary judgment based on the statute of limitations for medical malpractice, because more than two years passed between August 29, 2002 -- the last date the Doctor treated Williams -- and December 2, 2004, the date Williams filed her claim. The trial court granted the Doctor’s motion. As the record reflects Williams had, by September 2003 at the latest, discovered facts that in the exercise of reasonable diligence should have led to the discovery of any medical malpractice and resulting injury, we affirm.
Bill McCausland v. Walter USA, Inc. - "McCausland's commissions and bonuses were not “wages” within the meaning of the Wage Payment and Wage Claim Statutes. Also, Walter's payment of McCausland's accrued and unused vacation time did not run afoul of the Wage Payment Statute. For all of these reasons, the trial court properly granted Walter's motion for summary judgment. Affirmed."

Robert M. Trent, Jr. v. National City Bank of Indiana - "In sum, we have found that there are no facts in the record supporting Robert's allegation that the Bank exerted undue influence over Marie, that there are no facts in the record supporting Robert's allegation that the Bank breached any duties to him, and that there are no facts in the record supporting Robert's contention that Indiana Code section 30-4-3-5 applies and should have prevented the Bank from agreeing to act as trustee of the MDK Trust. Thus, we affirm."

Eric Wade Laster v. State of Indiana - "Given the position of trust that Laster occupied with A.Z. and his threats to the child, we believe enhanced terms are warranted. But his lack of criminal history and steady employment together with the facts that there was one victim and no uncharged sexual misconduct lead us to conclude that consecutive sentences were inappropriate. Therefore, we revise Laster‟s sentences as follows: thirty-six years on each of the two class A felony convictions and six years on each of the four class C felony convictions, to be served concurrently. The judgment of the trial court is affirmed in part and reversed in part."

State of Indiana v. Anthony Jones - "The State appeals the trial court’s dismissal of three criminal cases against Anthony Jones. For our review, the State raises a single issue, which we restate as whether the trial court abused its discretion when it dismissed the cases. We conclude Jones was eligible for dismissal of the first and second cases, but not the third case at the time of the trial court’s order; however, Jones may now be eligible for dismissal of all three cases. Therefore, we affirm in part, reverse in part, and remand for further proceedings. * * *

"However, we note that assuming Jones has continued to be confined after June 19, 2009, his confinement with respect to Case 3 would exceed the maximum possible sentence for the charged crimes after an additional 170 days or approximately on December 6, 2009. Therefore, we remand this case to the trial court for further proceedings to determine whether Jones is now eligible for dismissal of the charges in Case 3."

Bradley J. Love v. Robert Rehfus, et al

NFP civil opinions today (11):

Jay H. Wright v. HSBC Bank Nevada, N.A. (NFP)

Term. of Parent-Child Rel. of Z.L. and L.L.; T.L. v. IDCS (NFP)

Denise and Richard Smith v. Carol and John Ronneau (NFP)

William R. Dobslaw v. Burkhart Advertising, Inc. (NFP)

Estate of Albrecht; Cory J. Albrecht v. Joan M. Bendel (NFP)

P.M. v. Review Board of the Indiana Dept. of Workforce Development and Employer (NFP)

Lynn E. Snyder v. Julie G. Martin (NFP)

James E. Dixon, Sr. v. Dountonia S. Dixon (NFP)

Becky D. Kelly v. Michael Francis Patrick Kelly (NFP)

Cheryl Weird v. Eric Emberton (NFP)

Flat Rock Tap, Inc., and Michael G. Repay v. Mererdo Villarreal (NFP)

NFP criminal opinions today (32):

Alvin Christmas v. State of Indiana (NFP)

Dorothy Sinclair v. State of Indiana (NFP)

Theodore Briscoe v. State of Indiana (NFP)

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

Luis Villar-Felipe v. State of Indiana (NFP)

Fred E. Gordon v. State of Indiana (NFP)

Richard Brown v. State of Indiana (NFP)

Joshua G. Arthur v. State of Indiana (NFP)

Eric Taylor v. State of Indiana (NFP)

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

Marbel Figueroa-Perez v. State of Indiana (NFP)

Anthony Barnett v. State of Indiana (NFP)

Michael A. Currie v. State of Indiana (NFP)

Santos Reyes v. State of Indiana (NFP)

Kevin Kirk v. State of Indiana (NFP)

Gerardo Bensez v. State of Indiana (NFP)

James Kirk v. State of Indiana (NFP)

Larry E. Kuhn v. State of Indiana (NFP)

Roberto Arreola v. State of Indiana (NFP)

Donyall Earl White v. State of Indiana (NFP)

M.J.W. v. State of Indiana (NFP)

M.J.W. v. State of Indiana (NFP)

Nathaniel M. White v. State of Indiana (NFP)

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

Christopher Weaver v. State of Indiana (NFP)

Timothy Jackson v. State of Indiana (NFP)

Leslie Bridgeman v. State of Indiana (NFP)

Darren S. Sargent v. State of Indiana (NFP)

Cameron Pruett v. State of Indiana (NFP)

Donald Peters v. State of Indiana (NFP)

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

Marcus Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 22, 2009
Posted to Ind. App.Ct. Decisions

Courts - More on "Doing time well past their prime"

That was the heading of the most recent of the ILB's list of entries on issues surrounding the Brooke Astor estate.

The Dec. 1st entry quoted a Washington Post column that began:

Ashen-faced was the way the press described Brooke Astor's son when he heard the jury's verdict convicting him of defrauding his mother of tens of millions of dollars as she lay dying of Alzheimer's disease. Barring an appeal, Anthony D. Marshall, 85, will be sentenced in early December. He faces at least one and as many as 25 years behind bars.
Daniel Wise of the New York Law Journal reports today in a lengthy story that begins:
Anthony D. Marshall, 85, the son of socialite Brooke Astor, was sentenced Monday to a least a year in state prison for looting his mother's $132 million estate.

Acting Manhattan Supreme Court Justice A. Kirke Bartley gave an identical 1-to-3 year sentence to Francis X. Morrissey, 66, a lawyer charged along with Marshall of pressuring Astor to make will changes at a time she was suffering from Alzheimer's disease.

In sentencing Marshall, Bartley said he would have preferred a "Solomonic sentence," which would have required the "many millions" that Marshall gained from changes he extracted from the Astor will be given to the charities she "loved," and leaving Marshall to the care of "his wife and family."

Under the law, however, Bartley said he was constrained to sentence Marshall to 1-to-3 years in prison, the mandatory minimum on the top count for which he was convicted, grand larceny in the first degree.

Posted by Marcia Oddi on Tuesday, December 22, 2009
Posted to Courts in general

Ind. Decisions - "Flying J plans can proceed after high court ruling"

Kevin Leininger reports today in the Fort Wayne News Sentinel on the Supreme Court's action last Thursday denying transfer in the case of City of New Haven, et al. v. Flying J., Inc (see yesterday's ILB entry here). From today's story:

New Haven’s long-running battle against a proposed travel plaza has been dealt a setback by the Indiana Supreme Court.

The high court last week effectively upheld a ruling issued in January by Allen Superior Court Judge Nancy Boyer, who overturned the New Haven Board of Zoning Appeals’ 2007 denial of Utah-based Flying J. Inc. plans on the grounds that it was “arbitrary, capricious, not based on substantial evidence and not in accordance with the law.”

Flying J. attorney Jim Federoff said the decision allows the company to resubmit a development plan to New Haven officials, but was unsure when – or if – the company will do so. “The decision entered by Judge Boyer is final,” he said. Flying J filed for bankruptcy last year.

The BZA in December 2007 denied Flying J’s plan for a 17-acre travel plaza off Interstate 469 near Minnich Road and Indiana 930. Two years earlier, the company had proposed a convenience store, restaurant and fuel station, but the city said that plan was incompatible with the location, too.

Allen Circuit Judge Tom Felts subsequently upheld New Haven’s decision, but the state Court of Appeals later ruled in favor of the company. New Haven amended its zoning ordinance, precluding development of the plaza as originally designed. The company revised its development plan to be in line with the city’s new ordinance. But New Haven officials denied that, too, setting the stage for Boyer’s ruling.

When informed of the high court’s decision, New Haven Mayor Terry McDonald called it “ridiculous. What a sad day for America. If true, it means the courts are now running our community.”

Posted by Marcia Oddi on Tuesday, December 22, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - "Convicted New Albany drug dealer’s 100-year sentence halved"

The Court of Appeals' Dec. 17th NFP decision in the case of Larry L. Toops, Sr. v. State of Indiana is the subject of a Dec. 21st story by Matt Thacker of the New Albany News & Tribune. Some quotes:

The Indiana Court of Appeals ruled that a 100-year prison sentence for convicted drug dealer Larry Toops Sr., 48, of New Albany, was inappropriate and ordered it be reduced by 50 years.

In October 2003, a confidential police informant purchased cocaine from Toops in a bar. Later that night, the informant purchased more cocaine from him.

The next month, the informant went to Toops’ home with an undercover police officer and purchased cocaine and 3.62 grams of methamphetamine. * * *

Following a jury trial and conviction, Floyd County Superior Court No. 1 Judge Susan Orth sentenced Toops in October 2008 to two consecutive 50-year sentences for dealing cocaine and a narcotic drug and possession of a narcotic drug. The Court of Appeals ruled in a 2-1 decision that the sentences should run concurrently.

“There is nothing about the nature of his offenses that would distinguish them from other crimes of dealing in cocaine, dealing in a narcotic drug and possession of a narcotic drug,” states the opinion by Judge Nancy Vaidik. “Given the nature of Toops’ offenses, which stem from a series of state-sponsored buys, and his character, a 100-year sentence is not warranted.”

Toops’ appellate attorney, William Gray, said he was not surprised by the decision.

“Those kind of lengthy sentences should be reserved for the worst of the offenders. Clearly, Larry is not in that category,” Gray said.

Judge L. Mark Bailey dissented, arguing that the original sentence was appropriate.

“Arguably, the confidential informant, acting at the behest of police, enticed Toops to make drug sales,” he said “However, Toops was fully immersed in the enterprise of drug dealing, wholly independent of police enticement.”

Posted by Marcia Oddi on Tuesday, December 22, 2009
Posted to Ind. App.Ct. Decisions

Environment - "Michigan asks U.S. Supreme Court to close shipping locks near Chicago to prevent Asian carp from invading the Great Lakes"

Here is the AP story by John Flesher in today's South Bend Tribune. From the story:

State Attorney General Mike Cox filed a lawsuit Monday with the nation's highest court against Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago. They operate canals and other waterways that open into Lake Michigan.

Bighead and silver carp from Asia have been detected in those waterways after migrating north in the Mississippi and Illinois rivers for decades.

Officials poisoned a section of the Chicago Sanitary and Ship Canal this month to prevent the carp from getting closer to Lake Michigan while an electrical barrier was taken down for maintenance.

But scientists say DNA found north of the barrier suggest at least some of the carp have gotten through and may be within six miles of Lake Michigan.

If so, the only other obstacle between them and the lake are shipping locks, which open frequently to grant passage for cargo vessels. * * *

Cox went directly to the Supreme Court because it handles disputes between states.

Michigan is seeking to reopen a case dating back more than a century, when Missouri filed suit after Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

After that issue was resolved, several Great Lakes states — including Michigan — renewed the suit with a new complaint: Chicago's diversion of water away from the basin was harming the lakes by lowering water levels.

The high court has ruled on the matter numerous times, setting ceilings on the amount of Lake Michigan water Chicago could divert. The present limit is 2.1 billion gallons per day.

Michigan's suit argues that continued operation of the locks represents another potential injury to the lakes. It asks the court to immediately order them closed, and to create new barriers to prevent the carp from entering the ship canal from nearby waterways during floods. * * *

Noah Hall, an assistant professor at Wayne State University's law school, said Michigan has a good chance of prevailing if it can show the potential harm posed by Asian carp would outweigh the benefits of keeping the locks open.

"The carp invasion is a good textbook example of irreparable harm," Hall said. * * *

Environmentalists said closing the locks would be a temporary fix, but the only long-term solution would be restoring the natural separation between the Great Lakes and the Mississippi River system.

"The Chicago diversion was a 19th century solution to an environmental problem. Now it's causing a 21st century emergency," said Andy Buchsbaum, director of the National Wildlife Federation's Great Lakes center.

The Detroit Free Press had this lengthy story yesterday, reported by Terry Stables Battaglia. Some quotes:
Cox’s suit targets the state of Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago. The goal is to have officials there close off five river entrances to Lake Michigan, including:

• Closure of the locks at the O’Brien Lock and Dam and the Chicago Controlling Works;

• Operation of the sluice gates at the Wilmette Pumping Station, the O’Brien Lock and Dam, and the Chicago Controlling Works in a manner that will prevent carp from passing into Lake Michigan;

• Creation of new barriers to prevent carp from escaping from the Des Plaines River into the Chicago Sanitary and Shipping Canal during flood events, and from getting to Lake Michigan through the Grand and Little Calumet Rivers;

• A comprehensive study of the Chicago waterway system to define where and how many carp are in these waters, and to eradicate them, and

• Action to permanently separate these waterways from the Great Lakes. * * *

Joel Brammeier, acting president of the Alliance for the Great Lakes in Chicago, who studied blocking the canal, applauded Cox’s move today.

“The reality we’re facing is we’ve got carp DNA 6 miles from Lake Michigan and no plan to keep them out,” Brammeier said. “As long as we believe this barrier has been breached, we have to take every precaution until we know those canals are free from carp.”

The canal, built in steps between 1892 and 1922, is credited with making Chicago a major economic power. The Chicago Sanitary and Ship Canal and its related branches link Lake Michigan and the rest of the Great Lakes to the Mississippi River basin.

Members of the American Waterways Operators, who oppose any move to close the locks — even temporarily — say the move would have drastic financial consequences, because they would have to offload cargo, like coal and gravel, to trucks or railcars at some point along the canal, potentially adding millions to the cost of moving goods and commodities.

They argue that moving goods on barges through the canals and locks is the most economical method, saves wear and congestion on the nation's roads and is less polluting than trucks or rail cars.

Cox said a review by his office determined the canal closures’ effect on barge traffic would be “minimal” compared with an Asian carp invasion of the Great Lakes.

Brammeier’s study concluded that no technology, including the electric barrier currently in place in the canal, will be 100% effective at keeping invasive species out. And the only way to be sure no carp enter the Great Lakes is to completely close off Lake Michigan from the canals and locks.

The most effective closure would be at Lockport, about 28 miles south of downtown Chicago, he said. But that also would disrupt barge traffic the most, the study said.

Cox said the suit aims to protect the Michigan economy.

“The U.S. Army Corps of Engineers has itself admitted allowing Asian carp into the Great Lakes would be an ‘ecological and economic disaster,’ " said Cox. "Michigan families whose jobs and way of life depend on the health of the Great Lakes deserve to know there is a long-term solution to this crisis.”

Posted by Marcia Oddi on Tuesday, December 22, 2009
Posted to Environment

Monday, December 21, 2009

Ind. Decisions - Transfer list for week ending December 18, 2009

Here is the Clerk's transfer list for the week ending December 18, 2009. It is four pages long.

One transfer was granted last week, in the case of Roger Brown v. State of Indiana - see this Dec. 18th ILB entry for details.

C.J. Shepard and J. Dickson voted to grant transfer in two cases where transfer was ultimately denied 3-2. In one of these cases, Mercho-Roushdi-Shoemaker-Dilley Thoraco Vascular Corp. v. James W. Blatchford, III, M.D., and Eve G. Cieutat, M.D. a separate dissenting opinion was issued by the two justices -- see this ILB entry from Dec.16th. The other 3-2 transfer denial was Elizabeth A. Vanwanzeele v.State of Indiana.

City of New Haven, et al. v. Flying J., Inc. (see 8/31/09 ILB COA summary here) was denied transfer by a 4-1 vote.

Additionally, two decisions involving neighborhood or homeowner associations were denied transfer.

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.

Nearly 6 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, December 21, 2009
Posted to Indiana Transfer Lists

Ind. Courts - More charges filed against suspended Bicknell City Court Judge

Updating this ILB entry from Dec. 16, the Attorney General has now issued a press release headed "Attorney General files suit against suspended city judge over missing funds: Court order is latest action against public corruption in local governments." Some quotes:

Moreland is not an attorney and was not required to be one in order to hold office as elected judge of Bicknell City Court – a position he occupied from January 2008 to Oct. 14, 2009, when he was suspended from the bench by the Indiana Supreme Court.

Zoeller on Friday filed a civil suit on behalf of the State of Indiana against Moreland seeking recovery of $20,908.91 in public funds. In a State Board of Accounts’ certified audit, an examiner who investigated records found that Moreland allegedly pocketed moneys from the court in several ways:

  • Moreland was in charge of collecting fines from traffic violations; but he allegedly failed to enter motorists’ payments into the court’s cash book or deposit them in the bank, resulting in a loss of $1,413.50, the audit found.

  • Moreland and his wife, former city court clerk Cindy Moreland, allegedly wrote themselves five checks for personal use out of the court-fees account, totaling $7,030.91. An unrecorded reimbursement of $4,100 was later deposited back, but the unpaid balance wrongly diverted is $2,930.91.

  • Moreland allegedly concealed fines that motorists had paid at the Bicknell Police Department during times when the court office was closed. Moreland was the sole person with the key to the lockbox where payments were deposited. The amount collected but unaccounted for was $6,433, the audit found.

  • A total of 93 infraction tickets written by the Bicknell Police Department were not entered into city court records and the fine payments of $10,131.50 were unaccounted for, the audit found.
Filed Friday in Knox Circuit Court, Zoeller’s lawsuit seeks recovery of $20,908.11, plus costs and prejudgment interest, to reimburse the city. The Knox Circuit Court on Friday also granted the attorney general’s motion for a temporary restraining order prohibiting Moreland from transferring, dispersing or selling any financial assets that the state might seek for recovery. A hearing on the lawsuit is set for Dec. 29.

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In Hendrickson v. Cooper (SD Ind., Judge McKinney), a 15-page opinion, Judge Tinder writes:

Prison is rough. Violent prisoners can pose a serious threat, requiring prison officers to use force to maintain order. Sometimes, though, the only real threat comes from a rogue officer who attacks a prisoner for no good reason. When such abuse occurs in a facility operated by a State, the prisoner can sue the officer under the civil rights statute, 42 U.S.C. § 1983, for excessive force. Still, a § 1983 suit is not always a perfect remedy, as the prisoner faces many challenges in proving his case. He must pit his story against the conflicting story of the defendant officer, who often boasts an impressive law enforcement résumé and calls a cadre of fellow officers to support his side. Yet this case proves that these challenges are not insurmountable, and that § 1983 plays a pivotal role in the cause against prison brutality. * * *

The evidence supported the jury’s finding that Cooper violated Hendrickson’s Eighth Amendment rights, as well as the jury’s compensatory and punitive damages awards.*
It should be noted that Hendrickson proceeded pro se through the early stages of this case, including the summary judgment process, right up to the brink of trial. At that point, the district judge requested that counsel appear on Hendrickson’s behalf pursuant to 28 U.S.C. § 1915(e)(1). The law firm that complied with that request very ably represented Hendrickson through trial and this appeal, thereby upholding the longstanding and greatly appreciated tradition of volunteering to represent the indigent.

In Nightengale Home Healthcare v. Anodyne Therapy (SD Ind., Judge Barker), a 10-page opinion, Judge Posner concludes [citations omitted]:
Ordinarily a failure to prove any damages does not disturb jurisdiction under a statute that sets a damages threshold. The failure is a failure on the merits rather than a failure of jurisdiction. But if it is demonstrated that jurisdiction was invoked without a goodfaith basis for supposing that the plaintiff crossed the threshold, the case must be dismissed for want of jurisdiction no matter how late in the litigation the lack of a good-faith basis comes to light, just as with any other late-discovered absence of subject-matter jurisdiction. Otherwise federal jurisdiction could be conferred by the defendant’s pretending that the plaintiff had alleged in good faith a claim for damages in an amount above the threshold because both parties wanted to be in federal court. Federal subjectmatter jurisdiction cannot be conferred by collusion or consent.

So clear is Nightingale’s failure to have mitigated its damages that it could have had no basis for thinking that its suit satisfied the minimum amount in controversy requirement of the diversity jurisdiction. That is not a criticism, however; for remember that Nightingale filed the suit in an Indiana state court, where there was no such requirement. The suit was removed to the federal district court by Anodyne. When a suit is removed on the ground that it is within the diversity jurisdiction and a question arises whether the amount in controversy requirement has been satisfied, the defendant has the burden of persuading the court that it has been satisfied. The question has arisen in this case—we have raised it, as a court is required to do if it is a question about its subject-matter jurisdiction, since such questions are not waivable; and we have found that the suit is not within the diversity jurisdiction. Ordinarily this would require dismissal of the case, allowing Nightingale to start over in the Indiana court. But by adding a federal claim after removal, Nightingale brought its suit within the federal-question jurisdiction of the district court and its state-law claims within the district court’s supplemental jurisdiction, which has no minimum amount in controversy requirement.

The merits judgment in favor of Anodyne is therefore AFFIRMED.

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to Ind. (7th Cir.) Decisions

Law - "For a while, they could practically name their own price. Now, they're lucky if they can find a job"

Leigh Jones of The National Law Journal today chronicles the decade of the big law firm associate. It begins:

It was a wild ride for associates at big law firms during the first decade of the century. In the end, most everyone was a little queasy from the experience.

Between 2000 and 2009, law firms doled out jaw-dropping bonuses, lavished benefits like never before and hiked first-year salaries to a point that drew the envy of federal judges. The decade also featured mass job cuts, pay reductions and a decided shift in power for recent law graduates, many of whom, at the decade's conclusion, were clamoring for even part-time work at living-wage levels.

The manic-depressive era provided tough supply-and-demand lessons for law firms, some of which promise to endure.

Ashby Jones of the WSJ Law Blog picks up on the story here, under the heading: "From Ping Pong to the Bread Line: The Decade in Associate Life."

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to General Law Related

Law - "Colleges subpoenaed in gender bias investigation"

Kathy Matheson reports in USA Today in a story that begins:

PHILADELPHIA — A federal civil rights agency investigating possible gender discrimination in college admissions will subpoena data from more than a dozen mid-Atlantic universities, officials said Thursday.

The probe by the U.S. Commission on Civil Rights is focusing on whether some colleges favor men by admitting them at higher rates than women, or by offering them more generous aid packages.

Commission members voted Wednesday to authorize subpoenas for 19 universities within a 100-mile radius of their meeting place — in this case, Washington — which is the geographical extent of their subpoena authority.

The schools represent a mixture of sizes and include public, private, religious, secular, historically black and moderately selective to highly selective institutions. There are six in Maryland, five in Pennsylvania, three in Washington, two each in Virginia and Delaware, and one in West Virginia.

Women outnumber men nearly 60% to 40% in higher education nationally. The probe grew out of anecdotal evidence and news accounts that admissions officials are discriminating against women to promote a more even gender mix, said commission spokeswoman Lenore Ostrowsky.

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to General Law Related

Ind. Courts - "Represent yourself in court? Experts say bad idea"

Lydia X. McCoy reported yesterday in the Evansville Courier & Press in a long story that began:

EVANSVILLE — Defense attorney Chris Lenn never will forget being standby counsel for Steve Robbins, who represented himself in 2002 during his murder trial.

"It was the worst experience as a trial attorney I've gone to. It was a nightmare. He had his own best interests at heart, and in fact was his own worst enemy," Lenn said.

As standby counsel for Robbins, Lenn observed the case and answered questions for Robbins.

Robbins, who was on trial for the death of Brenda Chevelle Douglas, asked Lenn to do his closing argument.

Lenn said the experience was like being the alternate juror of a trial, who sits during all the proceedings but does not contribute to deliberations.

"It was like watching someone make mistakes in helping the prosecution convict them that could've been prevented. I can't try the case for the guy or save him from his inexperience," Lenn said.

"I don't think a civilian should be in a criminal felony case and not have counsel. It almost never works out good for the defendant."

After a 3½-hour deliberation, the jury convicted Robbins of Douglas' murder. He is serving a 95-year sentence in the Indiana Department of Correction.

Robbins is only one of a handful of cases local experts could remember of a defendant representing themselves, also known as pro se, in felony court.

Pro se counsel is more common in misdemeanor court, divorces and small claims.

"People have the constitutional right to defend themselves," said Steve Owens, Vanderburgh County chief public defender. "If they want to, they can ... but they're held to the same standards (as an attorney)."

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to Indiana Courts

Environment - "Attorney General Greg Zoeller has filed a lawsuit against an Elkhart County recycler with a history of environmental violations, worker-safety violations and public complaints"

From today's lengthy press release:

The suit asks the court to require the company to cease its open dumping of wood waste and to remove waste materials and debris.

Zoeller seeks preliminary and permanent injunctions and civil penalties against VIM Recycling Inc. after an inspection last week found multiple violations at the company's wood-recycling operation at 29861 Old U.S. Highway 33 in Elkhart, Ind.

The complaint filed in Elkhart County Superior Court today alleges VIM Recycling has continued to haul in and deposit "B-grade" solid waste scraps and pieces of treated wood from mobile-home manufacturing waste onto the site in violation of the state's laws against open dumping, polluting or creating fire hazards.

The suit alleges VIM Recycling engaged in a pattern of noncompliance with directives of the Indiana Department of Environmental Management (IDEM). VIM's actions could damage the public health and environment, the suit alleges. * * *

Zoeller noted that with multiple complaints brought on behalf of different agencies by the attorney general against VIM, it was appropriate that the Attorney General�s Office intervene to try to combat the problems comprehensively.

An earlier story from the Elkhart Truth, by Stephanie Gattman, began:
Indiana Attorney General Greg Zoeller is coming to Elkhart Monday, likely to announce he's filing a civil lawsuit against VIM Recycling.

In 2007, VIM was the scene of an explosion and four-day fire that caused the death of one employee. And it's been the subject of ongoing controversy regarding dust, odors and health concerns among neighbors.

Area residents have brought a series of lawsuits against the company, the most recent of which was filed in federal court in October.

The attorney for VIM's Baugo Township neighbors is encouraged with the attorney general's involvement.

"Well, we hope that the long history of willful violations by the owners/operators of the VIM site, primarily its owner Ken Will, are going to be addressed and stopped," said Kim Ferraro, executive director of Legal Environmental Aid Foundation of Indiana. "That's the big, number one hope."

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to Environment

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

For publication opinions today (0):

NFP civil opinions today (1):

Term. of Parent-Child Rel. of M.A.; C.B. v. Indiana Dept. of Child Svcs. (NFP)

NFP criminal opinions today (5):

Gaylon C. Washington, Jr. v. State of Indiana (NFP)

Darnell Perry v. State of Indiana (NFP)

Shanica Denton v. State of Indiana (NFP)

James R. Bennett v. State of Indiana (NFP)

Mary K. Tipton v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 21, 2009
Posted to Ind. App.Ct. Decisions

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

Here is the answer to "What did you miss over the weekend from the ILB?"

From Sunday, Dec. 20, 2009:

From Saturday, Dec. 19, 2009: From late Friday, Dec. 18, 2009:

Posted by Marcia Oddi on Monday, December 21, 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 12/21/09):

Tuesday, December 22nd

Next week's oral arguments before the Supreme Court (week of 12/28/09):

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 12/21/09):

Next week's oral arguments before the Court of Appeals (week of 12/28/09):

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.

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, December 21, 2009
Posted to Upcoming Oral Arguments

Sunday, December 20, 2009

Law - Grandparents' visitation rights in Iowa

Thanks to How Appealing, here is a link to a comprehensive story Friday in the Dec. 18, 2009 Des Moines Register.

Here are a number of ILB entries mentioning grandparents visitation.

Posted by Marcia Oddi on Sunday, December 20, 2009
Posted to General Law Related

Ind. Gov't. - "BMV relaxes on Secure ID: Federal rules not in force"

Updating this ILB entry from Dec. 15th, headed "Move to National ID Cards Delayed," Eric Bradner of the Evansville Courier & Press reports today that the BMV no longer plans to stamp some drivers licenses with "Not for Federal Identification."

From the story:

INDIANAPOLIS — Can't find your birth certificate, your Social Security card and other documents Indiana's Bureau of Motor Vehicles planned to require of people renewing their licenses starting in 2010? No sweat.

The federal government has decided to delay the enforcement of new, tougher identification restrictions. In response, the state BMV will continue to follow its old guidelines for renewing licenses.

Earlier this year, the BMV, intending to comply with the federal Real ID Act, announced beefed-up requirements for those who seek to renew their licenses or state-issued IDs or obtain new ones.

To meet those requirements, Hoosiers would have to bring documents proving their identity, Social Security number, legal status and Indiana residency.

Birth certificates or passports could prove identity and legal status, while Social Security cards and tax forms could prove your Social Security number and utility bills or bank statements could prove Indiana residency.

But after hearing criticism the new requirements were too stringent, BMV Commissioner Andy Miller said the state would offer two types of IDs: SecureID licenses, which could be obtained only by providing documents to fit each of the four categories, and non-SecureID licenses.

The second category wouldn't have been compliant federally, and therefore would not have been useful for air travel or for entering federal buildings. But the non-SecureID licenses were to be obtainable for those who sought to renew their licenses without providing the added documentation. On those licenses and ID cards, the BMV planned to print, "Not for Federal Identification."

Because of the federal government's delay, the BMV will not print that phrase because it no longer applies. Until the U.S. Department of Homeland Security enforces the Real ID Act, Indiana's less-strict licenses will continue to meet federal guidelines.

"We have spent the last six months educating Hoosiers on the importance of providing greater protection against identity theft and fraud, and we remain committed to continuing this initiative," Miller said Friday.

Posted by Marcia Oddi on Sunday, December 20, 2009
Posted to Indiana Government

Ind. Law - More on "Proposed property tax caps won't prevent increases in bills"

Updating this ILB entry from Dec. 13th, Stephanie Salter writes today in the Terre Haute Tribune-Star, under the headline "Think property tax caps are a no-brainer? Think again."

Posted by Marcia Oddi on Sunday, December 20, 2009
Posted to Indiana Law

Courts - "Illinois Supreme Court delays medical malpractice damage cap ruling"

Bruce Japsen has this story in the Thursday, Dec. 17 issue of the Chicago Tribune. Some quotes:

The Illinois Supreme Court today did not rule as expected on whether the state's four-year-old medical malpractice reform survives.

"It is not unusual for an opinion that is on the anticipated list to be withdrawn before filing," a spokesman for the Illinois Supreme Court said.

Several attorneys for the Illinois hospital industry waited outside the Supreme Court clerk's office in downtown Chicago this morning, disappointed they will have to wait at least another month to hear from the justices. The next batch of Supreme Court opinions is expected in mid-January, the court spokesman said.

The much-anticipated ruling, which could directly impact the constitutionality of damage caps for doctors and hospitals, is being watched closely by the health care industry and employers who see caps on damages as a way to tame rising health care costs. Should the high court uphold the law, it could provide momentum in Washington for federal malpractice reform.

State lawmakers in 2005 passed legislation signed into law by then Gov. Rod Blagojevich that established caps on non-economic damages of $500,000 in cases against doctors, and $1 million in cases against hospitals.

The law came after more than two years of political battle in Springfield between providers of medical care and their insurers versus trial lawyers. Doctors blamed the lack of malpractice reform for an exodus of physicians leaving the state, particularly neurosurgeons and obstetricians who had particularly high insurance premiums.

Posted by Marcia Oddi on Sunday, December 20, 2009
Posted to Courts in general

Courts - "Justices Revisit Rule Requiring Lab Testimony"

Adam Liptak writes today in the Sunday NY Times, in a front-page story, about how:

in an unusual move, the Supreme Court will hear arguments on Jan. 11 in a new case that raises questions about how lower courts may carry out its six-month-old precedent. Many state attorneys general and prosecutors are hoping the court will overrule its decision in the earlier case, Melendez-Diaz v. Massachusetts, before it can take root, saying it is a costly, disruptive and dangerous misstep. * * *

Lawyers for the defendants in the new Supreme Court case, Briscoe v. Virginia, No. 07-11191, acknowledged that the Melendez-Diaz decision “creates some additional cost” in states that had not already recognized a right to live testimony. But they said those costs were minor and “constitutionally irrelevant.”

In the case, prosecutors in Virginia offered proof that the “off-white, chunky solid material” and “white, rock-like substance” that the police found in Mark A. Briscoe’s kitchen and shorts was cocaine by submitting “certificates of analysis” signed by a forensic scientist. Mr. Briscoe argues that this violated his constitutional rights because the scientist did not take the stand.

The immediate issue in the case is whether a hybrid procedure used in Virginia satisfied the precedent set by the Supreme Court in the Melendez-Diaz case. Prosecutors there were allowed to present paper reports during their case but were required to produce the analysts responsible for them for cross-examination during the defense’s case if requested.

In its brief supporting the Virginia prosecutors, the federal government argued that this procedure was more efficient than requiring the prosecution to present analysts during its case, pointing to the experience in Washington, which used Virginia’s system until 2006. Washington now uses the system preferred by defense lawyers — that of presenting live testimony from analysts during the prosecution’s case.

See this long list of earlier ILB entries involving the Melendez-Diaz decision.

Posted by Marcia Oddi on Sunday, December 20, 2009
Posted to Courts in general

Saturday, December 19, 2009

Ind. Courts - "Floyd County Prosecutor Keith Henderson said this week he can be ready in six months to retry David Camm for the murders of his family"

This is, of course, if he is not disqualified. From Ben Zion Hershberg's Dec. 18th story in the Louisville Courier Journal:

Stacy Uliana, one of Camm’s lawyers, said Friday that such a timetable would be “unrealistic” and that it will be at least a year before Camm can be tried again.

In filings this week in Warrick County Superior Court where Camm’s last trial was held, Henderson also challenged defense lawyers’ request for the appointment of a special prosecutor.

Camm’s lawyers said earlier this month that because Henderson negotiated a book deal on the Camm case in the spring, he has a conflict of interest and should no longer handle the case.

But in his response, Henderson said he had a “full understanding” with the book publisher that the agreement “would be terminated” if the March 2006 guilty verdict was reversed by the Indiana Supreme Court. That reversal came in June. * * *

After two trials, Henderson said in his motion filed Monday, the court can go ahead and set pre-trial conference and trial dates because “minimal discovery or pre-trial litigation is necessary” for the third trial.

He also said the defense has had ample time and resources to prepare after spending “over $1 million in investigating, researching and litigating this case” for two trials, with Floyd County footing the bill.

Uliana questioned Henderson’s estimate of defense expenses.

As for being ready in six months, she said, “It’s going to take time to get the basics worked out” – including a decision by the court on whether Henderson will remain as prosecutor and a ruling on a defense request for a change of venue.

Posted by Marcia Oddi on Saturday, December 19, 2009
Posted to Indiana Courts

Ind. Courts - "Since suspension, Evans has been paid $70K"

Updating earlier ILB entries on suspended LaPorte Superior Court Judge Jennifer L. Koethe, Craig Davison of the Michigan City News-Dispatch reported Dec. 18th:

LA PORTE - The state has paid almost $70,000 in salary to Superior Court 3 Judge Jennifer Evans-Koethe since she was suspended in May by the state Supreme Court.

It has also paid two judges who have filled in with her the same amount, which is $69,727.23.

That totals $139,454.46. The figures are from Evans-Koethe's May 11 suspension with pay to Nov. 28, which is the most updated information available from the state.

If Evans-Koethe is found guilty of a felony at her criminal trial, which begins Jan. 4, she could be suspended without pay by the Indiana Supreme Court, said Kathryn Dolan, public information officer for the court.

The daily salary rate for an elected trial court judge is $345.18, Dolan said.

Judge Paul Baldoni was paid $31,411.77 when he took over Superior 3 from May 11 to Aug. 10. Judge Steven King has been judge pro tempore since Aug. 10 and has been paid $38,315.46.

Evans-Koethe was indicted and suspended in May after she allegedly asked a police officer to destroy evidence at the scene where she was grazed in the head with a bullet.

There is also a judicial discipline case, which could result in her removal from the bench by the Indiana Supreme Court. That case is separate from her criminal case.

Earlier this month, the Indiana Commission on Judicial Qualifications filed three disciplinary charges against Evans-Koethe related to the Dec. 22 incident in which she was wounded.

Posted by Marcia Oddi on Saturday, December 19, 2009
Posted to Indiana Courts

Friday, December 18, 2009

Ind. Decisions - One case granted transfer today [Updated]

Transfer was granted today in one case:

Unfortunately, "Roger Brown" is a common name and, unlike has been the practice until recently, the only information given in the notice was the Case. No. assigned by the Supreme Court.

As many of you know, the Supreme Court docket entries for some reason do not refer back to the earlier case numbers.

Eight entries turned up when I searched the docket by "Roger Brown."

[Updated 12/19/09] Thanks to those of you who wrote in on this with suggestions:

Although these helpful readers have resolved this incident, the facts remain:In sum, the Aug. 21, 2009, 10-page, 3-0 Court of Appeals opinion is Roger L. Brown v. State (No. 12A02-0901-CR-1). The ILB summary, such as it was, is here - 8th case.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Two justices write dissent today from denial of transfer

Mercho Roushdi Shoemaker Dilley Thoraco Vascular Corp. v. James W. Blatchford, III, M.D., and Eve G. Cieutat, M.D. - Chief Justice Shepard, in a 7-page dissent joined by Justice Dickson, writes:

An Indiana group of open-heart surgeons with facilities in Indianapolis and Terre Haute recruited a husband-wife team from Texas to provide more staff capacity at its Terre Haute operation. The parties negotiated rather elaborate, if ordinary, agreements that covered various aspects of their business relationship, from stock purchase arrangements to dissolution procedures to noncompetition provisions.

When the Texas doctors decided several years later to set up a competing practice of their own in Terre Haute, they and their former associates sued each other in claim and counterclaim. In the first round of this litigation, the Court of Appeals affirmed denial of injunctive relief on grounds that an adequate remedy existed at law.

In this round, the Court of Appeals has held that enforcing the business agreements of physicians is contrary to public policy as harmful to patients. The facts here illuminate only the opposite.* * *

This case illustrates why non-enforcement of such agreements has the potential to detract from the public interest. Denying damages to a practice seeking to enforce its business arrangements detracts from the very public interests that this Court’s decisions aim to protect—patient access to medical care.

I think patients (and doctors) would be well served by vacating the Court of Appeals’ declaration that business arrangements between physicians are not enforceable.

Here is the ILB summary (3rd case) of the 22-page, 3-0, Feb. 5th Court of Appeals decision by Judge Riley.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court decides two today

Thomas A. Armfield v. State of Indiana, a 10-page, 5-0 opinion, Justice Sullivan writes:

This case requires us to resolve the issue of when an officer has reasonable suspicion to initiate a traffic stop after a routine status check of a license plate reveals that the driver's license of the registered owner of the vehicle is suspended. We provide the analytical framework to re-solve the issue presented here and in another case we decide today, Holly v. State, – N.E.2d –, No. 49S02-0811-CR-591, slip op. (Ind. Dec. 18, 2009). * * *

Armfield appealed, and the Court of Appeals affirmed, holding that the stop was valid and that the trial court properly admitted the evidence resulting from the stop because “knowledge that the registered owner of the vehicle has a suspended license is enough to constitute rea-sonable suspicion for an officer to take the minimal action of initiating a traffic stop.” Armfield v. State, 894 N.E.2d 195, 198 (Ind. Ct. App. 2008).2 Armfield petitioned for, and we granted, transfer, Armfield v. State, 898 N.E.2d 1229 (Ind. 2008) (table), in order to resolve a split in the Court of Appeals on the issue of whether a police officer's knowledge that the registered owner of a vehicle has a suspended license constitutes reasonable suspicion to initiate an investigatory traffic stop. * * *

The issue presented here is whether a police officer is required to verify that the driver of the vehicle matches the physical description of the registered owner obtained from the license plate check before there is reasonable suspicion to initiate a Terry stop.

Two strands of case law from the Court of Appeals address this question. One strand stands for the proposition that a police officer must verify that the driver of the vehicle matches the description of the owner obtained from the license plate check in order to have reasonable suspicion to initiate a Terry stop. In Wilkinson v. State, 743 N.E.2d 1267 (Ind. Ct. App. 2001), trans. denied, the court held that the stop of a vehicle whose license plate indicated the owner was a habitual traffic violator was proper where the officer could see the driver and determine that the driver matched the description of the owner. * * *

The second strand of Court of Appeals case law holds a police officer's knowledge that the registered owner of a vehicle has a suspended license constitutes reasonable suspicion to initiate a Terry stop without matching the driver with the owner's physical description. In Kenworthy v. State, 738 N.E.2d 329 (Ind. Ct. App. 2000), trans. denied, the court concluded that the officer had “reasonable suspicion to stop and approach the truck to investigate” the identity of the driver because he had personal knowledge of the registered owner's license suspension, was aware that the vehicle he observed belonged to the registered owner, and confirmed his suspicions through a radio check. * * *

We hold that an officer has reasonable suspicion to initiate a Terry stop when (1) the of-ficer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle. This rule does not require officers to match the physical description of the registered owner from the license plate check to the driver of the vehicle before initiating a Terry stop. We agree with the State that “requiring the officer to verify the driver of the vehicle strikes against basic principles of safety [because it] puts the onus on the officer to maneuver himself into a po-sition to clearly observe the driver in the midst of traffic.” In addition, we acknowledge the difficulty that the driver verification requirement would impose on officers during late night hours and in situations where car windows are darkly tinted, as was the case here.

To the extent that prior opinions of the Court of Appeals are inconsistent with our hold-ing today, we disapprove those decisions. * * *

Under the two-prong test that we adopt today, we conclude that Officer Schmidt had rea-sonable suspicion to conduct a Terry stop of Armfield's vehicle because (1) he had knowledge that Armfield was the registered owner of the vehicle and that Armfield had a lifetime suspen-sion of driving privileges and (2) he was unaware of any evidence or circumstances which indi-cated that Armfield was not the driver of the vehicle. Officer Schmidt also acted properly after initiating the stop when he first ascertained the registered owner's name, address, and physical description before he approached the vehicle and then verified that the name of the driver matched that of the registered owner.

In Damen Holly v. State of Indiana, a 12-page, 3-2 opinion, Justice Rucker writes:
Damen Holly was stopped by police after a license plate check showed he was driving a vehicle owned by a driver whose license was suspended. Even though Holly himself was not the owner, the stop was permissible under our decision today in Armfield v. State, No. 29S02-0811-CR-590, ___ N.E.2d ___ (Ind. Dec. 18, 2009). However, the subsequent search of the vehicle was conducted absent reasonable suspicion and thus violated Holly's Fourth Amendment rights. * * *

Our companion case, Armfield, which we also decide today, provides the analytical framework to resolve this issue. We held in Armfield that “an officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle.”

Here, Officer Ross's license plate check indicated that the vehicle traveling in front of him was registered to an African-American female named Terry Sumler and that Sumler's driver's license was suspended. He testified at trial that the information about the license suspension “led me to stop the vehicle.” Because it was close to midnight and the vehicle was traveling in front of him for the entire time before the stop, Officer Ross did not have a chance to observe the driver before initiating the stop. Under these circumstances, we hold that Officer Ross had reasonable suspicion to initiate an investigatory Terry stop of Sumler's vehicle. However this does not end our inquiry. * * *

In this case Officer Ross had no justification to pursue an investigatory stop that extended to a request to see Holly's identification. The evidence collected as a result of the stop, including the marijuana seized during the search and Holly's subsequent admission that he owned the marijuana, was therefore inadmissible under the Fourth Amendment. The trial court thus erred in admitting the evidence. Accordingly we reverse the judgment of the trial court on this issue.

The judgment of the trial court is reversed and this cause is remanded.

Dickson and Boehm, JJ., concur.
Shepard, C.J., dissents with separate opinion.
Sullivan, J., dissents with separate opinion in which Shepard, J., joins. [that concludes] Applying the analytical framework contained in the caretaking cases, I have little difficulty concluding that Officer Ross's request for Holly's identification was reasonable and did not violate the Fourth Amendment of the U.S. Constitution or Article I, Section 11 of the Indiana Constitution. The officer's initial contact with Holly was to determine whether he was the regis-tered owner. His further request of Holly's license and his check on the status of that license constituted a very limited further encroachment upon any privacy interest protected by the Fourth Amendment.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

Alisha Vanderlinden v. State of Indiana - "To prove endangerment, the State presented evidence that Vanderlinden was speeding and that she was intoxicated. The State carried its burden to prove intoxication. Nonetheless, the State cannot claim that this same evidence proves the additional element of endangerment. In 2001, the Legislature substantially altered the OWI statutes by redefining intoxication and establishing two separate misdemeanor classes for operating a vehicle while intoxicated. I.C. § 9-13-2-86; P.L. 175-2001 § 1 (eff. July 1, 2001); I.C. § 9-30-5-2; P.L. 175-2001 § 6 (eff. July 1, 2001). The effect of these changes was to remove the “endangerment” requirement from the general definition of intoxication and create the new offense of Class C misdemeanor OWI without an endangerment requirement. The statutes retained the Class A misdemeanor OWI offense, which requires a showing of endangerment. Indiana Code Section 9-30-5-2(b) now states, “An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.” By definition the statute requires more than intoxication to prove endangerment.

