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Sunday, January 31, 2010

Ind. Gov't. - According to new report, Counties could save cash with vote centers

An AP story in the NWI Times this afternoon begins:

INDIANAPOLIS | A new report says all 92 Indiana counties could save money if they used vote centers on Election Day instead of traditional precinct locations.

Currently only three counties — Tippecanoe, Cass and Wayne — are allowed to use vote centers under a state pilot program. Voters there can cast their ballots at any county voting location instead of just their neighborhood precinct.

A new analysis by the Indiana Fiscal Policy Institute says all counties could save if they went to vote centers. The report shows Lake County would cut its costs by more than half, saving $397,000. Porter County would reduce its costs by 37 percent, saving nearly $60,000, and LaPorte County's reduction would be 37 percent, or more than $40,000.

"This study finds that counties that choose to establish vote centers could realize significant cost savings both immediately and long-term," said John Ketzenberger, president of the IFPI. "Another advantage is vote centers give local election officials more flexibility to anticipate voter turnout and deploy staff more effectively."

Here is the 32-page report,

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Government

Ind. Law - Who voted for and against the "defense of marriage" constitutional amendment?

As Doug Masson's blog has also noted, SJR 13, the proposed constitutional amendment that not only limits marriage to one man and one woman , but also provides that "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized", was adopted by the Indiana Senate on Jan. 28 and sent on to the House.

The vote was Yeas 38 and Nays 10. But, oddly, the Roll Call showing how the individual senators voted has not been linked, although it is identified as Roll Call #67.

Stranger still, if one goes to the file containing presumably all the Senate roll calls, there is no #67.

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Law

Ind. Law - "Red-light runners rampant: Definitions vary; ticketing makes little difference"

What exactly is a "red light" is expored in this story today by Benjamin Lanka of the Fort Wayne Journal Gazette. Some quotes from the long story:

Stopping for a red light apparently is far from a black-and-white issue.

The concept is simple enough to be understood by most children, but Fort Wayne drivers have widely varying interpretations on what it really means.

Even Fort Wayne police and the city’s traffic engineer disagreed on what constitutes a violation.

What is clear is that regardless of interpretation, Summit City drivers often choose to ignore that bright red bulb. Hundreds of motorists are ticketed for the offense even in the slowest years. * * *

The problem is so prevalent that Laura McCoy, a driving instructor for Fort Wayne Community Schools, teachers her students not to enter an intersection until they check for drivers running reds, especially at downtown intersections where sightlines are blocked.

“There are so many people in Fort Wayne who run those lights downtown,” she said. “You almost plan on somebody running that light.” * * *

Not everyone agreed on what constitutes a violation.

Maze said officers can cite a driver if any part of that driver’s vehicle is in the intersection when a light turns red. This means drivers who enter on yellow and don’t make it through can get a ticket.

Shan Gunawardena, city traffic engineer, said he believed vehicles are allowed to enter an intersection while the signal is yellow, even if the light changes to red while the vehicle is in the intersection. He said this is the interpretation the city uses to design its intersections.

It was not until after an inquiry by The Journal Gazette that the city confirmed the police interpretation of the law is correct.

Many years ago when a traffic signal switched to red, traffic in the opposite direction was given a green light immediately. Crashes caused by people running reds and jumping greens led to the start of the all-red sequence.

Gunawardena said the duration a traffic light remains red in all directions is based on the amount of time needed to safely clear an intersection of all vehicles that entered on yellow. This varies based on the size of the intersection. For the intersection of Covington Road and West Jefferson Boulevard, the interval is 4.5 seconds, but he said most intersections are between 1 and 2 seconds.

McCoy, of FWCS, said knowing when to stop at an intersection is one of the most difficult decisions for new drivers. She said what is most important is for drivers to make a decision and stick with it, whether it’s stopping early or continuing through a yellow or red light. Problems are caused when drivers brake and then speed up or slam on the brakes when they are already in an intersection.

“With a new driver, indecision can be the worst problem,” she said. * * *

The two biggest factors that cause drivers to run red lights are inattention to the road and frustration caused by congestion, he said.

All the engineering for the safety of an intersection is based on posted speed limits, he said. He added that drivers who speed will typically be forced to enter an intersection later in a signal because they are going too fast to brake safely for a red light.