"To the extent that our decisions have suggested that a showing of intoxication without more is adequate to prove endangerment, the amended statutes supplant those holdings."

Fifth Third Bank v. Kohl's Indiana, L.P., and Kohl's Department Store - "We hold that the trial court erred when it concluded that the letters of credit here are to be “treated as” performance bonds and that Kohl's Indiana is a third party beneficiary of the letters of credit. Fifth Third, as issuer of the letters of credit, is obligated to pay under the terms of the letters of credit only if and when the Commission should present the letters and deliver the necessary documentation. Kohl's Indiana does not have any rights derived from the letters of credit. We note that Kohl's Indiana claims that its litigation against the Commission is ongoing. If Kohl's Indiana were to prevail in that litigation, then the Commission might draw on the letters of credit to satisfy a judgment. Regardless, we are not asked to consider and express no opinion concerning any claim that Kohl's Indiana may have or assert against the Commission. The trial court erred when it granted summary judgment in favor of Kohl's Indiana."

David Nick Reinhart a/k/a Rick Reinhart v. Gregg W. Boeck - "In sum, we hold that the undisputed designated evidence demonstrates that there is no genuine issue of material fact to preclude summary judgment for Boeck on his claim that Reinhart is jointly and severally liable under the Act for Thomas' unlawful sale of securities. Boeck met his burden of showing a prima facie claim of success on each element under the Act, and Reinhart, in response, wholly failed to show the existence of any genuine issues of material fact. Boeck has demonstrated that the notes were unregistered securities, that Thomas sold him those securities, and that Reinhart was Thomas' partner under the Act. Therefore, Boeck was entitled to summary judgment on his claim against Reinhart for joint and several liability for Thomas' acts, and we affirm the trial court's judgment."

The City of Indianapolis, et al v. Christine Armour, et al

Curtis Outlaw v. State of Indiana

NFP civil opinions today (3):

T.S. v. Review Board of the Indiana Dept. of Workforce Development and Normal Life, Inc. (NFP)

Russell Lakin v. Estate of Robert C. Lakin and CL Corp. (NFP)

David Jayakar, M.D. v. Kirk A. Pinkerton and Pinkerton & Friedman, P.C. (NFP)

NFP criminal opinions today (4):

Juan Flagg v. State of Indiana (NFP)

Trevor T. Nunn v. State of Indiana (NFP)

Donald Corneal Watson v. State of Indiana (NFP)

Brian Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from Tax Court, a NFP

Michael H. Klosinski and Phyllis J. Klosinski v. Dept. of Local Government Finance (NFP) - "For the foregoing reasons, the DLGF’s motion to dismiss the Klosinskis’ 2008 tax year claim and its motion for judgment on the pleadings as to the Klosinskis’ 2007 tax year claim are GRANTED."

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Ind. Tax Ct. Decisions

Law - More on: "If Tiger and Elin Split, How Might They Divvy Up the Goods?"

Updating this ILB entry from Dec. 16th, the Chicago Tribune today has this story by Jim Peltz and Carol J. Williams.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to General Law Related

Environment - "A European wind is blowing across east central Indiana"

That is the headline to a lengthy story today by Seth Slabaugh of the Muncie Star-Press. Some quotes:

MUNCIE -- East Central Indiana is fast becoming a global hotspot for wind energy development.

Wind energy manufacturers with roots in Italy and Germany already have moved here. Wind farm developers based in Portugal and Germany could be next. Can the Chinese be far behind?

Land owners in Delaware and Randolph counties recently met with representatives of E.ON Climate & Renewables North America to discuss a proposed $300 million to $400 million wind farm in the two counties. Headquartered in Chicago, the company is a subsidiary of Dusseldorf-based E.ON AG, one of the world's largest energy companies. * * *

About 100 land owners attended the meeting at Desoto Elementary School, which Delaware Community Schools officials are considering closing.

E.ON is considering a wind farm roughly bounded by Ind. 32, Ind. 1, Ind. 67 and Albany, said Kim Cuthbertson, a secretary for the Delaware-Muncie Metropolitan Plan Commission who attended the meeting.

One subject during the dinner meeting, at which E.ON served fried chicken and pulled pork catered by Pete's Duck Inn, was land lease payments.

Wind farms generate land lease payments, significant property tax revenue, hundreds of construction jobs and 10 to 20 permanent maintenance and operating jobs for each wind farm.

For example, each land owner of the proposed Horizon Wind Energy wind farm in Randolph County would receive $7,000 to $9,000 in lease payments annually for each turbine. That's $350,000 to $900,000 in total annual lease payments to local property owners, depending on the number of turbines to be installed.

In addition, Horizon pays the owners of land located between the wind turbines.

"All land owners, whether they have a turbine or not, get a base payment, and people with turbines get additional payments," Martin Culik, a project manager for Horizon, said in March of 2008. When he said "all land owners," he meant those near a turbine, usually within a quarter of a mile. "Even that is pretty generous," he said. "This is a hallmark of Horizon's work and why they (land owners) selected us."

Horizon is owned by a Portuguese company. Another wind farm in Randolph and Jay counties is being proposed by Fort Wayne-based Indiana Michigan Power. * * *

Based on the meeting at Desoto, it doesn't appear that there will be widespread opposition to a wind farm in northeastern Delaware County. That's the same area of the county that successfully opposed Duke Energy's proposed natural-gas fired peaking power plant several years ago. There also was opposition in that area to the Ag Biovision Park.

Because of the large number of affected land owners -- 600 to 800 -- E.ON is planning more meetings to discuss its project here, Cuthbertson said.

She described the crowd at the meeting with E.ON officials as "cautiously optimistic."

Questions asked by the audience included how much noise is made by wind farms and the impact on property values.

Horizon's wind turbines in Randolph County would each stand about 260 feet tall, in addition to the 130-foot-long blades that would extend the height of the structure to nearly 400 feet.

The U.S. wind energy industry installed more than 8,300 megawatts in 2008, expanding the nation's total wind-power generating capacity by 50 percent and surpassing Germany as the world's largest producer of wind energy. Indiana had the nation's fastest growth in wind-power generation in 2008.

The ILB has had a number of entries on wind turbines.

An additional story appeared in the Dec. 13, 2009 NY Times, reported by Doreen Carvajal, and headed "With Wind Energy, Opportunity for Corruption." From the lengthy story:

Wind farm development follows a common pattern in Europe and the United States. It is a complex chain in which, typically, small entrepreneurs strike deals for long-term land leases with farmers and seek local government approvals for wind parks. Then the entrepreneurs sell development packages through intermediaries to large multinational companies or utilities that actually build the wind parks.

Even the big companies have been burned in the process; Vestas Wind Systems, a Danish company that is the leading manufacturer of wind turbines in the world, revealed this year that it was the victim of a €12 million fraud scheme. The company asserts that three top Spanish employees, who are under investigation by the authorities in Barcelona, issued payments for nonexistent services to companies under their control, shifting the money in separate businesses to invest in wind turbines.

In New York, wind developers were prodded over the summer to sign an ethics code barring gifts to public officials, a standard developed by the office of the state attorney general, Andrew Cuomo, who also created a task force to monitor development of the industry.

“It’s a very new area of development with the promise of a lot of money that can be made, both for the developers of wind farms and landowners,” said John Milgrim, a spokesman for the New York attorney general’s office, who noted that the industry had been largely unregulated. “Anytime there’s financial dealings, new industry and large sums of money, there is potential for corruption.

“Part of what government can do is create standards that both sides can follow,” he said, noting that the code establishes a transparent system for public information about land leases and connections between wind developers and municipal officials and their families.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Environment

Ind. Law - "It's the Law" - Defunct?

One of the ILB's favorite columns has been Ken Kosky's weekly column in the NWI Times, "It's the Law." Here is a long list of ILB entries quoting from the regular Monday column.

And the ILB wasn't the column's only fan. The NWI Times column was awarded the Indiana Judges Association's Excellence in Public Information and Education award last fall. Sadly, that may have been the kiss of death. Only one column has appeared since the award, this one from Oct. 19, 2009.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Law

Ind. Courts - Even more on "Madison Co. prosecutor denies alleged misconduct"

Updating this ILB entry from Nov. 19, 2009, Rodney Richey of the Anderson Herald Bulletin reported Dec. 17th in a story that began:

The Indiana commission for attorney misconduct says Madison County Prosecutor Thomas Broderick should be suspended for 30 days, not just publicly reprimanded.

“Here, reprimand is not the appropriate sanction, as his conduct was not committed by mere negligence,” said the Dec. 11 petition for review. “Such a suspension will allow him sufficient time to reflect upon his misconduct.”

The Indiana Supreme Court Disciplinary Commission filed a challenge – signed by Commissioner Laura Iosue – to the recommendations by the hearing officer in the case, Grant Superior Court 1 Judge Jeffrey D. Todd.

The commission has said Broderick knowingly withheld information from Delaware County courts about his son’s prior arrest when he signed a 2003 document in a drunk driving case. The document said Evan Broderick did not have any prior arrests, when in fact he did.

Thomas Broderick has said he did not read the document before signing it, and did not intentionally provide false information.

In the commission’s 35-page petition, members say evidence presented during the case’s hearings proved that Thomas Broderick had motive to omit his son’s prior arrest, purposefully turned a blind eye to the deferral agreement’s contents, and challenged Todd’s findings on authorship.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues one Indiana decision Dec. 17; certifying question to our Supreme Court

In Larry Storie v. Randy's Auto Sales (SD Ind., Judge Lawrence), a 16-page opinion, Judge Cudahy writes:

In 2004, Larry D. Storie bought a truck that had been involved in a fatal accident the previous year. Claiming that he had been misled about the truck’s history, he brought suit against a number of companies that had owned the truck between the time of the accident and his purchase of it. The present case concerns Storie’s lawsuit against Randy’s Auto Sales, LLC. He alleges that Randy’s failed to apply for a salvage title, as it was required to do under Indiana law. The district court granted summary judgment in favor of Randy’s, finding that Ind. Code § 9-22-3-11(e) does not require an entity that acquired a wrecked vehicle to apply for a salvage title when it no longer owns the vehicle upon the receipt of the certificate of title. Because this case turns on the interpretation of an ambiguous state statute, we certify the case to the Supreme Court of Indiana. * * *

We certify to the Indiana Supreme Court the question whether an entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Ind. Code § 9-22-3-11(e) when it no longer owns the vehicle upon receipt of the certificate of title. The clerk of this Court shall transmit the briefs and appendices in this case as well as a copy of this opinion to the Supreme Court of Indiana.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Ind. (7th Cir.) Decisions

Indiana Courts - "Kelley said he couldn't close the courtroom, but he could make the proceedings 'confidential,' which he did, and then cleared the room"

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

A Warrick County judge on Thursday ruled the juvenile court proceedings of one of two youths charged in connection with an accidental shooting this summer at Sharon Elementary School would remain closed to the public.

Dustyn Moorman, 14, is facing delinquency charges of carrying a handgun without a license and dangerous possession of a firearm, which both would be class A misdemeanors if committed by an adult. * * *

On Thursday, Moorman appeared in front of Warrick County Judge David Kelley with his father, Sam, and his attorney, Rick Martin.

Before several family members and a Courier & Press reporter were removed from the hearing, Martin told the judge he didn't feel Indiana's law regarding access to juvenile court records was applicable to Moorman's case and asked that the courtroom be cleared for the hearing.

Indiana's law states that juvenile delinquency proceedings may be available to the public if the act committed would be a felony in adult court.

Deputy prosecutor Georgianne Mastison told the court that she would leave the ruling to the judge.

Kelley said he couldn't close the courtroom, but he could make the proceedings "confidential," which he did, and then cleared the room.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Courts

Ind. Gov't. - "What St. Vincent Health paid to sponsor school stadium is trade secret" [Updated]

That is the headline to this story today by Mark Ambrogi of the Indianapolis Star.

The ILB was unable to access the Dec. 17th PAC Opinion online, but has written to the PAC requesting a copy, which will be posted here when received. [See below]

The opinion is written by an acting public access counselor, DeAnna L. Brunner, an ALJ at the Utility Regulatory Commission. Today's story reports:

Brunner made the decision instead of Public Access Counselor Andrew Kossack, who determined in late October that he had to recuse himself from a ruling because his sister and mother-in-law had lost their jobs when Zionsville switched from Clarian Health to St. Vincent for its nursing services.
The Opinion was the result of a Star complaint subm itted Sept.30th:
The complaint involved decisions by Zionsville school leaders to keep secret the cost of two separate deals with St. Vincent Health in Indianapolis.

This summer, St. Vincent purchased naming rights to Zionsville High School's new multipurpose stadium, where the football team will play next year. The stadium also will be used for lacrosse and track and field.

Brunner ruled that the amount paid for sponsorship of the stadium is a trade secret under Indiana law and can be kept secret by the Zionsville school district.

The Star's complaint was filed after Zionsville Schools in August switched to St. Vincent Health to supply its medical services and to create a school-based health center for district employees. The school district had twice refused to disclose how much it spent as part of its Health Center Service Agreement with St. Vincent.

Brunner ruled Zionsville Schools did not prove its case to deny telling the public the cost of the medical services, or how much other hospitals had bid in their efforts to win the agreement.

The district argued that information used to figure out how much St. Vincent and other medical providers would pay employees to provide Zionsville's medical services would be a trade secret.

But Brunner noted the agreement did not reveal employee benefit amounts.

Brunner noted in her advisory opinion that "Indiana courts have noted that defining what may constitute a trade secret can be difficult."

An advisory opinion can be used in Indiana to take a public entity to court over the disclosure of public information.

The ILB found this description somewhat confusing.

[Updated at 10:12AM] Thanks to the PAC for promptly forwarding a copy of yesterday's Opinion.

Posted by Marcia Oddi on Friday, December 18, 2009
Posted to Indiana Government

Thursday, December 17, 2009

Ind. Decisions - Court of Appeals issues 8 today (and 11 NFP)

For publication opinions today (8):

Randy Tony v. Elkhart County - "Viewing the evidence in a light most favorable to Tony, it was improper to grant the County's motion for summary judgment. Tony has presented sufficient evidence to proceed on his claim that he was constructively discharged for filing worker's compensation claims. We reverse and remand for further proceedings consistent with this opinion."

Grinnell Mutual Reinsurance Co., et al. v. Joe Ault and Edie L. Ault, et al.

In Burkhart Advertising, Inc. v. City of Fort Wayne , a 15-page opinion, Judge Barnes writes:

Burkhart Advertising, Inc., (“Burkhart”) appeals the trial court’s grant of summary judgment to the City of Fort Wayne (“City”) and the trial court’s denial of Burkhart’s motion for summary judgment. We affirm.

Burkhart raises one issue, which we restate as whether the City’s approval of a landowner’s development plan conditioned on the removal of Burkhart’s billboard resulted in a taking under the Fifth Amendment to the United States Constitution. * * *

Burkhart has, in effect, attempted to convert a breach of contract claim against its landlord into a takings claim against the City, and this attempt must fail. We conclude that the trial court properly granted the City’s motion for summary judgment and properly denied Burkhart’s motion for summary judgment. We affirm.

Z.S. v. J.F. - "'Given the strong policy considerations where child custody is at issue'; the lack of a fully disclosed written and executed agreement; and the lack of evidence regarding C.S.'s best interests in this case, we find no abuse of discretion in granting Mother's motion for relief from judgment."

In Michael Greer and John Maggi v. Edwin Buss, et al. , a 20-page opinion, Judge Darden writes:

Michael Greer and John Maggi (“the Plaintiffs”) filed an action for a proposed class action lawsuit seeking declaratory and injunctive relief with respect to the Indiana Department of Correction (DOC) policy which provides that individuals convicted of certain sex or violent offenses requiring registration for a ten-year period must register for an additional ten-year period upon a subsequent conviction for any criminal offense. According to DOC, such additional registration was mandated by statute. Both Greer and Maggi appeal the order that dismissed their action, granted summary judgment to DOC, and denied class action certification. * * *

Beginning with “Zachary's Law” in 1994, Indiana has enacted statutes collectively referred to as the Indiana Sex Offender Registration Act that require individuals convicted of sex and certain other offenses to register with local law enforcement agencies. Wallace v. State, 905 N.E.2d 371, 373 (Ind. 2009). After July 1, 1995, sex offenders were required to register for “ten years after the date the offender was released from parole, or placed on probation, whichever occurred last,” id. at 375 (citing Ind. Code § 5-2-12-13 (1995)2); in ensuing years, the statutory framework of that ten-year registration period was repeatedly revised. Beginning July 1, 1994, the failure to register as required was a class A misdemeanor, see P.L. 11-1994 § 7 (adding former I.C. § 5-2-12-9). Currently, however, the failure to register constitutes a class D felony. See I.C. § 11-8-8-17. In addition, effective July 1, 2006, a person who has been convicted of certain sex-related crimes is barred from residing within 1,000 feet of school property, a youth program center, or a public park; and knowingly or intentionally doing so constitutes a class D felony. Pollard v. State, 908 N.E.2d 1145, 1147 (Ind. 2009) (citing I.C. § 35-42-4-113).* * *

Nevertheless, citing Wallace, wherein the defendant appealed his conviction for failure to register, the Defendants argue that Greer and Maggi may pursue their challenges to registration as a defense in a criminal proceeding if faced with criminal prosecution for failure to register. The U.S. Supreme Court has declared, however, that a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his exercise of constitutional rights.” * * * As the Defendants note, neither Steffel nor Smith actually enjoined criminal prosecution, but we find the stated principle persuasive as applied to the circumstances faced by Greer and Maggi. * * *

Pursuant to the rule of lenity, we find it clear that prior to July 1, 2008, the statutory provision at issue contained no language suggesting that the required registration would be triggered for a second ten-year registration period upon a subsequent conviction. This leads to the logical conclusion that an offender was only required to register again after completion of the ten-year registration period upon conviction for an offense for which the statute requires registration. * * *

We hold that the trial court erred when it granted summary judgment to the Defendants on the Plaintiffs' claims that they were not required to register as sex offenders for a second ten-year period. We also hold that the trial court erred when it granted summary judgment to the Defendants on Greer's claim that the residency restriction statute violated his ex post facto rights under the Indiana Constitution. Accordingly, summary judgment should be granted to the Plaintiffs on these matters. As to the trial court's denial of class action certification, however, we affirm.

[ILB emphasis - read in conjuction with this Nov. 18, 2009 entry.]

In Crystal Sanquenetti v. State of Indiana , an 11-page, 2-1 opinion, Judge Crone writes:
Crystal Sanquenetti appeals her four-year sentence following her guilty plea to class C felony nonsupport of a dependent child, arguing that it is inappropriate in light of the nature of the offense and her character. We reverse and remand with instructions to revise her sentence to two years, executed. * * *

RILEY, J., concurs.
VAIDIK, J., dissents with separate opinion. [that concludes] Although it is true that Sanquenetti pled guilty to this offense and was working a part-time job in 2009 (though she was unemployed for the previous five years), I believe that these actions pale in comparison to her criminal activities. Therefore, I would find that Sanquenetti's advisory sentence of four years is not inappropriate.

Aaron Michael Rohr v. State of Indiana - "Aaron Rohr appeals the trial court’s denial of his request to set bail. Rohr raises one issue, which we restate as whether the trial court abused its discretion by denying Rohr’s motion to set bail. We affirm."

In Emmanuel Dwayne Branch v. State of Indiana , a 9-page, 2-1 opinion, Judge Crone writes:

Emmanuel Dwayne Branch challenges the sufficiency of the evidence supporting his conviction for failing to register as a sex offender, a class D felony. We affirm. * * *

Branch argues that in January 2009, he did not have a principal residence, and therefore the registration requirements of Indiana Code Section 11-8-8-11(a) are inapplicable. Instead, he argues, he was homeless and, as such, his registration requirements were governed by Indiana Code Section 11-8-8-12(c), under which he was not charged. * * *

Although Branch did not have a new principal residence, his principal residence address did change, in that United Caring was no longer his principal residence. Thus, Branch was required to register the change of his principal residence address within seventy-two hours pursuant to Indiana Code 11-8-8-11.3 His admitted failure to do so is sufficient evidence to support his conviction.

VAIDIK, J., concurs.
RILEY, J., dissents with separate opinion: I respectfully dissent. Branch was charged and convicted of failing to register a change in address “as required under I.C. 11-8-8-11,” which is the subsection applying our State's sex offender registry to persons with a “principal residence.” (Appellant's App. p. 8). The majority's opinion acknowledges that Branch identified the United Caring Shelter as his “Home Address.” (State's Ex. 1). However, Branch never identified United Caring Shelter as his “principal residence.” Indeed, there is no place on the form which he used to report for him to designate whether the place he was then staying was a “principal residence,” “temporary residence,” or just a transitional place because the individual is homeless and has neither a “principal residence,” or a “temporary residence,” which could be helpful considering the distinction between the reporting requirements acknowledged in the majority opinion. (Appellant's App. pp. 60 - 61).

Branch stayed at United Caring Shelter for only eleven days. This short stint at United Caring Shelter is not sufficient to prove that it was his “principal residence,” and upon review the record I find a lack of sufficient evidence proving that United Caring Shelter was ever his “principal residence.” The majority opinion asserts that “Branch effectively concedes [the] point” that United Caring Shelter was his principal residence in his Appellant's Brief. Slip op. at 5-6. To the contrary, Branch unequivocally asserted that he “fell into” what he refers to as the “third category” of reporting requirements for persons without either a “principal residence” or a “temporary residence.” (Appellant's Br. pp. 4-5 (citing I.C. § 11-8-8-12(c)). Since the charging information did not reference the proper statutory section applying to Branch, I would conclude that his conviction cannot stand. See Addis v. State, 404 N.E.2d 59, 63-64 (Ind. Ct. App. 1980) (“To permit a „conviction upon a charge not made would be sheer denial of due process.”).

NFP civil opinions today (2):

C.S. v. Review Board, and A.S., Inc. (NFP)

Saul I. Ruman, et al. v. Denise Benjamin (NFP)

NFP criminal opinions today (9):

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

Chester Radford v. State of Indiana (NFP)

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

Jonathan L. Reiner v. State of Indiana (NFP)

Larry L. Toops, Sr. v. State of Indiana (NFP)

Steven Edward Lewis v. State of Indiana (NFP)

Terry Lynem v. State of Indiana (NFP)

Dakevee Wiggins v. State of Indiana (NFP)

Jeremiah Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Ind. App.Ct. Decisions

Environment - Still more on: Great Lakes losing even more water via St. Clair River

Updating this ILB entry from Sept. 11, 2009, the controversy continues about what is causing the lowering of the water level of thge Great Lakes. See this Dec. 15th story by Dan Egan of the Milwaukee Journal Sentinel, headed "Erosion has made Lake Michigan notably shallower: Findings of 2-year study released." See also this Dec. 15th story by Bob Kelleher, Minnesota Public Radio, headed "Study group blames warmer climate for low Great Lakes water levels."

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Environment

Ind. Courts - "Five lawsuits connected to Gabriele estate are pending"

Updating earlier ILB entries related to the estate of Philip and Marcella Gabriele, the South Bend Tribune's Alicia Gallegos reported yesterday:

Court officials continue to sift through the complex estate case of the late Philip Gabriele to determine who, if anyone, will gain from the eye doctor’s remaining assets.

As it stands, five different lawsuits related to the estate of Philip and Marcella Gabriele have now been filed in St. Joseph County courts.

A recent motion by 1st Source Bank, the special administrator of Gabriele’s estate, has asked that a judge consolidate the cases in order to expedite case proceedings and resolutions. The separate lawsuits include:

>> The Dr. Gabriele Estate Administration case filed in St. Joseph Circuit Court by the estate of Philip Gabriele related to a petition for probate will, and issuance of letters.
>> The Marcella Gabriele Administration case filed in St. Joseph County Probate Court by the estate of Marcella Gabriele.
>> A complaint filed by Jon Alex Dawson, the brother-in-law of Marcella Gabriele, who is contesting the purported will of Philip Gabriele.
>> A wrongful death action lawsuit filed in St. Joseph County Superior Court by the estate of Marcella Gabriele.
>> A foreclosure action suit filed by Mutual Bank against the Gabrieles’ estates seeking payment for “residential and corporate loans it extended to the (couple) that are now in default.”

A hearing on the motion is set for 10 a.m. Jan. 25 in the courtroom of St. Joseph Circuit Court Judge Michael G. Gotsch.

Philip and Marcella Gabriele were found dead in an apparent murder-suicide in June just hours before they were to appear before a judge on a 15-count criminal indictment involving health care fraud.

Attorneys, on behalf of the couple’s eye surgery practice, entered a guilty plea recently in the federal health care fraud case.

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Indiana Courts

Ind. Courts - "Self-styled vampire jailed for threatening Judge Certo"

This AP story is in both the Washington Post and the Indy Star. Some quotes:

INDIANAPOLIS -- A man who claims to be the leader of a group of vampires has pleaded guilty to charges that he threatened to torture and kill an Indianapolis judge and his family.

Forty-five-year-old Rocky Flash, also known as Jonathon Sharkey, was sentenced in a Marion County court on Wednesday to more than two years in jail.

Prosecutors say the man threatened to beat, torture, impale, dismember and decapitate Judge David Certo, who is presiding over another case involving Flash.

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Indiana Courts

Ind. Courts - "Gun lawsuit misfires over clerical error"

The subheading of Jon Murray's story today in the Indianapolis Star is "Wrong amendment cited in man's case challenging city's gun-return policy; judge dismisses claim." From the story:

It was a simple clerical error that led a U.S. District Court judge to dismiss the suit.

The typo was simple but pivotal. The lawyers for Grady Scott, who filed suit rather than submit to fingerprinting to retrieve two seized weapons, mislabeled a claim under the wrong constitutional amendment in the U.S. Bill of Rights.

Scott sued the Indianapolis Metropolitan Police Department, the city and Police Chief Michael Spears. The suit claimed the policy violated the Second Amendment's protections for gun owners and said it also denied Scott due process of law under the Fourth Amendment.

Make that the Fifth Amendment.

The error apparently went unnoticed until after a deadline for changes passed, even though the attorneys, who filed the suit in November 2008, had submitted an amended version with other modifications in June.

"The court will not rewrite the complaint merely because plaintiff mistakenly inserted the wrong constitutional provision," Judge Larry J. McKinney wrote in his order dismissing the case, issued Monday.

Attorneys Adam Lenkowsky and Paul Ogden said Wednesday that they had not decided their next step.

The dismissal might have been averted if not for a court ruling earlier this year that kept them from pushing the Second Amendment claim.

In June, in unrelated lawsuits challenging handgun bans in the cities of Chicago and Oak Park, Ill., the 7th U.S. Circuit Court of Appeals ruled that Second Amendment protections apply only to federal laws. The U.S. Supreme Court is reviewing that ruling.

In Scott's case, McKinney's dismissal of the federal claims left only a claim under the Indiana Constitution's gun-rights provision. But McKinney could not rule solely on a state claim.

The police policy, intended to keep seized guns from owners who might be a danger to the community, required Scott to fill out a form and be fingerprinted.

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Animal Control Board meetings to be televised: Mayor overrules the chairman of the Animal Control Board"

From Heather Gillers story today in the Indianapolis Star:

Public access television cameras will be invited back into Animal Control Board meetings after Mayor Greg Ballard on Wednesday overruled an attempt to keep the monthly meetings off the air.

"If I have to carry a camera in there myself and televise it, we'll do that," said Chris Cotterill, the mayor's chief of staff. "That's how strongly the mayor believes in transparency."

David Horth, who became board chairman in November, asked the city's public access channel not to televise the public meetings. The Dec. 10 meeting did not appear on Channel 16 or on the city Web site.

The Indianapolis Star looked into the issue after a reader spotlighted it in a letter to the editor. In an interview before the mayor overruled his decision, Horth said he was trying to cut down on "grandstanding and showboating" in the public comments portion of the meeting. He declined further comment afterward. * * *

The next meeting is set for 6 p.m. Jan. 14 at the City-County Building, Room T118. Meetings can be viewed online at www.indy.gov/egov/cable/pages/home.aspx.

The ILB knew about this issue because of this Dec. 14th entry, "New Chairman of Indianapolis Animal Care & Control Advisory Board Pulls Plug on Channel 16 Coverage of Meetings" from the blog, Ogden on Politics.

Posted by Marcia Oddi on Thursday, December 17, 2009
Posted to Indiana Government

Wednesday, December 16, 2009

Law - "If Tiger and Elin Split, How Might They Divvy Up the Goods?"

Ashby Jones of the WSJ Law Blog has this interesting read this afternoon.

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to General Law Related

Ind. Courts - "Attorney quits practice, leaving clients in lurch"

Jeff Parrott reports this afternoon on the South Bend Tribune website in a long story:

The Indiana Supreme Court has suspended the law license of a local attorney, finding that he failed to comply with terms of his probationary status.

But the attorney, Patrick Boulac, already had quit his practice — without notifying some of his clients.

"He took my money and disappeared," said client Doug Simons, of Mishawaka. "He wouldn't return my phone calls. I left him like 30 or 40 phone messages. One day his phone was disconnected." * * *

Because of [a] conviction, the Supreme Court in December 2007 placed Boulac's license on probation for two years. A condition of the probation was that he complete the court's Judges and Lawyers Assistance Program, or JLAP, which helps attorneys address problems related to mental illness or substance abuse.

But in October of this year, the Indiana Supreme Court Disciplinary Commission asked the high court to revoke the probation and suspend his license because Boulac had failed to make required contacts with his JLAP monitor.

JLAP also received reports from an unnamed St. Joseph County judge that Boulac had abandoned his office and was failing to appear for court hearings, according to court records.

Four days after the disciplinary commission filed its motion in October, Boulac was arrested again. * * *

Boulac had been renting office space in the Tower Building, 218 W. Washington Ave., from attorney Stephen Drendall.

Drendall told The Tribune that Boulac stopped coming to work in June, and told him he wanted to close down his practice so he could "pursue other interests." Drendall declined to elaborate, but said he went in and boxed up "dozens" of Boulac's client files.

"I don't know how many of those were active cases," Drendall said. "He left them unattended. It's definitely unfortunate, having decided he didn't want to practice anymore, that he didn't wind things down in a more responsible way, because there is a way to do that."

Simons, who had hired Boulac to defend him in a child support delinquency case, was one of at least two clients who filed complaints with the disciplinary commission. Boulac never replied to those complaints, according to commission records. * * *

The Supreme Court recently suspended Boulac's license for at least six months, with no automatic reinstatement, meaning he will have to reapply for his law license if he ever wants to resume practice.

Here is the Nov. 24, 2009 suspension order.

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to Indiana Courts

Ind. Courts - Commission on Judicial Qualifications files disciplinary charges against suspended Bicknell City Court Judge

Updating earlier ILB entries on the suspension of Knox County City Court Judge David Andrew Moreland, the Supreme Court has issued a press release on the charges filed today against the suspended judge:

The Commission alleges that Judge Moreland, who is not required to be an attorney to serve in the Bicknell City Court, misappropriated court funds for personal use, engaged in nepotism by employing his wife as the court clerk, and directed his wife to misappropriate court funds.

Mr. Moreland was elected to the bench and began his term as Bicknell City Court Judge in Knox County on January 1, 2008. On October 13, 2009, the Knox County Prosecutor filed five Class D Felony charges of Theft against Judge Moreland. The Indiana Commission on Judicial Qualifications filed a “Notice of Criminal Charges and Request for Suspension” with the Indiana Supreme Court that same day. After reviewing the request, the Indiana Supreme Court immediately ordered Judge Moreland suspended with pay. The Court appointed a judge pro tempore to fill the vacancy left in Bicknell City Court.

The Commission’s investigation into Judge Moreland and missing court money paid by traffic offenders has now resulted in the filing of five counts of misconduct. The “Notice of the Institution of Formal Proceedings and Statement of Charges” was filed by the Commission with the Indiana Appellate Courts’ Clerk (case number 42S00-0910-JD-441) on December 16, 2009. The document accompanies this press release and details the Commission’s allegations against Judge Moreland. The misconduct charges filed with the Indiana Supreme Court by the Commission are separate from any criminal charges filed in an Indiana trial court.

The release continues with details of the counts charged. Also available online is this copy of the Notice of the Institution of Formal Proceedings and Statement of Charges, filed Dec. 16, 2009. Beginning on p. 7 of the document is the Information filed by the State Police Oct. 13th in the Knox Superior Court against D. Andrew Moreland, and on p. 15, the same against Cindy D. Moreland.

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to Indiana Courts

Ind. Courts - "Camm lawyers seek new site for third trial"

Ben Zion Hershberg reports in the Louisville Courier Journal:

Lawyers for David Camm have requested a new location for his third trial for the September 2000 murders of his family.

“I believe it has to be Indianapolis or further north,” said Stacy Uliana, who filed the motion Monday requesting a change of venue from Warrick County Superior Court. * * *

Camm was found guilty in Warrick County in 2006 of murdering his wife and their two children in the garage of their Georgetown home. But the conviction was overturned in June.

The trial, Camm’s second, had been moved from Floyd County to Boonville, the Warrick County seat about 95 miles west of New Albany. * * *

In her motion, UIiana said Camm “is unable to receive a fair trial in Warrick County because substantial bias and prejudice exists” against him there as a result of intense news coverage of the 2006 trial.

The coverage “makes the challenge of selecting a fair, unbiased jury insurmountable,” Uliana said.

She said she didn’t know when a hearing on the venue motion would be scheduled. She said it’s important to find a location where the case hasn’t been in the news, as well as somewhere that’s demographically similar to Floyd County.

A Warrick court clerk, meantime, said Henderson filed a response Monday to a defense motion seeking a special prosecutor. A copy was not available immediately from the court.

The clerk also said Henderson filed motions Monday asking for a pre-trial conference and trial date. No dates have been set.

Camm’s lawyers have said a special prosecutor should be appointed because Henderson negotiated with a publisher on a book about the Camm case, which the defense said represented a conflict of interest for the prosecutor.

Henderson acknowledged the book negotiations but denied any conflict of interest. He said the book deal was called off when Camm’s conviction was overturned.

Here is a list of earlier ILB entries re David Camm.

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Carol K. Fred v. Maurice M. Fred (NFP) - "[Prp se] Appellant-Respondent, Carol K. Fred (Carol), appeals the trial court’s denial of spousal maintenance under Ind. Code § 31-15-7-2 and extension of health insurance coverage. We affirm."

Boonville Convalescent Center, Inc. v. Cloverleaf Healthcare Svcs., Inc., et al. (NFP) - "Appellant-Plaintiff Boonville Convalescent Center, Inc. appeals the trial court’s determination on summary judgment of the balance of the real estate taxes, interest and attorney fees owed by the Appellees-Defendants Cloverleaf Healthcare Services, Inc., its shareholders and their spouses (collectively, Tenants) based on a lease agreement. We affirm in part, reverse in part and remand."

Family Care Center of Indiana "Medical Specialists" v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP) - "Family Care Center of Indiana (hereafter “Medical Specialists”) appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) that adopted and incorporated the Administrative Law Judge’s (“ALJ”) findings of fact and conclusions of law, which determined Christine M. Williamson (“Williamson”) was eligible to receive unemployment insurance benefits. Medical Specialists raises two issues; however, we find the following restated issue to be dispositive: whether the Review Board’s decision that Williamson was discharged from her employment without just cause was contrary to law and the evidence. We affirm."

NFP criminal opinions today (8):

Vincent Boyd v. State of Indiana (NFP)

Anthony W. French v. State of Indiana (NFP)

Michael Hummel v. State of Indiana (NFP)

Jimmy Saxon v. State of Indiana (NFP)

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

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

Cornelius Enoch v. State of Indiana (NFP)

Aaron B. Cherry v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Tax Court issues one opinion, a NFP, today

In George M. Moffett v. Indiana Dept. of Local Government Finance (NFP), an 11-page opinion, Judge Fisher writes:

On September 11, 2009, the Indiana Department of Local Government Finance (DLGF) issued a final determination granting modified approval of the proposed lease rental agreement between the Union-North United School Corporation (the School Corporation) and the Union-North United School Building Corporation (the Building Corporation) which provided for the construction of a new intermediate school and renovations to the existing elementary school and high school. George M. Moffett (Moffett) challenges that final determination. * * *

Moffett has demonstrated that he does not think the proposed project is a good idea. He has not demonstrated, however, that the DLGF's final determination was not supported by substantial evidence or not in accordance with the law. Accordingly, the DLGF‟s final determination is AFFIRMED.

Posted by Marcia Oddi on Wednesday, December 16, 2009
Posted to Ind. Tax Ct. Decisions

Tuesday, December 15, 2009

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

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

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

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

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Environment

Ind. Gov't. - "Move to National ID Cards Delayed"

The ILB has had a number of entries on the Real ID program, particularly in reference to the new requirements for Indiana drivers' licenses that go into effect with the new year. So this Dec. 14th story by David Kravels of Wired's "Threat Level" is of interest. Some quotes:

The United States’ quest for a national identification database associated with driver’s licenses won’t be finished by year’s end.

The deadline was Dec. 31 for the states to create what would be the largest identification database of its kind under the auspices of the Real ID program. The law also mandates uniform anti-counterfeiting standards for state driver’s licenses.

None of the states are in full compliance with the law, first adopted in 2005, requiring state motor vehicle bureaus to obtain and internally scan and store personal information like Social Security cards and birth certificates for a national database, according to the American Civil Liberties Union. About half the states oppose the mandate, or have said they would never comply.

Beginning Jan.1, the law was supposed to have blocked anybody from boarding a plane using their driver’s license as ID if their resident state did not comport with the Real ID program. But the Department of Homeland Security is set to extend, for at least a year, the deadline of the Real ID program that has raised the ire of privacy advocates.

The story includes a map showing the status of the "Anti-Real ID Movement" in the various states. (A look at the map shows Indiana's position in the line-up of states to be somewhat surprising, IMHO.)

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Indiana Government

Courts - Ohio Supreme Court rules warrant required for cell phone searches [Updated]

Stephen Majors AP story begins:

COLUMBUS, Ohio (AP) -- Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger, a divided Ohio Supreme Court ruled Tuesday on an issue that appears never to have reached another state high court or the U.S. Supreme Court.
Thanks to How Appealing for the links, including to the opinion itself.

[Updated at 5:45 PM] See this discussion from The Volokh Conspiracy.

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass Co., and Brad Craven , a 12-page opinion, Judge Kirsch writes:

[The Wilsons] appeal the trial court's grant of summary judgment in favor of Gene Isaacs, Sheriff of Cass County and Deputy Brad Craven (collectively, “the Sheriff”). The Wilsons raise the following restated issues: I. Whether the trial court erred when it granted summary judgment in favor of the Sheriff on the basis that the Sheriff was immune from liability for injuries caused by the enforcement of a law pursuant to the Indiana Tort Claims Act (“ITCA”), IC 34-13-3-3(8); and II. Whether the trial court erred when it granted summary judgment in favor of Deputy Craven because the Wilsons are barred under IC 34-13-3-5 from pursuing a claim against him individually for actions taken within the scope of his employment.

We affirm in part, reverse in part, and remand.

In Indiana Farmers Mutual Ins., Co. v. North Vernon Drop Forge, et al. , a 28-page opinion, Judge Vaidik writes:
The defendant insureds agreed to provide a third party with “clean fill” dirt from their steel forge. The fill dirt turned out to be contaminated. The third party sued the insureds for depositing contaminated waste on his property. The complaint alleged intentional and unintentional torts, breach of contract theories, and strict liability causes of action. The defendants' commercial general liability insurer filed this action seeking declaration that it had no duty to defend the insureds in the underlying suit. In the course of summary judgment proceedings, the insured forge owner testified via affidavit that he did not know the fill dirt was contaminated. The trial court entered summary judgment in favor of the insureds. We hold that (1) the forge owner's affidavit testimony may be considered along with the underlying complaint when assessing the insurer's duty to defend, (2) the factual allegations sufficiently disclose an unintended “occurrence” requiring the insurer to defend in the underlying suit, (3) coverage is not foreclosed by the policy's intentional acts exclusion, (4) the insurer was not prejudiced by untimely notice of occurrence, and (5) the trial court erroneously ordered indemnification before the conclusion of the underlying litigation. We affirm in part and reverse in part.
In Patricia A. Grigsby v. Charles E. Grigsby , aa 15-page opinion, Chief Judge Baker writes:
Appellant McClure & O'Farrell, P.C. (the Law Firm), appeals the trial court's order awarding attorney fees to appellee Patricia A. Grigsby. The Law Firm argues that the trial court erred by concluding that the Law Firm had acted unreasonably by opposing Patricia's petition for an accounting of the Law Firm's services to her deceased, estranged husband in their divorce proceeding. Finding that the Law Firm did not act unreasonably, we reverse. * * *

[Includes discussion of attorneys' ability to "gauge whether the information they hold on behalf of their clients is confidential. If an attorney believes that the revelation of the information—including billing records or a fee agreement—would be tantamount to the disclosure of a confidential communication, then it would behoove the attorney to protect that information until directed to do otherwise by a court."]

Inasmuch as none of the four primary arguments raised by the Law Firm in opposition to Patricia's petition were unreasonable, the trial court erred by ordering the Law Firm to pay Patricia's attorney fees, and the judgment of the trial court is reversed.

In State of Indiana v. Craig Cooper, a 14-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-respondent State of Indiana appeals the grant of post-conviction relief in favor of appellee-petitioner Craig Cooper. Specifically, the State argues that Cooper's request for post-conviction relief should have been denied because, even though the date and location of the offense were not specified in the factual basis during the guilty plea hearing, Cooper has failed to demonstrate how he was prejudiced by those “irregularities.” Concluding that the post-conviction court properly granted Cooper's request for relief, we affirm. * * *

In sum, we are not convinced that the post-conviction court committed “clear error” in granting Cooper's request for relief, and we are not left with a “definite and firm conviction that a mistake has been made.” * * *

BAILEY, J., concurs.
ROBB, J., dissents with opinion [that begins, at p. 12] Although I agree with the majority's conclusion the trial court did not establish a sufficient factual basis to support Cooper's guilty plea, I do not believe Cooper has demonstrated he was prejudiced by the error. Therefore, I respectfully dissent.

In City of South Bend v. Charles Dollahan, a 19-page, 2-1 opinion, Judge Darden writes:
The City of South Bend (“City”) appeals the trial court's judgment, following a bench trial, holding it liable for injuries suffered by Charles Dollahan (“Dollahan”) and ordering it to pay $300,104.00 in damages. We affirm. * * *

MATHIAS, J., concurs.
ROBB, J., dissenting with separate opinion [that begins, at p. 18] The majority concludes the evidence supports the trial court's conclusion that the City “knew or should have known that placing heavy mechanical equipment on the sidewalk, given the sidewalk's history of instability, would create an unreasonable risk of harm to Dollahan.” I respectfully dissent.

NFP civil opinions today (3):

Diversified Blasthole Drilling, Inc. v. P. Frederick Pfenninger (NFP) - "The trial court erred when it dismissed Diversified’s claims for damages stemming from conduct constituting criminal conversion and attorney deceit. As a result, the trial court abused its discretion when it denied Diversified’s motion to correct error. Therefore, we reverse the trial court’s dismissal of Diversified’s claims and remand this case for further proceedings. Reversed and remanded."

In Norma and Roland Wardlow v. A-1 Striping Svcs., Inc., Kroger Food Stores, et al. (NFP), an 18-page, 2-1 opinion in a slip and fall case, Chief Judge Baker writes:

More specifically, the Wardlows argue that the designated evidence would permit a jury to conclude that Kroger, Merrifield Plaza, and Cressy & Everett breached their duty of care to Norma while she was on the premises. The Wardlows further maintain that a genuine issue of material fact exists with regard to A-1 Striping and Arnt's duty of care and breach of that duty as contractors. Concluding that the trial court erred in granting summary judgment for the appellees, we reverse and remand for further proceedings consistent with this opinion. * * *

In sum, the facts designated by the appellees fail to negate the possibility that a jury could find that the appellees breached a duty of reasonable care to Norma. More specifically, the designated evidence failed to establish that Kroger, Merrifield Plaza, and Cressy & Everett can avoid liability as a matter of law regarding their duty of care to Norma while she was on the premises. Similarly, the designated evidence fails to show that Arnt and A-1 should be excused from potential liability to the Wardlows as a matter of law. See Peters v. Forster, 804 N.E,2d 736, 743 (Ind. 2004) (holding that a contractor generally has a duty to use reasonable care both in his work and in the course of performance of the work). As a result, we must conclude that summary judgment was improperly granted in the appellees' favor. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

RILEY, J., concurs.
BROWN, dissents with opinion [that begins, at p. 14] I respectfully dissent from the majority's conclusion that the trial court erred in granting summary judgment for the Appellees. Specifically, I disagree with the majority's conclusion that the Appellees failed to make a prima facie showing that there were no genuine issues of material fact and were therefore entitled to judgment as a matter of law. Once the Appellees satisfied their burden, the burden then shifted to the Wardlows to “designate and produce evidence of facts showing the existence of a genuine issue of material fact.”