“When you are approaching a traffic signal it is important to be doing the speed limit or less,” he said.

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Law

Ind. Courts - "Lake County closer to ankle monitors: Less expensive than jail for minor offenses"

Andy Grimm of the Gary Post-Tribune had this long story Jan. 30th that began:

CROWN POINT -- Lake County judges may soon be ordering nonviolent offenders to put on electronic anklets instead of sending them to cells in the troublesome county jail.

County and city judges are working on a list of criteria that will define what crimes merit being locked up before trial, a key component of a "book and release" program touted during budget negotiations by Sheriff Roy Dominguez as a way for the county to save millions.

Instead of booking people arrested for nonviolent, misdemeanor-level crimes into the jail at a cost of $55 per day, inmates who are eligible to post bond could be fitted with a high-tech ankle bracelet and sent home for as little as $8.

"The cost has brought the issue to the forefront, but we've been talking about this for five years," said Judge Julie Cantrell, who said many jail inmates are locked up on minor charges because they can't afford the few hundred dollars in bond set for their crimes.

"Public safety is the most important issue, but the more I looked at it, the more I saw people that are in there because they have no bond money."

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Courts

Courts - "Idea of company-as-person originated in late 19th century"

Martha C. White writes today in the Washington Post, in an article that begins:

The Supreme Court's 5 to 4 decision that rolled back long-standing restrictions on corporate campaign finance donations has generated a lot of Sturm und Drang from proponents of campaign reform and the White House itself. At the crux of the decision was a determination that corporations have a right to free speech. The court ruled that limiting the amount that companies can spend promoting their favored candidates is tantamount to denying First Amendment rights.

Since when do corporations have civil liberties?

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Courts in general

Ind. Law - "Judges hope bill restores say in placing juveniles"

Niki Kelly of the Fort Wayne Journal Gazette reports today at length on House Bill 1167, aimed at reversing one of the many "surprises" in the 2009 special session budget. Here are some quotes from Kelly's story:

INDIANAPOLIS – After administration officials slipped an eleventh-hour provision into last year’s budget bill that eliminated a negotiated compromise on juvenile placements, judges are fighting back this year with a bill to restore their discretion.

It is the latest strike in a turf battle two years in the making between the judicial and the executive branches of government over sending delinquent kids to out-of-state programs.

“This doesn’t affect a lot of people, but for those it does, it affects them deeply,” said Rep. Win Moses, D-Fort Wayne. “Traditionally, we should keep kids with their families. But sometimes there are bad families and the kids shouldn’t be in those communities.”

The number of juvenile placements in question is relatively small – at present, 85 children have been placed out of state. The bigger issue seems to be the public-policy question of who controls the final decision – a judge or a state administrator.

The tug of war goes back to 2008 when lawmakers passed property tax reform in which the state took over all child welfare costs. This includes delinquency cases and children found in need of services, such as those abused or neglected.

Gov. Mitch Daniels’ administration made clear at the time if the state was to be responsible for the bills, there would have to be checks and balances.

So legislators, administration members and judges reached a compromise regarding these placements that involved an expedited appeal to the Court of Appeals if the Department of Child Services disagreed with a juvenile judge’s decision.

The state agency lost several appeals under the new system. In fact, when the Indiana Supreme Court refused to hear a case, Chief Justice Randall T. Shepard attached this proviso to the order:

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

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

Ultimately, Department of Child Services Director Jim Payne, a former juvenile judge, sought a legislative remedy in last year’s contentious special budget session.

The provision that was added said the state won’t pay for the services if the placement is not recommended or approved by Payne – ultimately throwing out the appeals process agreement that had been reached.

“We can provide a place for these children rather than send them out of state,” Payne told a legislative committee last week. “Keeping the child close to home and in the state is the best practice.” * * *

Moses filed House Bill 1167 to revert to the previous appeals process. It was amended before advancing from committee last week to include a provision saying the state is responsible for the costs of services and housing if the proposed placement is no more expensive than similar services provided within the state.

“I believe a judge that sits in the court and listens to the testimony and talks to the child is in a much better place to make a decision on the placement of a child than some bureaucrat in Indianapolis reading a file,” said Rep. Dennis Avery, D-Evansville.

A number of Republicans also supported the bill because of concerns about separation of powers.