J.H. v. E.H. (NFP) - "We are unpersuaded that the trial court abused its discretion with respect to its various parenting time determinations in the modification order. We are further unpersuaded that Father's challenges to the trial court's prospective modification order and award of attorney's fees are meritorious. We must conclude, however, that the trial court did not adequately justify its decision to require Father to pay half of the expenses for G.H.'s parochial school. We therefore remand to the trial court for entry of findings on the matter and an evidentiary hearing, if necessary, to facilitate that determination. Accordingly, we affirm in part and reverse and remand in part to the trial court."

NFP criminal opinions today (3):

Matthew Richardson v. State of Indiana (NFP)

Eugene Graves v. State of Indiana (NFP)

John A. McKenzie v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Babes Showclub, Jaba, Inc. and James B. Altman v. Patrick Lair and Lisa Lair, a 10-page, 5-0 opinion, Justice Boehm writes:

In this case a police officer responded to a complaint of an unruly patron at a nightclub and was assaulted by the patron. The officer sued the club for negligence in failing to maintain adequate security. We hold that the "fireman’s rule" bars recovery by a professional emergency responder for the negligence that created the situation requiring the response. * * *

[The opinion discusses the fireman's rule in depth.]

In sum, Lair’s complaint alleged nothing suggesting that Babes was negligent in any re-spect apart from the negligence that produced the emergent situation with the unruly patron. Without any such allegation, the complaint fails to state a claim against Babes in the face of the fireman’s rule. The complaint was therefore properly dismissed for failure to state a claim.

Conclusion. This case is remanded to the trial court with instructions to dismiss the complaint for fail-ure to state a claim upon which relief can be granted.

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "Kirkland Partner Slapped With Dismissal and Judge's Rebuke for Filing Misstep"

Understanding this "jurisdictional misstep" is above my pay grade, but it did happen in our circuit ... Some quotes from the story today by Lynne Marek of The National Law Journal:

In the dismissal, U.S. District Judge Milton Shadur of the Northern District of Illinois chided [Kirkland & Ellis partner Barry Irwin] for a jurisdictional misstep that he said the lawyer should have known about, given a decade's worth of related appellate rulings and the resources of a big firm like Kirkland.

"There is really no excuse for counsel's lack of knowledge of such a firmly established principle after more than a full decade's repetition by our Court of Appeals and others," Shadur said in the three-page ruling on Dec. 9. "Hence, it seems entirely appropriate to impose a reasonable cost for such a failing." * * *

Irwin acknowledged he wasn't aware of the jurisdictional precedent that required him to know all of the limited liability partners involved and the domiciles to which they "intend return." That means he had to confirm that Williams was the only partner and zero in on the correct residence, which he believed to be in the Northern District of Illinois, Irwin said. For now, he and his client are weighing whether and where to refile the lawsuit.

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Courts in general

Law - "Michigan holds the eyebrow-raising distinction of having the highest ratio of its citizens on a state sex offender registry"

Some quotes from a story in yesterday's Michigan Messenger, reported by David Alire Garcia:

With over 45,100 names and faces on the registry of convicted sex offenders –- and even some whose records are conviction-free –- Michigan holds the eyebrow-raising distinction of having the highest ratio of its citizens on a state sex offender registry.

According to an analysis earlier this year by the National Center for Missing and Exploited Children, for every 100,000 Michiganders, 472 are on the registry. That’s more than California (319), Florida (281), New York (148) or Illinois (158) – or any state.

The story links to this map comparing the registered sex offenders per 100,000 population in the various states.

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to General Law Related

Courts - "Though the legal issue in the case concerns only text messaging in government workplaces, the Supreme Court’s decision may provide some hints about its attitude toward privacy in the Internet era more generally"

So writes Adam Liptak of the NY Times in this Dec. 14th article headed "Supreme Court Takes Texting Case."

See also this ILB entry from yesterday.

Posted by Marcia Oddi on Tuesday, December 15, 2009
Posted to Courts in general

Monday, December 14, 2009

Ind. Decisions - Still more on: Indiana Chrysler bankruptcy challenge cert petition being reviewed today [Updated again]

"Critics Of Chrysler Sale Find Positive In High Court's Order " is headline to this WSJ story by Brent Kendall. A quote:

The Supreme Court's order, while leaving the Chrysler sale undisturbed, vacated the 2nd Circuit's June ruling that affirmed the manner in which Chrysler's assets were sold.

The order means the 2nd Circuit's decision no longer has the force of legal precedent.

Critics have argued the quick Chrysler sale trampled on creditors' rights and the normal Chapter 11 bankruptcy process.

"If the appeals court's decision had stayed on the books, it would have been very difficult for people to challenge these kinds of asset sales," said Richard Samp of the Washington Legal Foundation, which filed a court brief supporting the Indiana challengers.

[Updated] "3 Indiana pensions to lose $6 million" is the headline to this story by Sylvia Smith, Washington editor for the Fort Wayne Journal Gazette that begins:
WASHINGTON – Three Indiana pensions will lose $6 million after the Supreme Court refused Monday to hear Indiana’s protest about Chrysler’s bankruptcy.

The decision ends the state’s argument that three Hoosier pension funds should get a bigger share of the bankrupt automaker’s assets.

Indiana Treasurer Richard Mourdock had argued that a trust for retired Chrysler workers should return $4.6 billion to creditors of the bankrupt car company after the automaker sold its prime assets to Fiat.

Three Indiana pension funds representing police officers and teachers lost $6 million in the Fiat sale.

[Updated again, on 12/15/09] See this discussion of the Chrysler decision in the Bankruptcy Litigation Blog.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Decisions

Courts - "Attorneys and experts said court decisions have been "all over the map," offering little clarity to confused school administrators."

"For students, a right to be mean online? With schools meting out discipline for what they see as cyber-bullying, some courts, parents and free speech advocates are pushing back." That is the headline to this long and comprehensive story from the Sunday LA Times, written by Victoria Kim. Some quotes:

Schools' ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens' social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.

Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet. * * *

The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials' restriction of student speech or discipline meted out in such cases.

Attorneys and experts said court decisions have been "all over the map," offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.

"We're in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted," said Robert O'Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.

O'Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students' speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school's walls, administrators are faced with a tricky calculus.

"Everybody is justifiably confused about what they can and cannot do," said Witold Walczak, an attorney with the American Civil Liberties Union.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a "big steroid freak," and a "big whore," among other things, and stated that he was "too drunk to remember" the date of his birthday.

U.S. District Judge Terrence McVerry found that even though the profile was unquestionably "lewd, profane and sexually inappropriate," the school did not have the right to restrict the student's speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

"The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web," he wrote. * * *

In the Beverly Hills case, the student's lawsuit said her "speech" was entirely off campus and off-limits to the school administrators' regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school's computers, her attorney contended.

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was "designed in such a manner to reach many persons at once," making it different from earlier cases involving school newspapers or a violent drawing, he found.

However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.

"The fear that students would 'gossip' or 'pass notes' in class simply does not rise to the level of a substantial disruption," he wrote.

The plaintiff's attorney, Evan Cohen, who is also her father, said the case highlighted the school district's failure to realize the limits of its authority.

"Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it's OK for them to be a super-parent," he said.

Here are some other ILB entries on this topic.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Courts in general

Courts - "SCOTUS will rule on privacy of text messages sent on employer-owned devices"

David G. Savage of the LA Times has a story today, updating his story from Dec. 12, 2009. Here is the start of today's long story:

Washington - The Supreme Court said today it would rule for the first time on whether employees have a right to privacy when they send text messages on electronic devices supplied by their employers.

The justices agreed to hear an appeal from the police department in Ontario, Calif., that was successfully sued by Sgt. Jeff Quon and three other officers after their text messages -- some of which were sexually explicit -- were read by the police chief.

Last year, the U.S. 9th Circuit Court of Appeals broke new ground by ruling that the police officers had a "reasonable expectation of privacy" in their text messages. The officers had been led to believe by a supervisor that the devices were also for personal use, the appeals court said.

A Supreme Court ruling on the issue, due by June, could set new rules for the workplace at a time when most employees use computers, cellphones or texting devices as part of their job. The 9th Circuit's opinion was the first from a federal appeals court to hold that the Constitution protected the privacy rights of workers who were using electronic devices supplied by their employer.

The case is City of Ontario vs. Quon.

Another story today on another case: Tresa Baldas reports in The National Law Journal in a story headed "Court Finds Personal E-Mail Privileged Even if Sent From Work." The story begins:

A federal prosecutor has won his fight to conceal e-mails he sent to his attorney over the government's computers, contradicting a popular belief that employees have no expectation of privacy on work computers.

The U.S. District Court for the District of Columbia ruled on Thursday that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in those e-mails because federal prosecutors were allowed to use work e-mail for personal matters. Therefore, Tukel's messages to his private lawyer sent from work are covered by the attorney-client privilege and can remain confidential.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Courts in general

Courts - "Terrific reporting on prosecutorial declinations and prosecutor elections"

That is the heading to this entry today in the Sentencing Law & Policy Blog. After reading the lengthy stories from the Waco Texas Tribune, you likely will agree too.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Courts in general

Ind. Decisions - Transfer list for week ending December 11, 2009

Here is the Clerk's transfer list for the week ending December 11, 2009. It is two pages long.

Two transfer was granted last week, in the cases of Arturo Garcia-Torres v. State of Indiana and Andre Peoples v. State - see this Dec. 10th 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, December 14, 2009
Posted to Indiana Transfer Lists

Courts - "Judges confounded by jury's access to cyberspace" What about Indiana?

Andrea F. Sieg reported Sunday in the Baltimore Sun:

It's TMI - too much information, in the language of the Internet, cell phone texts and social media posts.

Easy juror access to cyberspace is a growing problem for courts, whether it involves the criminal trial of Baltimore's mayor, an Anne Arundel County murder trial or a Florida drug case.

Last week, a Maryland appeals court upended a first-degree murder conviction because a juror consulted Wikipedia for trial information. Earlier this year, the appeals judges erased a conviction for three counts of assault because a juror did cyberspace research and shared the findings with the rest of the jury. In a third recent trial, a juror's admission to using his laptop for off-limits information jeopardized an attempted-murder trial.

On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. The "Facebook Friends," as Dixon's lawyers call them in court documents, became a clique that the lawyers argue altered jury dynamics.

While the world of Google and Twitter indulges boundless curiosity, judges do not.

Jurors are told to reach a verdict based only on what the judge allows to be admitted at the trial, and not research or discuss the case. Everything else is out, following complicated legal rules of evidence.

But information that a decade ago was inconvenient for inquisitive jurors to learn is now at their fingertips, on their cell phones, hand-held devices and laptops. Social media didn't exist. That is leading lawyers and judges to gnash their teeth over what they believe is a growing problem of jurors Web-surfing and posting their thoughts. * * *

The issue is not peculiar to Maryland. The American Bar Association noted that in March, an eight-week federal drug trial in Florida ended in a mistrial - not because one juror tattled to the judge that another had resorted to cyberspace searches about the case. After asking all 12 jurors, the judge learned that eight others had Web-surfed, too.

Appeals elsewhere are based partly on jurors' posts on Twitter and Facebook, according to the ABA, with worries about the lack of control and breach of trust.

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted.

Most judges specifically tell jurors not to look up anything connected to the case online, going beyond the warning to stay away from the news and not discuss the case with each other until deliberations start or with anyone else until the trial ends. Courts confiscate jurors' cell phones and hand-held devices during a trial - but short of sequestering jurors, judges cannot control jurors going online or texting at other times.

Jurors doing their own investigation and talking about their cases is not new.

"The problem is accentuated by the availability of information," said Baltimore County State's Attorney Scott D. Shellenberger.

A decade ago, jurors who wanted to see the neighborhood where a crime took place had to go there; now, they can see it on Google Earth from a BlackBerry. They can check out a defendant's criminal past on Web sites, witnesses on Facebook, and what users think about a company on consumer blogs - all information that probably was excluded from evidence. Sharing thoughts about a pending case now may include jurors' social media posts that anyone can read. * * *

"More and more states are including an expanded and more specific instructions [to jurors] that they shouldn't do it and it's improper. Newer-pattern jury instructions around the country will refer to Twitter and Facebook and all of these new things that the younger generation is so familiar with," said Irma S. Raker, retired judge of the Maryland Court of Appeals, who chairs a panel updating Maryland's instructions.

"If I were a Circuit Court judge, I'd be to the point that not only can they not take anything into the jury room, but telling them that they could be held in contempt if they violate the court's order," said Warnken, who is also working with the panel.

Others fear that the threat of contempt - which can carry a fine or jail time - is too harsh.

"I do think they should tell them the consequences of their hard work could be disrupted and that there could be a mistrial or a conviction overturned, or a civil judgment overturned," said Shellenberger, the Baltimore County prosecutor.

What about Indiana? See the very end of this ILB entry from July 25, 2009, and the highlighted text near the end of this Aug. 15, 2009 entry.

An AP story by Charles Wilson, quoted in this July 31, 2009 ILB entry, reported that:

An Indiana judicial panel is investigating what can be done about the problem, just a month after the Michigan Supreme Court issued a rule sharply restricting the use of electronic devices by jurors in that state's courts.
And this ILB entry from Oct. 11, 2009 details a situation in a recent criminal trial where:
A juror in the Joaquin Starks' trial was admonished Friday morning after the court discovered he had posted "jury duty; day one complete" on his Facebook page.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Courts in general

Environment - "Indiana regulators ban IPL tree trimming on private land"

John Tuohy reports in the Indianapolis Star in a story posted late this morning that begins:

State regulators have ordered Indianapolis Power & Light to stop cutting down and trimming trees on private property.

The Indiana Utility Regulatory Commission issued a suspension of the controversial practice last Thursday while it continues an investigation of tree trimming policies across the state.

The commission found that IPL is the only utility that has a provision in its policy that permits it to trim and destroy trees in private yards when it thinks it is necessary to keep electricity flowing.

"It does not appear that such a provision is necessary for public utilities to provide electric service," the order reads. The commissioners found that the provision "to be without authority granted by statute or Commission rule."

The ILB was unable to locate the IURC order online.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Daniel Kribs v. State of Indiana , a 5-page opinion, Cheif Judge Baker writes:

Appellant-defendant Daniel Kribs appeals his conviction for Entering a Controlled Area of an Airport with a Weapon or Explosive, a class A misdemeanor, arguing that there is insufficient evidence supporting the conviction. Kribs raises two issues, one of which we find dispositive: whether the State failed to prove beyond a reasonable doubt that he knowingly or intentionally possessed a handgun. Following a bench trial that resulted in Kribs’s conviction, the trial court observed that Kribs was unaware that he had a weapon in his possession at the time of the incident in question. Given this finding, which we may not and will not second guess, we are compelled to reverse for insufficient evidence. * * *

Kribs argues that the State failed to prove beyond a reasonable doubt that he knowingly or intentionally possessed a firearm and that he entered an area of the airport to which access is controlled. * * *

Here, the undisputed evidence offered at trial established that Kribs forgot that his handgun was in the inside pocket of his jacket when he entered the security checkpoint and placed it on the X-ray machine’s conveyor belt. Kribs contends that whether he should have known that he was carrying a handgun is beside the point; the State is required to prove beyond a reasonable doubt that he actually knew that he was carrying the weapon.

Had the trial court remained silent, we would likely have affirmed Kribs’s conviction. * * *

As noted above, however, the trial court stated that it believed that Kribs “didn’t remember” that he had the handgun in his possession when he entered the airport and that there was no “malicious intent” involved. We agree with Kribs that “[m]ere forgetfulness does not satisfy the knowledge or intent requirement set out by the statute.” The trial court observed the witnesses, weighed the evidence, and concluded that Kribs was unaware he had the handgun in his possession when he entered the airport and placed it on the x-ray conveyor belt. Under these circumstances, we can only find that the State failed to prove beyond a reasonable doubt that Kribs knowingly or intentionally possessed a handgun at the time of the events in question.

In Mario Martinez v. State of Indiana, an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant Mario Martinez appeals his convictions for Child Molesting, a class A felony, and two counts of Child Molesting, a class C felony. Martinez argues that the trial court should have granted his motion to correct error and ordered a new trial after W.M., the twelve-year-old victim, recanted her allegations after trial. Finding that the trial court did not err by determining that the recantation was not worthy of credit, we affirm. * * *

We find that it was reasonable for the trial court to infer that W.M. observed and internalized her parents’ worries.

Under these circumstances, we cannot say that the trial court abused its discretion by finding that W.M.’s recantation was not worthy of credit. See State v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999) (holding that “[i]t is not within an appellate court’s province to replace the trial court’s assessment of credibility with its own”). Inasmuch as it is Martinez’s burden to establish all nine elements of the aforementioned test and he has failed to carry that burden, the trial court did not err by denying his motion for a new trial based on this evidence.

NFP civil opinions today (1):

Gerald and Sandra Ayers, et al. v. Brown Co. Board of Commissioners, et al. (NFP) - "The trial court's orders dated October 15, 2007, and September 26, 2008, did not fully adjudicate all of the issues raised in the residents' complaint and amended complaint. The trial court also did not expressly direct entry of final judgment. As a result, the trial court abused its discretion when it denied the residents' motion for relief from judgment. Therefore, we reverse the trial court's decision and remand this case for further proceedings. Reversed and remanded."

NFP criminal opinions today (6):

State of Indiana v. Ronne S. Zentz (NFP) - "Appellant-plaintiff State of Indiana appeals the trial court’s order excluding from evidence statements made by appellee-defendant Ronnie S. Zentz’s (Zentz) wife to an Emergency Medical Technician (EMT). The State argues that the trial court erred by finding that Twila Zentz’s (Twila) statements constituted inadmissible hearsay and that the admission of those statements would have violated Zentz’s right of confrontation. Finding no error, we affirm."

Jeffery A. Joos v. State of Indiana (NFP)

Jason Eads v. State of Indiana (NFP)

A.M. v. State of Indiana (NFP)

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

Ketih Cortez Jenkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Indiana Chrysler bankruptcy challenge cert petition being reviewed today

Friday the ILB posted this entry, reporting that "the petition in case of Indiana State Police Pension Trust v. Chrysler, LLC is one of those up for consideration at the Justices’ private conference today."

The AP is now reporting, in a story filed at 10:10 AM, that "The Supreme Court has declined to take another look at Chrysler's bankruptcy."

And from the WSJ
: "-The U.S. Supreme Court on Monday ordered the dismissal of an appeal by a group of Indiana pension funds challenging how Chrysler LLC repaid its debts when the company was sold to Fiat SpA (FIATY) last summer."

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Decisions

Ind. Law - "A brief survey of the new amendments to the Indiana Child Support Rules & Guidelines"

Michael R. Kohlhaas and James A. Reed of Bingham McHale LLP have written this excellent survey article for this month's issue of Res Gestae, which the ILB has received permission to post. Read it here.

Access a draft version of the ISBA Family & Juvenile Law Section's new publication, Indiana's Parenting Time and Child Support Guidelines, current as of January 1, 2010, here.

The official Order, setting out the red-lined version of the revised Rule, is available on the Indiana Court website.

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Law

Ind. Courts - "Clark County judge Dan Moore offers new approach"

A long story yesterday by Dan Moss of the Louisville Courier Journal began:

As a judicial candidate, Dan Moore was asked how he would solve the drug problem.

Moore handed the question right back. Put me on the bench and I will expect you on the team, Moore responded in so many words. We are all in this together.

Moore cannot sit every Clark County resident on every jury, of course. But he can — and does — make a point to hang out with those who last fall elected him judge of circuit court. Moore still campaigns, one might suggest, clearly still figures it's only fair to challenge others as he challenges himself.

He is on a circuit, all right — at schools, in churches. And don't worry about always calling Moore judge, or your honor, when he is out and about.

“I could never be stodgy,” Moore said. “I just can't do it.”

Moore has made the most news, so far, by his sentence of Yalanda Parrish to 10 years in prison in a road-rage shooting. Some called the term too harsh, others too lenient.

Inside the courthouse, Moore stirs things up by helping peruse new ways for the courts to function.

Must there be six probation departments? Can't cases be transferred easily, efforts consolidated? Why spend probation fees on anything but probation and court services? Shouldn't magistrates be afforded job descriptions, and more respect? Can't lawyers more readily volunteer their services?

In addition, this Dec. 12th ILB entry also mentioned Judge Moore: "Supreme Court issues writ re Clark Circuit Judge Daniel E. Moore ."

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Courts

Courts - Federal judges in the news [Updated]

Two stories today on federal judges:

"Federal Judges Push Back Against Recusal Proposals: Congress considers revising rules on judge disqualifications" is the headline to this story by David Ingram of The National Law Journal. It begins:

The federal judiciary is pushing back against members of the U.S. House who are considering revisions to the recusal process for judges.

Lawmakers aired their grievances with the current system at a hearing Thursday, listing at least four instances in which they said judges may have acted improperly. They're exploring moving toward a new recusal process in which a judge who is targeted for disqualification would not be the one to rule on the motion.

One idea that piqued lawmakers' interest is a system of automatic recusal, in which each side of a case would get one opportunity to disqualify a judge for any reason, usually at the start of litigation. Various forms of the system are in use in 19 states, according to a 2008 study by the American Bar Association.

Circuit Judge M. Margaret McKeown, chair of the U.S. Judicial Conference's ethics committee, testified at the hearing that such a system would meet stiff opposition from federal judges.

"It poses some very real issues in case management, particularly in small districts," McKeown said. She noted, for example, that the Southern District of Georgia -- near the home of the hearing's chairman, Rep. Hank Johnson, D-Ga. -- has only three authorized judgeships and lots of territory to cover. "The federal districts are often very large," she said.

Meanwhile, the Houston Chronicle had this leenthy story yesterday, reported by Lise Olsen, headed "Judging the judges: Does secret process let errant jurists get away with breaking the law?", that begins:
One federal judge got arrested for driving drunk while dressed in drag. Others stood accused of frequenting prostitutes, a strip club and a shady escort service; sexually assaulting female court employees; sucker-punching a stranger; or slapping a spouse.

Federal judges have made illegal campaign contributions, falsified court records, and illegally concealed cash gifts and gambling debts. Many more have engaged in unethical or irresponsible acts, according to an investigation by the Houston Chronicle of more than 3,000 judicial misconduct matters nationwide and analysis of related records over 10 years.

Most get away with it. Only seven judges in the last decade have faced formal disciplinary action as a result of the nation's secretive misconduct review process. In that same period, citizens filed more than 6,000 formal misconduct complaints, the Chronicle found.

One judge was punished anonymously — shielded from shame by the same peers who voted for discipline.

Just two judges who admitted to breaking laws were recommended for the maximum punishment: impeachment and removal from office.

Most disciplinary reviews remain forever shrouded in secrecy to protect federal judges' privacy and ensure their reputations remain unsullied by scurrilous or absurd allegations from prisoners or disgruntled litigants.

“The federal judiciary takes its ethical responsibilities with the utmost seriousness,” said Chief Judge Anthony Scirica, a spokesman for the Judicial Conference of the United States in a statement to the Chronicle. “Every misconduct complaint is carefully reviewed and results in a public written order by a judge. Years of experience has shown that the overwhelming majority of misconduct complaints are from (unhappy) litigants. … Yet, when circumstances warrant, Circuit Judicial Councils have not been hesitant to impose a variety of public and private sanctions, as history has demonstrated.”

Other experts argue that disciplinary probes of high-profile or even criminal allegations should be more open for the sake of the public and the judges.

“Any type of misconduct impacts upon the integrity of judges and erodes public confidence in the federal judiciary,” said U.S. Rep. James Sensenbrenner, R-Wis., who has fought for years to improve judicial accountability.

Appointed for life. The nation's 1,700 full-time federal judges constitute a caste of elite jurists hand-picked for the difficult and sometimes dangerous job of enforcing our nation's laws and protecting our rights.

Appointed for life by U.S. presidents, district and circuit judges can be removed only by acts of Congress. Bankruptcy and magistrate judges serve limited terms but enjoy formidable power over life, liberty and the assets of others.

Yet, when it comes to misconduct reviews, federal judges privately judge themselves. At the pinnacle of the power structure stand chief circuit judges — a dozen men and women who quietly dismiss about 98 percent of the 700 complaints that arrive annually at regional U.S. courthouses scattered from San Francisco to New Orleans to Washington, D.C., the Chronicle found.

[Updated] Ashby Jones of the WSJ Law Blog has posted this entry early this afternoon, headed "Judges Judging Judges: Is the Process Too Secretive?."

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Courts in general

Ind. Courts - "Courthouse restaurant opens new options in Hammond"

Sue Ellen Ross reports today in the Gary Post-Tribune:

Employees and visitors to the U.S. District Courthouse in Hammond again have a place to eat breakfast and lunch. The Jury Box restaurant opened inside the building early last month.

"We had been without a food service vendor since March 2008," said Rich Falzone, lead property manager for the courthouse. "The Jury Box is a nice amenity for the employees, as well as visitors."

Hammond residents Jim Latsoudis and Carrie Hutton are the owners of the new establishment, which is run as part of Atlas Catering Service.

The owners hold a licensing agreement with the federal government, allowing them to use the kitchen facilities for catering. * * *

Before the restaurant opened, the new owners underwent security screenings.

"We were fingerprinted and questioned, via a questionnaire, by (the U.S. Department of) Homeland Security," Latsoudis said. "They must check the background of every employee, including us, in order to maintain the level of security necessary for a federal courthouse.'

Although most customers work inside the federal building, the new owners say the public also is welcome for breakfast or lunch.

"The common misconception is that only federal employees can enter the courthouse," Latsoudis said. "That is not true. Anyone can come in."

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Courts

About this Blog - Please sign on as annual ILB supporter

Don't know how you kept up before the Indiana Law Blog?

Are you an Indiana Law Blog addict?

Does someone in your firm print-out important ILB entries (including this one) for you to read?

Do you wonder how / why someone would do all this every day, but are you thankful nevertheless?

Then please sign on as annual ILB supporter -- pay quarterly, the next quarter starts January 1st.

In either case, if you sign up now, you'll also appear for the rest of this month.

Please ...

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to About the Indiana Law Blog

Law - "A J.D. used to mean a first-class seat on the gravy train. Now? Not so much. Critics say law schools have a duty to warn" [Updated]

"Going to law school? Proceed with caution" is the headline to this story today by Karen Sloan of The National Law journal. A quote from the long story:

On the Internet and in academic circles, debate is flaring over the value of a juris doctor, and whether the degree is a wise investment for many of the thousands who flock to law schools each year. Law schools have always had detractors, but the rising cost of legal education and the dearth of jobs available to new graduates is prompting more people to urge prospective law students to think twice before they write their first tuition check.

This message of caution doesn't appear to have hit home just yet. Applications to law schools accredited by the American Bar Association (ABA) increased by 5% for this year's incoming class, according to the Law School Admissions Council (LSAC), and the number of people taking the Law School Admission Test (LSAT) this October shot up by nearly 20%, meaning admissions officials are in for a busy year. Still, the recent growth in people applying to law schools falls short of the 17% surge during the last recession in 2002.

Those would-be lawyers should take a hard look at the benefits and drawbacks of spending three years and upward of $100,000 to get a law degree, the law school skeptics warn. Law schools should provide better statistics on student debt, career prospects and earning potential, according recent graduates and law school faculty. Potential applicants, they say, should not be blinded by the promise of $160,000 starting salaries — which only 23% of the class of 2008 secured, according to the National Association for Law Placement (NALP).

Even a committee of the American Bar Association has concluded that law school applicants need a dose of reality.

"Far too many law students expect that earning a law degree will solve their financial problems for life," reads a recent message posted on the ABA's Web site from the organization's Commission on the Impact of the Economic Crisis on the Profession and Legal Needs. "In reality, however, attending law school can become a financial burden for law students who fail to consider carefully the financial implications of their decision."

The story also links to, and discusses, this YouTube video: "A Law School Carol, which was produced by a 2009 graduate of a second-tier law school who has not been able to find a legal job and now is looking for work in other fields."

[Updated] The WSJ Law Blog has posted this entry about The National Law Journal story, including:
Much of the problem, in the opinion of Indiana’s Bill Henderson, lies with law schools themselves, which often fail to provide incoming students with accurate information about job prospects of recent graduates.

“The realities haven’t trickled down to the students,” Henderson said. “They all believe they are going to be in the top 10% of their class, and they have this vision of the profession that doesn’t exist. And law schools don’t try to dispel those myths to potential applicants.”

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to General Law Related

Ind. Courts - More on "Casino takes card-counting case to Indiana Supreme Court"

A petition to transfer has been filed re the Oct. 30, 2009 Court of Appeals opinion in the case of Thomas P. Donovan v. Grand Victoria Casinio & Resort, L.P.. Here is the Clerk's Docket since the Oct. 30th opinion:

MS 11/30/09
SERVICE (9) MAIL 11/30/09 MS 11/30/09
SERVICE (2) MAIL 11/30/09. MC 11/30/09
MS 12/01/09
12/07/09 ****** ABOVE ENTRY MAILED ******
MAIL 11/30/09 KM

Nothing has been recorded in December. And the Supreme Court has not yet acted on the transfer petition.

Over the weekend, a number of regional papers published an unattributed AP story headed, in the Lafayette Journal Courier version, "Casinos want state high court to ban card counters." The original story seems to be this Dec. 7th version by Vic Ryckaert of the Indianapolis Star (still available) that begins:

Counting cards in blackjack is so easy, Thomas Donovan says, that a seventh-grader could do it.

But using the legal technique to try to tilt the odds in the favor of gamblers is unfair, the gaming industry says. Indiana casinos call the practice, dramatized in movies such as "Rain Man" and "21," bad for business, and they want the right to bar card counters from their tables.

Grand Victoria Casino and Resort in Rising Sun, supported by the association that represents 11 of the state's 12 casinos, last week asked the Indiana Supreme Court to overturn a lower court ruling that forces them to allow Donovan to play blackjack, even though the Indianapolis man admits he is counting cards.

For more see this Dec. 7, 2009 ILB entry that quotes the side-bar, "How it's done."

A website called Online Casino Advisory has this story dated December 12, 2009, by A.J.Maldonado. The headline: "Indiana Ruling for Card Counting Causes Casinos to Pout."

Although card-counting in blackjack is not illegal in the US, most casino operators spend significant time and money identifying potential counters and refusing them the privilege of gambling. However, a decision by an Indiana court that a casino can't expel a customer for counting cards has an industry used to having everything its way in an uproar.

Land-based casinos watch blackjack tables carefully, looking for any hints that players are actually using their brains to gamble. Any sign of trying to win, within the rules, other than hoping that luck defeats the house edge, can result in a quick expulsion.

But an appeals court overturned Marion Superior Court Judge Robyn Moberly's ruling that the Grand Victoria Casino in Rising Sun, Indiana, could bar Thomas Donovan, after employees observed him counting cards. The Indiana Court of Appeals said there is no law against card-counting.

Now, gaming experts are saying Indiana will lose revenue if the decision is not reversed by the state Supreme Court. Such noted gambling insiders as William Eadington of the University of Nevada-Reno say that, without the ability to deny counters, Indiana casinos will have to alter blackjack rules, making the game less attractive and likely to drive patrons out of state.

What the casinos are saying is that, if patrons are given even the slimmest, most difficult chance to balance the odds slightly in their favor, gambling rules must be shifted to make sure that there is no real hope of winning. Is that a position gambling companies want to publicize?

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Courts

Ind. Courts - "Translators speak for many in courtroom"

From the story today by Lydia X. McCoy of the Evansville Courier & Press:

Circuit Court Judge Carl Heldt has served on the bench for almost 12 years and remembers the days before the court had translators.

"We had to strike out on our own, like call the university or somewhere. It was unheard of until the last four or five years," he said. "We're seeing more non-English-speaking people in the courts; the natural progression was to have translators."

Heldt said in addition to the translators, the courts also have a service called Language Line Services. The court is able to dial into the service and translate almost any language via speakerphone.

The service can translate for more than 170 languages.

Heldt said the courts used the service once in the courtroom for someone who spoke Arabic. But he said there's nothing like having an actual translator in the courtroom. It's "indispensable," he said.

It's a defendant's right to know what is going on in the courtroom, Heldt said.

"You have to be able to understand each other. It doesn't make the case go any faster, but we could not progress without a translator. That communication, we can't do without it."

Posted by Marcia Oddi on Monday, December 14, 2009
Posted to Indiana Courts

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

Here is the answer to "What did you miss over the weekend from the ILB?"

From Sunday, Dec. 13, 2009:

From Saturday, Dec. 12, 2009: From late Friday, Dec. 11, 2009:

Posted by Marcia Oddi on Monday, December 14, 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 12/14/09):

Thursday, December 17th

Next week's oral arguments before the Supreme Court (week of 12/21/09):

Next Tuesday, December 22nd

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

This week's oral arguments before the Court of Appeals (week of 12/14/09):

Next week's oral arguments before the Court of Appeals (week of 12/21/09):

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.

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, December 14, 2009
Posted to Upcoming Oral Arguments

Sunday, December 13, 2009

Law - "Chicago-based firm under fire: Critics say it acts as referral service, a violation of ethics rules; company says its approach similar to Google's"

Ameet Sachdev of the Chicago Tribune has this report from Dec. 12th. Here are a few quotes:

A Chicago legal marketing firm that has borrowed Google's pay-per-click advertising model finds itself in an ethical quagmire.

Attorney disciplinary authorities in several states are investigating whether Total Attorneys Inc. is an advertising agency or an unauthorized, for-profit referral service. In Connecticut, the state's chief disciplinary officer has found that lawyers who find clients from the company's consumer-oriented Web sites, such as TotalBankruptcy.com, may be violating ethics rules.

The controversy highlights some of the ambiguity surrounding new marketing opportunities in the legal industry made possible by Internet technology. Advertising guidelines for lawyers were developed when the Yellow Pages first started publishing and did not envision blogs, podcasts, Google and Facebook.

But digital marketing now is butting up against age-old ethical rules that prohibit paid referrals from individuals who are not lawyers. Referral policies were put in place to prevent such abuses as third parties who help generate lawsuits for private gain -- perhaps a doctor in an emergency room telling a lawyer about a potential personal injury case. * * *

TotalBankruptcy.com attracts consumers by offering 1,400 pages of content on the legal process of bankruptcy. Then, when consumers visit the site and fill out a request for free legal information, their request is handled by Total Attorneys' call center, which calls the consumer, then forwards the information to the attorney in their area that has the exclusive right to all inquiries from that ZIP code.

The participating attorney pays the company $65 for each contact the Web site generates, regardless of whether the contact becomes a client.

The company has more than 500 attorneys nationwide, primarily solo practitioners or those who work for small firms, who subscribe to TotalBankruptcy.com and ClearBankruptcy.com. Paul Bach, a bankruptcy attorney in Northbrook, said he spends $2,500 a month with Total Attorneys for marketing and other services.

"I've tried all kinds of things, and I would say it's one of the better marketing tools," Bach said. "The way they get you on the phone with a potential client is fantastic. A lot of times you get referrals that never follow up." * * *

The Attorney Registration & Disciplinary Commission, an arm of the Illinois Supreme Court, told Total Attorneys that it has closed its ethics investigation without taking any action, according to a commission letter that the company provided the Tribune. The state commission declined to comment on the investigation because proceedings are confidential. Three other states also have decided not to take any action on Zelotes' complaints, the company said.

The ethics probes still have inflicted damage on the company, even though no state authorities have found any rules violations, [Keven Chern, president of Total Attorneys]said. The company is spending more than $100,000 a month in legal fees to defend itself and the attorneys who face ethics complaints, he said.

And the company is hardly out of the woods. A Connecticut grievance panel looking into allegations of advertising violations has found probable cause against nine attorneys in the state who used Total Attorneys to market their services, said Mark Dubois, the state's chief disciplinary counsel.

Dubois' investigation found that Total Attorneys used terms like "pay per lead" in its marketing brochures used to solicit lawyers, he said.

Chern said what distinguishes his company's Web sites from a referral service is that they do not try to match lawyers to clients or make recommendations.

Dubois said in court papers that TotalBankrupcty.com purports to evaluate its potential clients' needs by asking for information about their bills, whether they have any assets and their level of monthly income.

"This evaluation implies that Total Bankruptcy is considering these factors in determining which local attorney is right for the client," Dubois wrote.

But if Total Attorneys is doing something unethical, then attorneys who use Google to advertise are doing something unethical too, said Andrew Perlman, a professor at Suffolk University Law School in Boston, an expert on the standards for lawyer advertising.

"If there is ambiguity about whether this is a recommendation, the ultimate question is whether consumers are being harmed," Perlman said. "There is no basis to conclude that the company is doing anything that's counter to public interest."

"Illinois drops ethics probe of Total Attorneys" is the headline to this story dated two days earlier, Dec. 10th, in Crain's Chicago Business, reported by Paul Merrion:
(Crain’s) — Illinois legal regulators closed an investigation of ethics charges against Chicago-based Total Attorneys, a legal outsourcing and marketing firm.

Connecticut bankruptcy attorney Zenas Zalotes filed a complaint last spring against the company, alleging that attorneys using the firm’s Internet marketing services are paying referral fees in violation of state ethics rules.

The Attorney Registration and Disciplinary Commission of the Illinois Supreme Court notified Total Attorneys in a letter Wednesday that the case was closed, although it could be reopened “if circumstances warrant.”

The letter noted that Kevin Chern, president of Total Attorneys, had changed the disclaimers on the firm’s Web site in regard to bankruptcy and other areas.

Connecticut’s disciplinary regulator is still pursuing related complaints against five attorneys in that state.

According to Law.com, a legal industry blog, Illinois is the fourth state to exonerate Total Attorneys. The blog quoted company officials as saying the Illinois decision was particularly significant because Mr. Chern is licensed to practice in Illinois and the company’s headquarters are in Chicago.

“The ARDC’s failure to act has absolutely no preclusive effect on sister states or the federal courts, does not confer formal state approval of the challenged conduct at issue and, perhaps of greater practical import, is entirely inconsequential as relates to related transgressions arising under comparable state and federal statutes,” Mr. Zalotes said in a statement. “Quite frankly, I think this case has outstanding class action potential averring violations of the U.S. Bankruptcy Code and various state unfair trade practices acts, and I believe federal judges, when asked to decide such cases, would be far less sympathetic.”

Mr. Chern said in a statement: “We fully expect that the Constitutional limitations on the restriction of commercial free speech would dictate a decision in our favor in any venue a potential claim was pursued.”

The firm’s Web site was changed to clarify that “participating attorneys pay a fee to participate exclusively in a particular geographic area,” he added. “We had previously stated that we are not a referral service, a hallmark of which is the screening and qualifying of attorneys, but we added a specific statement about the fact that we do not screen attorneys.”

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to General Law Related

Ind. Law - "Debt collectors' 'bully' tactics drawing scorn"

A story today in the Evansville Courier & Press by Mark Wilson:

Using records obtained under the federal Freedom of Information Act and from extensive interviews, a three-month Scripps Howard study found:

> The volume of debt-collection complaints has risen during the recession, dominated by charges that collectors misrepresent debts, contact people repeatedly and fail to send written notice — practices forbidden by federal law.

> The booming debt-collection industry is feasting on rising consumer credit default rates and is seeking easier ways to contact people on cell phones.

> Collection companies face scant threats if they're caught breaking the law, consumer advocates said.

> The rise in complaints comes as Americans say they're being contacted more frequently by debt collectors, according to a poll by Scripps Howard/Ohio University. The poll found that 30 percent of respondents said they or their family had been contacted before 8 a.m. or after 9 p.m. — times that are prohibited by law. * * *

If the allegations of abusive collection tactics are true, that would violate the 1977 Fair Debt Collection Practices Act, which prohibits deceptive and harassing behaviors. The law allows consumers to request verification of the debt alleged, and it requires the collection company to stop making contact if asked by the consumer.

"They know what buttons to push on people to get them to pay, even when they don't think they're going to pay," said Ira Rheingold, executive director of the National Association of Consumer Advocates, a Washington-based advocacy group. "The rationale at this point is: 'Do I need to comply with the law or do I need to do whatever I can to collect money?'"

Bozikis said the Tri-State Better Business Bureau goes through the federal act with callers, instructing them on what collectors can and cannot do according to the law. However, he must refer them to the Federal Trade Commission if they wish to lodge an official complaint with someone about the collector.

That is about all other organizations and agencies can do, too.

"Mostly what we do is inform them of their rights," said Katherine Ryback, a local staff attorney with Indiana Legal Services Inc.

The Indiana Attorney General's Office often fields complaints, too. For 2009, the state received 540 complaints against "collection agencies" through the first week of November, said Molly Butters, a spokeswoman on consumer issues for the attorney general's office.

"The vast majority of these complaints go to our mediation group who will attempt to resolve the dispute between the consumer and the collection agency," Butters said. "Depending on the content of letters/communications or possibly issues with the statute of limitation, a smaller number of complaints are flagged for possible litigation and are investigated."

The goal of mediation is to resolve the consumer complaints short of enforcement actions. * * *

Meanwhile, the industry wants easier access to the public, and it wants Congress to legalize automated calls to cell phones. Currently, collectors must call cell phones by hand, according to an ACA official. Michael Barrist, the chief executive of the world's largest debt-collection company, Horsham, Pa.-based NCO Group, told Scripps Howard that increased access to consumers' cell phones would be an "industry changer."

A second story today in the C&P is headed "Know your rights when it comes to debt collection."

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to Indiana Law

Ind. Law - Legislation proposed to remedy Indiana's 2009 golf cart legislation

The brief list of bills introduced so far in the Indiana General Assembly includes SB 2, which would remedy faults found in the legislation passed in 2009, particular the "corrections" inserted in the special session amendment.

Background to the new bill
can be found in this ILB entry from August 9, 2009, headed "New golf cart laws may need corrective amendments," and this one from August 5th, headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits." Pay particular attention to the latter part of the Aug. 5th entry, re what has turned out to be one of the "special session surprises" the ILB has written about a number of times since.

SB 2 is authored by Senator Travis Holdman (R, Markle), who has also introduced SB 18, re texting while driving.

Here is a list of all ILB golf cart entries.

In North Carolina:
"In many N.C. towns, the trendy driver uses a golf cart" is a headline from the Charlotte NC Observer. A quote from the story itself, which looks at more practical matters:

An S.C. law allows golf carts on neighborhood streets, but not main roads. The carts are required to be registered with the S.C. Department of Motor Vehicles.

Until earlier this year, N.C. towns needed General Assembly permission to allow golf carts.

But that changed because so many towns requested such authority, said Andy Romanet, general counsel with the N.C. League of Municipalities.

The state law permits towns to allow golf carts on neighborhood streets where the speed limit is less than 35 mph. Towns also can set equipment standards and registration fees.

As gas prices inch toward $3 a gallon, more people see their carts as useful for quick trips.

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to General Law Related

Ind. Gov't. - "State will pilot new welfare application system in Evansville area" [Updated]

Supplementing a long story today by Eric Bradner of the Evansville Courier & Press, featuring Anne Murphy of the FSSA (ILB entry here), Bradner has a second story - some quotes:

Southwestern Indiana is where the state’s human services agency plans to launch a new system for determining who is eligible for benefits such as Medicaid and food stamps.

In October, Gov. Mitch Daniels’ administration fired IBM Corp., the lead contractor on a 10-year, $1.34 billion deal, and announced that it would abandon the much-criticized modernization effort and start its efforts to upgrade the way welfare applications are processed anew.

The new welfare eligibility system, which is set to be launched in January, will be the Indiana Family and Social Services Administration’s latest attempt to do just that.

The “hybrid system” incorporates the face-to-face interaction of old paper-based ways and the technological advances of the modernized version in hopes of reducing the amount of time it takes to make eligibility determinations and minimizing the number of errors.

It will be piloted in a 10-county area that includes Vanderburgh, Warrick, Gibson, Posey, Daviess, Dubois, Knox, Perry, Pike and Spencer counties. * * *

The key difference between the scrapped modernization effort and the new hybrid system is how applicants’ cases are managed.

Under the system being piloted in Southwestern Indiana, 20 workers will be transferred from state service centers into county offices, and those who seek benefits will do so by working through those staffing their county offices.

Those county offices will have “teams” so that one person will process applications and a different person will make eligibility determinations – a step FSSA spokesman Marcus Barlow said reduces fraud.

Those who wish to complete forms online or fax or mail documents will still be able to do so, and over-the-phone assistance will be available as well.

But rather than requiring callers to go through a statewide call center where staffers often couldn’t provide much help, those who need assistance will be able to call FSSA and be automatically transferred to their local offices for help.

Meanwhile, in hopes of catching problems early, the hybrid system will formalize an arrangement that has loosely existed for months already by bringing social service advocates and health care providers together for regular meetings to discuss concerns that arise.

The agency’s management structure will also be overhauled to give regional managers more day-to-day control.

Though the IBM contract was cancelled, other private deals remain. However, Murphy said that by firing IBM, the state of Indiana was essentially substituted in as the project manager moving forward.

Under the hybrid plan, private contracts are being renegotiated and are generally for a shorter time period than they were before.

Social services advocates who have been briefed on the hybrid plan said they are pleased with its overall structure. * * *

Right now, 59 of Indiana’s 92 counties are on the modernized system while the remaining 33 are still using the old, paper-based version.

Counties that are not part of the pilot will remain on the system they are currently on until further changes are announced.

[Updated 12/14/09] Will Higgins and Robert Annis of the Indianapolis Star has this story today, headed "Overhaul of state welfare will debut next month: As a test of performance, new system will start in 10 southern counties."

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to Indiana Government

Law - NY Times story today on surogacy focuses in part on the Melinger twins

Stephanie Saul of the NY Times has a lengthy story today headlined "21st-Century Babies: Building a Baby, With Few Ground Rules," about "the field known as third-party reproduction, in which more than two people collaborate to have a baby." Some quotes:

Surrogacy is largely without regulation, with no authority deciding who may obtain babies through surrogacy or who may serve as a surrogate, according to interviews and court records.

Instead, surrogacy is controlled mainly by fertility doctors, who determine which arrangements are carried out and also earn money by performing the procedures. And while some agencies that coordinate surrogacies and some clinics that carry them out strictly adhere to guidelines, others do not, the interviews and records show.

The lax atmosphere means that it is now essentially possible to order up a baby, creating an emerging commercial market for surrogate babies that raises vexing ethical questions.

In some cases, parents must go through adoption proceedings to gain legal custody of the children. But even in those situations, the normal adoption review process is upended. In surrogacy, prospective parents with no genetic link often create their own baby first, then ask for legal approval, potentially leaving judges with little alternative. Some states allow prebirth orders that place the parents’ names on the birth certificates without any screening.

When disputes arise after the babies are born, the outcome can vary from state to state. In California, considered a friendly state for surrogacy, courts have upheld the validity of surrogacy contracts, meaning that the people who hire surrogates are very likely to keep the babies if a dispute arises.

But a statute in Michigan, where Ethan and Bridget were born, holds that surrogacy is contrary to public policy and that surrogacy agreements are unenforceable, giving the woman who gives birth a strong case if she decides to keep the babies.

A handful of other states have similar laws, according to an analysis by the Center for American Progress, a liberal research group.

About 10 states have laws that allow for surrogacy but impose restrictions; several of those states require at least one parent to have a genetic relationship to the baby. But the majority of states are silent on surrogacy, according to the analysis. Legal uncertainty in some states means that babies are sometimes left in limbo, their parentage left up to courts. * * *

Four-year-old twin girls in Union City, N.J., have lived under such uncertainty. Their short lives have included two tours in the foster care system.

New Jersey child welfare officials alleged earlier this year that the girls were neglected by Stephen Melinger, 62, who arranged their birth almost five years ago. In July, a New Jersey judge exonerated Mr. Melinger of those accusations. But the Supreme Court in Indiana, where the girls were born, recently ruled that his adoption of the twins was improperly executed and must be redone.

The Times links to the Dec. 21, 2007 Court of Appeals decision, however, rather than to the April 8, 2009 Supreme Court opinion, reaffirmed on Sept. 29, 2009. For these opinions, and a long list of other relevant ILB entries, see this ILB list.

More from the Times story, as it relates to the Melinger twins:

It was a pet — a pet bird — that transformed the birth of the Melinger twins from a private transaction into a public controversy.

Employees at Methodist Hospital in Indianapolis became alarmed when the man who had commissioned their creation, Stephen Melinger, took his pet bird to the neonatal intensive care unit where they were hospitalized. It was among several things that raised concerns about Mr. Melinger’s ability to care for the two girls, according to court documents.

When Mr. Melinger, a single man who taught elementary school in Union City, decided he wanted a child, he enlisted the help of an agency called Surrogate Mothers in Monrovia, Ind.

The American College of Obstetricians and Gynecologists has adopted a set of guidelines for surrogacy arrangements. Among its recommendations are that surrogacy be handled by nonprofit agencies. Currently it is largely for-profit and can be very lucrative.

Between brokers, legal and medical expenses and surrogate fees, a successful surrogacy can cost prospective parents $80,000 to $120,000. About an estimated 100 agencies advertise themselves as surrogacy brokers.

“People can get into this business easily,” said Charles P. Kindregan Jr., a professor at Suffolk University Law School who was co-chairman of the American Bar Association committee that drafted the model legislation.

Surrogate Mothers, one of the older agencies, advertises on its Web site that it can arrange surrogacies for under $50,000.

On April 8, 2005, the twins intended for Mr. Melinger were born in Indianapolis to a surrogate mother from South Carolina. The girls were 9 weeks premature and weighed only 3 pounds each.

Steve Litz, a lawyer who runs Surrogate Mothers, filed a petition on behalf of Mr. Melinger seeking to adopt the twins, identified in court papers as the “infants H.” According to court documents, the petition identified Mr. Melinger as an Indiana resident, born in Indiana and employed as a teacher.

The woman who carried the children was giving up her rights to them. She had listed Mr. Melinger as “father” on the birth certificate.

The private adoption was on track to be granted, almost as a perfunctory matter. But hospital employees became concerned by Mr. Melinger’s eccentric behavior.

On one day, he arrived at the intensive care unit carrying his pet bird, which posed a risk of infection. Mr. Melinger testified that his bird was not near the babies because he had stayed in the office area. Yet on a separate visit, hospital workers said he had gone into the intensive care unit with bird feces on his clothing.

The hospital staff was also worried about what they considered Mr. Melinger’s unrealistic plan for taking the babies home. He hoped to make the 12-hour drive from Indianapolis to Union City in his car, alone, with the two premature infants strapped in car seats.

Hospital workers asked Indiana’s child welfare agency to investigate.

After learning of the investigation and the possibilities that there would be difficulties in getting Mr. Melinger’s adoption approved, Mr. Litz filed another motion on his client’s behalf, calling the children “hard to place” because their mother was African-American, he said, making the girls biracial.

It is easier for out-of-state residents, like Mr. Melinger, to adopt “hard to place” children. But it was not true that the girls were biracial. The surrogate mother was African-American, but the babies she had carried grew from eggs from a white donor. The twins were white.

It was merely one of the assertions in papers filed on Mr. Melinger’s behalf by Mr. Litz that turned out to be false, according to the Indiana Supreme Court.

“An earlier representation that Mr. Melinger was a sperm donor likewise turned out not to be true,” the court said, so the children were not his biological offspring.

In addition, Mr. Melinger was not born in Indiana, but New York. The Indiana residence he claimed was a hotel room.

A lower court had criticized the submissions for “lack of candor.”

In an e-mail message, Mr. Litz denied that he had misled the courts. “I have never knowingly made a misrepresentation to a judge in my life,” he said. Mr. Melinger declined to be interviewed.

As the case moved forward amid a swirl of Indiana news reports, the girls were placed in foster care. Mr. Melinger continued his fight to adopt the girls, finally prevailing in 2006. Mr. Melinger returned to New Jersey with the girls, but the Indiana Department of Child Services appealed the adoption to the Indiana Supreme Court.

The appeal was still pending in January when the girls had another encounter with the child welfare system, according to records disclosed by Mr. Melinger’s lawyer, Anthony Carbone of Jersey City.

It began as a simple family outing to a park in January.

A woman who saw Mr. Melinger with his children complained to the police that the girls were dirty and inappropriately dressed for cold weather, the records show.

One was wearing a pink coat, a skirt, ankle socks and black shoes. The other was wearing pajamas, a yellow coat and sneakers with no socks. Mr. Melinger later said that it had been a particularly warm winter day and that he had taken extra clothes for the girls.

The complaint prompted a review by the New Jersey Department of Youth and Family Services, which sent a worker the next day to Mr. Melinger’s apartment in Union City.

When a caseworker arrived “she noticed a strong smell of urine in the apartment,” according to a court document. Mr. Melinger later said that the girls were not completely toilet trained and had accidents, and that he tried to clean up after them as best he could.

The home was “particularly dirty,” the caseworker said, with inadequate clean clothes for the twins. Department workers also said the children’s pediatrician, Dr. Pearl Cenon, had concerns about their care and had considered contacting the agency. The girls were removed from Mr. Melinger’s custody.

But in a hearing last summer, a parade of witnesses came to Mr. Melinger’s defense. They included Dr. Cenon, who denied being concerned about the girls and testified that Mr. Melinger was an excellent father.

In July, Judge Bernadette N. DeCastro of New Jersey Superior Court ruled that the Department of Youth and Family Services had failed to prove its claim against Mr. Melinger. The girls had already been returned to his custody in April.

Meanwhile, the Indiana Supreme Court had also ruled.

In a decision issued in April and reaffirmed in October, the court said the adoption of the 4-year-old twins must be repeated. Among missing elements in the original adoption, the Supreme Court said, was a letter from New Jersey authorities stating that the placement was in the twins’ best interest.

The Indiana court said that as the case continued, the girls would be allowed to remain with Mr. Melinger. Frances Watson, a professor at the Indiana University School of Law in Indianapolis who briefly served as the appointed legal representative of the children, said the case provided a stark example of what the state’s adoption laws attempted to prevent.

“You should not be able to come from out of state on some contract and order up some babies and then go about your business,” Ms. Watson said.

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to General Law Related

Ind. Gov't. - "Steering a new course: FSSA leader garnering praise for tough first year"

A long story today by Eric Bradner of the Evansville Courier & Press, featuring Anne Murphy, head of Indiana's human services agency, the Family and Social Services Administration (FSSA). Some quotes:

INDIANAPOLIS — Gov. Mitch Daniels had a tough assignment for Anne Murphy a year ago when he asked her to take the helm of Indiana's human services agency.

The Family and Social Services Administration was coming off a year during which floods and tornadoes pressed the agency to its limits. The recession was in its early stages and the volume of applicants for benefits such as Medicaid, food stamps and Temporary Assistance for Needy Families was soaring.

Meanwhile, criticism of the agency's efforts to modernize the way it processes applications for those benefits through a 10-year, $1.34 billion contract with a team led by Armonk, N.Y.-based IBM Corp. was reaching a fever pitch.

Federal authorities weren't happy with the high error rates.

State legislators were demanding increased oversight.

And, social service advocates were complaining about the system's impersonal nature.

As secretary, these became her problems to fix. The two meet occasionally to discuss progress. "Murphy," Daniels will say, "have you fixed the system yet?"

Not yet, she hasn't. But she's on it.

Murphy scrapped the modernization effort and decided to start anew. This week, the agency will announce the details of a hybrid system it plans to implement starting in January. * * *

When Murphy completed her law degree at Indiana University in 1988, the Richmond, Ind., native accepted a clerkship with George Hoffman, an Indiana Court of Appeals judge.

It was under Hoffman's tutelage that she learned what it meant to be fair-minded. She watched the judge, who is now retired, treat each case with care and everyone in his court with dignity.

"Every case that came into his office was just like the first case," she said. "He felt the responsibility that he was charged with. He knew that people were depending on him to make decisions that really impacted their lives. That definitely had an impression on me."

She went on to work for the city of Indianapolis' Office of Corporation Counsel, where she mostly handled contracts involving transportation and public works. But she wasn't satisfied with the job.

"There wasn't a sense that I was making a difference," she said.

Murphy jumped at the opportunity for a position that would mark the beginning of her nine-year tenure with the Health and Hospital Corporation of Marion County, the organization that runs Wishard Hospital and the county Department of Health.

Starting there as general counsel, she wasn't sure she'd enjoy the work. But she quickly found it satisfying; found that she went home with the sense that she was helping people who needed it.

What Murphy did in her first two years at Health and Hospital shaped her attitude toward those who benefit from human services agencies today.

Representing the health department, she prosecuted slumlords, owners of abandoned buildings, restaurants that had violated health codes and companies that illegally dumped waste.

"The thing that I realized when I was prosecuting slumlords," Murphy said, "is that you would go out into the neighborhoods and no matter how bad the neighborhood was, no matter how deteriorated it was, no matter how high the crime rate was, there are still good people living in those neighborhoods who just want someone to help them clean up their neighborhood." * * *

After seven years as vice president and chief operating officer of Health and Hospital and four years as former FSSA Secretary Mitch Roob's top deputy, Murphy was named as the outgoing Roob's replacement in December 2008. She started in January, when Daniels began his second term.

"I really thought the first thing I needed to do was a data dive. I just needed to figure out where the problems were and to fix them. As we did that analysis, it showed there were more problems than I anticipated, and there were pretty much problems all along the process," she said.

"And so I knew that we were going to have to change direction — that we couldn't move forward with the rollout, that the data was showing there were problems."

First, Murphy replaced a team overseeing the modernization effort in FSSA's Division of Family Resources. Then, she had IBM replace its project manager.

Next came a trip to Evansville, where Murphy met with a group that included legislators, hospitals, advocates who work with the elderly and disabled and more.

Her job was made more difficult by the widely held perception that when it came to those groups' concerns, Roob, her predecessor, had been tone deaf.

"He was not an inclusive individual," said Crouch, who attended that meeting.

The group was organized, and it was angry.

"I expected there to be a level of hostility. I realized that many of the legislators and the advocates had been complaining for quite some time, so I knew they were going to be frustrated — and they were," Murphy said. "They didn't hold back. I mean, they didn't hold back. They told me how disgusted they were with it, how frustrated they were with it, how they felt the state wasn't doing enough." * * *

Murphy decided in October that the problem was the design IBM had implemented, and no amount of corrective-action planning could remedy those problems.

Daniels and she decided to cancel the contract and create yet another system to determine welfare eligibility. That decision was announced at a news conference that Murphy said was tough to swallow, but at the same time was a bit of a relief.

"We also at that point knew how we needed to fix the system; how to fix the design. And there started to become this excitement that I've seen really building," Murphy said.

The details of that new system will be announced this week. The broad framework will include keeping some of the computerized improvements made through the modernization effort but returning to the human interaction of the old system.

Asked whether the hybrid will be closer to the old system or the modernized version, Murphy said it will be right in the middle.

"I feel very confident at this point that we're going to be able to really address those core problems (social services advocates) have, particularly with the elderly and disabled having difficulty getting through the process," Murphy said.

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to Indiana Government

Ind. Courts - "The children’s judge: Allen County Juvenile court’s Pratt makes sound changes to benefit families"

Karen Francisco, editorial writer at the Fort Wayne Journal Gazette, writes today about Judge Charles F. Pratt’s work in the Allen Superior Court Family Relations Division. Some quotes:

Legal proceedings involving children are confidential, by necessity. That’s one reason the work of Allen Superior Court’s Family Relations Division goes mostly unnoticed.

But a more important reason is the quality of the work done there. It’s highly charged, emotional work, and if it weren’t done in a routinely compassionate, even-handed and wise manner, residents would hear about it – from unhappy participants or from repeated and escalating cases of abuse, neglect and delinquency.

In short, the court’s continual effort to improve serves the community well, reducing costs by putting children first.

The credit for that goes mostly to Allen Superior Judge Charles F. Pratt, who last month was honored by the Indiana State Bar Association as the state’s outstanding judge. It’s a fitting recognition of the proactive work he does every day on behalf of children and families.

The judge’s work has focused on research-based methods designed to improve the way children-in-need-of-services cases, commonly known as CHINS cases, are handled. With support from the Foellinger Foundation, he has also promoted a set of 40 assets children need to develop successfully, and he established and continues to nurture an annual conference on youth that this fall celebrated its 20th anniversary. * * *

Pratt is at the center of the innovation, although he’s quick to share credit with Assistant Chief Kathleen Rusher, court magistrates and the rest of the Family Relations Division staff, local attorneys who agree to represent children or parents at far below standard rates, the court-appointed special advocates and guardians ad litem who represent the interests of the children in CHINS cases, as well as the case workers and others involved in child protection services.

The heart of the court reform he champions is a process called Family Group Decision Making. It’s a different legal approach than you would ever see in TV courtroom drama, drawing on a facilitation process that works because it offers strong protections for children while giving parents and other family members a stake in the outcome. * * *

Pratt has been appointed by Chief Justice Randall Shepard to serve as the chair of the Juvenile Benchbook Committee and the Juvenile Justice Improvement Committee. Pratt is a regular presenter for an orientation session for new juvenile court judicial officers and the annual meeting for Juvenile Court Judicial Officers.

The judge sees his reform efforts as a work in progress. He’s involved in a statewide effort to examine the disproportionate number of minority youths in the judicial system. He’s also looking at ways to address “crossover kids” – those who fall under both the CHINS designation and delinquencies, as well as cases that involve mental health issues.

He said he hopes to have a pilot program designed for the latter during the next year.

Pratt is also working on how to address the issue of foster kids who age out of the system – how to ensure, for example, a young man can have a relationship with a mother who’s addicted to drugs without falling into “her circle of addiction.”

“That’s where the family conferencing comes into play – building that community of care to check up on the young person,” he said.

The judge doesn’t miss an opportunity to speak on behalf of children. He’s quick to criticize decisions that he believes aren’t made with children’s best interests in mind, even if the criticism is leveled at the highest levels of state government.

“The effective care of children costs money,” he said. “One can debate a lot of issues, but protecting children is not a debatable issue. Now, that doesn’t mean writing a blank check, but we know what can be done to improve the process.”

With Pratt’s deft and thoughtful approach, Allen County residents can be assured the improvements will continue.

The ILB has a long list of earlier entries on Judge Pratt, including this one from Nov. 8, 2009 headed "State bar honors Allen Superior Court Judge Charles Pratt as the state’s Outstanding Judge."

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to Indiana Courts

Ind. Gov't. - More on: Daniels appoints child services ombudsman

Updating this ILB entry from Nov 13, 2009, Tim Evans reports today in the Indianapolis Star under the heading "New DCS ombudsman has no staff, little money: That's what Indiana's first DCS ombudsman will confront when she starts her new job this week." Some quotes from the very long, front-age story:

Indiana's first child services ombudsman starts work Monday, and if the task of a lone person trying to keep watch over nearly 11,000 children and their families, 1,600 caseworkers and scores of private service providers isn't daunting enough, consider this:

Questions already are swirling about whether Gov. Mitch Daniels' appointee, Susan Hoppe, can be objective and independent.

Neither Daniels nor the legislature has spelled out a clear mandate for Hoppe, a 25-year veteran of the state's child welfare system.

She will be expected to do the job with no staff and a budget that is a fraction of what is available to her counterparts in other comparable states -- one of whom called it "a recipe for failure."

On top of all that, Hoppe comes on board as the Department of Child Services faces increasing criticism from children's advocates on two fronts: The agency is removing children from their families at a rate significantly above the national average, and at least 15 have died while either involved in active or recently closed DCS cases since September 2007. * * *

"Her charge includes both working on individual cases and reporting to the legislature on larger, systemic issues. That's going to be a lot for one person to juggle." * * *

[W]hen Indiana lawmakers created the ombudsman position during the special session in June, they did not provide a mission statement. The legislation lacks any specific mention of addressing complaints raised by families about the actions of DCS -- which was a driving factor for many who pushed for an ombudsman position.

Instead, the Indiana law lists a broad range of issues the ombudsman could review, including complaints that DCS "failed to protect the physical or mental health or safety of any child or failed to follow specific laws, rules or written policies."

Some backers say that is strong enough.

But others say the lack of a clear directive to address mistreatment of families is another sign of weak legislation they say was hijacked by DCS and its supporters, then watered down and slipped into the budget bill at the eleventh hour.

Hoppe said it is too soon to talk about specifics of how her office will operate or what types of cases she will review.

"My first priorities," she said, "will be to set up policies and procedures to receive and investigate complaints and to set up guidelines for prioritizing reviews."

Daniels -- who said he will not get involved in Hoppe's work, such as asking her to look into specific cases -- has made it clear his vision for the ombudsman has nothing to do with advocating for families that have complaints about DCS, the agency he created in 2005.

Daniels said his goal for the office is to "continue strengthening the improvement and oversight of our award-winning child protection system without undermining the morale or efforts of hard-working and compassionate caseworkers."

Dawn Robertson, spokeswoman for the family rights group HonkforKids, which was among early champions in the push for an ombudsman, said Daniels' statement is telling. * * *

"We were hoping the ombudsman would be an avenue where families could have someone pursue their complaints," Robertson said, "but it isn't going to change anything the way it is now."

She's among those concerned about Hoppe's ties to the state child welfare system.

Hoppe oversaw a staff of 50 that investigated child abuse and neglect reports in Marion County when she worked for the state's child welfare system. At that same time, current DCS Director James Payne was the Marion County juvenile court judge. Many of the cases Hoppe's staff investigated ended up in Payne's court.

"I think she is an insider and way too close," Robertson said. "That will ultimately, either directly or indirectly, render her incapable of providing unbiased opinions. I believe her loyalty will be with the agency, rather than the families or those in the middle who are looking for help."

But Hoppe said concerns of bias are "a nonissue." She said it has been nine years since she worked in the state's child welfare system and that she never worked directly with Payne.

"I consider my experience a plus in terms of understanding the vulnerabilities and strengths of this system," she said. * * *

Robertson is among those particularly disappointed that the ombudsman was not directed to review the deaths of children involved in open cases or recently closed DCS cases. Ombudsmen in Michigan and Washington must review such deaths.

An ombudsman's review is critical, Robertson said, because confidentiality regulations prohibit DCS from commenting on its actions in specific cases. Often, the only investigation when a child dies is done by DCS, and the results are not made public.

Indianapolis attorney Chris Worden, who formerly worked as a public defender representing families in Marion County juvenile court and now volunteers as a guardian ad litem, was another who lobbied the state to create an ombudsman post. By the end of the legislative session, however, Worden was hoping the weakened bill would die because it lacked true independence and amounts to little more than adding to DCS staff.

Worden said he was further disheartened to see the comments Daniels made when he announced Hoppe's appointment. The governor noted "we can never do enough to protect our little ones from the selfishness or even brutality of irresponsible parents," but didn't mention any help for families that have complaints about DCS actions.

"Any time somebody takes a strong position one way, such as Governor Daniels did in his quote about irresponsible parents, you have to worry," Worden said.

A true ombudsman, he explained, "would recognize that in most cases DCS gets it right, but in a portion, they keep a child out of a home and cause harm, and in a portion, they put a child back too quickly and cause harm."

But even if Hoppe decides to investigate deaths -- and does so in nonpartisan fashion -- does she have the muscle to do it? * * *

The small budget for Indiana's office -- $145,000 a year, which includes Hoppe's $90,000 salary -- is a red flag to Bill Angrick, the citizens' ombudsman in Iowa.

"One of the biggest mistakes you can make," Angrick said, "is to create an office with all these high hopes and expectations and then underfund it. It's a recipe for failure -- or at least dissatisfaction."

Posted by Marcia Oddi on Sunday, December 13, 2009
Posted to Indiana Government

Saturday, December 12, 2009

Ind. Law - "Proposed property tax caps won't prevent increases in bills" [Updated]

Lesley Stedman Weidenbener's Louisville Courier Journal must-read column for Sunday, Dec.13:

INDIANAPOLIS — As lawmakers begin debating a proposed constitutional amendment to limit property tax bills, I thought it might be worth going over a few of the key details of what the so-called caps would mean for property owners.

Regular readers know I’ve written about this topic before. But I was inspired to cover it again last week as members of the House Ways and Means and Senate Tax and Fiscal Policy committees pondered whether homeowners really understand the proposal.

It seems to be a particular concern of Democrats, including Sen. Connie Sipes of New Albany, who say many homeowners believe the constitutional amendment — if passed by the General Assembly and ratified by voters — means their tax bills would never increase.

If that’s what you think, you’ve got to read this column, because that’s just wrong.

Instead, the constitutional amendment, which is being pushed by Republican Gov. Mitch Daniels and GOP legislative leaders, would limit tax bills based on assessed values.

Those limits are already in law and are being phased in over two years. In 2010 — the second year — the tax caps will limit bills for owner-occupied homes to 1 percent of the property’s assessed value. Bills for farmland and other residential property will be capped at 2 percent of assessed value and commercial and other land at 3 percent.

For a home assessed at $100,000, the limits mean a tax bill can’t be higher than $1,000. That is a cap, but it is relative to the assessed value.

If the value increases to $120,000, the tax bill could increase to as much as $1,200. If the value decreases to $80,000, the bill could be no higher than $800.

That means over time, as most homes are likely to increase in value, so can tax bills.

But that’s not the only way bills could increase, even if the constitutional amendment passes.

Most homeowners in Indiana are paying bills that are less than 1 percent of their assessed values. That means their bills could increase up to the limits.

Lawmakers have taken other steps to try to keep property tax bills lower. But they aren’t capped until they reach the 1 percent limit.

And just to make the issue a little more confusing, there are ways to essentially break the caps.

The state law — and the proposed constitutional amendment — allow voters to approve projects or spending that would take their bills higher than the 1 percent level.

If voters approve a referendum for a $10 million school project, for example, the property taxes needed to pay those bonds would not be included in the cap calculation.

Finally, the limits are subject to definitions created by the General Assembly and the Department of Local Government Finance, definitions that can be changed over time.

Swimming pools, for example, aren’t included in the definition of owner-occupied homes. So the tax on a homeowner’s pool, under current rules, is actually limited to 3 percent, which could drive a bill higher than an owner expects.

None of this is to pass judgment on the law or proposed amendment. Instead, my goal is just to make sure that Hoosiers understand what the proposal means to them.

[Updated 12/13/09] Niki Kelly of the Fort Wayne Journal Gazette had a long story Dec. 10, 2009,headed "Assessed value caps denounced," that began:
INDIANAPOLIS – Critics uniformly assailed a proposed assessed value cap Wednesday as regressive, unconstitutional and even an “insincere” attempt to curry favor with voters.

But authors of the bill defended it as a way to give property taxpayers certainty on their bills – certainty the current property tax cap system doesn’t provide.

Posted by Marcia Oddi on Saturday, December 12, 2009
Posted to Indiana Government | Indiana Law

Ind. Gov't. - "Filed State Amicus Briefs 2009 AG Zoeller"

I'm in the process of updating the Table, "Filed State Amicus Briefs 2009 AG Zoeller", available here, and always available via the link in the right column of the ILB.

Posted by Marcia Oddi on Saturday, December 12, 2009
Posted to Indiana Government

Courts - "Louisville's Jewish Hospital quietly drops suit against lawyers"

The ILB had a number of entries in May of 2007 under the heading "Jewish Hospital sues lawyers who unsuccessfully sued it."

Now a lengthy story by Andrew Wolfson of the Louisville Courier Journal, dated Dec. 11th, begins:

Seeking to defend Jewish Hospital’s reputation, officials with its parent company struck back in 2007 against two lawyers who had filed, and later dropped, nearly 100 lawsuits alleging unsanitary practices at the hospital led to dangerous patient infections.

In an unusual move, Jewish filed its own suit against the lawyers, which spokesman Jeff Polson vowed at the time would “hold the plaintiffs’ attorneys accountable for the false allegations levied against our organization” and “publicly defend our quality of care.”

But Jewish Hospital & St. Mary’s HealthCare has quietly dropped that suit against trial lawyers Joe White and Mike O’Connell, now the Jefferson County attorney, without collecting any damages or an apology from either lawyer.

“We gave them nothing,” said attorney Gary Weiss, who represented White.

With no public announcement, the hospital in August agreed to dismiss its claim after witnesses deposed by its own lawyers said White and O’Connell had probable cause to bring the suits, records show.

“After the evidence was taken, they just gave up,” said Weiss, who added that the only concession made by the lawyers was to not sue the hospital company for the same thing it had sued them — wrongful use of civil proceedings.

Posted by Marcia Oddi on Saturday, December 12, 2009
Posted to Courts in general

Ind. Courts - More on: Supreme Court issues writ re Clark Circuit Judge Daniel E. Moore

A story by Matt Thacker of the Jeffersonville News & Tribune dated Dec. 11th gives some background to this ILB entry posted Dec. 9th that began:

Here is the 4-1 Dec. 7th Permanent Writ of Mandamus and Prohibition issued in State of Indiana ex rel. Crain Heating Air Conditioning & Refrigeration, Inc. v. The Clark Circuit Court, et al.
Thacker reports:
The Indiana Supreme Court overturned a Clark County judge’s ruling this week in a civil case involving a Jeffersonville company suing former employees for allegedly hacking into its computers to obtain information about customers.

Four former employees of Crain Heating, Air Conditioning & Refrigerations Inc., on Ind. 62, are named in a lawsuit that accuses them of using a customer list and bid information to undercut the company’s sales. The employees were fired or quit at different times in 2008 and 2009. They all went to work for Elite Heating, Air Conditioning & Refrigeration Inc., along Mount Tabor Road in New Albany, according to the lawsuit filed in Clark County Circuit Court in August.

A Virtual Private Network — a computer network spy program — was reportedly downloaded onto Crain’s computer. That allowed the former employees access to Crain’s private information on a daily basis, the lawsuit states.

The former employees reportedly had access to Crain’s customer list, computer calendars and bids.

They would then be able to use that information to contact Crain’s customers and offer lower bids.

The complaint states that the defendants solicited more than 9,800 of Crain’s customers and caused the company’s income to drop by about 200 percent.

In addition to being compensated for their alleged losses, Crain also sought an injunction to stop the defendants from contacting, soliciting or accepting business from anyone on its customer list.

“Former employees were hacking into their computer, so we filed an injunction to try to stop the hacking into the computer and downloading of customer information,” said Crain’s attorney, Franklin Yudkin.

He filed the motion Aug. 4 and a hearing was held on Aug. 20. Judge Dan Moore gave all parties until Sept. 14 to file additional paperwork, but an attorney for one of the defendants asked for an extension to file briefs. The extension was granted by Moore.

Yudkin says that the trial court had 30 days to rule on the motion for preliminary injunction.

On Sept. 21 after 30 days had passed, Yudkin filed a request to have the case withdrawn to move to another court, but Barbara Bratcher Haas [ILB - Clark County Clerk] determined the case had not been delayed, so she denied the request, according to court records.

On Oct. 2, Moore denied the injunction. Yudkin appealed to the Supreme Court to overturn Moore’s decision and appoint a special judge.

The Supreme Court agreed with Yudkin and vacated Moore’s ruling and ordered the court to cease jurisdiction over the case.

Clayton Culotta, attorney for one of the defendants, was out of town and could not be immediately reached for a full interview. However, he did leave a message that he disagrees with the Supreme Court’s decision.

Haas said she had no comment except that she followed the Supreme Court ruling and placed a minute on the docket that the case had been withdrawn.

A request for comment from Moore left at the court was not returned.

Yudkin says the case has been transferred to Harrison County.

Posted by Marcia Oddi on Saturday, December 12, 2009
Posted to Ind. Sup.Ct. Decisions

Friday, December 11, 2009

Ind. Decisions - "Should a suspended sentence be treated the same as an executed sentence for purposes of Appellate Rule 7(B) review?"

On Nov. 30, 2009, the Court of Appeals issued its opinion(s) in the case of Desmond Davidson v. State of Indiana - see the ILB summary here, 8th case).

A petition to transfer was filed in the case yesterday, and the ILB is pleased to be able to post a copy here. Some quotes from the petition:

The Question Presented on Transfer:

Should a suspended sentence be treated the same as an executed sentence for purposes of Appellate Rule 7(B) review? The issue arises frequently, the consequences are significant, and six judges of the Court of Appeals have one view of the issue while seven hold the opposite view. * * *

I. Transfer is appropriate on this significant, frequently recurring issue that has divided the Court of Appeals. * * *

[T]he issue has arisen in seven published cases, generating twelve separate opinions. The following chart shows the differing views of each judge on the Court of Appeals, which has split nearly evenly on the issue.

Suspended Time Considered Suspended Time Not Considered
Judge Opinion(s) Judge Opinion(s)
1. Baker Cox 1. Bailey Hollar
2. Barnes Pagan, Davidson 2. Bradford Jenkins, Hollar
3. Darden Cox 3. Brown Jenkins
4. May Beck 4. Crone Jenkins [1]
5. Sullivan Cox 5. Kirsch Beck, Eaton, Davidson
6. Vaidik Eaton, Hollar 6. Najam Davidson [2]
    7. Mathias Beck
[1] Judge Crone joined the majority opinion in Jenkins with no acknowledgement or explanation of his support of the opposite view in Pagan.
[2] Judge Najam expressly changed his view in Davidson after holding the opposite view in Eaton.

Transfer is appropriate to address this deep and enduring divide, which is not going to resolve itself. Defendants frequently challenge their sentences on appeal, and the impact of a suspended sentence will continue to arise in many cases. Indeed, it has been addressed in three published decision in the past five months alone. Slip op. at 4-5; Hollar, 2009 WL 3853164; Jenkins, 909 N.E.2d at 1085-86.

Among their many virtues, criminal defense lawyers are a persistent lot. At our best we explore every potential avenue of relief for our clients. This issue, unlike many others we are left to argue, has significant support on the Court of Appeals. Until this Court addresses the issue, it will be raised again and again. If a defendant is fortunate enough to have a panel with Judge Barnes, Chief Judge Baker, and Judge May, the court will consider the suspended part of the sentence in its 7(B) analysis. If the panel is Judge Kirsch, Judge Bradford, and Judge Bailey, the focus will be executed time. The disparate treatment is not fair to defendants who get the latter panel—or the State when it draws the former. The issue is appropriately resolved by this Court in this case with the benefit of the issues being fully briefed and argued.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two more NFP COA decisions reclassified

The cases are:

Indiana Bureau of Motor Vehicles, et al. v. Heather Charles (49A04-0906-CV-308) - NFP opinion issued 10/14/09; Appellee's motion to publish 11/06/09; Opinion certified 11/24/09; Appellee's motion to publish granted 12/04/09. From the opinion:

In sum, we conclude that the trial court properly vacated the first contempt order, but erred in issuing the second contempt order. Accordingly, we reverse and remand for further proceedings consistent with this decision. However, we address the BMV’s other issues to the extent that they may arise on remand.

[Agency as a “Person”] The BMV contends that, as an agency, it cannot be held in contempt of court. We disagree. Although the civil contempt statute speaks in terms of “a person” who willfully disobeys a court order, Ind. Code § 34-47-3-1, case law supports a trial court’s authority to issue orders against entities. [cites omitted]

[Verification of Petition] The BMV contends that Charles’s unverified petition cannot serve as a basis for a rule to show cause. We agree. * * * Because Charles’s petition lacks verification by oath, it fails to meet the statutory requirements.

M.M. v. Review Board of the Indiana Dept. of Workforce Development, et al. (93A02-0905-EX-423) - NFP opinion issued 10/20/09; Appellee's motion to publish 11/06/09; Opinion certified 12/02/09; Appellee's motion to publish granted 12/09/09.

[ILB note, plaintiff, now called "M.M.", was identified by name when the opinion was issued on Oct. 20, but the posted opinion has now been altered without comment, showing once again that online documents are not as reliable as one would hope, even if they are court documents.] From the opinion:

Although M.M. is not disqualified from receiving unemployment benefits under Indiana Code chapter 22-4-15, he cannot establish his eligibility to receive benefits under Indiana Code chapter 22-4-14 because he is unable to work. See I.C. § 22-4-14-3(b). Accordingly, we affirm the Review Board’s decision that McMann is ineligible to receive unemployment insurance benefits.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - LaPorte County Circuit Court Judge Thomas Alevizos in news again today

Supplementing this ILB entry from yesterday, where the judge received a Distinguished Hoosier Award from the Corrections Department, Stan Maddux reports today in the Michigan City News-Dispatch:

LA PORTE - La Porte Circuit Court Judge Tom Alevizos rejected a plea agreement Thursday because it called for no jail time.

Alevizos said Brandon Clark, 36, La Porte, has 11 prior arrests for operating while intoxicated and four previous convictions.

The judge then pointed to statistics that show alcohol-related fatalities have gone down nationwide from 26,173 in 1982 to 13,846 last year due to increased enforcement.

"That's more people alive per year than the sum total of everyone killed on 9/11, Iraq and Afghanistan in terms of American casualties," said Alevizos, who has sought jail time for chronic drunk drivers since taking the bench nearly two years ago.

The plea agreement called for six months of work release for operating while intoxicated.

In August, La Porte Police officer Chae Uhlemann said a train just passed through a crossing at Tipton and Washington streets, but the vehicle driven by Clark sat at the crossing for nearly 30 seconds before accelerating at a high rate. Police said he was stopped following a short chase and had a blood alcohol level of .503 percent. Bottles of vodka and rum were found in his vehicle.

"The plea is far too lenient for a person of your record," Alevizos said before scheduling another hearing in the case for Jan. 20.

According to court records, Clark was deemed a habitual traffic violator in 1999 and had his driving privileges suspended for 10 years.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues Attorney Discipline Action

In the Matter of Jeffrey S. Rasley and, In the Matter of David M. Wood is an 8-page, 5-0, per curiam, attorney disciplinary action:

We find that Respondent Rasley engaged in attorney misconduct by representing a client when the representation was materially limited by his own self-interest in violation of Profes-sional Conduct Rule 1.7. For this misconduct, we suspend Rasley from the practice of law in this state for 120 days without automatic reinstatement.

We find that Respondent Wood engaged in attorney misconduct by representing a client when the representation was directly adverse to another client, i.e., Rasley, in violation of Pro-fessional Conduct Rule 1.7. For this misconduct, suspend Wood from the practice of law in this state for 30 days with automatic reinstatement.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Ind. Sup.Ct. Decisions

Environment - The other side of CAFO manure spills and run-off

Cattlenetwork has this long story today, titled "Delayed Harvest Has Producers Scrambling To Apply Manure," that begins:

WEST LAFAYETTE, Ind. - The wet Midwestern fall and delayed harvest has left many producers scrambling to apply manure and empty manure storage facilities before the ground freezes.

"The best time to apply postharvest manure is after the soil temperature cools down, and ideally when soils are dry," said Tamilee Nennich, Purdue Extension dairy management specialist. "Once we start having freezing soils and snow cover, application of manure needs to stop because of the greater potential for manure run-off. During this time it can be especially risky."

Even before soils freeze, there are still risks with fall manure application - especially when there is excessive soil moisture.

"The biggest concern about applying manure in the fall is wet soils," Nennich said. "We want to make sure that manure, and especially the nutrients in the manure, stay in the soil."

Because this fall has been so wet, Nennich said field selection is key when producers look to apply manure.

"It's made it really challenging for producers to get out in the fields and to actually find dry enough fields and the time to be able to apply the manure," she said. "Producers should apply manure in the fields that are the driest and have the best drainage. They need to make sure not to apply manure to fields with an abundance of wet spots or where runoff is more prevalent."

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Environment

Ind. Decisions - Indiana Chrysler bankruptcy challenge cert petition being reviewed today

According to this entry from SCOTUSLaw Blog, the petition in case of Indiana State Police Pension Trust v. Chrysler, LLC is one of those up for consideration at the Justices’ private conference today that the blog's publisher, Tom Goldstein, has deemed to have a reasonable chance of being granted.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Decisions

Ind. Gov't. - "Ky., Ind. appliance rebate plans approved"

From a long report by Jere Downs in the Louisville Courier Journal:

Kentuckians and Hoosiers replacing their appliances with energy-efficient models next year will be able to claim hundreds of dollars in federal rebates under plans recently approved by the U.S. Department of Energy.

Part of the federal economic stimulus effort, states were left to tailor the appliance rebates to their own situations. Indiana, for example, chose to limit the rebates to home heating and air conditioning systems. Hoosiers will be able to get back $300 to $500 on purchases of those items made after Jan. 31.

In Kentucky and most other states, rebates will be available for more appliances.
Kentucky’s biggest rebates — $300 to $400 — will be available for efficient gas furnaces and geothermal heat pumps. The state plans to start its program in March or April.

According to this Indiana Office of Energy Development webpage:
The Indiana Office of Energy Development, under the leadership of Lieutenant Governor Becky Skillman, is responsible for Indiana's energy policy.
So Hoosiers who have been holding off on buying a new dishwasher, or clothes dryer, are out of luck.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Warren Johnson v. Estate of Timothy Brazill; Biran Zaiger, et al. , a 12-page opinion, Judge Mathias writes:

The Hamilton Superior Court ordered attorney David A. Anderson and the law firm of Anderson & Associates, P.C. (collectively “Anderson”) to pay attorney fees to the Estate of Timothy P. Brazill (“the Estate”) and attorney Judy G. Hester (“Hester”), as a discovery sanction. Anderson now brings this interlocutory appeal and argues that the trial court’s award of attorney fees to the Estate was improper and that Hester could not properly be awarded attorney fees because she was acting pro se. Concluding sua sponte that Anderson failed to timely bring this interlocutory appeal, we dismiss. * * *

We prefer to decide cases upon their merits. Munster Cmty. Hosp. v. Bernacke, 874 N.E.2d 611, 613 (Ind. Ct. App. 2007). However, when a party attempts to appeal an interlocutory order that is simply an affirmation of an earlier interlocutory order that is months old, we cannot overlook the jurisdictional issue of timeliness.

Under the facts and circumstances presented, we conclude that Anderson failed to timely file an interlocutory appeal from the trial court’s interlocutory orders requiring him to pay attorney fees to Hester and the Estate, and we therefore dismiss the appeal as untimely. Dismissed.

D.W. v. L.W. - "The trial court abused its discretion in denying Father’s motion to correct error. Therefore, we reverse the denial of Father’s motion to correct error and remand with instructions for the trial court to enter $23 as the weekly sum Mother owed Father during the 2007-2008 time period and to determine any support arrearage owing between the parties. Reversed and remanded."

NFP civil opinions today (3):

Term. of Parent-Child Rel. of C.B.; A.S. v. Indiana Dept. of Child Svcs. (NFP)

Vickie (Teter) Maxey v. Barry W. Teter (NFP)

In the Matter of T.B., N.B., and J.B.; T.M. v. IDCS (NFP)

NFP criminal opinions today (10):

Floyd S. Burnworth v. State of Indiana (NFP)

Gregory A. Rowe v. State of Indiana (NFP)

Donald P. Johnson v. State of Indiana (NFP)

Rudolph Perry v. State of Indiana (NFP)

Anthony Bush v. State of Indiana (NFP)

Robert Warner v. State of Indiana (NFP)

Paul Hess v. State of Indiana (NFP)

Stanley B. Fryman v. State of Indiana (NFP)

Andrew Cate v. State of Indiana (NFP)

Ricky A. Burge v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Raided Harrison dog breeders file notice against state"

Ben Zion Hershberg has this Dec.10th story in the Louisville Courier Journal. It begins:

The Harrison County owners of what Indiana’s attorney general calls a “puppy mill” have filed notice that they intend to sue the state, the attorney general and others involved in the June seizure and sale of more than 200 dogs.

The Indiana Department of State Revenue filed an unpaid sales tax claim against Virginia and Kristin Garwood for $142,368 but sold the dogs that were seized from the Garwoods’ dog-breeding business for only $300, according to the notice.

“The State and its associates have violated the Garwoods’ rights under the federal and Indiana Constitutions” by seizing and selling their property and then refusing to grant a hearing on the value of the animals and the accuracy of the tax claim, said the notice dated Oct. 2.

The notice also said the Garwoods have claims under state law for negligence and other damages.

Bryan Corbin, spokesman for state Attorney General Greg Zoeller, said the Garwoods’ claims in the notice are being investigated. But he said the $300 amount cited in the notice results from a misunderstanding.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Courts

Ind. Decisions - "Supreme Court considers driver's license suit"

Oral argument was heard yesterday before the Supreme Court in the case of Leone v. Commissioner Indiana Bureau of Motor Vehicles (BMV). Here is the ILB summary of the 2-1, May 15, 2009 Court of Appeals opinion.

Here is AP political writer Mike Smith's widely syndicated story. Some quotes:

The high court heard oral arguments in a class-action lawsuit that claims the BMV's policy of revoking licenses solely on the basis of such mismatched information is beyond its authority and is taking a legal entitlement from thousands of people.

"A legal name is not necessarily what is on Social Security records," Ken Falk, legal director of the American Civil Liberties Union of Indiana, told the justices. The ACLU of Indiana is representing about 15,000 people in the lawsuit.