For background, start with this ILB entry from Sept. 8, 2009, headed: "Certainly we haven't heard the last of: 'Apparently there are all sorts of surprises in the special session budget.'"

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Law

Ind. Law - More on "Grandparents testify in Indy to establish visitation rights"

Updating this ILB entry from Jan. 19, 2010, about SB 59 (which passed third reading in the Senate Jan. 25th with a vote of Yeas 44 and Nays 6), here is a letter published in the Jan. 30th Terre Haute Trib-Star, headlined "Intrusive expansion of visitation litigation", written by Karen A. Wyle, a Bloomington attorney:

Most Hoosiers have no idea that in Indiana, widowed, divorced and single parents can be sued for grandparent visitation. If such parents make the difficult decision that contact with a grandparent is bad for their child or even dangerous, a trial judge can overrule this decision. Now, bills are racing through the Indiana House and Senate that would undermine the parental authority of parents in intact families and subject them to the same litigation.

Grandparent visitation litigation is almost always a tragic and counterproductive mistake, with the child the principal victim. Litigation generally puts an end to any possibility of future improvement in relations between parent and grandparent. By so doing, it further reduces the chances of a healthy and beneficial relationship between grandparent and grandchild. If the grandparent wins visitation, the child will be in an ongoing emotional crossfire. The litigation itself places enormous emotional stress on the custodial family, and consumes financial resources that would otherwise have benefitted, even fed and clothed, the child at its center.

The proponents of these bills, HB 1055 and SB 59, express concern about grandparents and great-grandparents who step in to care for their grandchildren when the parents are unable to do so, only to be kept away from the children when the parents take up their role again. These concerns can be addressed through guardianship proceedings or statutes concerning de facto parenthood, or, where the parents are arguably unfit, via Child Protective Services. These bills reach far further.

The U.S. Supreme Court case of Troxel v. Granville, repeatedly recognized by the Indiana Court of Appeals, held that a parent’s fundamental constitutional right to raise his or her child includes the right to make decisions about contact between children and their grandparents (or other nonparents). Courts must, in any grandparent visitation dispute, start out by presuming that the parent’s decision to deny grandparent visitation was in the child’s best interests. Only if that presumption is decisively rebutted, by specific facts rather than generalizations about grandparental affection, may the court override the parent’s decision.

Our current grandparent visitation statute, I.C. 31-17-5, unfortunately makes no mention of these binding constitutional principles. The proposed bills not only would not correct this situation, but would greatly expand the scope of nonparent visitation litigation. Intact families who have not in any way involved the judicial system in their family lives could be thrust into the purgatory of visitation litigation.

The situations most often thought to require such intervention — where a single, divorced or widowed parent is unwilling to let the child continue a relationship with the parents of the noncustodial parent — would no longer be a prerequisite for a family’s being dragged into court.

Please — call or e-mail your state representative and senator immediately and tell them to oppose these bills. Contact Gov. Daniels and urge him to veto the bills if he receives them. Please do what you can to stop this well-intentioned, but harmful and intrusive expansion of nonparent visitation litigation.

Note that HB 1055 paased the House on Jan. 28, with a vote of 63-33.

Here are a number of other ILB entries mentioning grandparents visitation.

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Law

Ind. Gov't. - "Indiana Embraces Tax Caps Despite Hit to City Services "

That is the headline to a long story in the Jan. 30, 2010 WSJ, reported by Amy Merrick. It begins:

ndiana lawmakers are moving to enshrine property-tax caps in the state constitution, despite cuts in fire, police and other local services the limits have caused.

The push marks the latest round in a revenue tug-of-war between state and local governments amid plunging tax collections nationwide. States, forced to cut their budgets, have often held back funds pledged to local governments. In response, some cities, towns and school districts have raised property taxes—their main source of revenue—to partially fill gaps.

But property-tax increases started raising the ire of residents even before tax revenue fell off. A 2007 spike in Indiana's property-tax bills, just as the recession was gathering steam, led to a "tea party" protest, the ousting of the mayor of Indianapolis and a 2008 law limiting property taxes, which as of Jan. 1 may be no more than 1% of the assessed valuation for residential homes, 2% for rental properties and farms, and 3% for businesses.

The effective tax rate for homes in 2007 ranged from 0.19% to 3.13%, and the cap is expected to save homeowners $404 million statewide in the current fiscal year.