Falk said many people have legally changed their names, in some cases because they got married, and have not or cannot change their names with the Social Security Administration. He said Indiana law only requires that a driver's license contain a legal name.

The BMV contends the policy that took effect in November 2007 is legal and designed to weed out or prevent identity fraud. It says 45 other states have similar verification policies.

"Indiana used to be a magnet for people getting fraudulent ID's," Frances Barrow, a state deputy attorney general, told the court.

Justice Robert Rucker asked Barrow what statutory authority the BMV had to establish such a policy. Barrow said state law gives the agency broad discretion to ensure its records are accurate, and doing so through Social Security information was an efficient way of doing that.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: "Disciplinary charges against suspended LaPorte Superior Court Judge Jennifer L. Koethe" [Updated]

Updating yesterday's ILB entry, Alici Gallegos of the South Bend Tribune has this story today, including:

Kathryn Dolan, a spokeswoman for the Indiana Supreme Court, said Thursday that the extent of possible judicial discipline Evans-Koethe faces varies.

"The range could be anything from dismissal to a reprimand to a permanent ban of holding a judicial license," she said.

Evans-Koethe, 35, was placed on indefinite suspension May 11 by the Supreme Court after being indicted by a grand jury on Class D felony obstruction of justice.

She is charged in LaPorte County with trying to interfere with the investigation of her shooting. She will have her case tried in Lake County after a change of venue. That case is still pending.

Evans-Koethe was a deputy LaPorte County prosecutor at the time of the shooting and took over as judge in LaPorte Superior Court 3 on Jan. 1 after her election in November.

From Andy Grimm's story in the Gary Post-Tribune:
A week before Koethe was sworn in as judge, Koethe suffered a minor head wound Dec. 22. Koethe told police that she had accidentally shot herself when she put the gun to her head because she wanted her husband to think she was contemplating suicide.

At the hospital, she talked to a police sergeant she knew from her career as a deputy prosecutor and asked if he could destroy a note she had left for her husband before the shooting. Koethe said she hadn't told other detectives about the note and asked if he could "make this go away" or "get rid of it," the Supreme Court charges state.

From Craig Davison's story in the LaPorte Argus-Herald:
LA PORTE — Suspended Judge Jennifer Evans-Koethe allegedly wanted to make her husband think she was going to commit suicide during an argument in which she grazed her head with a bullet, according to charging information on judicial misconduct filed Thursday.

A few weeks after the incident, she denied to a St. Joseph County detective that she put a gun to her head and said it accidentally discharged while picking the gun up off the bed, according to the filing. The new account went along with her husband’s initial statement.

She also allegedly asked a La Porte police officer about a note she previously withheld in the first interview with police and asked the officer words to the effect of, “Can you make this go away?” or “Get rid of it.”

Here is the 7-page "Notice of the Institution of Formal Proceedings and Statement of Charges."

[Updated 12/12/09]
See also this story from the 12/12/09 Michigan City News-Dispatch.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Courts

Ind. Courts - "Matthew Eric Wrinkles, 49, was executed this morning"

Charles Wilson's Associated Press report begins:

MICHIGAN CITY, Ind. -- An Indiana death row inmate who refused to request clemency was executed early today for the 1994 shooting deaths of his estranged wife and two of her relatives, saying he was "not proud of the man I was, but I am no longer that man."

Matthew Eric Wrinkles died from a lethal injection at 12:39 a.m. at Indiana State Prison in Michigan City, said Department of Correction spokesman Doug Garrison. Authorities said Wrinkles was on methamphetamine when he cut the phone lines, broke into his brother-in-law's Evansville home and killed his wife, her brother and her sister-in-law in July 1994.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Courts

Ind. Gov't. - "Fort Wayne cuts loose 1 of 2 gambling lobby firms"

Wednesday Niki Kelly reported in the Fort Wayne Journal Gazette in a story that began:

INDIANAPOLIS – Prospects for casino gambling in Fort Wayne took a severe hit Tuesday when the legislative Gaming Study Committee came out against the expansion of gambling in new cities or counties. * * *

One subject the panel tackled was whether Fort Wayne should be allowed to have a preliminary referendum to gauge whether there is community support to seek a casino license.

Fort Wayne Mayor Tom Henry has sought a referendum but has declined to say whether he would support a casino in the city.

That issue became tangled in the complicated discussion about intra-state gambling and whether new facilities could harm the existing casinos around the state.

The report specifically finds that "an expansion of gaming to new cities or counties where gaming currently does not exist is not in the best interests of the state or the gaming industry at this time."

Committee co-Chairman Sen. Luke Kenley, R-Noblesville, said the report should be seen as a discouragement to Fort Wayne and other new cities interested in casino gambling.

Today Benjamin Lanka reports in the J-G:
Fort Wayne on Thursday cut ties with one of its gambling lobbyists in an effort to save cash.

On Oct. 20, 2008, the city hired Taft Stettinius & Hollister, of Cincinnati, to help investigate the possibility of expanded gambling opportunities for Fort Wayne. The firm was paid $15,000 upfront, plus $3,000 a month since then.

In a one-paragraph letter sent to the firm Thursday, Controller Pat Roller wrote that the city was terminating its contract with the firm effective today.

"We thank the Taft team for its services on our behalf," she wrote. "We have enjoyed working with you and wish you all the best."

Ozzie Mitson, spokesman for Mayor Tom Henry, said cutting the firm was a way to save money because the city believes it has adequate representation in Indianapolis on the issue. Mitson said he was unsure whether the firm was paid a full month’s fee for December.

In late April, The Journal Gazette uncovered that Henry’s administration had quietly hired two law firms to lobby state legislators to advance a referendum on gambling in Fort Wayne.

On the final day of the state legislative session, the city confirmed hiring Krieg DeVault, of Indianapolis, for a monthly $3,000 fee and Taft Stettinius & Hollister, of Cincinnati.

Henry said the contracts weren’t intentionally kept secret and the firms were hired only to promote the referendum issue.

"The mayor is still going to continue to fight for a referendum on gaming," Mitson said, confirming that the city continues to employ Krieg DeVault.

This week, the legislative Gaming Study Committee recommended not expanding gambling in the state, which many said hurt the chances for a referendum in Fort Wayne. But Henry said the committee also affirmed the necessity for a referendum for any gambling expansion, which is what he is seeking.

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to Indiana Government

Law - "Paper-based data breaches on the rise"

Recall earlier ILB entries such as "Boxes of medical files found abandoned in South Bend" from Nov. 14, 2009, and "Loan paperwork discovered in Mishawaka shopping center trash" from June 21, 2009? The latter story included the following quotes from the South Bend Tribune:

To leave unshredded documents such as that in a trash receptacle is against the law, said Bryan Corbin, public information officer for the attorney general.

"A person who disposes of the unencrypted, unredacted personal information of a customer without shredding, incinerating, mutilating, erasing or otherwise rendering the information illegible or unusable commits a Class C infraction," he said, quoting from a 2006 statute from House Bill 1101.

If more than 100 customer files are left or the person is a repeat offender, it becomes a class A infraction, he added.

That was the 2006 identity law, and a person and/or company would receive a ticket for disposing of such records in that fashion. That would be prosecuted by the county prosecutor.

It also required companies that have a security breach to notify their affected customers by e-mail or mail, phone or fax without unreasonable delay, Corbin said. If more than 500,000 are affected, the database owner may elect to make disclosure on its Web site or report to the media.

The punishment would be a ticket for a fine for up to $500 for a Class C infraction or $10,000 for a Class A infraction or possibly a civil action resulting in a fine of up to $150,000.

A newer version of the law takes effect July 1, and it expands upon and amplifies the old law, Corbin said. "It closes loopholes and fills in missing pieces," he said. [ILB - that would be HB 1121 from 2009]

"It enhances personal information security," Corbin said. "The business will be required to implement and maintain reasonable security procedures for documents, records and electronic devices with customers' personal information."

Corbin admits that persuading local police to go after such criminals can be a question of resources and understanding the law. * * *

The attorney general's office now has a team that investigates incidents like the files being left in the receptacle in Mishawaka.

The Identity Theft Unit of the Indiana attorney general's office was created in January 2008. * * *

Corbin urges people who have been wronged in such fashion to contact the attorney general's office.

"They could sue, but they would probably be better off to contact the attorney general's office," Corbin said. "It can file suit on behalf of all the consumers affected. As the attorney general's office, we are the advocate of consumers.

"It is a much more powerful and effective way than hiring your own lawyer and pursuing it on your own vs. the state pursuing it on behalf of all the consumers and using greater resources," Corbin said.

Yesterday Brian Krebs of the Washington Post computer security column, "Security Fix," has this long article on "paper-based data breaches." According to the story, laws like Indiana's may be endangered by less-comprehensive new federal proposals. Some quotes:
More than one quarter of data breaches so far this year involved consumer records that were jeopardized when organizations lost control over sensitive paper documents. Experts say those incidents came to light in large part due to a proliferation of state data breach notification laws, yet current federal proposals to preempt those state measures would allow paper-based breaches to go unreported.

According to the Identity Theft Resource Center, a San Diego based nonprofit, at least 27 percent of the data breaches disclosed publicly in 2009 stemmed from collections of sensitive consumer information printed on paper that were lost, stolen or improperly disposed of.

Some 45 states and the District of Columbia have enacted laws requiring companies that lose control over sensitive consumer data such as Social Security or bank account numbers to alert affected consumers, and in some cases state authorities. Concerned about the mounting costs of complying with so many different state breach regulations, businesses often find it easier and cheaper to adhere to the strictest state laws.

Congress, though, is considering several federal data breach notification measures that would preempt existing state regulations.The three leading federal proposals, including a bill passed this week by the House of Representatives -- and a pair of measures passed by the Senate Judiciary Committee last month, would require notification only when data stored electronically is lost or stolen.

"Computers were supposed to take us to a paperless society, yet computers probably create more paper than before we had them, because now we want a hard copy as well as what's on the computer," ITRC co-founder Linda Foley said. "It's a double danger of course, because paper - especially when it's just tossed in a dumpster somewhere - is not like data on a hard drive. It's ready to use, it often contains the consumer's handwriting and signatures, which can be very useful when you're talking about forging credit card and mortgage applications."

Posted by Marcia Oddi on Friday, December 11, 2009
Posted to General Law Related | Indiana Law

Thursday, December 10, 2009

Ind. Decisions - Two cases granted transfer Dec. 10th

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

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Transfer Lists

Ind. Courts - " IDOC Commissioner Recognizes LaPorte County Judge"

From an IDOP press release:

LaPorte, Indiana (December 10, 2009) – Today in a ceremony at the LaPorte County Juvenile Center, Indiana Department of Correction Commissioner (IDOC) Commissioner Edwin G. Buss recognized and thanked LaPorte County Circuit Court Judge Thomas Alevizos for his strong commitment to the juvenile justice system.

Commissioner Buss presented Judge Alevizos with a Distinguished Hoosier Award signed by Governor Mitch Daniels. The Distinguished Hoosier Award is one of the highest awards given by the State of Indiana to its citizens. It is given at the discretion of the Governor to Hoosiers who have brought honor to the state through their character and accomplishments.

In addition, Commissioner Buss gave Judge Alevizos a commemorative, historic lock from the Indiana State Prison to thank him for his support of the IDOC and the rehabilitation of offenders through diversion, education, and re-entry programs.

“Partnerships in the criminal justice system are extremely valuable, especially to best provide public safety while promoting offender re-entry. The Indiana Department of Correction is grateful to have such a positive relationship with Judge Alevizos and thanks him for his continuing work for juvenile offenders,” said Commissioner Buss.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Courts - "Kentucky Court will reconsider fetuses, drug use: Some maintain that it's a form of child abuse"

From a lengthy story dated Dec. 9th, by Andrew Wolfson in the Louisville Courier Journal:

When Ina Cochran and her newborn daughter both tested positive for cocaine after the child's birth Dec. 29, 2005, Cochran was charged with a crime — wantonly engaging in conduct that created a risk of death or serious physical injury to another person.

The prosecution alleged Cochran had ingested the drug a few days before the birth — knowing it might endanger her unborn child.

The charge was dismissed by a Casey Circuit Court judge who cited a 1993 decision in which the Kentucky Supreme Court expressly said that pregnant mothers can't be prosecuted for abusing children in utero because an unborn child is not a “person” under the state penal code.

But the Court of Appeals reinstated Cochran's indictment, and Thursday, the state Supreme Court will reconsider the issue against the backdrop of a new legal landscape in which both the court and the General Assembly in recent years have made fetal homicide a crime.

Although her daughter survived, the Kentucky attorney general's office contends “it would be absurd to recognize the viable fetus as a person for purpose of homicide laws but not for the purposes of statutes proscribing child abuse.”

Cochran's supporters disagree, noting that even as the legislature made it a crime for a third party to kill a fetus, it exempted from prosecution any acts of the pregnant woman, in part to prevent the prosecution of women who obtain legal abortions.

“It betrays logic to suggest, as the commonwealth does, that the legislature intended to punish a woman for endangering her unborn child but not for actually killing it,” Cochran's lawyers, assistant public advocates Jamesa Drake and Kathleen Schmidt, say in a brief.

They and other advocates for Cochran, including medical organizations and women's groups that have filed friend-of-the-court briefs, say that prosecuting drug-abusing pregnant women will endanger both the mothers and their babies by discouraging such women from seeking prenatal care and giving birth in hospitals.

They also note that the Kentucky legislature specifically said in its 1992 Maternal Health Act that alcohol and drug use during pregnancy should be treated “solely as a public health problem” rather than through “punitive actions,” and it barred using the results of prenatal screening as evidence in criminal prosecutions. * * *

The state Supreme Court seemed to permanently foreclose such prosecutions in 1993, when it voted 5-2 to throw out the child-abuse conviction of Connie Welch O'Neal, a former drug addict who was found to have used Percodan, a narcotic painkiller, during her eighth month of pregnancy. She was charged after she gave birth to a son who had temporary withdrawal symptoms.

Besides finding that O'Neal's unborn son wasn't a “person” for purposes of criminal prosecutions, Justice Charles Leibson, writing for the court, said that if it upheld her conviction, pregnant women could be prosecuted for smoking cigarettes, drinking too much alcohol, exceeding the speed limit or even for downhill skiing, because all of those activities create a serious risk of injury to the fetus.

Shackelford argues that the Supreme Court in Cochran's case need not concern itself with lawful conduct of women that might endanger their fetuses.

He also said the court in effect abandoned the O'Neal decision in 2004, when it held that a person could be prosecuted for killing a fetus. The ruling came in the case of a defendant who pleaded guilty to two counts of manslaughter after a crash in Pikeville that killed a pregnant woman and her fetus.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Courts in general

Ind. Courts - "After Wrinkles, 12 Others Await Execution in Indiana"

Indianapolis WIBC's Eric Berman reports this afternoon in a comprehensive story:

The early-morning execution of Eric Wrinkles will be Indiana's first in more than two years...and could be the last for a while.

Besides Wrinkles, 12 killers are awaiting execution in Indiana. But Death Row appeals first go through the state courts, then climb the ladder from federal district court to the Chicago-based Seventh Circuit Court of Appeals to the U.S. Supreme Court.

Fort Wayne quadruple murderer Joseph Corcoran's case is pending before the Chicago court -- the Supreme Court ordered a review of whether he's mentally ill.

The other cases are pending at the district court level or lower. And the pipeline is slowing -- only two death sentences have been ordered in the last four years. One of those two, Roy Ward, had originally been sentenced to death in 2002 for the rape and murder of a 15-year-old girl in Spencer County. His original conviction was overturned, prompting a new trial and death sentence in 2007.

Indiana's longest-pending death sentence isn't an Indiana inmate. Debra Brown was sentenced to death in 1986 for the murder two years earlier of a seven-year-old Gary girl, part of a multistate killing spree. Brown is imprisoned not in Indiana, but in Ohio, where then-Gov. Richard Celeste commuted a second death sentence to life in prison in 1991.

In addition to the 12 inmates awaiting execution, three more have had their death sentences overturned, but are still considered Death Row inmates while the state pursues further appeals.

Three Marion County murderers are awaiting execution: Benjamin Ritchie, who killed Beech Grove police officer William Toney in 2000; Eric Holmes, who killed two of his managers at an Indianapolis Shoney's restaurant hours after his firing in 1989; and Howard Allen, who stabbed a 73-year-old woman to death in her northside home in 1987.

Wrinkles waived further appeals for the 1994 murders of his estranged wife, her brother, and the brother's wife in Evansville. He is the 20th person put to death by the state of Indiana since the reinstitution of capital punishment in 1976.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Law - "Legal Heavies Tackle the First-Year Associate Dilemma"

Well worth reading, this WSJ Law Blog entry today. A sample:

For our money, the most interesting exchange focused on first and second-year associates. Specifically: who should foot the bill for them?

Let us paraphrase the dilemma. Associates arrive at law firms knowing a lot of stuff, like the Mailbox Rule, the Rule Against Perpetuities and the definition of res ipsa loquitor. Good stuff, but not the least bit instructive on how to answer a set of interrogatories or when (and whether) to request a 30(b)(6) deposition.

In other words, most recent law grads have no idea how to practice law. So they essentially spend their first two years in practice figuring that out. Only problem, of course, is that, while this “training” is going on, the big firms are shelling out big salaries to the newbies, salaries that they then desperately want to recoup in billable hours.

So they staff the youngsters on cases by the dozens, and ask them to do a lot of tasks that non-lawyers could do, like flip through documents in attempts to figure out which are responsive to an opponent’s overly-broad discovery request, and which aren’t.

Clients never liked paying hundreds of thousands on first and second years. But for years, they did it. That is, until they didn’t. Increasingly, over the course of the last decade or so, in-house counsel have built “no-first-or-second-year” provisions into their arrangements with law firms.

When this happens, the firms are happy to oblige. But, as K&L Gates’s Kalis pointed out, the first years still have to get paid. So firms raise their rates for their other lawyers — partners and more senior associates. This, of course, drives in-house counsel crazy and, throughout the years, has been the source of more than a fair share of unpleasant phone conversations. (Of course, the clients ultimately benefit from the law firms’ taking on the training duty when they fill their in-house ranks by hiring away the fifth and sixth year associates.)

The answer? None of the participants seemed to have an answer. “I’m indifferent about whether they learn that at a law firm or in school, as long as I don’t have to pay for it,” Citigroup’s Helfer said. Kalis sought a sort of middle ground, asking the in-housers simply to acknowledge the dilemma and help him share the costs of the training.

And that brings us back to the law schools. How can firms and companies get them to better participate in the training process? For his part, Henderson, the lone representative on the panel from the legal academy, said he’s trying. And others in the past few years have made changes to their upper-level curricula in order to better prepare their students for working life. Sabatino suggested that students undertake an internship program similar to doctors residency upon graduation from law school

Another option: simply to shorten the length of law school. After all, that extra third year, for many students, equates to an extra $50,000 or so in debt. Eliminate the third year, the theory goes, and you remove a bit of the rationale behind the lofty first-year salaries.

"Henderson" is Indiana Law Professor Bill Henderson.

Here are the comments to the entry.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to General Law Related

nd. Courts - Still more on "ACLU Lawsuit claims Indiana law examiners violate the ADA "

Updating this August 16, 2009 ILB entry, and this July 9th, 2009 entry which quoted from a National Law Journal story that reported:

The ACLU filed the lawsuit on July 7 on behalf of a woman licensed in Illinois who is seeking admission to the Indiana State Bar Association. Identified as "Jane Doe" in the action, the plaintiff seeks an injunction prohibiting the Indiana State Board of Law Examiners from asking certain questions about mental fitness. She also seeks a declaratory judgment that the questions on the application and the board's follow-up procedures violate the Americans with Disabilities Act (ADA).

The case mirrors actions in other states that have challenged certain questions regarding mental health on professional license applications. Similar challenges have resulted in the removal or modification of such questions in Maine, New Jersey and Rhode Island.

The Indiana application asks, among other questions, whether an applicant has been treated or diagnosed "for any mental, emotional or nervous disorders" at any time from age 16 to the present. It requires applicants who answer affirmatively to provide detailed information about the type of problem and in some cases to submit to evaluation by the Indiana Supreme Court's Judges and Lawyers Assistance Program.

On Nov. 30, 2009, the Board of State Examiners filed a motion for a protective order in the case:
Defendants now file a Motion for Protective Order concerning the same disputed discovery requests. The disputed interrogatories request data on Indiana bar applicants responding affirmatively to bar application questions relating to mental health. The interrogatories also request information concerning any actions taken with respect to those affirmative responses. Defendants objected to the interrogatories for two reasons. First, the interrogatories request information which is deemed confidential by Rule 19 adopted by the Indiana Supreme Court. In addition, the interrogatories are unduly burdensome in terms of the time it would take to respond to them. These objections are discussed in more detail below.
Here is the supporting memorandum filed by the Board.

And here is "Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Protective Order," with appendices, filed Dec. 1st, 2009.

From an opinion column today in the Fort Wayne News-Sentinel, it appears the Board of Law Examiners is also being sued in the ND Indiana, in this case by a named plaintiff, represented not by the ACLU, but by himself. Here are just some of the quotes from Kevin Leininger's story, quoting the complaint:

Bryan Brown is a conservative, activist and unapologetic Christian. Of that there is no doubt.

But does that mean he is also mentally ill? Too ill even to be a lawyer?

The bureaucracy that controls access to Indiana's legal profession believes that very thing, according to a lawsuit in which Brown alleges that he was subjected to a series of hostile religious and political questions during a review of his fitness to practice law - a review that subsequently rejected him on mental-health grounds.

The lawsuit, filed by Brown himself this week in U.S. District Court in Fort Wayne, contends the Indiana Board of Law Examiners, created by the state Supreme Court in 1931 to screen bar applicants for character and fitness, ordered Brown - for reasons unknown - to appear before representatives of the Judges and Lawyers Assistance Program (JLAP) in January 2008. According to its Web site, the program “offers to help judges, attorneys and law students who experience physical or mental disabilities.” * * *

Fort Wayne psychologist Steven Ross, Brown claims, used a test including such questions as: Do you believe that you should be punished for your sins? Do you believe the husband should be the head of the family? Do you have strong political opinions? Do you believe that a multitude of people are involved in sexual sins? Have you ever had a vision?

Ross initially concluded that he had found nothing that “should preclude Mr. Brown from taking the bar exam,” but JLAP Clinical Director Tim Sudrovech allegedly added the conclusion that Brown's religious fervor “suggests a sub-clinical level of bipolar disorder which would warrant further consideration by a psychiatrist.”

The JLAP then referred Brown to Indianapolis psychiatrist Elizabeth Bowman, who concluded he suffered from a personality disorder after questioning him about the Arch Angel Institute's religious beliefs and his own “religious arrogance.” Bowman mocked his Christian “pro-life zeal,” Brown claims, and questioned his interpretation of Scripture. “If admitted to the Indiana bar he would likely continue his anti-abortion activities,” according to a portion of her report quoted in the lawsuit.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Ind. Courts - "Disciplinary charges against suspended LaPorte Superior Court Judge Jennifer L. Koethe"

Here is a long list of earlier ILB entries on suspended LaPorte Superior Court Judge Jennifer L. Koethe, who suffered a minor head wound at her home last December, after she had been elected to the court, but before she assumed office.

Today, this press release on the Court's site that begins:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against suspended LaPorte Superior Court Judge Jennifer L. Koethe. The Commission alleges Judge Koethe deliberately omitted and misrepresented facts to police about a December 2008 shooting at her home. The Commission also alleges that she asked a police officer to destroy evidence relevant to the official investigation into the shooting. The Commission alleges those actions violate numerous canons of the Indiana Code of Judicial Conduct and the Rules of Professional Conduct.

The Commission’s investigation into Judge Koethe’s actions surround a December 22, 2008 shooting at her home where she received a superficial wound to the scalp. At the scene, Judge Koethe told police she accidently shot herself and did not know the location of the gun. Officers located two guns inside a laundry basket in the bedroom closet. Lab tests later showed one gun had been fired. At the hospital, Judge Koethe told detectives she and her husband had been arguing and she had retrieved the handgun because she wanted her husband to believe she was contemplating suicide. She maintained the shooting was accidental and said she thought the gun was unloaded. After speaking to detectives, she told a different police officer whom she knew well about a note she had written to her husband before the shooting. She then asked the officer, words to the effect of, “Can you make this go away? or “Get rid of it.” The note was later found by police in the bedroom closet.

During the police investigation of the shooting, Judge Koethe gave two taped statements. In the first statement, Judge Koethe deliberately omitted the fact that she wrote the note to her husband. She also claimed she thought the gun was unloaded because she had removed the magazine. However, in the second taped statement, Judge Koethe altered her account to track her husband’s initial statement to police. She stated that the gun had been unloaded when she first picked it up because the couple had unloaded the household guns several days earlier in anticipation of being out of the home. During her second statement, Judge Koethe denied any knowledge regarding the whereabouts of the gun and note after the shooting. Judge Koethe’s husband, Stephen Koethe, later admitted to police that he hid the gun and note in the bedroom closet at a time when Judge Koethe was in the room.

In May 2009 a grand jury returned a felony indictment against Judge Koethe for Attempted Obstruction of Justice. When the felony indictment was filed, the Indiana Supreme Court suspended Judge Koethe with pay. Having investigated the incident, the Commission has now filed three counts of judicial misconduct against Judge Koethe. These counts are separate from any criminal charges filed in an Indiana trial court.

The Commission’s “Notice of the Institution of Formal Proceedings and Statement of Charges” was filed with the Indiana Supreme Court on December 10, 2009. The seven-page Notice and Charging document is attached. The 2008 and 2009 Indiana Code of Judicial Conduct can also be found in attachments accompanying this press release.

Here is the 7-page Notice of the Institution of Formal Proceedings and Statement of Charges.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Term. of Parent-Child Rel. of K.P.; B.S. v. IDCS (NFP)

Term. of Parent-Child Rel. of I.A.; J.H. v. Indiana Dept. of Child Svcs. (NFP)

Donald Riggs v. Beverly D. Riggs (NFP)

T.H. v. Review Board of the Indiana Dept. of Workforce Development and Brown & Brown, Inc. (NFP)

NFP criminal opinions today (4):

Joshua Gasper v. State of Indiana (NFP)

Damon Willis v. State of Indiana (NFP)

Damon Frazier v. State of Indiana (NFP)

John C. Foradori v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana Supreme Court affirms Wilkes' death sentence"

Lydia X. McCoy of the Evansville Courier & Press reports on the Supreme Court opinion issued this morning in the case of Wilkes v. State of Indiana (ILB entry here). Some quotes:

The Indiana Supreme Court has affirmed the murder convictions and death sentence of Daniel Ray Wilkes. * * *

After his trial was moved to Clark County, Ind., a jury found Wilkes guilty of the three murders. But the jury was unable to reach a unanimous agreement on whether Wilkes should live or die.

The 12-member panel deadlocked with 11 in favor of the death penalty and one opposing.

That left Wilkes' fate to be decided by Heldt, who sentenced him to death.

It was the first time since state law was changed in 2002 that a judge had to determine the sentence in a death-penalty case. Defense attorneys at the time said Heldt's sentence could lead to years of appeals. * * *

In their opinion, released today and written by Justice Theodore Boehm, the justices said "we cannot say that the death sentences in this case are inappropriate. The nature of the offense is a triple murder of a mother and her two children. The murders, especially of Donna and Sydne, were committed in a particularly gruesome manner. We have upheld death sentences in similar cases."

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Danny Ray Wilkes v. State of Indiana, a 24-page, 5-0 opinion, Justice Boehm writes:

In this direct appeal, Daniel Wilkes appeals his murder convictions and death sentence. We affirm Wilkes’s murder convictions and death sentence. * * *

In this direct appeal, Wilkes challenges his convictions and his sentence, arguing that:
I. The trial court erred in admitting transcripts and recordings of four interviews in which he acknowledged his guilt;
II. The trial court erred in admitting evidence of his molesting of Avery, expert testimony regarding a presumptive test for blood, and opinion testimony on guilt;
III. Indiana’s death penalty statute violates the Indiana Constitution’s requirement of separation of powers and the Federal Sixth Amendment; and
IV. Wilkes was not sentenced properly. * * *

Conclusion: Wilkes’s convictions and death sentence are affirmed.

Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., concurs in result with separate opinion. [that reads in full] I concur except with respect to the Court’s departure from Roche v. State, 596 N.E.2d 896 (Ind. 1992), and its progeny. I continue to believe that a jury’s inability to reach a unanimous sentencing recommendation is logically unrelated to the defendant’s conduct or personal circumstances and thus is irrelevant as a consideration in determining the appropriate sentence for a defendant.

In Gary Community School Corp. v. Lolita Roach-Walker and Victor Walker , an 8-page, 5-0 opinion, Justice Boehm writes:
The Indiana Tort Claims Act confers immunity on units of government from liability for injuries caused by ―[t]he temporary condition of a public thoroughfare . . . that results from weather.‖ We hold that this provision bars claims for injuries sustained during the time reasonably required for the governmental unit to respond to weather conditions. The governmental unit bears the burden of establishing its claim to immunity and in this case the Gary Schools did not carry its burden, so we affirm the judgment of the trial court in favor of the plaintiffs.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two opinions yesterday from Tax Court

In Big Foot Stores LLC v. Franklin Twp. Assessor, Mill Twp. Assessor, et al., a 10-page opinion, Judge Fisher writes:

On appeal, Big Foot asserts that the Indiana Board erred in upholding the 2003 interim assessments of its real property for two reasons. First, Big Foot asserts that interim assessments may be made only when there has been a change to the property that increases or decreases its value. Alternatively, Big Foot asserts that its interim assessments were improper because they were essentially the result of “sales chasing,” “selective reappraisals,” or “spot assessments.”[5] The Court will address these claims in turn.

Authority to reassess in the interim: Big Foot contends that the interim assessments of its property were improper, as neither the physical state nor the actual use of the properties changed since their 2002 assessments. As a result, Big Foot claims that its properties' 2002 assessed values should have been carried forward to the 2003 tax year. In contrast, the Assessors maintain that the interim assessments were authorized under Indiana Code § 6-1.1-9-1, given that the sales disclosure forms had caused them to believe that the properties were undervalued. The Court agrees with the Assessors. * * *

Spot Assessments: Next, Big Foot contends that the Indiana Board erred in upholding these interim assessments, as the Assessors “admitted” that they were actually “spot assessments:” the Assessors agreed that while there were approximately 40-50 convenience stores throughout Grant County in 2003, Big Foot's stores were the only ones to be reassessed because they had been sold. In turn, Big Foot maintains that these “spot assessments” should be rejected because the assessing community generally recognizes that engaging in such "practice[s] is unprofessional in that it breeds inequities and, unless adjusted for, renders sales ratio studies invalid." Accordingly, Big Foot asks that the Indiana Board's final determinations be reversed and that its 2002 assessments be reinstated. * * *

Whether the interim assessments of two recently sold classes of property (i.e., convenience stores and office buildings) may be upheld when unsold properties of the same classifications and within the same taxing jurisdiction were not reassessed is one of first impression in Indiana. The Court, however, saves its analysis of that issue for another day, as the case at bar can be resolved on other grounds.[8] * * *

Consequently, the Indiana Board erred when it upheld Big Foot's 2003 interim assessments, as they were based on market value-in-use evidence which had no probative value with respect to the appropriate valuation date.

CONCLUSION: For the above stated reasons, the final determinations of the Indiana Board are REVERSED. The matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to reinstate the assessed values assigned to Big Foot's properties during the 2002 tax year.
[5] [8] ILB - These footnotes are too long to quote here, but are important reading.

In Wayne Robey v. Fairfield Township Assessor (NFP), a 12-page opinion, Judge Fisher writes:
Wayne Robey (Robey) challenges the final determination of the Indiana Board of Tax Review (Indiana Board) which upheld the Fairfield Township Assessor’s (Assessor) assessment of his real property for the 2004 and 2005 tax years (years at issue). While Robey raises several issues on appeal, the Court consolidates and restates them as: whether the Indiana Board’s final determination was improper. * * *

Robey claims that during the Indiana Board hearing, he presented probative evidence which demonstrated that his property’s assessed value was incorrect. More specifically, Robey explains that he presented: (1) a value-in-use method which demonstrated that his land assessment was not uniform and equal with other comparable land; (2) a land comparison method which established that the actual market value-in-use of his land was $5,500; (3) evidence that his house should have received a condition rating of fair; and (4) a linear interpolation method which established that his property’s total actual market value-in-use was only $12,700. Robey requests that the Court reverse the Indiana Board’s final determination based on the totality of this evidence. * * *

For the above stated reasons, the final determination of the Indiana Board is AFFIRMED.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "U.S. District Court for Southern Indiana names new chief justice"

That is the headline today to this brief story by Lydia X. McCoy of the Evansville Courier & Press, that uses "Chief Justice" rather than "Cief Judge" throughout:

Judge Richard Young has been named the chief justice of the United States District Court for the Southern District of Indiana. Young assumed the position upon the appointment of Judge David F. Hamilton to the Seventh Circuit Court of Appeals.

The court's chief justice, who serves for a term of seven years and handles administrative matters related to the operation of the clerk's office and the courthouse that do not require the attention of all judges, is assigned based on length of service.

Young, who was nominated to the court by President Bill Clinton, manages the full civil and criminal caseload for the Evansville division of the court and carries proportionate caseloads in the Indianapolis, Terre Haute and New Albany divisions.

The Southern District's main page points to a press release dated 11/25/2009 making the announcement, but the link currently does not work.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Ind. Decisions - Redmond v. State, revisited this week by the Indiana Code Revision Commission

Some readers may remember the Jan. 28, 2009 Court of Appeals decision in the case of Dale Redmond v. State of Indiana. From Judge Vasikik's opinion (emphasis by ILB):

A decade after he was sentenced to consecutive sentences under the same cause number (and soon after he began serving his second sentence), Dale Redmond filed a motion to modify his second sentence pursuant to Indiana Code § 35-38-1-17(a). The trial court denied the motion, and Redmond appeals. Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court. * * *

We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term “imposed” to be critical. The term “impose” was contained in the 1983 version of the statute, not contained in the 1995 version at the time Liggin was decided (and found to be dispositive in that case), and then added back in 2005. When construing a statute, we presume the legislature was aware of any court decisions upon the subject matter of the legislation being construed. See Holmes v. Jones, 719 N.E.2d 843, 848 (Ind. Ct. App. 1999). As such, when reading the current version of Indiana Code § 35-38-1-17(a), we conclude that the introductory clause, within 365 days after a convicted person begins serving the sentence imposed on him, means within 365 days after a convicted person begins serving the entire sentence imposed on him (and not individual sentences under the same cause number), the court may reduce or suspend his sentence. The triggering date is the date the trial court imposes the sentence.

The ILB wrote at the time:
What is confusing to me is that this [the 2005 amendment] is [in] a Code Correction Bill. A technical correction bill is introduced at the beginning of each session to correct technical errors made in the last session - typos, reconciling where two laws amended the same section, etc. Scroll though the act and you will see that.

Code correction bills never make substantive change. Yet there is no clue as to where the "technical" changes made to IC 35-38-1-17 came from. What error are they intended to remedy?

To restate that, code correction bills never intentionally make substantive changes. But the 2005 amendment added back the phrase "sentence imposed on the person" that had been removed in 1995. Based on that language, Redmond's argument that he could move to modify his second sentence within 365 days of commencement of that second consecutive sentence was denied by the Court:
Concluding that Indiana Code § 35-38-1-17(a) requires a defendant to file a motion to modify within 365 days after he begins serving the entire sentence imposed him (and not individual sentences under the same cause number) and the triggering date is the date the trial court imposes the sentence, we affirm the trial court.
The fact that the 2005 amendment was part of a Code technical correction bill was not raised by Redmond, but presumably it would not have made a difference, as Indiana's courts have historically refused to look beyond the enrolled bill to determine legislative intent.(I don't know whether it was raised in the petition for transfer, but transfer was denied.)

The ILB attempted at the time, as detailed in this Feb. 2, 2009 ILB entry, to find out what had been behind the change that resulted in the phase "imposed on the person" being reinserted into IC 35-38-1-17. Why did the 2005 technical corrections bill look back 10 years to add back wording deleted by a substantive amendment in 1995?

Here is subsection (a) from the 2005 technical corrections bill. PL 2-2005 (HEA 1398), SECTION 123, which begins on p. 98, sets out the amendment. Via the type-codes, you can see the language of the provision both before and after the 2005 change:

    SECTION 123. IC 35-38-1-17 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:

        (1) the defendant a convicted person begins serving his the sentence imposed on the person;

        (2) a hearing is held:
             (A) at which the defendant convicted person is present; and
             (B) of which the prosecuting attorney has been notified; and

        (3) obtaining the court obtains a report from the department of correction concerning the defendant's convicted person's conduct while imprisoned;

the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.

Now the news: IC 35-38-1-17 was revisited by the Indiana Code Revision Commission this week.

The Commission held its second, and final meeting of the interim on Dec. 7, to approve the recommendations of the legislative services agency (LSA) staff for this year's Code technical correction bills.

I was in the extremely-sparse audience* and was surprised to hear the LSA staff recommend a last minute addition to one of the technical correction bills for the upcoming 2010 session -- to change IC 35-38-1-17(a)(1) back to the way it had been before it was "corrected" by the earlier technical correction bill in 2005.

This is from the LSA handout:

RE: [4] Including the SECTION in PD 3670 amending IC 35-38-1-17(a).

The 2005 TC bill [P.L.2-2005] amended IC 35-38-1-17 to make a technical correction. Before the 2005 amendment, IC 35-38-1-17(a) read in pertinent part as follows:

Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) the defendant begins serving his sentence;
To eliminate the word "his", a word importing gender, the 2005 TC bill amended IC 35-38-1-17(a)(1) as follows:
Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) the defendant a convicted person begins serving his the sentence imposed on the person;
The Court of Appeals, in Redmond v. State, 900 N.E.2d 40 (2009), in deciding the substantive issue presented in the case, found substantive effect in the change made in IC 35-38-1-17(a)(1) by the 2005 TC bill. Because the change made in the 2005 TC bill was intended to have no substantive effect, PD 3670 would undo that change, amending IC 35-38-1-17(a)(1) as follows:
SECTION 1. IC 35-38-1-17, AS AMENDED BY P.L.2-2005, SECTION 123, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person's sentence; imposed on the person;
(Interestingly, this handout does not explain the addition in 2005 of the phrase "imposed by the party".)

The LSA staffer concluded his presentation by stating that "because the change made in the 2005 TC bill was intended to have no substantive effect," this amendment to be added to the 2010 technical correction bill would simply reverse the change made in the 2005 code correction bill.

Cheif Judge John Baker, who was in attendance representing the Court, immediately addressed the chair with the observation: When we are going backward, we still have to address the question of what is the legislative intent as to when a person may seek to amend his or her sentence without seeking the prosecutor's approval when consecutive sentences have been imposed. To the extent we (the Court) thought it was unclear, he noted, it will be again after this amendment.

Discussion ensued, including a suggestion to ask the Criminal Code Commission, or to bring this issue before the legislative judiciary committees, to make the decision of what language should be used to convey the General Assembly's intent. The members agreed that this issue should not be addressed by the Commission in a technical corrections bill.

In short, while the 2005 "technical amendment" in fact worked a substantive change, the suggestion this week to "correct it" in the 2010 technical corrections bill would have effectuated a second substantive change.
* I was at Monday's Code Revision Commission meeting to learn what progress has been made in addressing issues I have raised in the past two years about assuring that all the active Indiana statute law is included in the Indiana Code. What I found out was very disappointing; I will be writing about it later this month.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Is death penalty worth the price? Single case can cost taxpayers as much as $1 million"

That is the headline to this lengthy, front-page story today in the Indianapolis Star, reported by Jon Murray:

Nowhere is the issue more pressing than in Marion County, where the costs this year alone to prepare for three potential death penalty trials has reached $659,000 and counting, according to the Public Defender Agency.

By the time appeals are exhausted -- and all the experts and legal costs are tallied -- the death penalty price tag for one case alone can reach $1 million.

For example, Desmond Turner's defense in the high-profile 2006 Hamilton Avenue slayings case has cost Marion County and the state nearly $850,000 -- among the state's most expensive -- and all the costs are not in.

"Every time a prosecutor elects to charge the death penalty," said Larry Landis, executive director of the Indiana Public Defender Council, "there's a giant sucking sound of $1 million going down the tube. . . . Some people just don't accept that it costs more to kill them than to keep them in prison for the rest of their lives."

Several studies have shown that the pursuit of a life sentence costs less than the death penalty, even considering the expense of a convict's longer incarceration. A state panel in 2002 estimated the cost difference for taxpayers at 30 percent to 38 percent.

In Turner's case, taxpayers will, in effect, pay both ways. After the county paid hundreds of thousands of dollars to fund what was expected to be a death penalty defense, Prosecutor Carl Brizzi decided to withdraw his death penalty request a few weeks before the trial.

Turner was convicted of seven counts of murder and was sentenced to life in prison without parole plus 88 years -- a tab that taxpayers will continue to pick up.

Another capital murder case, set for trial in Marion County next year, already has cost taxpayers almost as much as Turner's. Defense attorneys have submitted bills totaling $814,000 for Kenneth Lee Allen, who is accused of killing his mother and two grandparents in early 2005. * * *

Advocates of capital punishment, including Brizzi, say the ultimate penalty is still worth the trouble and cost for murder cases that they consider among the worst of the worst.

Those high costs stem, in part, from rules in Indiana that provide expensive defense teams for those facing the death penalty, one of many reforms enacted as states and courts have struggled to define the meaning of the U.S. Bill of Rights' guarantees of a fair trial and effective assistance of counsel.

Advocates say anything less would shortchange not only the accused but also victims' relatives and others affected by a crime when a defendant's life is at stake.

"Number one, you could end up with an innocent person sent to death," said Brent Westerfeld, an Indianapolis defense attorney whose clients have included Turner. "And you could also end up putting victims through the process again (if the conviction is overturned). Keep in mind the goal is to get a just and fair result."

In Indiana, counties receive reimbursements from the state for half of defense expenses in capital cases.

Even after the Marion County Public Defender Agency receives state reimbursements, the defense costs are enough to nearly break its budget. It has cut back in several other areas to compensate.

"Every dollar we spend attempting to do this, that's money we could have spent elsewhere," Chief Public Defender Robert Hill said. "(But) we have a constitutional mandate to defend our clients."

Then there is the price tag on the other side. Prosecutors, courts and the prison system also incur enormous costs in death penalty cases. But those expenses -- particularly for prosecutors, who rely on salaried lawyers and resources from other agencies -- are more difficult to track.

High defense costs are perhaps inevitable under the Indiana Supreme Court's Criminal Rule 24. Since the early 1990s, it has mandated two qualified attorneys for indigent defendants as soon as a prosecutor invokes the machinery of the death penalty.

Numerous overturned death sentences during the 1980s spurred that and other changes, including the start of state reimbursements and the setting of experience standards and caseload limits for the defense lawyers.

In Turner's case, Brizzi's decision to withdraw the death penalty just weeks before Turner's trial couldn't erase three years of vigorous preparation by his defense team.

Brizzi worried that a jury would demand rock-solid forensic evidence that prosecutors lacked. He took the death penalty off the table in exchange for Turner's waiver of his right to a jury.

Pursuing a life sentence for Turner from the start likely would have cost taxpayers a fraction in defense-related expenses.

Even so, Brizzi said, nobody could have foreseen the turn in evidence. And prosecutors would have lost the leverage that Brizzi thinks was crucial to winning convictions: "If we would have started at life without parole, Turner would have had no incentive to waive the jury." * * *

Westerfeld, who represented Turner with co-counsel Lorinda Youngcourt, said taxpayers received a "cut-rate deal" for a case involving complex litigation akin to a lengthy civil case. Attorney fees have accounted for about half of Turner's bills, which likely will grow.

Until Brizzi withdrew the death penalty request, Turner's lawyers were paid $96 per hour, less than half or even a third what a private client would pay. The state-mandated rate has since increased to $106 for newly filed capital murder cases.

"Yeah, they're expensive and cost a lot of money," Westerfeld said, "but there's a lot at stake. . . . It doesn't make sense we're spending so much to kill people when we have the life without parole option that keeps the public safe."

Hill, the county's chief public defender who has spent years defending clients against the death penalty, says high costs result from more sophisticated lawyers exhausting all avenues. They investigate the accounts of sometimes more than 100 witnesses, seek out forensic and psychiatric experts, and aggressively pursue investigative leads that might not pan out.

All of it in the name of building a full-throated defense of a client's innocence -- and also of his or her life.

Since 2000, Hill's agency reports, defense bills in Marion County death penalty cases have totaled $3.9 million.

Statewide, defense costs for trials and appeals have cost taxpayers nearly $20 million since 1990, including state reimbursements, according to estimates by the Indiana Public Defender Commission. That includes $6.5 million spent on Marion County cases.

Attorney Monica Foster, who is on the defense teams for Allen and another death-penalty defendant, Ronald L. Davis, said taxpayers should be outraged at the cost of capital cases. But she said the expense is vital when a person's life is at stake.

With a business to run and staff to pay, she said, she's not getting rich off $100 an hour.

"I don't do these cases for the money," Foster said. "It's ridiculous that we spend this much money."

But cutting corners before trial, she said, would only increase the chances of a court reversing an unfair conviction later -- or requiring yet another costly trial.

From one of the side-bars:
The defense costs in recent cases: Marion County has had four open cases this year in which prosecutors sought the death penalty. The Public Defender Agency pays legal expenses for the defendants, receiving state reimbursement for half. Here are the cases and their defense costs to date:

» Ronald L. Davis, 32: Accused of killing two women and two young children in January 2008 inside a house on Hovey Street on the Near Northside. Trial set for Aug. 23. Cost: $244,620.

» Desmond Turner, 31: Convicted in October of killing four adults and three children in June 2006 inside a house on Hamilton Avenue on the Near Eastside. Death penalty request was dropped before trial. Serving life sentence without parole, plus 88 years. Cost: $848,871.

» Kenneth Lee Allen, 34: Accused of killing his mother and two grandparents and burying their bodies in concrete in the basement of a house on the Eastside in early 2005. Trial set for May 24. Cost: $813,579.

» John Adams, 35: Accused of killing his wife and infant son and stuffing their bodies into a freezer at his Westside home in 1999. His trial is on hold indefinitely because he has been found incompetent to stand trial. Cost: $312,242.

Here are some earlier, related ILB entries:

Dec. 9, 2009 - "Execution of Wrinkles to end 2-year state hiatus Cost is factor in trend away from death penalty"

Dec. 6 - 2009 - More on "Bill for capital cases delivered to taxpayers"

Nov. 8, 2009 - "Bill for capital cases delivered to taxpayers"

Feb. 25, 2009 - "Citing Cost, States Consider End to Death Penalty"

Sept. 25, 2008
- "Finances a factor in capital punishment"

Feb. 17, 2008 - "Wilkes trial costs adding up"

June 16, 2007 - "Rios trial costs ballooning: Court to request another $340,000 for murder case" - some quotes from the end of this 2007 entry:

The story also has discussion of the cost of a death penalty case v.s. the cost of incarceration for life.

The ILB has had a number of earlier entries of the costs of death penalty cases, including "Death penalty sends a state's legal costs soaring" from 11/5/06, "Cost of death penalty trial factored into Pike County decision" from 10/17/06, "Three trials in the Camm murder case have cost Floyd County taxpayers about $1.8 million" from 4/3/06.

The Camm retrial costs led to legislation: see these entries from 1/27/07 and 2/5/07. As reported in this 4/30/07 ILB entry, the new state budget does include language providing for "state reimbursement on new trial costs when the Indiana Court of Appeals or Indiana Supreme Court calls for a new trial."

This ILB entry from Nov. 5, 2006, looks at death penalty legal costs at the appellate level.

Posted by Marcia Oddi on Thursday, December 10, 2009
Posted to Indiana Courts

Wednesday, December 09, 2009

Environment - "Appalachian Wind Turbines Kill Bats, Judge Says" [Updated]

Updating this list of earlier ILB entries, Avery Fellow of Courthouse News Service reports today in a story that begins:

(CN) - A federal judge in Maryland ordered project developers to stop building wind turbines along Appalachian ridgelines in West Virginia until they got a federal permit allowing the "incidental take" of endangered Indiana bats. "It is uncontroverted that wind turbines kill bats, and do so in large numbers," U.S. District Judge Roger Titus wrote.

The underlying case, filed last June by the Animal Welfare Institute, Mountain Communities for Responsible Energy and David Cowan, accused turbine construction companies Beech Ridge Energy and Invenergy Wind of violating the Endangered Species Act by harming endangered Indiana bats.

Judge Titus ruled that the $300 million Beech Ridge Project, which calls for construction of 122 400-ft turbines along 23 miles of ridgeline Greenbrier County, W. Va., is subject to the incidental take permit process under the Endangered Species Act.

The turbine case was the first to challenge a green-energy project on environmental grounds, putting at odds federal endangered species protection and a push by the Obama administration to develop renewable energy resources.

"The two vital federal policies at issue in this case are not necessarily in conflict," Judge Titus wrote: "[T]he tragedy of this case is that defendants disregarded not only repeated advice from the U.S. Fish and Wildlife Service but also failed to take advantage of a specific mechanism, the incidental take permit process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species."

The judge said the companies' environmental consultant repeatedly disregarded advice from the U.S. Fish and Wildlife Service and didn't look hard enough to find Indiana bats at the project site.

Titus cited expert opinion showing that there were two bat caves within 10 miles of the project site, each housing hundreds of hibernating bats for the winter, supporting the conclusion that bats are in the area. According to one expert, caves within 150 miles of the site put bats within migratory range of the turbines, the ruling states.

The district court ruled that "like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded or killed imminently by the Beech Ridge Project, in violation of the Endangered Species Act, during the spring, summer and fall." Bats hibernate during winter.

The building process has created habitat "sinks" that attract Indiana bats, Titus noted. Additionally, acoustic studies have yielded sound data that experts identified as bat calls.

Because project developers repeatedly ignored letters from the Fish and Wildlife Service recommending that they perform better surveys, "the court has no choice but to award injunctive relief," Titus wrote.

This Oct. 22, 2009 ILB entry links to background stories on the lawsuit.

Thanks to the CN, here is a link to the 2-page Order of the DC Md. in Animal Welfare Institute v. Beech Ridge Energy.

[More] From the Environmental News Service, this story.

[Updated 12/10/09] "Court constricts W.Va. wind farm to protect bats: Company must apply for special permit to build more turbines" reads the headline to this story this morning, reported by Maria Glod of the Washington Post. It begins:

In a rare green vs. green court case, a federal judge in Maryland has halted expansion of a West Virginia wind farm, saying its massive turbines would kill endangered Indiana bats.

U.S. District Judge Roger W. Titus ruled that Chicago-based Invenergy can complete 40 windmills it has begun to install on an Appalachian ridge in Greenbrier County. But he said the company cannot move forward on the $300 million project -- slated to have 122 turbines along a 23-mile stretch -- without a special permit from the U.S. Fish and Wildlife Service.

"Like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project," Titus wrote in a 74-page opinion. "The development of wind energy can and should be encouraged, but wind turbines must be good neighbors."

The lawsuit in Greenbelt is the first court challenge to wind power under the Endangered Species Act, but as wind and solar farms rapidly expand nationwide, similar battles are playing out. Officials and environmentalists are working to find a balance between the benefits of clean energy and the impact on birds, bats and even the water supply.

Thanks to the WAPO, here is a link to the 71-page opinion.

[Updated 12/14/09] See this Baltimore Sun feature, "Bat ruling casts shadow on MD wind projects?"

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Environment

Ind. Courts - Supreme Court issues writ re Clark Circuit Judge Daniel E. Moore

Here is the 4-1 Dec. 7th Permanent Writ of Mandamus and Prohibition issued in State of Indiana ex rel. Crain Heating Air Conditioning & Refrigeration, Inc. v. The Clark Circuit Court, et al. A quote:

Relator alleges the trial court failed to rule on its motion for preliminary injunction within the time required by the Trial Rules. Relator further alleges the trial court clerk failed in her duty to withdraw the case from the trial court for appointment of a special judge after Relator filed its praecipe. * * *

Accordingly, the Court GRANTS the writ. The Honorable Daniel E. Moore is directed to vacate the “Findings of Fact, Conclusions of Law and Order Denying Preliminary Injunction and Other Orders” filed on October 2, 2009, and to cease exercising jurisdiction over the case below except as to any administrative tasks necessary to effectuate this writ. Barbara Bratcher-Hass, clerk of the trial court, is directed to give written notice to Judge Moore and this Court that submission of the case has been withdrawn in accordance with Trial Rule 53.1(E)(2).

The Court takes under advisement whether to issue an opinion explaining the reasons for granting this writ.

Justice Rucker dissented.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "The Indiana Supreme Court has appointed a Boone County judge to evaluate a disciplinary complaint against Delaware County Prosecutor Mark McKinney"

Here is the story from the Muncie Star-Press, reported by Rick Yencer.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

Stephanie Reeder v. John Reeder - "Petitioner-Appellant Stephanie Reeder appeals the trial court's award of attorney fees to the law firm of Appellee Coots, Henke, & Wheeler (“the Coots firm”) in a dissolution action involving Respondent-Appellee John Reeder. We affirm.

"Stephanie raises three issues for our review, which we consolidate and restate as: I. Whether the trial court erred in ordering Stephanie to pay a particular amount to the Coots firm. II. Whether the trial court erroneously deprived Stephanie of a jury trial."

Samuel Fancher v. State of Indiana "Fancher's argument that the admission of Williams's testimony violated his equal protection rights fails. Further, the evidence is sufficient to sustain Fancher's convictions for murder and aggravated battery. We affirm."

Jeff Howell v. State of Indiana - "Jeff Howell appeals his conviction for Obstruction of Justice, as a Class D felony. Howell presents a single issue for review, namely, whether the evidence is sufficient to support his conviction. We affirm. * * *

"Here, Howell * * * attempted to fabricate a particular defense, which he had previously disclaimed, in an attempt to avoid a conviction for child solicitation. And he does not deny that his conduct in requesting C.C. to send emails using his screen name to the detective's undercover screen name was intended to have an impact on the investigation of his child solicitation case."

Michael Annis v. State of Indiana - "Appellant-Defendant Michael Annis appeals his conviction for Operating a Vehicle with a Suspended License, as a Class D felony, claiming that the evidence is insufficient. We affirm. * * *

"Annis contends that there was insufficient evidence to support his conviction for Operating a Vehicle with a Suspended License because the State did not prove that his moped fell within the definition of a vehicle as opposed to a motor bicycle. * * *

"Annis claims that his scooter qualifies as a motorized bicycle rather than a motorized vehicle. Here, the evidence was that Annis was observed traveling on his scooter at forty-one miles per hour uphill. Also, upon inspection, Officer Beard observed a displacement number of 149 CC stamped into the vehicle frame of the scooter near the model number and VIN. Based on this evidence, the scooter was a self-propelled vehicle that was capable of exceeding twenty-five miles per hour on an uphill surface, let alone a flat surface, and had a cylinder capacity greater than fifty cubic centimeters. The evidence is sufficient to support the conviction."

NFP civil opinions today (3):

Herbert Schmidt v. David Koch and Denise Koch (NFP) - "But the trial court found that Schmidt himself had repeatedly violated the same restrictive covenant he sought to enforce against the Kochs. The trial court’s finding is based on the Kochs’ photographic evidence and Schmidt’s own testimony. As such, neither that finding nor the court’s conclusions relying on that finding are clearly erroneous. See Yanoff, 688 N.E.2d at 1262. And Schmidt’s failure to abide by the terms of the same restrictive covenant he sought to enforce against others was not “incidental” to the matter being litigated but, rather, had “an immediate and necessary relation to the matter.”"

Term. of Parent-Child Rel. of S.A.W.; T.W. and T.R. v. IDCS (NFP) - "A court need not wait until a child is irreversibly influenced by a deficient lifestyle such that his or her physical, mental, and social growth is permanently impaired before terminating the parent-child relationship."

Elizabeth Baumgardner v. Jerry Hambaugh, et al. (NFP) - "Elizabeth Baumgardner appeals the trial court’s award of treble damages, costs, and attorney’s fees to Jerry L. and Madonna Hambaugh pursuant to the Indiana Crime Victim’s Relief Act in a case in which Baumgardner removed trees and a fence located on the Hambaughs’ property. Specifically, Baumgardner contends that the trial court’s findings do not support its conclusions that she had the requisite mens rea to commit the criminal offenses of trespass and conversion, and thus, the Crime Victim’s Relief Act is inapplicable and the trial court was without authority to award treble damages, costs, and attorney’s fees. Concluding that the trial court found that Baumgardner had the requisite mens rea, we affirm."

NFP criminal opinions today (7):

Michael A. Taylor v. State of Indiana (NFP)

James M. Shell v. State of Indiana (NFP)

Isaiah Kendrick v. State of Indiana (NFP)

Donald Mudica v. State of Indiana (NFP)

Robert Niles v.State of Indiana (NFP)

Maurice A. Bradford v. State of Indiana (NFP)

Damian Bailey v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Ind. App.Ct. Decisions

Environment - More on "Is New York’s Marcellus Shale Too Hot to Handle?"

Updating this ILB entry from Nov. 9th, here is a Dec. 7th NY Times story by Jad Mouawad and Clifford Krauss, headed "Dark Side of a Natural Gas Boom." A quote:

Across vast regions of the country, gas companies are using a technology called hydraulic fracturing to produce natural gas from previously untapped beds of shale. The push has been so successful that the country’s potential gas reserves jumped by 35 percent in two years. The new supplies have driven down natural gas prices for consumers and might help the global environment by allowing more production of electricity from natural gas, which emits fewer global warming emissions than coal.

What the drilling push will do to local environments is another matter.

The drilling boom is raising concern in many parts of the country, and the reaction is creating political obstacles for the gas industry. Hazards like methane contamination of drinking water wells, long known in regions where gas production was common, are spreading to populous areas that have little history of coping with such risks, but happen to sit atop shale beds.

And a more worrisome possibility has come to light. A string of incidents in places like Wyoming and Pennsylvania in recent years has pointed to a possible link between hydraulic fracturing and pollution of groundwater supplies. In the worst case, such pollution could damage crucial supplies of water used for drinking and agriculture.

See also this Dec. 4th story, "Environmentalists: Revise Gas Drilling Review? Nope – Repeal It!" from ProPublica, reported by Sabrina Shankman.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Environment

Ind. Decisions - Supreme Court issues one today

In Cornelius Cooper v. State of Indiana, a 9-page, 4-1 opinion, Justice Rucker writes:

The trial court revoked the defendant’s probation and the defendant did not appeal. Instead he filed a motion to reconsider, which the trial court denied. The defendant then appealed challenging the propriety of the original order revoking his probation. We conclude that the only matter properly before us is the denial of the defendant’s motion to reconsider. And on this issue we affirm the judgment of the trial court. * * *

After listening to the evidence and entertaining arguments of counsel, the trial court declared, “there’s not anything there that can convinces [sic] me that [I] should have done anything different then [sic] I did when I did before so your Motion to Reconsider is denied sentence remains the same.” Tr. at 165.

Cooper appealed contending: (1) the trial court violated his right to due process by summarily revoking his probation without providing an opportunity to present witnesses, cross examine witnesses, or to be heard, and (2) the subsequent hearing did not cure the violation because the trial court impermissibly shifted the State’s burden of proof to Cooper. Acknowledging that Cooper did not timely appeal his probation revocation, a divided panel of the Court of Appeals determined that it had inherent discretionary authority to entertain Cooper’s appeal because it qualified as a rare and exceptional case of great public interest. Cooper v. State, 894 N.E.2d 993, 995 (Ind. Ct. App. 2008) (citing Lugar v. State ex rel. Lee, 270 Ind. 45, 383 N.E.2d 287, 289 (1978)). Addressing Cooper’s substantive claim the Court of Appeals reversed the judgment of the trial court and remanded this cause for a new probation revocation hearing. Having previously granted transfer, we now affirm the judgment of the trial court. * * *

The Court of Appeals acknowledged that Cooper did not timely appeal his probation revocation. However the majority nonetheless addressed the merits of Cooper’s claim on grounds that the court had inherent discretionary power to entertain Cooper’s appeal because it qualified as a rare and exceptional case of great public interest. In a concurring opinion Judge Vaidik cautioned against invoking such power. Instead, noting the disagreement among panels of the Court of Appeals on whether probation revocation orders are appealable under Indiana Post-Conviction Rule 2, Judge Vaidik contended that Cooper’s appeal should be decided pursuant to the Rule. See Cooper, 894 N.E.2d at 997 (Vaidik, J., concurring in result).

First, we are of the view that this case is not an appropriate vehicle to resolve the question of whether probation revocation orders are appealable under the Indiana post-conviction rules. * * *

In this case Cooper was afforded a full and fair opportunity to persuade the trial court to grant Cooper’s motion to reconsider the order revoking probation. There was ample evidence before the trial court that Cooper violated the terms of his probation, thus supporting the trial court’s decision to deny the motion to reconsider. And the record before us does not demonstrate that Cooper was prejudiced by the denial.

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., agrees with Judge Vaidik’s separate opinion concurring in the result reached by the Court of Appeals and therefore respectfully dissents.

Here is the Oct. 6, 2008 Court of Appeals opinion.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Execution of Wrinkles to end 2-year state hiatus Cost is factor in trend away from death penalty"

Eric Bradner reports today in the Evansville Courier & Press:

INDIANAPOLIS — When Matthew Eric Wrinkles is put to death early Friday at the Indiana State Prison in Michigan City, it will have been more than two years since Indiana executed a death row inmate.

July 15, 2007, was the last time a death sentence was carried out. That's when Michael Lambert was given a lethal injection. * * *

The time between Lambert's and Wrinkles' executions is the longest period between executions in Indiana since a nine-year gap between when William Vandiver died in the electric chair in 1985 to when Gregory Resnover was electrocuted in 1994.

Even at the federal prison in Terre Haute, where three men — including Oklahoma City bomber Timothy McVeigh — have been put to death, there hasn't seen an execution since 2003.

It's indicative of a slow movement away from the death penalty in favor of life without parole, a verdict prosecutors believe can be achieved more quickly and cheaper.

The number of executions nationwide began to rise in the 1980s and peaked in 1999, when 98 inmates were put to death. But a steady decline began over the next decade, and in 2008, only 37 executions took place.

Larry Landis, the executive director of the Indiana Public Defender Council, said the death penalty is being sought less often for two reasons. One is the fiscal impact on county budgets. The other is the reduced likelihood of the death sentence actually surviving a jury and the appellate process.

"They don't want to face the risk of spending a lot of money and not getting what they're asking for" when life without parole is a guarantee the killer will die behind bars, Landis said.

The Indiana Criminal Law Study Commission found in 2002 that the total cost of death penalty cases is an average of 38 percent more than that of imprisoning a person for life without parole.

Counties are eligible for aid from the Indiana Public Defender Commission that can cover up to half the cost of a trial; still, the expense can become almost unbearable for some rural counties.

For background, start with this ILB entry from Dec. 6th.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Indiana Courts

Ind. Gov't. - More on: Harold Holzer and the closed Lincoln Museum

Updating this ILB entry from Oct. 4, 2009, where Mr. Holzer is quoted in this Q&A:

How does the museum closure affect your research?

On the research side it remains to be seen. I’ve spoken to some of my old contacts at the museum who tell me that at some point it will be welcoming and accessible and, even more, it will be digitized and reproducible. And that will be a great service.

I’m not sure it couldn’t have been done in its original home, but that will be good. But the thing we will be missing and cannot be replaced digitally – I don’t think you can replace reality with digital reality.

Today Amanda Iacone reports in the Fort Wayne Journal Gazette:
A federal grant will help digitize manuscripts that make up the Lincoln Collection, now housed at the Allen County Public Library.

The library board accepted the $50,000 grant Tuesday and is now waiting for final approval from the Indiana State Library, which distributes the federal library services and technology grants, said Curt Witcher, the local library’s genealogy manager.

Manuscripts and clippings that were part of the closed Lincoln Museum’s $20 million collection are now housed in the main library’s rare-book collection.

Artifacts from the collection are housed at the Indiana State Museum in Indianapolis.

Only scholars and researchers can access the documents and texts. But local library officials hope to provide digital copies of the texts on the library’s Web site – opening the vast collection to teachers, students and the general public.

Library officials estimate it will cost $630,000 to $650,000 to digitize the entire Lincoln Collection, Witcher said.

The Friends of the Lincoln Collection gave the library $100,000 in September to begin the process.

Internet Archives, a non-profit working out of the library’s basement, will create the digital images, he said.

Witcher applied for the federal money in November and will likely continue seeking federal money and other grants in the years ahead until the project is complete, he said.

“The faster we can get the money, the faster we can digitize,” Witcher said. “We are well on our way.”

Beginning in January, visitors to the library’s Web site will see new Lincoln items added daily by clicking on the 16th president’s image, Witcher said.

“People are going to see a steady stream of digitized Lincoln material,” he said. “It’ll be awesome.”

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Indiana Government

Courts - More on: SCOTUS decides Alvarez asset-forfeiture challenge

Updating this ILB entry from yesterday on the SCOTUS decision yesterday in Alvarez v. Smith, Ilya Somin has some interesting commentary on the decision in this entry headed "Supreme Court Dismisses Potentially Important Property Rights Case as Moot" that appeared yesterday in The Volokh Conspiracy.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Law - Still more on "Jeff Council takes steps to revise sex offender ordinance"

Updating this ILB entry from Oct. 8, 2009, quoting a Louisville Courier Journal story, and this Oct. 22, 2009 ILB entry quoting an opinion piece in the Jeffersonville News & Tribune, Harold J. Adams of the LJC has this story today - some quotes:

Convicted sex offenders who are no longer required to be listed on the Indiana Sex Offender Registry will also no longer be banned from Jeffersonville city parks under a revised ordinance that has won final passage from the City Council. * * *

The original ordinance passed in 2006 prohibited sex offenders from city parks for life, even if their required period of registration -- typically 10 years -- had expired. But it allowed offenders to petition the Jeffersonville City Court for an exception.

The Indiana Court of Appeals ruled in June, however, that the ordinance was unconstitutional as it was applied to Eric Dowdell, a Clarksville man who petitioned unsuccessfully to be allowed to watch his son play Little League baseball in Jeffersonville.

Dowdell’s required registration period for a 1996 sexual battery conviction expired in 2006. The Court of Appeals ruled that applying the ordinance to Dowdell violated the constitutional ban on using new laws to impose or increase punishment for offenses committed before the laws are passed.

City Councilman Keith Fetz, who sponsored the original ordinance, said Tuesday he thinks the new ordinance is stricter than the original because petitions for exceptions will no longer be allowed.

“I think it’s a vehicle that provides the extra safety net for our citizens and for the people of the community to be able to visit the parks with a little more security,” he said.

Ken Falk, legal director of the Indiana Civil Liberties Union who handled Dowdell’s appeal, said he hasn’t formed an opinion on the revised ordinance.

“If there are people who are concerned about it and contact us, we’ll have to assess whether in our estimation it’s constitutional or not,” Falk said.

ILB thoughts. Today's story begins:
Convicted sex offenders who are no longer required to be listed on the Indiana Sex Offender Registry will also no longer be banned from Jeffersonville city parks under a revised ordinance that has won final passage from the City Council.
However, the devil is in the details regarding the application of the Supreme Court's April 2009 opinion in Richard P. Wallace v. State, where the Court concludes:
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.
For more, see this ILB entry from Nov. 18th on how the ruling is being implemented. The Attorney General's office responded to an ILB question:
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.
As for the Sheriffs' Sex and Violent Offender Registry, the AG's office indicated that the sheriffs are not their client.

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to Indiana Law

Law - "Text Messages: Digital Lipstick on the Collar " [Updated]

An interesting and lengthy article in today's NY Times by Laura M. Holson that begins:

There is a question that has crossed the mind recently of anyone who has sent a cellphone text message while cheating on a spouse: What was I thinking?

Text messages are the new lipstick on the collar, the mislaid credit card bill. Instantaneous and seemingly casual, they can be confirmation of a clandestine affair, a record of the not-so-discreet who sometimes forget that everything digital leaves a footprint.

This became painfully obvious a week ago when a woman who claims to have had an affair with Tiger Woods told a celebrity publication that he had sent her flirty text messages, some of which were published. It follows on the heels of politicians who ran afoul of text I.Q., including a former Detroit mayor who went to prison after his steamy text messages to an aide were revealed, and Senator John Ensign of Nevada, whose affair with a former employee was confirmed by an incriminating text message.

Unlike earlier eras when a dalliance might be suspected but not confirmed, nowadays text messages provide proof. Divorce lawyers say they have seen an increase in cases in the past year where a wronged spouse has offered text messages to show that a partner has strayed. The American Bar Association began offering seminars this fall for marital attorneys on how to use electronic evidence — text messages, browsing history and social networks — in proving a case.

“How does someone make up an excuse when what is happening is right there, written in black and white?” asked Mitchell Karpf, a Miami divorce lawyer who is also chairman of the bar association’s family law section. “By the time someone shows up with a handful of texts, there is no going back.”

Although most e-mail users have come to understand that messages remain on their computers even if deleted, text messages are often regarded as more ephemeral — type, hit “send” and off it goes into the ether. But messages can remain on the sender’s and receiver’s phones, and even if they are deleted, communications companies store them for anywhere from days to a few weeks. AT&T said that, at most, it saved text messages for 72 hours while Verizon said it saved them for 5 to 10 days.

[Updated at 9:54 AM] It turns out the Washington Post also has a story today, by Monica Hesse, that explores the question: "In an age of iPhones, TMZ and standard-issue personal GPS devices, is technology killing the affair?"

Posted by Marcia Oddi on Wednesday, December 09, 2009
Posted to General Law Related

Tuesday, December 08, 2009

Ind. Decisions - Supreme Court decides one today

In Otho L. Lafayette V. State, a 9-page, 5-0 opinion, Justice Sullivan writes:

Defendant Otho Lafayette was convicted of rape based in part on evidence of a ten-year-old conviction for attempted rape of another woman. Indiana law prohibits the use of evidence of prior crimes “to prove the character of a person in order to show action in conformity there-with” except in certain circumstances. The exceptional circumstance advanced by the State – intent – does not apply in this case. Accordingly, we reverse Defendant's conviction. * * *

The defendant's conviction is reversed, and this cause is remanded to the trial court for a new trial.

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Lawsuit challenges Indianapolis traffic court fines" [Updated]

Jason Thomas reports on the Indianapolis Star website this afternoon:

A class action lawsuit filed today in Marion County Superior Court alleges a traffic court judge's practice of assessing additional fines to defendants who challenge their tickets is unconstitutional.

The lawsuit, filed by Indianapolis attorney Paul K. Ogden, claims Marion County Traffic Court Judge William Young imposes fines of up to an additional $500 against defendants who choose to have their day in court and are found guilty rather pay their traffic or parking ticket.

"The threat of additional fines has caused a number of defendants who believed they were innocent to instead pay their ticket rather than risk going before Judge Young," the complaint states.

The lawsuit, which names Young, the traffic court and the city of Indianapolis as defendants, also cites a news release from the city of Indianapolis in which officials intend to authorize a new parking citations court to fine defendants up to $2,500 if they challenge their parking tickets.

Ogden is seeking an order prohibiting the traffic court and parking citations court from imposing fines on defendants for challenging their cases; and that the money collected in extra fines be returned.

The lawsuit, which was filed on behalf of defendants who have appeared or who will appear before the traffic court, also claims that the court's practice of closing its courtroom to the public is unconstitutional. In the lawsuit, Ogden seeks an order to end the closed courtroom practice.

In the complaint, Toshinao Ishii and Matthew Stone allege the courts violate the U.S. and Indiana constitutions by punishing defendants who choose to have their day in court, according to a news release from Ogden.

Ishii challenged his speeding violation case and lost, which resulted in an extra $400 fine, bringing his total fines to $549.50, according to the complaint.

Stone, who wears a pacemaker and was cited for improperly wearing a seatbelt, heard about Young's policy and chose not to challenge the $25 ticket, according to the complaint.

Young's policy "has a chilling effect on the fair and equitable administration of justice," the complaint states.

Here is the statement of Paul K. Ogden, an attorney with Roberts & Bishop, about the lawsuit.

Here is the 9-page complaint.

The ILB has had several entries, the most recent from Dec. 5th, focusing on the legailty of the new "Article IV" court at the Guardian Home.

This entry from Nov. 30th quotes the city's press release announcing the new "court". Of particular interest to the ILB were these paragraphs near the end of the release:

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 Nov. 30th entry ended: "The ILB is not clear re in what respect this will be a 'court' and 'hold hearings.'" Rather, it looked like an expanded Article III ordinance violations bureau -- see the Dec. 5th entry for more detailed discussion of this.

[Updated at 4:45 PM] Some quotes from an Indy 6 News report this afternoon:

An Indianapolis law firm has filed suit on behalf of Marion County Traffic Court defendants who feel they have been unfairly treated as part of the city's toughened stance on traffic offenders. * * *

Traffic court has been the focus of scrutiny this year after complaints from defendants that the system doesn't immediately tell motorists how much they will have to pay.

"We have fines for so many different offenses we don't have the ability to have law enforcement put the right amount on those," [Judge William] Young told 6News in September.

In April, Young told 6News that defendants had better be prepared before entering his court.

"What I'm trying to have people stop doing is playing Russian roulette, or throwing the dice, if you will," Young said. "If you really feel that you were wronged and you wanted to go to trial, hire a lawyer, because there are a lot of opportunities that you might miss if you don't."

6 News links to two of its really interesting earlier stories:

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending December 4, 2009

Just received, here is the Clerk's transfer list for the week ending December 4, 2009. It is four 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 Tuesday, December 08, 2009
Posted to Indiana Transfer Lists

Courts - "Man Alleges Casino Fueled His Record-Breaking, Yearlong Binge With Liquor and Painkillers"

ABC New's Lisa Fletcher, Jen Wlach and Sarah Netter has this lengthy story this morning on GMA. Some quotes:

A Nebraska businessman who lost nearly $127 million in a yearlong, Las Vegas gambling binge has accused two Las Vegas casinos of plying him with generous amounts of alcohol and prescription drugs to keep the cash flowing.

Terrance Watanabe said he bet more than $825 million and lost nearly $127 million of it in Caesars Palace and the Rio casinos in 2007, believed to be the biggest losing streak in Vegas history.

"It's a tragedy, Mr. Watanabe's a tragedy," his lawyer, Pierce O'Donnell, told "Good Morning America" today. "He was so addicted and so out of it, he didn't really realize what was going on."

Watanabe has since been charged with four felony counts for refusing to pay the final $14 million and faces 28 years in prison if convicted.

The well-known businessman and philanthropist is credited with providing Harrah's Entertainment Inc., the parent company of both casinos, about 5.6 percent of its total Las Vegas gambling revenue that year.

Now, Harrah's and Watanabe are engaged in a complicated legal battle after Watanabe filed a civil suit in Clark County District Court last month claiming the casino was partly responsible for fueling his stunning streak by providing him free drinks and painkillers and allowing him to gamble when he was clearly intoxicated.

A decision in Indiana's gambling addiction suit, Caesars Riverboat Casino. LLC v. Genevieve Kephart, is pending before the Supreme Court. Here are earlier ILB entries.

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Courts in general

Ind. Courts - "Chief Justice Shepard To Receive National Award From American Judicature Society"

Here is the press release from the American Judicature Society:

Des Moines, Iowa – Hon. Randall T. Shepard, Chief Justice of the Indiana Supreme Court, has been selected as the recipient of the Sixth Annual Dwight D. Opperman Award for Judicial Excellence. Chief Justice Shepard was chosen by a three-member panel: Hon. Judith S. Kaye, former Chief Judge of the New York Court of Appeals; Justice Ronald Robie, California Court of Appeal–Third Appellate District; and Judge Frederic Rodgers, Gilpin Combined Courts, Colorado. The award will be presented in early 2010.

Chief Judge Kaye, chair of the selection panel and last year’s Opperman Award recipient, said of Chief Justice Shepard, "He is a shining star of the American justice system, the pride of lawyers and judges--especially State Court judges--in and well beyond Indiana, and an example of the success of the great objectives of the American Judicature Society."

In his nomination letter, Hon. John G. Baker, Chief Judge of the Indiana Court of Appeals, said of Chief Justice Shepard: “[he] makes those of us from Indiana proud to be Hoosiers.” * * *

The American Judicature Society (AJS) created the Opperman Award to honor state trial and appellate judges for distinguished judicial service. The award is named for Dwight D. Opperman, former chairman and CEO of West Publishing Company. Opperman is a former AJS vice president, director, and executive committee member and currently serves on the AJS Board of Directors as a Distinguished Lifetime Director.

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

For publication opinions today (2):

In Maureen Reel, et al v. Clarian Health Partners, Inc., a 14-page opinion, Judge Vaidik writes:

We agree with Lemon v. Wishard Health Servs., 902 N.E.2d 297 (Ind. Ct. App. 2009), reh’g denied, trans. denied, that a claimant seeking redress pursuant to the Wage Claims Statute, Indiana Code chapter 22-2-9, must first submit a claim to the Indiana Department of Labor (“DOL”) before he or she is entitled to file a lawsuit in court and that the act of filing a putative class action does not enable the putative class members to subvert the statutory requirements. In addition, Indiana Code section 22-2-9-5, which allows the DOL to prosecute certain wage claims (less than $800 before July 1, 2007, and less than $6000 thereafter) on its own by taking assignment of them from the claimants, does not absolve the proposed class members from first submitting their wage claims to the DOL. We therefore affirm the trial court’s dismissal of the proposed class of plaintiffs who have not sought review and referral from the DOL.
In Javier Abrajan v. State of Indiana , an 8-page opinion, CJ Baker writes:
Appellant-defendant Javier Abrajan appeals the aggregate thirty-year sentence imposed by the trial court after Abrajan pleaded guilty to Rape,1 a class A felony. Abrajan argues that the trial court considered improper aggravators and that the sentence is inappropriate in light of the offense and his character. Finding no reversible error and finding the sentence to be appropriate, we affirm.
NFP civil opinions today (6):

Rivers Edge Homeowners Assn. Inc., et al v. John M. Callis, et al (NFP) - "Based on the foregoing, we find that (1) the Association did not waive its appeal when it failed to file an Appellant's Appendix in accordance Indiana Appellate Rule 50(A) and (2) the trial court properly interpreted the Amendments to abrogate the original voting rights and to create one-vote-per-lot for all Members of the Association."

Radmila Lazarevic v. David L. Perkins, Jr. (NFP) - "Radmila Lazarevic appeals a judgment, upon a jury verdict, awarding her $15,000 in damages following an auto accident. Lazarevic raises a single issue for our review, which we restate as whether the trial court committed reversible error in instructing the jury that, if the evidence warranted, it could award no damages or nominal damages for pain, suffering, and impairment. Concluding the instruction should not have been given but the error was harmless, we affirm."

Joni L. Lovell v. Jeffery D. Lovell (NFP) - "Our Supreme Court made clear that retroactive modification is not permitted, save only for the two narrow exceptions that do not apply herein. Therefore, Joni is not entitled to this relief. Given that she owed $129 per week and failed to pay that amount for a decade, failed to pursue her motion to modify custody in court, failed to file a motion to modify her child support obligation, and failed, at every turn, to protect herself procedurally, we can only find that the trial court did not err by ordering her to pay Jeffrey arrearage in the amount of $68,112.00."

Mary K. Wallskog v. Steven R. Wallskog (NFP) - "Appellant-respondent Mary K. Wallskog appeals the trial court's order granting appellee-petitioner Steven R. Wallskog's petition to terminate his child support obligation with respect to their children, Ke. and Ka., and the corresponding wage withholding order. We summarize and restate Mary's arguments as follows: the trial court erroneously (1) denied her motion to continue the hearing on Steven's petition; (2) granted Steven's petition; and (3) denied her requests for college expenses, continuing support based on Ka.'s alleged disability, and for an order finding Steven in contempt for his alleged failure to comply with court orders. Finding no error, we affirm."

Amy J. Brown v. Ind. Dept. of Workforce Development, et al. (NFP) - "Based on the foregoing, while we find that French Lick did not discharge Brown, we do not conclude that Brown voluntarily left her position with French Lick with good cause. Affirmed."

Term. of Parent-Child Rel. of D.W.; T.W. v. Ind. Dept. of Child Svcs. (NFP) - "Based upon the foregoing, the trial court's determination that the DCS proved by clear and convincing evidence that (1) the conditions that resulted in D.W.' placement outside the home of his parents will not be remedied, (2) the continuation of the parent-child relationship poses a threat to the well-being of the child, and (3) termination is in the best interests of the child was not clearly erroneous. Affirmed."

NFP criminal opinions today (10):

Douglas A. Marshall v. State of Indiana (NFP)

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

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

Emeterio Cortez v. State of Indiana (NFP)

Jose Macias v. State of Indiana (NFP)

Corey B. Moore v. State of Indiana (NFP)

Oscar L. Snow v. State of Indiana (NFP)

Antwane Walker v. State of Indiana (NFP)

David J. Gaff v. State of Indiana (NFP)

Keith W. Yoder v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS decides Alvarez asset-forfeiture challenge

The SCOTUS today issued an opinion in Alvarez v. Smith, the asset forfeiture case. Justice Breyer writes:

We granted certiorari in this case to determine whetherIllinois law provides a sufficiently speedy opportunity foran individual, whose car or cash police have seized without a warrant, to contest the lawfulness of the seizure. See U. S. Const., Amdt. 14, §1; United States v. Von Neumann, 474 U. S. 242 (1986); United States v. $8,850, 461 U. S. 555 (1983). At the time of oral argument, however, we learned that the underlying property disputes have all ended. The State has returned all the cars that it seized, and the individual property owners have either forfeited any relevant cash or have accepted as final the State’s return of some of it. We consequently find the case moot, and we therefore vacate the judgment of the Court of Appeals and remand the case to that court with instructions to dismiss. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950); see also E. Gressman, K. Geller, S.Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 941–942 (9th ed. 2007).

(For background see this ILB entry from Oct. 19, 2009.)

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Courts in general

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

In Patterson and Coffey v. Indiana Newspapers (SD Ind., McKinney), a 21-page opinion, Judge Sykes writes:

Lisa Coffey and James Patterson are former editorial writers at The Indianapolis Star who left the newspaper in 2003 and 2005, respectively. They departed under very different circumstances, but both claim they were victims of employment discrimination on the basis of their religion—more specifically, discrimination because they are Christians who believe that homosexual conduct is sinful. Patterson also claims the Star discriminated against him because of his race (African- American) and age (he was 51 when he was fired), and retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). Finally, both plaintiffs assert a state-law claim for negligent infliction of emotional distress. The district court entered summary judgment for the Star on all claims, and Coffey and Patterson appealed. We affirm.

Posted by Marcia Oddi on Tuesday, December 08, 2009
Posted to Ind. (7th Cir.) Decisions

Monday, December 07, 2009

Ind. Courts - "In the first use of Indiana’s new public-accountability law, Indiana's Attorney General has taken action in court against the Brownstown clerk-treasurer accused of overpaying herself more than $365,000 in tax dollars"

So begins this news release today from Attorney General Greg Zoeller.

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to Indiana Courts

Law - Indiana's Judge Hamilton has been approved for the 7th Circuit, but Dawn Johnsen still waits.

I looked this afternoon for up-to-date information on the status of IU Law Prof Dawn Johnsen's nomination to head the Office of Legal Counsel and found this, from Firedoglake, headed "And Still She Waits." It begins:

Eleven months ago today, President Obama announced four people he intended to nominate for senior positions at the Department of Justice. David Ogden and Thomas Perrelli were confirmed on March 12, 2009, and Elena Kagen on March 19th.

Meanwhile, Dawn Johnsen — the nominee to head the Office of Legal Counsel — waited.

Worth reading.

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to General Law Related

Courts - "Famous Miranda rights warning could get rewrite" [Updated]

Today the SCOTUS heard oral arguments in the case of Florida v. Powell (08-1175) - see the links and argument preview on the SCOTUSwiki page. The issue in the case: "Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?"

Here is the post-argument story this afternoon from the AP, published by USA Today - some quotes:

The Supreme Court on Monday seemed headed toward telling police they have to explicitly warn criminal suspects that their lawyer can be present during any interrogation. * * *

The Florida Supreme Court overturned the conviction on grounds the Tampa police didn't adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Joseph W. Jacquot, Florida deputy attorney general, argued that the warning given Powell "expresses all the rights required under Miranda."

Justice Stephen Breyer clearly disagreed.

"Aren't you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?" Breyer said. "I mean, it isn't as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?"

Different courts have came down on different side on what exactly should be said, Justice Sonia Sotomayor said.

"We've got a split of circuit courts and state courts on whether this reasonably conveys or not. Shouldn't that be enough of an ambiguity for us to conclude it can't reasonably convey, if there's this many courts holding that it doesn't?" Justice Sonia Sotomayor said.

[Updated] "Are there two Mirandas?" just posted from SCOTUSblog, by Lyle Denniston, begins:
After all these years, with police and federal agencies routinely giving criminal suspects Miranda warnings (under the 43-year-old Miranda v. Arizona), it seemed Monday as if the law books have a formal notion of what the warnings must be, but, in reality, officers may have their own variations. The Court spent an hour in Florida v. Powell (08-1175) exploring whether the two can — or should — be the same.

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (5):

Frederick Shorts v. State of Indiana (NFP)

Blaze Downey v. State of Indiana (NFP)

Robert Stone v. State of Indiana (NFP)

Troy J. Hickman v. State of Indiana (NFP)

William P. Gibson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to Ind. App.Ct. Decisions

Courts - "A Victim’s Daughter Takes the Cellphone Industry to Court "

That is the headline to this Dec. 6th NY Times story by Matt Richtel that begins:

Questions about how much the wireless industry knew about the risks of distracted driving are not academic — at least not to Jennifer Smith.

Ms. Smith’s mother was killed last year when her car was hit by a driver talking on his cellphone. Ms. Smith, 35, has sued the companies that provided the driver’s phone and wireless service.

She hopes to prove that the companies should have foreseen the dangers and that they failed to provide adequate warnings.

Legal experts said her lawsuit, currently the only such case and one of only a handful ever filed, faces steep challenges but also raises interesting questions about responsibility for behavior that is a threat to everyone on the road.

Later in the story:
In 2003, a woman in Indiana sued Cingular after getting into an accident with another driver, who was reportedly using a Cingular phone. An Indiana appellate court, affirming a lower court’s decision, dismissed the suit, for reasons that include the unforeseeability of the accident and the absence of a legal relationship between the woman and Cingular. But the court also said that crashes are caused by driver inattention, not by cellphones, adding that drivers often talk on phones without crashing.
Here is the June 4, 2004 Court of Appeals opinion in the case of Terry L. Williams v. Cingular Wireless. Here are some quotes from the opinion:
The fact that states are beginning to limit the use of cellular phones while driving does not answer the question of whether it is foreseeable that the sale of a cellular phone will lead to a car accident. Although we agree that it may be foreseeable that a person who is using a cellular phone while driving might be in an accident, we do not agree with the leap in logic Williams urges us to make that it is likewise foreseeable to a legally significant extent that the sale of the phone would result in an accident. A cellular phone does not cause a driver to wreck a car. Rather, it is the driver's inattention while using the phone that may cause an accident. See Webb, 575 N.E.2d at 997 (declining to impose liability on a physician for prescribing steroids to a patient on the grounds that it was not reasonably foreseeable that the medication would cause patient to harm others). Drivers frequently use cellular phones without causing accidents, and, of course, cellular phones are used in all sorts of places other than in vehicles. We do not conclude that there was a high degree of foreseeability that the sale of the phone would result in an accident. * * *

Simply because an action may have some degree of foreseeability does not make it sound public policy to impose a duty. For example, many items may be used by a person while driving, thus making the person less attentive to driving. It is foreseeable to some extent that there will be drivers who eat, apply make up, or look at a map while driving and that some of those drivers will be involved in car accidents because of the resulting distraction. However, it would be unreasonable to find it sound public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer to prevent such accidents. It is the driver's responsibility to drive with due care. Similarly, Cingular cannot control what people do with the phones after they purchase them. To place a duty on Cingular to stop selling cellular phones because they might be involved in a car accident would be akin to making a car manufacturer stop selling otherwise safe cars because the car might be negligently used in such a way that it causes an accident.

479 Cellular phones are safely used in many different contexts every day. Indeed, many drivers use cellular phones safely for personal and business calls, as well as to report traffic emergencies. Encouraging drivers to report accidents, dangerous road conditions, or other similar threats to authorities on their cellular phones is in the public's interest.

Imposing a duty on Cingular and similar companies to prevent car accidents such as the one in this case would effectively require the companies to stop selling cellular phones entirely because the companies have no way of preventing customers from using the phones while driving. Doing so would place a higher burden on those companies than on other types of manufacturers or sellers of products that might be distracting to drivers. Ultimately, sound public policy dictates that the responsibility for negligent driving should fall on the driver. Legislation has already been drafted to address the issue of cellular phone use while driving and to place the responsibility on the driver to refrain from doing so. We are confident that the legislature is taking appropriate measures to protect public safety, and that is both its right and duty.

Transfer was denied Sept. 28, 2004.

This was before the heavy onset of texting while driving - see a list of ILB entries here.

More: See also this ILB entry from June 4, 2004.

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to Courts in general

Ind. Courts - "Casino takes card-counting case to Indiana Supreme Court"

A lengthy story today by Vic Ryckaert of the Indianapolis Star begins:

Counting cards in blackjack is so easy, Thomas Donovan says, that a seventh-grader could do it.

But using the legal technique to try to tilt the odds in the favor of gamblers is unfair, the gaming industry says. Indiana casinos call the practice, dramatized in movies such as "Rain Man" and "21," bad for business, and they want the right to bar card counters from their tables.

Grand Victoria Casino and Resort in Rising Sun, supported by the association that represents 11 of the state's 12 casinos, last week asked the Indiana Supreme Court to overturn a lower court ruling that forces them to allow Donovan to play blackjack, even though the Indianapolis man admits he is counting cards.

The fight has wider implications for the state's casino industry, which is reeling amid a down economy and increased competition from neighboring states.

Experts say Indiana casinos may feel forced to institute new rules that could slow play and make the game less attractive to all players -- possibly pushing them to casinos in Illinois, Michigan and, soon, Ohio, where voters in November approved a plan to build four casinos.

"The reality is if a casino were not able to ban a blackjack card counter, then they probably would be inclined to change the rules of the game," said William R. Eadington, director of the Institute for the Study of Gambling & Commercial Gaming at the University of Nevada-Reno.

Card counting has been a heated subject for casinos since it emerged as a skill in the 1960s. Counters like Donovan mentally tick off which cards have been played from the deck at a blackjack table. They often place small bets until a deck becomes "hot." That's when they bet big, confident they'll beat the dealer.

A side-bar, presumably written to aid 7th-graders, discusses "How it's done"
Card counters uses their mental prowess to track the number of high and low cards that have come out of the dealer's deck. A card counter sits at a table for hours and usually bets the minimum, say $5, waiting for the times when a lot of low cards have been played. When the deck has a lot of face cards remaining, it becomes "hot," in card-counting parlance. That gives the card counter a mathematical edge over the house.
Here is the Court of Appeal's Oct. 30, 2009 opinion in Thomas P. Donovan v. Grand Victoria Casinio & Resort, L.P. Here is an Oct. 14th ILB entry on the oral argument. (Yes, the opinion came out only a few weeks later.)

Posted by Marcia Oddi on Monday, December 07, 2009
Posted to Ind. App.Ct. Decisions

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

The answer to "What did you miss over the weekend from the ILB?" is shorter than usual:

From Sunday, Dec. 6, 2009:

From Saturday, Dec. 5, 2009:

Posted by Marcia Oddi on Monday, December 07, 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 12/7/09):

Thursday, December 10th

Next week's oral arguments before the Supreme Court (week of 12/14/09):

Next Thursday, December 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 12/7/09):

Tuesday, December 8th

Wednesday, December 9th

Thursday, December 10th

Next week's oral arguments before the Court of Appeals (week of 12/14/09):

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.

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, December 07, 2009
Posted to Upcoming Oral Arguments

Sunday, December 06, 2009

Law - "Why are so few temporary mortgage modifications turning permanent?"

So asks Floyd Norris in this Dec. 3rd NY Times story that begins:

One reason may be the same one that a lot of bad loans were made in the first place. Borrowers can declare their income, and the banks are willing to grant temporary modifications based on those figures, without any evidence to confirm them.

But to make a modification permanent, the banks have to see proof of income, and the borrower has to make three monthly payments of the new lower amount. In most cases, those requirements are not being met.

The banks, and the government, are soon going to have to decide what to do about borrowers who are making the modified payments but have not provided the documents after repeated efforts to obtain them. Should the banks just take the money and let the preliminary modification turn permanent? Or should they foreclose?

Those decisions will affect just how fair the program is seen to be. If the banks allow those who do not submit documents to get by without doing so, it will appear unfair to those who told the truth about their income, and paid more than they might otherwise have been required to pay. If they do not, the wave of foreclosures could devastate more neighborhoods.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to General Law Related

Courts - More on "New recusal rules for Mich. Supreme Court under fire"

Updating this ILB entry from Dec. 1st, a column by Brian Dickerson of the Detroit Free Press today begins:

Can the back-biting, name-calling and playground-level cruelty that pervades Michigan's highest court really get any worse?

State Supreme Court Justice Maura Corrigan thinks so.

"The current philosophical and personal divisions on this court are no more than a mild case of acne compared to the cancerous vitriol sure to spew from justices' pens" now that the court's new, mostly Democratic majority has begun to flex its muscles in earnest, Corrigan wrote in a despairing dissent the day before Thanksgiving.

" 'Every kingdom divided against itself is laid waste, and no city or house divided against itself will stand,' " she added ominously, quoting from the Gospel according to Matthew.

The immediate source of Corrigan's consternation is a new rule that permits the full state Supreme Court to decide whether an individual justice whose impartiality has been challenged in a particular case should be disqualified from participating in that case.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Courts in general

Ind. Courts - More on "Bill for capital cases delivered to taxpayers"

Updating this ILB entry from Nov. 8, 2009, quoting a Gary Post-Tribune story headed "Lake County, state have spent combined $2.7M defending Lake County death penalty defendants since 1990," see this story by Kevin Landrigan in the Nashua NH Telegraph headed "Death penalty costs N.H. millions." It begins:

The taxpayer cost to prosecute, defend and sentence William "Stix" Addison for the October 2007 murder of a Manchester police officer has reached nearly $3 million and will grow by half a million dollars a year while he appeals the verdict.

Meanwhile, state prosecutors spent $2.4 million to convict John Brooks of Londonderry for ordering the 2005 murder of a Derry handyman.

The jury turned down the state's bid to apply the death penalty and instead Brooks is now serving serve life in prison without the possibility of parole.

An April 3, 2006 story by Ben Zion Hershberg of the Louisville Courier Journal began:
The three trials in the Camm murder case have cost Floyd County taxpayers about $1.8million — and the meter is still running.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Indiana Courts

Courts - More on "Does the punishment fit the crime for child porn?"

Updating this ILB entry from Nov. 21st, see this entry today from the Sentencing Law and Policy Blog.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Courts in general

Ind. Gov't. - "Foster care payments cut by 10 percent"

So reported Niki Kelly yesterday in the Fort Wayne Journal Gazette:

INDIANAPOLIS – State officials on Friday announced 10 percent cuts in foster care per-diem rates and adoption assistance, a move that will save $17.5 million over the biennium.

The Indiana Department of Child Services has been given the task by Gov. Mitch Daniels to reduce their agency’s spending, and the foster care and adoption payments are the first significant element of those cuts.

The reduction begins Jan. 1. * * *

The maximum monthly adoption payments are tied to the foster care per-diem rates and will also see a 10 percent reduction.

This week, DCS announced cut to other programs and services contracted through the agency. The Healthy Families Program, Youth Services Bureau, Project Safe Place, Residential Services, and Child Welfare Services will see reductions in their rates beginning Jan. 1.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Indiana Government

Ind. Gov't. - More on "Post-IBM welfare process cloudy"

Updating this Oct. 23rd ILB entry quoting a story from Mary Beth Schneider's report in the Indianapolis Star on that date that began:

Secretary of State Anne Murphy had few answers for lawmakers today about how the state will transition to a new welfare delivery system now that the $1.34 billion contract with IBM has been canceled.
Nothing has changed, according to this editorial today in the Fort Wayne Journal Gazette headed "Give details of welfare hybrid plan." Some quotes:
State officials had plenty to say in 2005 as they prepared to sell a massive contract to run Indiana’s welfare-eligibility system. High error rates. Poor service. Fraud and corruption. Inconsistent performance.

All were charges leveled against the system of determining who was qualified to receive food stamps, Medicaid and other assistance.

“If we actually help a person in a timely manner, it is despite the system and because our employees’ compassion has found a way around our decrepit business processes,” wrote Mitch Roob, then the secretary of the state Family and Social Services Administration.

Now, three years later, in the wake of a disastrous experiment in privatization, FSSA officials are silent on details of how they will fix the mess they created. Gov. Mitch Daniels and his appointees owe Hoosiers a more transparent process than the one that created the ill-fated deal with IBM and Affiliated Computer Services, including a full accounting of what’s left of the state-run eligibility system.

Without the information, the continued involvement by ACS in the $1.3 billion deal suggests IBM was sacrificed to keep the privatization push alive.

For now, all that’s known is that a “hybrid system” will combine parts of the original state-run eligibility system with work done by ACS and the subcontractors hired to assist. The hybrid plan is supposed to be unveiled Dec. 14, but state employees at the county level reportedly have not been involved in working through the details and know little about how it will be implemented.

Rep. Dennis Tyler, D-Muncie, isn’t waiting to see how and if a hybrid plan will work.

“The fox is still in the henhouse,” he said. “ACS is still at the head of this. We tried to be a part of this from the beginning, but they just shut us out of the process.”

Tyler is working with groups representing state employees and social-service providers to draft a bill to address the eligibility process. He said Republican state Sen. Vaneta Becker of Evansville and Sen. Vi Simpson, a Bloomington Democrat, are working on legislation. He’s optimistic the General Assembly will approve a meaningful measure but is worried the state’s budget problems won’t allow for the investment. A new computer system was supposed to be part of the makeover, but the same 20-year-old system is still in place, hampering employees’ efforts to serve clients.

“Trust us” is no longer acceptable when it comes to FSSA promises. The administration must become a full partner in ensuring a vulnerable population has access to the services it needs and deserves.

From Eric Bradner's story today in the Evansville Courier & Press:
The battle over Indiana's human services agency's attempt to update the way it processes welfare applications has been fought for more than a year now.

As some critics called for Gov. Mitch Daniels to cancel the Indiana Family and Social Services Administration's $1.34 billion contract with a team of vendors led by Armonk, N.Y.-based IBM Corp., momentum built over the summer in a State Budget Committee hearing and eventually led to Daniels' decision to heed those requests and fire IBM.

At a committee meeting in September, Rep. Gail Riecken, D-Evansville, told her colleagues that she wanted to see the contract canceled completely.

She wasn't satisfied when, the next month, Daniels canceled the deal with IBM but kept subcontractors such as Dallas-based Affiliated Computer Services Inc. on board.

Riecken filed legislation, which is due for a hearing at a House Ways and Means Committee meeting in December, that would require the state to eliminate the rest of those contracts.

She was met with resistance from the Family and Social Services Administration.

Officials there say they are concerned that Riecken's bill would force the cancellation of far more contracts than she intended.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Indiana Government

Courts - More on: James Bopp Jr. to represent newly elected Wisconsin Supreme Court Justice

Updating earlier ILB entries on Wisconsin Supreme Court Justice Michael Gableman, including this one from Nov. 26, 2008, Patrick Marley of the Milwaukee Journal Sentinel reports in a long Dec. 5, 2009 story headed "Justice Gableman's positions have lawyers defending their role" that begins:

Madison — The tension between defense attorneys and state Supreme Court Justice Michael Gableman is growing.

The State Bar of Wisconsin's board of governors adopted a statement Friday without dissent asserting the importance of defense counsel - a move prompted by positions Gableman has taken that critics view as disparaging of the judicial system.

Meanwhile, lawyers have asked Gableman to step aside in seven cases because of his comments about criminal defendants. Gableman has declined to get off the cases, but lawyers in some cases have asked the other justices to force him off the cases.

The court has not weighed in on that request, and it remains unclear whether the justices have the power to force a colleague off a case.

The bar, which consists of more than 23,000 lawyers, did not dwell on Gableman in its statement, but said it was responding to comments by his attorney, including one that a public defender was willing to "subvert . . . bringing criminals into account." The attorney, James Bopp Jr. of Indiana, discussed the matter in a September court hearing and news conference as he fended off allegations that a campaign ad by Gableman lied about his opponent.

The bar statement said the constitutional right to a fair trial "would be a cruel mirage in the absence of legal counsel."

Father Greg O'Meara, a Marquette University Law School assistant professor and chairman of the bar's criminal law section, went further.

"Justice Gableman apparently believes that at least some defendants are appropriately condemned without representation, or trial, appeal or other unbiased process," O'Meara wrote in a memo. "Such comments pose a serious threat to the perception, if not the reality, of fairness and neutrality of the court."

Bopp said he never said anything disparaging the right to counsel and that the bar was hypocritical because his comments came as part of his defense of Gableman.

"They are criticizing me for the zealousness of my representation," he said.

Posted by Marcia Oddi on Sunday, December 06, 2009
Posted to Courts in general

Saturday, December 05, 2009

Ind. Courts - More questions on: A new Indianapolis parking citations court will open Dec. 1st

This is the third ILB entry this week on the new "court." The most recent earlier entry, from Dec. 2nd, asked:

My questions continue with today's story. Don't "courts" require judges with some sort of authority even if they are not lawyers, rather than these employees of the contracted parking ticket company? And what kind of procedural rules apply?
Article III of the Indianapolis - Marion County Municipal Code deals with the "Ordinance Violations Bureau." Sec. 103-52 sets out the provisions and penalties. Note that Sec. 103-51 provides:
Violations of the Code (or ordinance) provisions set forth in the schedule in section 103-52 are designated as subject to admissions of violation and payment of the designated civil penalty in an amount not exceeding any limitation under IC 33-36-2-3 in accordance with the procedures of this article.

Sec. 103-59 deals with procedure on denial of violation, failure to appear, or failure to pay. If a person fails to timely admit the violation and pay the civil penalty, then under Sec. 103-59, "the violations clerk shall report such circumstances to the city prosecutor for appropriate administrative or judicial proceedings against such person." In other words, the ordinance violation bureau does not appear to be the forum to contest a parking ticket.

Note also Sec. 103-60 - Limitations:

The civil penalties specified in this article shall apply only to violations admitted as provided in this article and shall be considered offers in compromise. If administrative or judicial proceedings are initiated for such violation, the specific penalties for such violation or the general penalties of the Code shall be applicable to the violation.
Article IV covers "Administrative Adjudication of Parking Citations."

These are the "parking courts."

Sec. 103-72:

It is hereby declared to be the policy of the city that parking citations which are not resolved pursuant to the enforcement procedures under Article III of this chapter may be subject to enforcement in administrative proceedings as provided in this article.
However, as one reads further, the procedures contemplated by Art. IV may not jive with the new "court" procedures described in the newspaper at the Guardian Home and as shown on Channel 6 TV (although a video, apparently no longer available, showed a clerk reading "Pursuant to Art. IV ..."). What is contemplated by Article IV is a full administrative hearing, with formal notice, prehearing procedures (Sec. 103-75), formal hearing procedures (Sec. 103-76) including:
A party may present evidence in the form of testimony, affidavits and documentation, engage in argument, and conduct cross-examination. A party may participate in person or by counsel at the party's own expense; if the party is not an individual or is incompetent to participate, then the party shall participate by a duly authorized representative.
In addition, the hearing officer shall cause an audio recording of the hearing to be made at the expense of the city.

Finally, Sec. 103-79 provides:

Petition for review of decision; time limitation.

(a) A verified petition for review of the decision of a hearing officer, stating the alleged error and any factual or legal basis therefor, may be filed in the circuit or superior court of Marion County within thirty (30) days after the day on which the decision is rendered. A party who does not file an appeal within this time period forfeits the right to appeal.

(b) Any party who files a verified petition for review shall within fifteen (15) days thereafter secure from the hearing officer a certified copy of the record of the hearing, and file the same with the clerk of the court.

(c) An extension of time within which to file the record may be granted by the court upon a showing of good cause, which shall include the petitioner's inability to obtain the certified copy of the record with fifteen (15) days.

(d) The failure of a party to file a certified copy of the record or to secure an extension of time therefor shall be cause for dismissal of the petition for review upon motion of any party of record.

(So what do you do if you got a ticket because of a broken meter? It looks like your only real cost and time effective option is to just pay the fine.)

For more, read this entry in conjunction with this one posted today at the Ogden on Politics Blog.

Posted by Marcia Oddi on Saturday, December 05, 2009
Posted to Indiana Government | Indiana Law

Friday, December 04, 2009

Ind. Courts - "Attention Turns To Science In Rape Trial"

This lengthy story today in the Warsaw Times-Union, reported by Jen Gibson, caught my eye in light of recent case law. Here are some quotes:

After a day of emotional testimony Wednesday, attention turned to scientific evidence Thursday in the trial of Shawn Lester Hattery in Kosciusko Superior Court I. * * *

Then the prosecution presented witnesses to explain how the DNA sample was gathered from the evidence gathered in the rape kit. Orchid Cellmark Laboratory in Nashville, Tenn., is a company contracted to perform DNA testing on evidence when the Indiana State Police Lab is backlogged.

Videos of depositions were shown Thursday from Deanna Lankford and Tanya Vo, forensic DNA testing analysts for Orchid Cellmark.

Lankford said that the evidence from this case was received at Orchid Cellmark Dec. 30, 2005, from the Indiana State Police. She explained that the evidence from the sealed rape kit was opened, inventoried, labeled and returned to a secure location in the laboratory until it is tested for DNA.

Both Lankford and Vo also explained how DNA is extracted from cuttings from the swabs that are submitted for testing. The cuttings are separated and put into various reagents to test for the presence of semen. Once semen is found on samples, they are put into a centrifuge and the semen is separated from other fluids that are in the sample. In this case, the swabs from the victim's vagina as well as a sample of liquid from the vaginal wash performed on her at the hospital yielded the best evidence of semen.

Once the DNA is extracted, it is analyzed, and a DNA profile is identified. Each human being, unless they are an identical twin, has a unique DNA profile.

After the DNA was extracted from the samples from the rape kit, the results and the evidence were returned to the Indiana State Police. The state police then entered the information into a database, which is checked against the Convicted Offender DNA Index System for a match. When the original sample was obtained from the rape kit in July 2006, there was no match in the system.

However, in 2008, the Indiana State Police received a match for the DNA. Hattery was convicted of a crime in a different case, and he was sent to prison. Hattery had to submit to a DNA test to be entered in the CODIS database.

After his DNA was entered into CODIS, Hattery's name matched the DNA collected in the Oct. 5, 2005, rape in Warsaw.

Once the DNA match was made, Faucett was contacted and he and Indiana State Trooper Tim Carpenter went to the prison where Hattery was incarcerated. While Faucett interviewed Hattery, Carpenter swabbed Hattery's mouth for DNA for an evidentiary sample. When the evidentiary sample was tested by Nicole Keeling at the Indiana State Police laboratory in Indianapolis, it also matched the DNA from the rape case.

In cross examinations of the witnesses, defense attorney Scott Lennox tried to poke holes in the case. He hinted that the sample from the lab could somehow be tainted or mixed up with someone else's sample. However, each witness testified that the samples are kept separate and secure at each step of the testing process.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Courts

Ind. Law - "Attorney General defends Indiana robo-call law from national political group’s challenge"

I suspect that many of you are like me. Now that the No Call List has been in effect, and effective, for several years, I resent any call that gets by it and intrudes on my dinner hour, or any hour. So I wonder, What are these guys thinking? when I read about groups suing to overturn the law. And now robo-calls! Don't they have any idea how unpopular they and their causes would be if they won?

It is with that mindset that I read today Attorney General news release today that begins:

In light of a political activist group’s efforts to invalidate state laws protecting consumers from annoying prerecorded calls, Indiana Attorney General Greg Zoeller is urging federal officials not to override Indiana’s law restricting robo-calls.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Law

Ind. Law - More on "Surprises" in the 2009 budget continue to be revealed

Wasn't it just Tuesday that the ILB posted this entry on yet another surprise that has been hidden in the 2009 budget bill.

Today's issue of Indiana Legislative Insight (subscription only, reprinted with permission) reports on yet another:

Our sister newsletter, INDIANA GAMING INSIGHT, also reported about a budget bill provision, apparently inserted at the behest of the Department of Revenue, that would bar a cash refund of anything Revenue might owe to some out-ofstate individuals who formerly held a stake in an Indiana casino, and were pursuing a refund in the Indiana Tax Court. Because the facts and circumstances were virtually identical to another recent Tax Court ruling against Revenue in an appeal involving the same casino, a refund was looking likely until a provision appeared in the special session budget bill that would effectively prohibit these individuals from any recovery, because a refund above $5,000 would have to come in the form of a credit against future taxes . . . but, because these individuals now live in Florida, are out of the casino business, and have no Indiana income, that would effectively mean they would have no ability to get any monies owed to them by the State of Indiana, assert Barnes & Thornburg attorneys Peter Rusthoven and Larry Stroble in a revised appeal petition questioning the constitutionality of the budget bill provision.
And there are more... A story is coming, perhaps next week.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Law

Ind. Decisions - 7th Circuit hears oral arguments in Bauer v. Shepard

On May 6, 2009, Judge Springmann issued a 36-page opinion and order in the case of Torrey Bauer, et al. v. Randall T. Shepard, et al., granting a preliminary injunction enjoining the enforcement of certain provisions of the Indiana Code of Judicial Conduct. Plaintiffs had sued to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues.

On July 8, 2009, Judge Springmann vacated her injunction and dismissed the case. Here is the 71-page opinion. The plaintiffs in the case were Indiana Right to Life, Torrey Bauer, an attorney and (at that time) a candidate for judge of the Kosciusko Superior Court, and Judge David Certo of the Marion Superior Court.

Coverage of the ruling appeared in the July 11, 2009 Fort Wayne Journal Gazette.

The decision was appealed to the 7th Circuit. Oral argument was heard yesterday, Dec. 3rd. Here is a direct link to the 60-minute audio of the oral argument.

(For reasons I don't understand, briefs in these cases are no longer available via the 7th Circuit site. The last time I checked, briefs in civil cases had still been available.)

Today's issue of Indiana Legislative Impact has these comments (reprinted with permission) on yesterday's argument:

At oral argument (the panel was comprised of Chief Judge Frank Easterbrook and circuit judges Daniel Manion and Terence Evans), judges seized upon the distinction between muzzling a judge or judicial candidate entirely, and imploring upon such an individual from making statements that are inconsistent with, or might compromise, their impartiality. That principle, the plaintiffs below argued, was too vague a standard. Josiah Neeley of Bopp, Coleson & Bostrom, attorney for the plaintiffs, which included Indiana Right to Life, Inc. and Marion County Superior Court Judge David Certo, suggested that the pledges and promises clause would be constitutional „if it was limited to pledges and promises of certain results in specific .... case or class of cases.‰ Solicitor General Tom Fisher argued the case for the Indiana judiciary, and judges were largely far less adversarial, spending more time seeking answers and interpretations than challenging his assertions . . . but the judges may have not been satisfied with his responses on vagueness.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (0):

Jeremiah W. v. Jenny W. (NFP) - "Father has demonstrated no abuse of discretion in the trial court’s order for modification of child support and the payment of attorney’s fees. Affirmed."

NFP criminal opinions today (0):

Robert Carl Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides establishment clause case today

In Milwaukee Deputy Sheriffs' Ass'n. v. Clarke (ED Wis.), a 14-page opinion, Judge Williams writes:

When the Milwaukee County Sheriff invited a religious group to speak at the Sheriff’s department leadership conference, some officers took offense to the Christian-focused presentation. And when the Sheriff allowed the same group to speak at a number of mandatory employee meetings, the officers complained. When the presentations continued, two Milwaukee County Sheriff’s deputies, along with their union, sued under 18 U.S.C. § 1983, alleging a violation of the Establishment and Free Exercise Clauses of the First Amendment. The district court granted the plaintiffs’ motion for summary judgment on their Establishment Clause claim, and the defendants appealed. Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause. Therefore, we affirm.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Ind. (7th Cir.) Decisions

Environment - "Voices aired on Rockport gasification plant "

Updating this ILB entry from Nov. 25th, 2009, Garret Mathews of the Evansville Courier & Press reports today on Thursday's public hearing in Rockport "to allow representatives of the U.S. Department of Energy listen to public opinion and questions about a plant proposed for Spencer County that could convert coal into natural gas." Some quotes:

Bill Rosenberg is president of E3 Gasification, a Cary, N.C.-based company that is one of the developers of the project.

"Over a 30-year period, we believe this plant will save ratepayers over $1 billion," Rosenberg said before the forum. "We'll buy coal from area mines. Estimates are that would be 3.5 million tons a year."

Rosenberg said the project has been "warmly received by the unions and Ivy Tech. We want to invest $2 billion in a plant that is both clean and economically sound. As part of the process, we would sell byproducts such as carbon dioxide and sulfuric acid. Those things would not be emitted into the atmosphere. "

In March, Gov. Mitch Daniels hailed the $2.2 billion coal-to-gas plant as a way to use Indiana's resources and to put Hoosiers to work.

Grant Smith of Indianapolis-based Citizen Action Coalition is opposed to the project.

"Financially, it's (not a viable) project," he said before the presentation. "Wall Street won't provide the money. Utility companies don't want it because they can't get a good enough deal. The only way to get off the ground is to make the ratepayers the collateral for the loan. It's a totally anti-capitalistic approach. We have an ample supply of natural gas in this country. The cost is dropping."

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Environment

Ind. Decisions - No cases granted transfer this week

IThe Clerk's transfer list should be available probably Monday. Meanwhile, the ILB has just received notice that no transfers have been granted this week.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Transfer Lists

Ind. Decisions - "State Supreme Court upholds a December 2007 wrongful death verdict against Clay Community School Corporation"

The Indiana Supreme Court decision Nov. 30th in the case of Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes, II (ILB summary here), where the Court affirmed the jury verdict for the plaintiffs, is the subject of a story by Ivy Jacobs in the Brazil Times. From the story:

It took three hours for jury members to award a $425,000 judgment in favor of Kodi Braden Pipes' parents, who collapsed while shooting free throws during an eighth-grade basketball practice at Clay City Jr.-Sr. High School Nov. 19, 2003.

Although CPR was administered immediately, Pipes was pronounced dead after being transported to the emergency room of St. Vincent Clay Hospital.

Autopsy reports determined Pipes died of post-myocarditis with myocardopathy.

Pipes had blacked out two days prior to the incident. While under doctor's care, Pipes' mother informed the coach he could "walk through plays, but he was not to participate in "running or strenuous activity."

Although Pipes attended school two days without incident and was not officially cleared by a doctor, Pipes participated in a running drill at the practice.

Pipes' parents -- mother Ronna Timberman and father John Pipes II -- filed the wrongful death case against the CCSC in August 2006.

A core issue at the center of the trial -- and part of the appeal process filed by the school corporation -- was whether school officials made sure Pipes had medical clearance before returning to practice and who was responsible for the boy's death.

Although "contributory negligence" has been considered an absolute defense available to governmental entities, including public schools, the jury returned a verdict and damage award in favor of Pipes' parents.

Citing various issues wrong with the trial, attorneys for the CCSC filed an appeal in 2008. * * *

On Monday, the 13-page, 5-0 opinion, written by Justice Frank Sullivan Jr. on behalf of the Indiana Supreme Court, was released.

In it, Sullivan wrote the "case requires (the justices) to determine whether Indiana law recognizes a rebuttable presumption that children between the ages of 7 and 14 are incapable of contributory negligence."

Since the jury instruction reflected a legal presumption and correct statement of law running in favor of Pipes, the CCSC had to overcome it by providing proof he was accountable for his actions.

Of the 16 jury instructions submitted by the CCSC, according to Sullivan's document, only Kodi Pipes' decision-making level was considered by the jury.

The court concluded that since the CCSC never presented evidence or included instructions to the jury about considerations concerning any negligence of Pipes' parents in its defense, the issue was waived.

While the court recognized some language in the jury instructions might have been more precise if written differently, it was not enough of an error to reverse the verdict of the jury.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Sikh sues shuttle operator that wouldn't hire him: Airport contractor won't let drivers work with a beard, turban"

Bruce C. Smith reported in the Dec. 3rd Indianapolis Star:

A Greenwood man whose Sikh faith requires him to wear a beard and turban is suing an airport shuttle company, claiming he was denied a job because of his religion.

In the 11-page lawsuit filed in the U.S. District Court for Southern Indiana, Inderjit Singh claims Air Serv Corp., which provides shuttle bus services at airports across the country, rejected his application to be a driver because he wouldn't work without his turban and beard.

"I just want to work and earn a living, but Air Serv refused to give me a chance even after they understood that a turban and a beard are an integral part of my faith," Singh said in a statement from attorneys at California-based Public Justice. * * *

The U.S. Equal Employment Opportunity Commission investigated Singh's complaint and found that he "was denied employment because (the company) was unwilling to accommodate his need to wear a turban and beard." The EEOC finding is included in court filings. * * *

[His local attorney, Kimberly D. Jeselskis] said Singh worked without a problem in similar jobs at Washington Dulles International Airport.

Indianapolis International Airport officials said the airport management does not get involved in hiring decisions by independent contractors.

The suit, which alleges violations of the Civil Rights Act that prohibits discrimination based on race, religion and other factors, asks for back pay for the two years since his application, plus punitive damages.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Courts

Ind. Law - More on "Ex-state rep. Oxley charged over claim"

Updating this ILB entry from July 1, 2009, Rick Callahan of the AP reports:

INDIANAPOLIS – The 2008 Democratic candidate for Indiana’s lieutenant governor pleaded guilty Wednesday to a charge that he misrepresented himself as a state legislator last summer to avoid arrest for public intoxication.

Former state Rep. Dennie Oxley II, 38, pleaded guilty to the misdemeanor charge during a court hearing originally set to consider a defense motion to suppress evidence in the case.

A Marion County judge who accepted the plea gave Oxley a one-year jail sentence, suspending all but two days, which he has already served. Oxley also was ordered to serve 90 days of probation in Crawford County, where he lives. * * *

After Wednesday’s hearing, Marion County prosecutor’s office spokesman Mario Massillamany said he believed Oxley pleaded guilty because he realized he couldn’t successfully fight the charge.

Oxley’s attorney, Richard Kammen, said his client entered the plea only because he wants to spend as much time as possible with his 60-year-old father, state Rep. Dennie Oxley, D-Taswell, who was hospitalized in November after going into cardiac arrest.

Posted by Marcia Oddi on Friday, December 04, 2009
Posted to Indiana Law

Thursday, December 03, 2009

Ind. Courts - Still more on "David Camm defense seeks special prosecutor to replace Henderson"

Updating this ILB entry from earlier today, this report from WIBC Indianapolis has a few new pieces of information addressing questions I've had:

It will be the State of Indiana vs. David Camm for a third time.

Floyd County Prosecutor Keith Henderson announced Thursday that he'll re-file murder charges against David Camm in the killing of his wife Kim and their children Brad and Jill at their Georgetown home in 2000.

Henderson says a third trial will be a challenge, and expects a judge to be conservative on what evidence he allows to be presented.

The Indiana Supreme Court ordered a third trial because they said Henderson argued improperly during closing arguments that Camm had molested his five year old daughter Jill.

Henderson is confident that other evidence, including blood and tissue splatter, will be enough to get a third conviction.

An attorney for Camm says she is not surprised that her client will be facing a third trial.

Stacy Uliana says attorneys expected the decision and have been preparing for a third trial since Camm's conviction was overturned this past summer.

Uliana questions whether Henderson is the right person to be making the decision.

She's requested a special prosecutor, citing a book deal that Henderson was involved in. Henderson says he pulled out of that deal as soon as Camm's conviction was overturned in June.

Uliana is hoping the next step will be a hearing on the motion for a special prosecutor. If one is appointed, Uliana believes that person would have to revisit the decision on whether to have another trial.

Attorneys will also be asking that bond be set for Camm as he awaits a third trial.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Courts

Law - Following up on "Concord Online Law School Places Second in National Moot Court Competition"

Following up on this ILB entry from July 13, 2009, which ended:

The point? Virtual schooling is now accepted at the grade and high school levels. Higher education costs can be very high. It does not seem like much of a jump to be seriously looking at accrediting virtual law schools.
Today Debra Cassens Weiss has this post at the ABA Journal blog, headed "Online Law Grad Petitions to Take Bar Exam, Cites High Cost of Traditional Education." Some quotes:
Valarie Wallin, a graduate of an online law school, has passed the bar in California and Wisconsin. Now she wants the Minnesota Supreme Court to allow her to take the exam there. * * *

Today the average annual tuition at the four law schools in Minnesota is $27,890, according to Wallin’s petition (PDF). That compares to an annual tuition of $9,250 at the online Concord Law School and $3,500 at Oak Brook College of Law.

Wallin says Minnesota is one of 19 states that do not have some kind of waiver for graduates of unaccredited law schools. Her Supreme Court petition seeks an amendment to the rules to allow lawyers licensed in other states to sit for the Minnesota bar exam, regardless of their legal education.

Here are some quotes from the petition:
3. By granting this petition, this Court will increase opportunity for those who do not have the resources, in time or treasury, to sequester themselves within the somewhat inflexible programs of expensive traditional law schools. Technological advances which reduce cost and expand the availability of valid educational alternatives have been increasingly recognized and added in educational programs on all levels and in nearly all fields. Yet the same technology, and accompanying benefits, is largely unavailable in legal education due to the current crabbed accreditation standards.

4. Distance learning is Ubiquitous. Once derided as mere correspondence courses beneficiary of technological advancements and has taken its place in a variety of disciplines as a bona fide and effective, and often superior, educational alternative. There are more than 2.6 million students emolled in undergraduate and graduate distance learning programs across the country, and 90% of colleges in America offer distance graduates. Even the venerable University of Oxford, whose founding is often thought to be in the 12th century, offers an online law degree in the form of a part-time, 22-month, distance-education program.

22. *** [T]here are only five "entry" states in which a graduate of a non-ABA-accredited school in the United States may sit for an initial bar examination. Four of the five states that allow a graduate of a non- ABA-accredited school in the United States to sit for the bar exam have within their boundaries non-ABA-accredited schools. They are California (39 schools), Massachusetts (2 schools), Alabama (2 schools) and Tennessee (1 school). The fifth, Connecticut, allows graduates of the non-ABA-accredited schools in Massachusetts to sit for its bar examination.

23. Thus, there are only five "entry" states where graduates of non-ABAaccredited law schools in the United States may meet the proposed rule's requirement of passing a bar examination and becoming licensed. In addition, each of those "entry" states only allows graduates of in-state non-ABA-accredited law schools to sit for the state's bar examination. In other words, graduates of non-ABA-accredited law schools in California can only sit for the California bar examination. Similarly, graduates of non- ABA-accredited law schools in Alabama and Tennessee may only sit for the bar examination in the state where their school is domiciled. Only graduates of the non- ABA-accredited schools in Massachusetts have a choice; they can immediately sit for the bar examination administered in either the Bay State or Connecticut.

30. The rule change proposed by this petition is not new. It has been tried and tested by the State of Wisconsin. Since 1998, attorneys who graduate from non-ABA accredited law schools but who are licensed to practice law in another jurisdiction have been allowed to take Wisconsin's bar examination. Wisconsin's change prompted some uproar ten years ago, but after a decade the change has proven to be rather unremarkable. Only 26 lawyers, or less than three per year, have taken advantage of the changed rule and sat for the state's bar examination? Of those who took the examination, or 85% passed it, a higher rate than graduates of accredited schools. Although statistically small, none of the 22 who became licensed has faced disciplinary action in Wisconsin.

For the foregoing reasons, Petitioners respectfully request that the Court modify the Rules for Admission to the Bar as set forth in this Petition and expand opportunity by allowing lawyers licensed in other U.S. jurisdictions to sit for the Minnesota bar examination.

Dated: April 29, 2009

The peition is accompanied by an Order, filed Aug. 10, 2009, of the Minnesota Supreme Court, "DIRECTING THE BOARD OF LAW EXAMINERS TO SUBMIT A STUDY OF PROPOSED AMENDMENTS TO THE MINNESOTA RULES FOR ADMISSION TO THE BAR." It is due "on or before June 1, 2010."

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to General Law Related

Ind. Courts - Still more on "Group challenges arrests of Notre Dame protesters"

Updating this ILB entry from Sept. 10, 2009, which quoted a South Bend Tribune story headed "Defense claimed judge in Notre Dame protesters case biased" that concluded "The next hearing for Dixon's clients is set for Dec. 3.," today Alice Gallegos has a story in the SB Tribune headed "Judge allows appeal's court to decide Notre Dame bias issue":

MISHAWAKA—A higher court will now decide if a judge should recuse herself from the cases of close to 90 anti-abortion demonstrators arrested on the University of Notre Dame campus.

In a hearing today, defense attorney Thomas Dixon repeated his argument that a new judge should oversee the large group of anti-abortion protesters who have opted to take their trespassing cases to trial.

Dixon believes St. Joseph Superior Court Judge Judge Jenny Pitts Manier is biased because of her husband's relationship and former employment status at Notre Dame.

Mainer has previously said her husband has no personal or professional interest in the outcome of the Notre Dame cases at hand nor do his political or ethical beliefs affect her performance as judge.

Prosecutors on Thursday told the judge they had no objection to an appeal being made before the cases head to trial. Both sides brought up the potential of an appeal being granted after the trials are completed and the possible burden of then having to conduct a second set of trials.

After a more than two-hour hearing, Mainer allowed Dixon's request for a final opinion on the bias claims by the Indiana Appellant Court.

Until the higher court rules on the bias argument, the cases of the anti-abortion demonstrators will not move forward.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Ind. Trial Ct. Decisions

Courts - "Trial of Blogger Accused of Threatening 7th Circuit Judges Opens"

Just so you know, a trial with bizarre facts is taking place in Brooklyn. Today's New York Law Journal story by Mike Fass begins:

Opening arguments took place Wednesday in the Brooklyn federal court trial of Hal Turner, the New Jersey blogger and Internet-radio talk-show host accused of threatening on his blog to assault and kill three federal judges for their votes to uphold handgun bans in and around Chicago. * * *

Turner's lead attorney, Michael A. Orozco, described his client's postings as the constitutionally protected editorials of a concerned Internet reporter.

"For the first time in over 100 years, " Orozco said, "a member of the media is on trial for expressing his own opinion." * * *

At the heart of the government's case are a series of blog entries posted by Turner in June, in which he called for the murders of Judges Richard Posner, Frank Easterbrook and William Bauer of the 7th U.S. Circuit Court of Appeals for voting to uphold handgun bans in Chicago and Oak Park. * * *

To support Turner's claim that his blog entries were made as part of an undercover FBI operation to root out violent radicals, Turner will attempt to call on several high-ranking federal officials to substantiate his claim.

The WSJ Law Blog also has a post about the trial.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Courts in general

Law - "‘Fear of Falling’: How the U.S. News Rankings Have Changed Law School"

Fascinating. The WSJ Law Blog's Ashby Jones' just-posted entry begins:

It’s something we all sorta know — that the law school establishment lives, sleeps, breathes and eats for the U.S. News & World report’s annual rankings. Still, it’s a bit chilling somehow to open an article and read these words:
[T]he U.S. News & World Report’s annual ranking of law schools profoundly influences the way those schools are managed, spend resources and are perceived internally and by the outside world.
But such is the lead in a recent National Law Journal article, which takes a look at a recent study put out by two sociology professors who reportedly interviewed more than 200 law school administrators, faculty members and prospective law students.

The report, “Fear of Falling: The Effect of U.S. News & World Report Rankings on U.S. Law Schools,” was authored by Northwestern’s Wendy Espeland and Iowa’s Michael Sausder. It was recently released by the Law School Admission Council, which partially funded the research.

As the NLJ story points out, the study’s main conclusion — that law schools have several ways of gaming the system — won’t surprise many who follow legal education.

But some of the details of the study are interesting.

See the NLJ article here.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to General Law Related

Courts - PACER's $0.08 a page rate adds up in a hurry

That is the conclusion from this WIRED story by Ryan Singel, headlined "DOJ Pays $4M a Year to Read Public Court Documents." The story begins:

The federal court system charged the Department of Justice more than $4 million in 2009 for access to its electronic court filing system, which is composed entirely of documents in the public domain.

That’s according to government documents made public through a Freedom of Information Act request by open government advocate Carl Malamud. Malamud sought the information to prove that an open source repository of U.S. legal materials — a project called Law.gov — could eventually save the government a billion dollars.

The Administrative Office of the U.S. Courts runs the search system known as PACER. PACER charges citizens, journalists, corporate lawyers and even the Attorney General $.08 per page to look at court filings in U.S. District Courts. The system pulled in nearly $50 million in 2006. The contract between the PACER office and the Justice Department began in 2002 with a charge of $800,000, which quickly rose to more than $4.2 million in 2009.

PACER is a buggy, barebones system with an interface seemingly designed in 1995. Though all the court documents it indexes are in the public record, the U.S. Court system refuses to make them available for bulk download. PACER also does not cover tax courts or the Supreme Court. [Disclosure: Wired.com nurtures a hefty PACER bill].

To cover the gaps, the Justice Department paid the law publishing giant West Publishing $5 million in 2005. That contract promised the DOJ online access to the opinions of the Supreme Court, tax courts records, appeals court decisions and bankruptcy court. Also covered were state laws and court rules, the Congressional record, the U.S. code and federal public laws.

West, and its competitor, Lexis Nexis, buy court data in bulk, reformat it and add proprietary citation codes. They then license the database of public documents at high rates to libraries, law firms and government agencies. Even the U.S. Court system pays West’s high license fees to access public court documents that West purchased from it.

The Justice Department isn’t alone in paying for access to court documents for PACER. In fact, it seems to be standard operating policy. The IRS, for example, spent $950,000 in 2008 to see the same documents.

A somewhat related story, from the blog Boing Boing, is headed "Oregon Attorney General releases "copyrighted" Public Meeting Manual, will hold hearings on whether Oregon law is copyrighted." (See this ILB entry from Oct. 27, 2009 for background.) Here is the Dec. 2nd announcement from the Oregon AG.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Courts in general

Ind. Courts - More on: Supreme Court weighing use of tests in sentencing

Updating this ILB entry from Nov. 16, 2009, which was the latest of a long list of ILB entries on the case of Malenchik v. State, the Anderson Herald-Bulletin published an editorial yesterday headed "Sentencing tests assume the worst":

The Indiana Supreme Court is expected to rule in the coming months on whether psychological tests can be used in sentencing people convicted of a crime. In a word, no. Judges have used criminal background in sentencing, but at least that background has some direct bearing on the criminal habits of the accused. A psychological test is too far-ranging to be used in sentencing.

The case concerns Anthony Malenchik who was sentenced by a Tippecanoe judge to 6 1/2 years out of a possible seven for receiving stolen property and being a habitual offender. The judge cited Malenchik’s high score on the Level of Service Inventory-Revised (LSI-R) test in the sentencing.

The LSI-R has 54 questions and asks about friends, family, leisure time, satisfaction with marriage and what activities one participates in.

Those questions, argues Malenchik’s, should not be consulted in sentencing. In fact, instructions on the test warn that it’s not to be used in sentencing. A California judge said it is a misuse of the test to make a decision as to whether someone should be in prison and how long. Indiana law requires judges to issue a sentencing statement. Malenchik’s judge listed the LSI-R, but the Indiana Court of Appeals upheld the judge.

It’s understandable that those entering the criminal justice system would undergo psychological testing. The more we know about someone prone to breaking the law, the more we can understand. Psychological profiles can give invaluable information, such as what kind of family life the accused had, where he grew up, who his friends are, etc.

But this profile shouldn’t be used against the accused. Actually, it should provide information that could lead to rehabilitation.

When convicts are paroled, they are forbidden to have anything to do with others on parole and the courts may require the parolee to stay away from his old neighborhood if it is crime-ridden.

It comes down to the question of whether we are punishing the crime or the criminal. This might seem like splitting hairs, but it’s a real distinction. Justice has to be directed toward the law that was broken. Indiana has laws about being a habitual offender, but to go into personal areas that would only be marginally associated with the crime would add punishment where it’s not necessary.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to

Ind. Courts - More on: Rokita's office accuses ISTA of securities violations

Bill Ruthhart of the Indianapolis Star has a long story today headed "State lawsuit is another blow to teachers union: Secretary of state's office wants to freeze assets of organization in effort to recover school districts' money."

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Courts

Ind. Law - Part 5 of "Grappling with Meth in Elkhart County"

"Grappling With Meth: Are there enough local resources to help people kick meth habit? Part 5 of 5 - Stories of meth relapse are heard often in Elkhart County and cases continue to pour into county courtrooms" is the heading of this final story in the series (here is yesterday's story). Some quotes from the story by Emily Monacelli:

Bess' story of relapse seems to be one heard often in Elkhart County. Sheriff Mike Books estimates a 60 percent to 65 percent recidivism rate in the Elkhart County Jail. And about 75 percent of the 890-bed jail's inmates are there on drug-related crimes.

Mike Garty serves as program services director at Bashor Children's Home and teaches a substance abuse program at the jail.

The curriculum focuses on irrational thinking and introduces new ways of thinking and setting goals. Phase one lasts about a month, phase two consists of 48 hours of group therapy and phase three involves 24 hours in depth. The curriculum teaches inmates to examine their behavior, then teaches them to change that behavior to affect their rationale.

"The problem really across the board with the guys who have used meth, is they haven't just used it," Garty said. "They've cooked it, and that affects more than just them."

Of the 25 to 30 men he's helped through substance abuse treatment at the jail this year, only three have been first-time offenders.

Garty has to help these inmates who chase the high find a reason to give it up.

"How do you get that same rush naturally that you're getting with that illegal substance? That's the problem because that's what they crave," he said.

That rush can last up to eight hours, releasing dopamine and giving users a feeling of pleasure. Repeated meth use can cause increased blood pressure, increased heart rate, rapid increases in temperature, hyperthermia, convulsions because of increased brain stimulation and deteriorated ulcers on skin from users scratching themselves until they bleed, said Ahmed Elkashef, chief of the clinical/medical branch in the Division of Pharmacotherapies and Medical Consequences of Drug Abuse at the National Institute on Drug Abuse. Users can get "meth mouth" where teeth fall out because of poor dental hygiene and a change in pH levels in the mouth. They can develop meth psychosis, where they experience delusions similar to schizophrenia.

"When the patients reach this stage, they are completely absorbed in how they can obtain their next dose," Elkashef said.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Law

Ind. Courts - Still more on: Criminal charges filed against Plymouth attorney

Updating this ILB entry from April 8, 2009, the South Bend Tribune reports today:

PLYMOUTH — Suspended lawyer Ronald Dean Gifford, 58, of Plymouth, entered a preliminary plea of not guilty during a status and initial hearing Wednesday in Marshall County Superior Court 1.

Gifford is charged with two counts of forgery/counterfeiting and deception and two counts of felony theft.

A pretrial hearing has been set for Dec. 9 and an omnibus hearing for Feb. 10.

Records show Gifford's law license was suspended Nov. 14, 2008, for allegedly forging and falsely stating he had Internal Revenue Service confirmations of tax-exempt status for both the Fairfield and Mentone Garden Court facilities, which are low-income HUD housing projects.

Gifford was served with criminal charges in March for those allegations and in April was charged with two counts of felony theft from the account of the Wyland, Humphrey, Wagner and Clevenger law firm, of which Gifford had previously been a partner.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Courts

Ind. Courts - "Allen County Judges OK’d license for DWI repeat"

From a story today in the Fort Wayne Journal Gazette, reported by Michael Zennie:

When Brian Mansfield asked to have his driver’s license reinstated so he could drive to and from work, the Allen County sheriff at that time sent a letter to a judge urging him not to let Mansfield get behind the wheel again.

“He has demonstrated that he is a substantial risk to the public at large and I see no reason to modify the terms of his suspension,” Sheriff Jim Herman said in a two-sentence letter dated Sept. 29, 1999.

After Mansfield’s appeal went through the civil process, a judge in March 2000 reduced his felony conviction to a misdemeanor and dropped his lifetime suspension to 10 years, allowing him to drive again.

Prosecutors on Wednesday formally charged Mansfield, 52, of Monroeville, with aggravated battery, two counts each of operating a vehicle while intoxicated and criminal recklessness. He is accused of running a stop sign with a blood-alcohol level of 0.37 percent, almost five times the legal limit of 0.08 percent, and slamming into a sport utility vehicle carrying 45-year-old Jacqueline K. Yenser and her teenage daughter.

The Nov. 24 crash at Indiana 101 and Dawkins Road in east Allen County killed Yenser and sent her daughter to a hospital in serious condition, police said. * * *

Mansfield was convicted twice of drunken driving – in 1986 and 1987.

When he was convicted of being a habitual traffic violator in 1989, his license was suspended for life.

He petitioned to have the suspension lifted in 1999. After 10 years without a license, not being able to drive to and from his job as a journeyman carpenter was an “undue hardship,” he argued in court filings.

Herman could not be reached for comment Wednesday. Sheriff Ken Fries said petitions such as Mansfield’s are rare. He said he can’t recall one request to have a driver’s license reinstated in the three years he has been sheriff.

Despite Herman’s letter, then-Circuit Court Judge Thomas Ryan approved Mansfield’s request in November 1999 and gave him permission to drive only to and from work.

After he issued the order, however, Ryan withdrew it in December 1999, saying his court had no jurisdiction in the matter because the lifetime suspension was the result of a felony habitual traffic violator charge.

In March 2000, Superior Court Judge Fran Gull reduced the felony charge to a misdemeanor, paving the way for Mansfield to get his license back.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Courts

Ind. Courts - More on "David Camm defense seeks special prosecutor to replace Henderson" [Updated]

Updating yesterday's ILB entry, Matt Thacker of the New Albany News-Tribune has a story, dated Dec. 2nd at 10:39 pm, that reports:

Attorneys for David Camm are asking that a special prosecutor be appointed before a decision is made about a possible third trial, alleging that Floyd County Prosecutor Keith Henderson has negotiated a book deal to write about the case.

In a motion filed in Warrick County Superior Court No. 2 on Tuesday, attorneys state there is a conflict between Henderson’s personal interest and the interest of the State of Indiana.

“The elected prosecutor has negotiated a financial contract to write a book concerning the investigation into the Camm murders and the trials,” the motion states. * * *

Henderson released a statement late Wednesday afternoon that, after the case was out of his jurisdiction, he had agreed to publish the story of the Camm case with the encouragement and support of Kim Camm’s family.

The attorney general’s office represents the state on appeals cases. Henderson said that the agreement to publish the story was terminated once Camm’s second conviction was overturned by the Supreme Court.

“However, I am more convinced now than ever that when this matter is completed, the unedited version of events needs to be told,” Henderson said.

Camm’s attorneys say sources within the publishing industry name Frank Weimann as the agent who negotiated a book deal between Henderson and Penguin Publishing. * * *

The motion filed by Camm’s defense cites Indiana’s Rules of Professional Conduct stating that an agreement for literary rights creates a conflict of interest between the client and lawyer. Camm’s defense team argues that the rule also applies for prosecutors representing the state as their client.

The American Bar Association also states that “entering into such literary or media agreements prior to the conclusion of all aspects of the criminal matter should be scrupulously avoided.”

The motion argues that Henderson’s interests are divided between justice and his personal interest in future sales of the book. The attorneys say Henderson sought publicity during the second trial by trying to move the case back to Floyd County, and they argue he is more likely to seek a third trial in order to have a “better story to tell.”

“Because of his book deal, the prosecutor now has a pecuniary interest directly relating to the publicity surrounding Mr. Camm’s case and at direct odds with his duty as a prosecutor to represent the State of Indiana,” the motion states. * * *

Henderson has not said whether he will seek a third trial but that a decision would be made within the next few days. Henderson said a press conference will be held later this week.

From a report by Ben Zion Hershberg of the Louisville Courier Journal:
Michael Frisch, an ethics attorney and adjunct professor of law at Georgetown University Law School, said Henderson’s agreement with a publisher, even if it’s no longer in effect, could still raise ethics questions as well as questions for the judge who would preside over another Camm trial.

The Indiana professional rule for lawyers cited in the request for a special prosecutor follows national guidelines from the American Bar Association, Frisch said. Under the rule, negotiating a book agreement on an ongoing case could be interpreted as an ethics violation, even if a contract isn’t in effect, he said.

He said the trial judge, meantime, would be concerned about the trial’s “integrity” and whether Henderson’s interest in publishing a book could have an effect on the way he conducted the trial.

For example, Frisch said, a judge might consider whether a lawyer thinking about publishing a book would want a trial to be as dramatic as possible, and whether that would conflict with his duty to do what’s best for his client – in Henderson’s case, the State of Indiana.

In their request for Henderson’s dismissal from the case, Camm’s lawyers said that, “By negotiating an agreement to write a book based on the information he has learned from investigating the Camm case, Prosecutor Henderson has acquired a personal pecuniary interest in the re-prosecution.”

[Updated at 12:51 PM] A very brief entry posted on the New Albany News-Tribune about an hour ago reports:
Floyd County Prosecutor Keith Henderson announced Thursday morning that he'll try David Camm a third time for the murders of his wife and two kids.
And Harold J. Adams of the Louisville Courier Journal reports:
Floyd County Prosecutor Keith Henderson said Thursday the state will retry David Camm.

The Indiana Supreme Court said earlier this week that it won’t reconsider its decision overturning Camm’s conviction of the murders of his wife and two children in September 2000.

A decision not to retry Camm would have meant releasing him from the life sentence without possibility of parole.

Camm has been tried twice for the murders and convicted both times, but both convictions were overturned on appeal.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Indiana Courts

Ind. Decisions - Federal Judge Barker grants preliminary injunction in Annex Books

In a 15-page Order dated Dec. 1, 2009, federal Judge Sara Evans Barker granted a preliminary injunction in the case of Annex Books v. City of Indianapolis.

As many will recall, Annex Books is the case that was argued before the 7th Circuit on Sept. 8, 2005, and decided by the 7th Circuit on Sept. 3, 2009. The Circuit Court remanded it to the District Court. See this ILB entry from 9/3/09 for a summary of the opinion, and this one from 9/5/09 for more background, including this quote from an Indianapolis Star story by Robert King on "what happens next?"

Jon Mayes, the chief litigation counsel for the city, said it has several options. It could appeal to the U.S. Supreme Court, ask a full panel of judges from the 7th U.S. Circuit Court of Appeals to hear the case or go back to the original court of Judge Sarah Evans Barker and try to produce the evidence the panel had sought.

Because the court case is four years old, Mayes said it could be that new data are readily available to support the city's position. Although the panel's ruling opens the possibility of Sunday operations for adult bookstores, Mayes said: "There's a lot of ways to fix this." "This fight is not over," he said.

Even if the ruling stands, neither side predicted a sudden and major proliferation of adult bookstores in Indianapolis.

Judge Barker's Dec. 1st Order on Annex Books' request for a preliminary injunction concludes:
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction. Defendant, the City of Indianapolis, and its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with it who receive actual notice of this order by personal service or otherwise, are hereby PRELIMINARILY RESTRAINED from enforcing Chapter 807 of the City-County Code against Plaintiffs, their officers, agents, and employees. Such PRELIMINARY INJUNCTION is effective immediately upon the entry of this ruling on the Court’s docket and shall extend until further order of the Court or, in any event, no later than a final ruling on the merits.
Re II.A., "Likelihood of Success on the Merits", Judge Barker writes:
In its ruling, the Seventh Circuit held that in order for the revised ordinance to pass constitutional muster, the City must present evidence that adult book or video stores without live entertainment or private booths, open after midnight, or on Sunday, cause adverse secondary effects sufficiently severe to justify the curtailment of speech which results from the City’s post-2003 system of regulation. ... Thus, in order to satisfy the burden explicated by the Seventh Circuit, the City must essentially make two showings: first, that adult entertainment businesses lacking facilities for on-premise viewing create the same secondary effects as establishments providing those services, and second, that the revised ordinance requiring Plaintiffs to close from midnight to 10:00 a.m. Monday through Saturday and all day on Sunday “has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact.” Id. (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 449 (2002) (Kennedy, J., concurring)). If the City is unable to produce such evidence, the revised ordinance cannot stand. * * *

For the foregoing reasons, we find that the evidence the City has presented, at least up to this point, is likely insufficient to satisfy the burden set out in the Seventh Circuit’s ruling so as to justify the revised ordinance. Accordingly, we find that, at this stage in the proceedings, Plaintiffs have demonstrated at least some likelihood of success on the merits.

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In National Union Fire Insurance Co. of Pittsburgh, PA, et al v. Standard Fusee Corp.. a 30-page opinion, Judge Kirsch writes:

[Defendant insurers] appeal from the trial court's order granting Standard Fusee Corporation's (“SFC”) Motion for Partial Summary Judgment Declaring [the Insurers'] Duty to Defend. The following restated issues are raised in this appeal:

I. Whether the trial court erred by concluding that Indiana substantive law, instead of Maryland substantive law, applied to the dispute;
II. Whether the trial court erred by concluding that SFC provided the Insurers with reasonable notice of environmental proceedings in Indiana and California;
III. Whether the trial court erred by concluding that the pollution exclusions in the Insurers' insurance policies do not relieve the Insurers of their duty to defend SFC;
IV. Whether the trial court erred in concluding that SFC's entry into Indiana's Voluntary Remediation Program (“VRP”) constitutes a “suit” for purposes of the insurance policies;
V. Whether the trial court erred by concluding that the Insurers had a duty to defend against all of the more than 250 private lawsuits in California when SFC submitted just two of the complaints in support of its motion for summary judgment. * * *

On July 9, 2008, the trial court issued an order granting SFC's motion for partial summary judgment and declaring that the Insurers have a duty to defend SFC. The trial court concluded, in part, that Indiana substantive law, rather than Maryland substantive law, governs this case. The Insurers sought an interlocutory appeal of the trial court's order. On October 16, 2008, the trial court certified its order for interlocutory appeal, and on December 24, 2008, we accepted jurisdiction of the appeal. The Insurers now appeal. * * *

[Re I, choice of law]
Following the site-specific approach in this case leads us to the conclusion that the litigation over the Indiana site should be resolved under Indiana substantive law, while the litigation over the California site should be resolved under California substantive law. Accordingly, the trial court did not err to the extent it applied Indiana substantive law to the Indiana site. Therefore, we address the other issues raised by the Insurers as they relate to the Indiana site. However, to the extent that the issues raised by the Insurers relate to the California site, we remand to the trial court with instructions for it to apply California law. * * *

[Re III, pollution exclusion] Because we find that the pollution exclusion is ambiguous and unenforceable under Kiger and the line of cases following Kiger, we need not address the Insurers' argument about conversations about pollution claims between SFC and insurance brokers. The pollution exclusion does not relieve the Insurers of their duty to defend SFC. * * *

[Re IV, existence of a suit]
As the term “suit” is not limited to traditional judicial actions, we find that the trial court correctly applied Dana Corp. in finding that SFC's participation in voluntary remediation is a suit for purposes of the duty to defend. * * *

[Re V, duty to defend] The Insurers do not dispute that the policies at issue contain essentially the same “duty to defend” language which was at issue in Seymour. Thus, the claims are at least potentially covered under the Insurers' policies. * * * Consequently, the trial court did not err by following Seymour and concluding that the Insurers owed SFC a duty to defend and/or indemnify.

Because we have concluded that California substantive law should apply to claims involving the California site, and the trial court applied Indiana substantive law to all claims, we remand the issue of the Insurers' duty to defend claims related to the California site to the trial court. Affirmed in part, reversed and remanded in part.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, December 03, 2009
Posted to Ind. App.Ct. Decisions

Wednesday, December 02, 2009

Ind. Gov't. - "Federally Created Entities: An Overview of Key Attributes"

This just-posted (but dated Oct. 2009) report of the federal GAO caught my eye because of the recurring Indiana issues about quasi-public entities - e.g., this ILB entry from May 31, 2008.

The 67-page report, titled "Federally Created Entities: An Overview of Key Attributes," includes this introduction:

Over the years, Congress has created or authorized the creation of numerous entities to carry out federal programs and further public purposes. These federally created entities can be categorized into several types and serve a variety of missions. They are subject to varying governance, accountability, and transparency requirements through which Congress sought to strengthen entity operations, compliance, performance and resource accountability, and public access to information. Collectively, these entities receive trillions of dollars annually in funds appropriated by Congress.

Given the wide variety of entity types, applicability of key broad-based requirements, and federal funding, the committee asked GAO to (1) identify and categorize federally created entities by type; (2) determine the extent to which the various entity types are generally subject to key broad-based statutory governance, accountability, and transparency requirements we identified; and (3) determine the amount of appropriations Congress has made directly available to each of the individual entities in recent years (fiscal years 2005 through 2008).

To answer these questions, GAO reviewed federal statutes and regulations, previous GAO and Congressional Research Service reports, data on appropriated funds and other budget authority maintained by the Office of Management and Budget, and other relevant manuals, literature and Web sites.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Government

Ind. Decisions - Tax Court issues one NFP today

R. Keith Sandin Trust (R. Keith Sandin, Trustee) v. Michigan Township Assessor and LaPorte County Assessor (NFP) - "The parties present the following issue for the Court to decide: whether the Assessor was authorized under Indiana law to change Sandin‟s property assessment in 2004 and 2005 to a value different than its 2002 assessed value."

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Questions on: A new Indianapolis parking citations court will open Dec. 1st

The ILB has had two entries on the new Indianapolis "parking court," one today quoting a Star story, and one Monday, quoting the press release. At the end of the Monday entry, I wrote:

The ILB is not clear re in what respect this will be a "court" and "hold hearings."
My questions continue with today's story. Don't "courts" require judges with some sort of authority even if they are not lawyers, rather than these employees of the contracted parking ticket company? And what kind of procedural rules apply?

One reader responded to my question with this note:

I found the article in the Star and the whole idea quite confusing and a bit bothersome. To give an extreme example, Judge Judy, the People's Court, etc. call themselves courts without legal authority--but the litigants there have to agree to have the case moved. The same is true of private judges, like what Sandy Brook left the COA to do, where the rich and famous pay to have their disputes settled outside the normal system.
Can anyone help clear this up?

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Courts

Ind. Courts - "David Camm defense seeks special prosecutor to replace Henderson" [Updated]

Updating this ILB entry from Nov. 30th, Ben Zion Hershberg reports today in the Louisville Courier Journal:

Lawyers for David Camm have asked for the appointment of a special prosecutor, citing a book deal that Floyd County Prosecutor Keith Henderson has negotiated about the Camm case.

The book deal, reported on a publishing Web site, creates a conflict of interest for Henderson, according to Camm’s lawyers.

But Henderson said there is no book deal, according to his office. He was not immediately available Wednesday for comment.

Quoting a rule of professional conduct for Indiana lawyers, the request by Camm’s lawyers for a special prosecutor says, “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account” based on his work for that client.

In this case, the request says, Henderson’s client is the State of Indiana.

“By negotiating an agreement to write a book based on the information he has learned from investigating the Camm case, Prosecutor Henderson has acquired a personal pecuniary interest in the re-prosecution,” said the request filed Tuesday in Warrick County Superior Court.

Camm was convicted in 2006 for the murders of his wife and their two young children. But the Indiana Supreme Court overturned the conviction in June and declined Monday to reconsider its decision.

Henderson has said he will decide soon whether to prosecute Camm again.

WAVE 3 News has a just-posted "breaking" story by Mike Dever that identifies the publisher:
NEW ALBANY, IN (WAVE) - Attorneys for David Camm have filed a petition requesting a special prosecutor be appointed to look into allegations that Floyd County Prosecutor Keith Henderson has a conflict of interest because of a pending book deal.

According to documents filed by Camm's attorneys in Warrick Superior Court, Henderson's personal interests would influence the trial because Henderson has allegedly begun negotiating a contract to write a book about the Camm murders.

The petition says that Camm is represented by an agent, who negotiated a deal with Penguin Publishing. * * *

According to the petition, an online service that tracks writing contracts and other news in the publishing industry says the book will be called "Sacred Trust. Deadly Betrayal."

The petition faults Henderson for not disclosing the deal to Indiana residents and accuses him of having a demonstrated "need for publicity."

Amazon.com shows that one book is already available, a mass-market paperback from St. Martin's True Crime Library, by John Glatt, titled "One Deadly Night." However, its publication date was May 3, 2005.

[Updated] WLKY.com's Ben Jackey has the 9-page Camm motion for appointment of a special prosecutor. Attached to it are printouts from publishing lists identifying "Prosecuting attorney Keith Henderson's SACRED TRUST. DEADLY BETRAYAL, an inside look ..." From the WLKY story:

According to a Web site called Publishers' Marketplace, the book is titled "Sacred Trust, Deadly Betrayal." It was posted on April 14, well before the Supreme Court's summer decision.

The motion contends the book proposal violates the Indiana rules of professional conduct and goes against American Bar Association recommendations.

The motion alleges "every decision made by Henderson throughout the third trial will potentially be affected by his own financial interests in the story to be written and sold."

A representative with the prosecutor's office said Henderson has not seen the petition and cannot comment yet. However, he did say that there is no book deal.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Term. of Parent-Child Rel. of C.V., D.V., and A.V.; P.A. and J.V., Sr. v. IDCS (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Ind. App.Ct. Decisions

Ind. Courts - Rokita's office accuses ISTA of securities violations

Anne Gregory of the Fort Wayne Journal Gazette has the story, quoting the statement issued by Indiana Secretary of State Todd Rokita and linking to a copy of the complaint. Gregory notes:

The complaint requests that the finances of ISTA and the related entities be frozen until a conservator or receiver can account for investor funds. However, it also requests that the court craft an order that allows for the flow of disability claims to teachers to continue while the investigation continues.
The Sec. of State is represented on the complaint not by the Indiana Attorney General, but by attorneys from Frost Brown Todd LLC.

[Update] J.K. Wall of the IBJ has a story here.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Courts

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

Following up on this list of earlier ILB entries, the Sentencing Law & Policy Blog yesterday pointed to a Harvard "Symposium: Confronting the Costs of Incarceration."

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Government

Courts - More on "States Letting Lawyers Provide 'A La Carte' Menu of Legal Services"

Updating this ILB entry from January 4, 2007, the Dec. 1 ABA Journal had this item by Debra Cassens Weiss headed "Kansas Ethics Opinion Requires Disclosure on Ghostwritten Pleadings.". A quote:

ABA Formal Opinion 07-446 says lawyers may help pro se litigants prepare pleadings without disclosing their role. But the Kansas opinion differs with that conclusion.

“The Kansas Ethics Advisory Opinion Committee is concerned with the appearance and the impression which are left by pleadings prepared with the assistance of an attorney without disclosing that assistance,” the opinion says. “This implicates the lawyer’s duties under Rule 3.3, ‘Candor Towards the Tribunal.’ Therefore, the committee believes that such assistance should be clearly disclosed.”

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Courts in general

Ind. Law - "Groundbreaking attorney retires: NW Ind. legal community will gather Thursday in Gary to honor Hilbert Bradley "

Lisa Deneal reports today in the Gary Post-Tribune in a long story - some quotes:

GARY -- When Hilbert L. Bradley returned to Indiana after being discharged from the Army, the World War II veteran decided he would take advantage of the G.I. Bill and apply for enrollment at Valparaiso University School of Law.

It was 1947, a time when segregation was the unwritten "law." But Bradley received a surprise.

"They welcomed me right away," Bradley recalled. "And three years later, I was the first African-American graduate there."

Nearly 60 years later, Bradley, 89, is clearing out his last few cases and in two weeks will head to his retirement home in Naples, Fla., where he and his wife will be permanent residents.

But before he leaves for the Florida sun, members of the James C. Kimbrough Bar Association are throwing a retirement party Thursday in Bradley's honor.

"He is definitely deserving of this send-off," Trent A. McCain, president of the association said. "Mr. Bradley paved the way for myself and young attorneys in this area. We stand on the shoulders of this great man." * * *

In 1957, Bradley lobbied Congress for the passage of the Civil Rights Bill. He marched in the 1963 March on Washington with the Rev. Martin Luther King Jr. and the Poor People's March on Washington in 1968.

Also in 1968, Bradley was appointed by then-Gary Mayor Richard G. Hatcher as corporation counsel for the city. During the 1960s, he founded the Fair Share Organization to advocate equal employment opportunities for blacks.

In 1987, Bradley founded the Indiana Coalition for Black Judicial Officials. Following protests on the steps of the Indiana Supreme Court, success evolved with the 1990 election of Bernard Carter as Lake Superior Court judge. Carter now serves as Lake County prosecutor.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Law

Ind. Courts - More on: A new Indianapolis parking citations court will open tomorrow, Dec. 1st

Updating this ILB entry from Nov. 30th, Francesca Jarosz of the Indianapolis Star reports today under the headline "The meter is running on parking tickets." Some quotes:

On Tuesday, Indianapolis officials launched a campaign to try to collect some of the $1.1 million in parking tickets that go unpaid each year.

The effort will include judgments for nonresponsive offenders and expanded hours for a court where people can protest tickets. If it's successful, officials say, it could generate $350,000 to $540,000 a year for the city. * * *

Under the old system, those who got parking tickets received a letter asking them to pay and informing them of a chance to appear in court to protest the ticket.

Judgments could be issued to those who had an opportunity to show up in court. But the court operated only twice a month, and it was Downtown in the City-County Building. That location made it difficult to find parking, putting those who showed up for court at greater risk of getting another ticket.

Parking violators can still pay tickets upfront, but now they can protest the fines in a new court that will be open five days a week in the former Children's Guardian Home, with ample parking on the city's Eastside.

If offenders don't pay or show up in court, they'll be issued a judgment. And if they still don't pay within 30 days, a collection agency will pursue them.

The city still can tow violators' cars or go after their driver's registration if they have multiple unpaid fines, but the new mechanisms could reduce the need for those measures, [Manny Mendez, the city's deputy controller] said. * * *

T2 Systems, a private contractor that runs parking ticket collections and software for the city, handles the additional court operations. Those costs will be covered by revenues from parking tickets.

The new court and enforcement procedures will be tested for four to six months before they're implemented in the long term.

On Tuesday, Cindy Scheich, a collections manager for T2, held a stack of 50 citations, representing about half of the people who were supposed to show up for hearings. Of those, just four appeared, amounting to about $1,000 in collections. The remainder would be issued judgments that day, Scheich said.

From a side-bar:
About the citations court

The new parking citations pilot court is at the site of the former Children's Guardian Home, 5751 University Ave. on the Eastside. The court will schedule 50 hearings at 9 a.m. and 50 others at 9:30 a.m. Monday through Friday until the week before Christmas. Hearings will resume after the New Year's holiday.

Each hearing is expected to take less than 10 minutes and will be on a first-come, first-served basis.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Courts

Ind. Law - Part 4 of "Grappling with Meth in Elkhart County"

Updating this ILB entry from yesterday, today's story in the Elkhart Truth series, reported today by Kari Huus, is headed "Meth problem strains budgets." A quote:

Substance abuse and addiction cost federal, state and local governments at least $467 billion annually according to a recent study by the National Center on Addiction and Substance Abuse at Columbia University. Nearly 96 percent of that is spent on the "human wreckage" of substance abuse -- including drug-related crime, incarceration, health care, foster care. About 1.9 percent goes to prevention and treatment, the report says.

Due to state and local budget problems spurred on by the recession, law enforcement, courts, and prison systems are strapped. Treatment and prevention programs -- underfunded, advocates say, even in better times -- are struggling with shrinking resources.

"The recession has been really tough for providers as well as patients," said Daniel Guarnera, director of government relations for NAADAC, a national association for addiction professionals.

In Elkhart, meth is not the only illegal drug, but it is the one that has dealt the hardest blow to its working class gut, bringing down many men and women who staffed the area's RV factories. And over the course of the recession, at least one aspect of the problem has worsened: By mid-November, Elkhart County had discovered more than 100 meth labs this year, compared to 75 in 2008, and 77 from 1999 through 2006, according to State Police records.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Law

Ind. Law - "Surprises" in the 2009 budget continue to be revealed

Yet another surprise is revealed in this story reported last evening by Mark Peterson of WNDU 16, South Bend.

The headlines: "Capital Ave. conflict headed to court: Ban may carry economic consequences: The City of Mishawaka has gone to court to challenge a ban on additional Capital Avenue curb cuts."

Yes, the 511-page so-called "budget bill" passed on June 31, 2009, includes this language (emphasis added by ILB):

SECTION 279. IC 8-23-8-10 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2009 (RETROACTIVE)]: Sec. 10. (a) As used in this section, "designated highway" refers to the highway designated as a limited access facility under subsection (b).
(b) The department shall designate and do all acts necessary to establish the part of State Road 331 in St. Joseph County from the U.S. Highway 20 bypass to State Road 23 as a limited access facility. The designated highway shall be in operation as a limited access facility beginning not later than January 1, 2009.
(c) Neither the department nor any political subdivision may authorize any additional curb cuts or intersections after January 1, 2009, on the designated highway. The department shall limit intersections on the designated highway to the following locations:
(1) U.S. Highway 20 bypass.
(2) Dragoon Trail.
(3) Twelfth Street (also known as Harrison Road).
(4) Indiana 933 (also known as Lincoln Way).
(5) Jefferson Boulevard.
(6) McKinley Highway.
(7) Day Road.
(8) Cleveland Road.
(9) State Road 23.
Here are some quotes from the WNDU story:
“Now we've annexed property, we've extended utilities, the developers have bought property, the developers have applied for permits, developers have engineered solutions out there, only to have that change at the last minute,” said Mayor Rea.

The language banning curb cuts was hidden deep within the Indiana budget passed by lawmakers during a Special Session last summer.

“My intent was to keep retail development off of Capital avenue, and this project that the mayor and whoever are promoting, would start that trend of turning Capital Avenue into a Grape or Main street, I Find that unacceptable,” said Ind. Rep. Craig Fry, (D) Mishawaka.

The City of Mishawaka feels there’s room for one more curb cut, and it has asked a judge to settle the ‘Capital conflict’ once and for all.

“We filed suit asking the court really to clear those up and really to weigh in on where the decision making should lie,” said Mayor Rea. “Should it lie with the state, or should it lie with local officials.”

Mayor Rea said he doubts if many of the 150-Indiana lawmakers who approved the budget bill could find Capital Avenue on a map.

According to the lawsuit, the budget bill that bans additional curb cuts on Capital also neglects to allow for a curb cut at the busy intersection Douglas Road and Capital Avenue.

“Well, the Douglas issue was a drafting mistake,” said Rep. Fry. Fry said he would offer legislation to correct the mistake when lawmakers returned to work in January.

For background on these "budget surprises," start with this Sept. 22, 2009 ILB entry.

Posted by Marcia Oddi on Wednesday, December 02, 2009
Posted to Indiana Law

Tuesday, December 01, 2009

Courts - "Today is the first day of the so-called 'days are days' approach to calculating time" under the Federal Rules.

See Howard Bashman's discussion in How Appealing.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Brennen Baker and Moisture Management v. Tremco Inc., and Rick Gibson, an 11-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant Brennan Baker contends that constructive discharge falls within the public policy exception to Indiana's doctrine of employment at will. We conclude that a claim may rest on involuntary resignation, but only where the cause fits within the grounds recognized by our decisions on retaliatory discharge. Baker's claim does not. * * *

Although the parties raise numerous issues for review, we will only address three.[1] First, we consider whether a claim for constructive retaliatory discharge falls within Indiana‟s public policy exception to the employment at will doctrine. Second, we consider whether the non competition agreement is unenforceable because Baker is actually competing with a subsidiary of Tremco. Third, we judge whether a statement from the former supervisor was slanderous per se so as to create an actionable defamation claim. * * *

We affirm the judgment of the trial court.
[1] We summarily affirm the Court of Appeals disposition of the claims for slander about mental illness as slander per quod, blacklisting statute, and tortious interference with contract. Ind. App. Rule 58(A).

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Ind. Sup.Ct. Decisions

Courts - "New recusal rules for Mich. Supreme Court under fire"

Mark Hornbeck reports today in the Detroit News in a story that begins:

Lansing -- New rules governing disqualification of justices adopted late Thanksgiving eve by the Michigan Supreme Court have touched off controversy about whether the standards are fairly drawn and constitutional.

The state's high court voted 4-3 Wednesday in favor of administrative rules that would let the court decide whether to disqualify a justice from considering a case in which the jurist has an apparent bias or conflict of interest. Until now, decisions about recusal were made by the justice in question.

The rules were crafted in reaction to a decision handed down this summer by the U.S. Supreme Court. In that ruling, the federal justices said there was a due process violation in a case involving a $3 million contribution from a corporate executive officer to the campaign of a West Virginia judge who was about to consider overturning a $50 million judgment against the donor's company. The judge in that case didn't disqualify himself.

"We don't want a situation like that in Michigan," Chief Justice Marilyn Jean Kelly said on Detroit talk radio Monday. "The constitutional rights of judges don't overbalance the right of the people to get a fair trial."

But Justices Maura Corrigan and Robert Young, who cast dissenting votes on the rule change, questioned the authority of the court to disqualify a justice and the constitutionality of removing from a case a judge elected to office. They also questioned what they called "vague impropriety standards" that could be considered grounds for disqualification and be used to alter the balance of the court on important cases.

"This is a huge threat to our liberties as Americans," Corrigan said.

She wrote in her dissenting opinion that "it is always wise to be wary of any government action taken the day before a holiday or late on a Friday."

Justice Stephen Markman wrote that the new rule opens up the potential of "gamesmanship" and "politicization" of the recusal process.

The court is deeply divided between Justices Corrigan, Young and Markman, who were nominated by the Republican Party, and justices Kelly, Michael Cavanagh and Diane Hathaway, who were nominated by Democrats. Justice Elizabeth Weaver also was nominated by the GOP but is seen as a moderate swing vote on the court who usually sides with the Democratic-leaning jurists. The justices have feuded in recent months over administrative rules and the closing of judicial offices as well as demonstrating sharp differences in cases before the court.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Courts in general

Courts - "Doing time well past their prime"

From a column today in the Washington Post, written by Abigail Trafford:

Ashen-faced was the way the press described Brooke Astor's son when he heard the jury's verdict convicting him of defrauding his mother of tens of millions of dollars as she lay dying of Alzheimer's disease. Barring an appeal, Anthony D. Marshall, 85, will be sentenced in early December. He faces at least one and as many as 25 years behind bars. (Astor, a New York philanthropist, was 105 when she died in 2007.)

Marshall looks old, with his white hair and delicate patrician lips. After a certain age, could a relatively short prison term amount to a life sentence? Just as the Supreme Court is reviewing the question of whether certain juveniles may be too young to serve out a life sentence, others wonder if perhaps some at the other end of the age spectrum might be too old.

Before we go all gooey about Grandpops going off in chains, we'd better take another look at what it is to be old today. Our concept of youth may be stable, but old age is not what it used to be. The new old age is more vibrant and varied. Octogenarians run marathons and fall in love -- and there are more of them. The fastest-growing age group in the United States is those older than 85. While we lag behind other developed countries in life expectancy calculated at birth, for those of us who live to age 65, life expectancy is the longest of any nation. * * *

It's hard to know how "old" Anthony Marshall really is, apart from his chronological age. His attorneys will try to keep him out of prison. Many factors are taken into account when a judge sentences a person to prison: the nature of the crime, the circumstances of the defendant, including health status. But age by itself should not be a decisive factor.

Besides, judges are known for staying on the bench well into their later decades. Four U.S. Supreme Court justices are in their 70s, and one is almost 90 years old. If they can do their job, there's no reason people of a similar age who are convicted of a crime can't pay their debt to society behind bars.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Courts in general

Ind. Decisions - Today's opinions

I'm not seeing any cases posted today from the COA, after yesterday's 30, but am suspicious because their page still bears the Nov. 30th date. Stay tuned.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "Critics say FSSA offices fail to offer voter registration forms"

This Feb. 2, 2009 ILB entry quoted from an Indianapolis Star story that began:

When low-income Hoosiers turn to state social-services offices for help, they're supposed to get something more than financial assistance. They're also supposed to be able to register to vote.

But two national voting-rights groups say Indiana is failing that federally required responsibility, and, as they have done elsewhere, are threatening to sue the state.

Yesterday evening Gabriel Baird of the Cleveland Plain Dealer reported:
Ohio Secretary of State Jennifer Brunner has agreed to a legal settlement that will result in more low-income residents being registered to vote.

The settlement in the U.S. District Court for the Northern District of Ohio resolves a three-year legal battle between the state and two women, represented by the Association of Community Organizations for Reform Now or ACORN.

Attorneys for ACORN had argued that under the National Voter Registration Act of 1993, the secretary of state was required to make sure county job and family services offices gave people applying for or receiving aid an opportunity to register to vote.

As a result of this settlement that will now happen.

"We have a clear judicial directive from the appeals court in this case that the secretary of state's office has supervisory authority and responsibility to implement federal voter registration law," said Jeff Ortega, Brunner's spokesman.

After a similar settlement in Missouri, social service agencies registered more than 100,000 residents in eight months compared to 8,000 in the previous year.

Amy Teitelman, director of OHIO ACORN, said she believes the settlement will have a similar effect in Ohio.

"This means in the state of Ohio many more Ohioans, especially low-income Ohioans, are going to have the opportunity to register to vote," Teitelman said.

ACORN is pursuing comparable lawsuits in Indiana and New Mexico.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Indiana Government

Law - "U.S. House posts lawmakers' expense data" [Updated]

From USA Today, Fredreka Schouten reports in a story that begins:

WASHINGTON — House spending reports went online for the first time Monday, detailing how much individual lawmakers pay out for everything from salaries to stamps.

The step moves the House away from a decades-old practice of publishing the information in thick tomes every three months, but congressional watchdogs, such as Taxpayers for Common Sense, say it doesn't represent full disclosure.

The online version, available at disbursements.house.gov, is 3,397 pages long and is an electronic replica of the printed volumes. It also covers just a three-month period, July 1 to Sept. 30. The Senate, meanwhile, doesn't plan to post its expense data online until 2011.

"We're certainly glad that it's online and that constituents won't have to fly to Washington to review the documents, but we still got a ways to go before this is truly transparent," said Steve Ellis, vice president of Taxpayers for Common Sense. "Since they are the only ones who can decide what to disclose, they are erring on the side of protecting themselves."

House Speaker Nancy Pelosi, D-Calif., ordered the payments posted online in June after a scandal erupted in Britain over members of Parliament billing taxpayers for such things as X-rated movies and gardening expenses. In a statement, Pelosi said publishing the expenses online "will expand accountability to taxpayers and the press."

Her spokesman, Drew Hammill, said, "We tried to get something online as soon as possible. We're always open to suggestions for greater transparency."

[Updated 12/2/09] See this Pro Publica story, quoting Roll Call: "The new reports lack much of the detail that used to be included in the old, paper reports, according to Roll Call." The headline: "Transparency, Tempered".

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to General Law Related

Ind. Courts - "Repeat offenders: Who's responsible?"

Kelli Stopczynski of South Bend WSBT has a long story and video (last updated Nov. 30th) under the heading "Repeat offenders: Who's responsible?" A few quotes:

SOUTH BEND ― The criminal justice system is supposed to fight crime and hold offenders responsible for their actions, but a WSBT investigation uncovered dozens of repeat offenders in St. Joseph County alone who break the law over and over again. We looked into why it happens and who is responsible for keeping criminals off the streets. * * *

Critics argue one way to get tougher sentences is by electing judges so they are accountable to the public.

“When we elect the mayor, he or she appoints a police chief ― those are our policeman,” said Dvorak. “We elect a sheriff. The sheriff has responsibility to the jail as well as their road patrol and their detectives. We elect prosecutors, but we don't elect judges. There is a glitch in that system.”

St. Joseph and Lake counties are the only two counties in Indiana that have appointed judges rather than elected judges. During the last legislative session, Dvorak lobbied for a bill that would require judges be elected here. It passed in the House and Senate, but the governor vetoed it.

Chief St. Joseph County judge Michael Scopelitis doesn’t think electing judges is a good idea.

“It hurts the public,” he said, “because instead of getting a judge's best judgment, a judge may be getting too much political pressure to do something that is not, in the judge's opinion, the best thing to do.”

The judges who sentenced Orta for several past convictions wouldn't talk to WSBT on camera. Scopelitis agreed to an interview, but said he ethically could not discuss Orta because he is still awaiting sentencing for the murder conviction.

“We sentence people to prison sentences, and then when they get out they re-offend. I see that as a problem with the entire criminal justice process,” Scopelitis said.

He points to the fact that sentencing criteria are set by state lawmakers ― including the number of years an offender serves in the department of corrections.

“In Indiana, as in almost every state, we have a list of literally over a dozen criteria we have to look at [including] aggravating criteria, mitigating factors. And then we have to pick a sentence within the range,” Scopelitis explained.

Another issue, says Scopelitis, is where to put all the offenders. Last year more than15,000 misdemeanor and 2,000 felony cases went through the St. Joseph County court system.

"What do you do?" Scopelitis asked. "Can we send them all to the DOC? Impossible! Cannot be done."

Some offenses, like Orta's theft conviction, qualify for community corrections or work release programs, not prison time. The state can charge counties money if they send criminals to prison for those crimes.

Scopelitis said he knows some people insist Elkhart County sends more offenders to the DOC than St. Joseph County, but he doubts that's true.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Indiana Courts

Ind. Law - Part 3 of "Grappling with Meth in Elkhart County"

Updating this ILB entry from yesterday, today's story in the Elkhart Truth series, reported today by Amelia Jeffirs, is headed "After meth, there's no room for family."

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Indiana Law

Ind. Courts - "Vanderburgh County Court records go online today: Private firm will be charging access fee"

Thomas B. Langhorne reports today in a lengthy story in the Evansville Courier & Press:

EVANSVILLE — An idea Vanderburgh County has studied for years — court records widely available on the Internet — becomes a reality today.

Vanderburgh County announced Monday that electronic records for criminal and civil cases dating from 2005 to the present will go online this morning on the Web site of a private firm that already posts court records online in 47 other Indiana counties.

Data for more than a million cases for which computerized records exist, dating to January 1993, will be loaded continuously into a database operated by Richmond, Ind.-based Doxpop LLC with the goal of completing the work before Christmas.

But access to all but limited information on pending cases and court calendars will cost you.

Rather than have the county pay start-up costs, estimated to be as high as $250,000, Vanderburgh County agreed last year to let Doxpop absorb the costs and attempt to recoup them through subscriptions. * * *

The new initiative eases a loss for County Clerk Susan Kirk, who already had disclosed plans to close a library of six free public-access computers used for looking up case information to shift the employee supervising it to fill a vacant small-claims clerk position she called indispensable.

It comes as Indiana Chief Justice Randall T. Shepard continues to pursue a separate project, through the Judicial Technology and Automation Committee (JTAC), to link Indiana courts electronically and post their case records online free of charge.

But that project relies on a different case management system, Odyssey, from a different software database provider, Tyler Technologies.

Shepard has proposed linking all Indiana courts by 2015, but the judicial committee and Doxpop have not struck an agreement on how the private firm would be able to interface with the state's Odyssey system. For the time being, local users could not access Odyssey's court records through Doxpop.

The "six free public access computers" refer to this Evansville Courier & Pressstory, "Clerk unplugging computers: Staff cut ending free public access", quoted in an ILB entry from Nov. 28th.

But users who are not Doxpop subscribers may look up the cause number for any pending case, and browse court calendars by week or day at no cost, via their cells or computers, mitigating the loss of the six public terminals. The ILB also checked the Doxpop blog, which shows that:

ILB thoughts: As indicated in the upper right-hand corner of this blog, Doxpop has been a supporter of the ILB since April 1, 2008. But for years, as longtime ILB readers will recall (here is the long list of entries), the ILB has been writing on the project to link together the case information in the county courts and the possibility of JTAC and Doxpop working cooperatively. I see no signs of progress however.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Indiana Courts

Ind. Courts - Still 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 Nov. 25th, the Richmond Palladium-Item has an editorial today headed "Lawmakers must fund advocates for children." It is a reprint of the Indy Star's Nov. 27th editorial headed "It's state's turn to step up for kids." Some quotes:

Indiana's foster care system is a maze that can leave even legally savvy adults feeling lost. It can be much worse for children, the one party that often lacks representation as cases move through the courts.

It's greatly encouraging then that Indianapolis Mayor Greg Ballard has decided, despite a tight city budget that has forced cuts in most services, to invest $2 million in recruiting and training up to 200 volunteer child advocates in Marion County. * * *

Yet the city's move, as welcome as it is, will serve only as a short-term solution.

As noted, a four-year-old state law requires that advocates be assigned to each child in foster care. The state now covers most child welfare costs, but advocate programs aren't included. About 4,000 children were on waiting lists for an advocate in early 2009.

In short, the state isn't willing to pay for a program that it requires. The state Court of Appeals, meanwhile, has held local governments, which like Indianapolis are frequently strapped for cash, accountable for the cost of supplying advocates.

The General Assembly needs to address the discrepancy between what it requires and what it pays for in next year's session, even though the state itself has been staggered by revenue shortfalls.

How can the state afford to resolve this problem with money so tight? It's a question of priorities. Greg Ballard has shown he understands that. It's up to the legislature and Gov. Mitch Daniels to do the same.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to Indiana Courts | Indiana Government | Indiana Law

Law - "Legally Blonde" in Britain

The headline to the story in the Nov. 13th issue of the British paper, The Daily Mail, reads "Beautician turns barrister to win David and Goliath High Court battle with construction giant." It begins:

Georgina Blackwell makes an unlikely candidate to stand up in front of a judge and take on seasoned lawyers in the High Court.

As she herself points out, she's a young, blonde beautician from Essex.

But when her mother's home and business were put at risk in an access dispute with one of the country's biggest homebuilders, the 23-year-old decided she had to fight back.

Posted by Marcia Oddi on Tuesday, December 01, 2009
Posted to General Law Related