Posted by Marcia Oddi on Sunday, January 31, 2010
Posted to Indiana Government

Saturday, January 30, 2010

Law - More on: Free Fastcase access on iPhone

In this ILB entry on Jan. 28, 2010, I wrote:

[The new] free Fastcase iPhone application may be worth the price of an iPhone, or an iTouch (a.k.a. mini-iPad).
The official iPhone application has now been approved by approved by Apple and is available for download in the iTunes App Store. Details here.

According to their Fastcase blog, there "are no strings attached." More:

What’s more, it’s completely free to download and use as much as you’d like. It harnesses the full power, functionality, and extensive database of the Web-based Fastcase platform that our users depend on (click here for more information about our Web-based platform). Full functionality means searching cases and statutes with Fastcase’s smarter tools and intuitive interface.

When searching cases, you can specify the jurisdiction, narrow the date range, limit the number of results, and choose to sort your results by relevance, date, short name, or by the number of times a case has been cited by others. In addition to sorting results, you’ll also be able to choose how your results appear with three options—display ‘Title’ only for quick browsing, ‘Title + First Paragraph’ to see the beginning of the case, or ‘Title + Most Relevant Paragraph’ to see the portion of the case that refers to your keywords most often.

Other features include the ability to browse statutes, pull up a list of later citing cases with Authority Check, save a case for later, view recent searches, and change a document’s font size to small, medium, or large.

If any of you try this, let me know how it works out.

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to General Law Related

Ind. Law - Student sexting in Indiana, are felonies the answer?

Last year the ILB had several entries about "sexting," including this worth reading again entry from March 27, 2009 headed "Students Sue Prosecutor in Cellphone Photos Case."

This morning I ran across this story from The Vancouver Sun, written by Glenn Johnson of the Canada West News Service. Some quotes:

To teens, “sexting” is just the digital version of “I’ll show you mine if you show me yours,” but a 12-year-old boy and 13-year-old girl from Indiana are now facing felony charges for sending each other nude pictures of themselves via their cellphones.

The children — in Grade 6 and 7 at the Ben Franklin Middle School in Valparaiso, Ind. — face child exploitation and child pornography charges. The photos were discovered after a teacher confiscated the girl’s cellphone in class last week.

The boy “had sent a text and picture of his exposed genitals . . . and requested that she do the same,” said a report on the incident from the Valparaiso Police Department.

Police said the girl had responded “via phone and text a picture of her nude exposed body and breasts.”

Juvenile prosecutor Tim Harminak and the prosecutor’s office advised police to file charges and the two were released into the custody of their parents.

Cybertip.ca, a Canadian website devoted to protecting children, warns that the explicit images can be kept and circulated far beyond what a child intended. Indeed, at least one of the Indiana pictures was revealed to the students’ classmates.

“Once these pictures/video are sent, there’s no way for you to regain full control,” reads the website.

According to surveys and news reports, the Indiana students are part of a wider trend involving as many as one in five youngsters, which is leaving legislators pondering bills dealing with the exchange of sexually explicit images. * * *

In the Indiana case, prosecutor Brian Gensel told the Post-Tribune newspaper that investigators were still working on the file late this week.

“Our hope is that the attention that is drawn to this will dissuade other teens from engaging in this behaviour,” Gensel said.

“The ramifications of the distribution of this stuff are bad and illegal.”

Criminal charges in adult court carry a maximum prison term of 11 years, but prosecutors expect the case will remain in the juvenile system.

Coincidentally, legislators in Indiana are currently dealing with two bills to deal with the sexting issue. A handful of other states are also looking at legislation.

On Tuesday, a senate committee voted 10-0 to pass legislation to make it a delinquent act if a child is found guilty of sending explicit messages.

Meanwhile, the American Civil Liberties Union has filed a lawsuit in Pennsylvania after girls were threatened with felony child pornography prosecution over pictures they took of themselves.

"Sexting leads to felony charges for children" was the headline to this story Jan. 28th in the Chicago Tribune, written by Kristen Schorsch. Some quotes:
The idea behind sexting, or sending a nude picture via a cell phone text, is not so new. Children played doctor long before grade school students were armed with cell phones capable of snapping photos. They just didn't record an image of the offense.

But technology has created a trail of evidence. Children and teens are capturing nude photos or videos of each other and sending them from friend to friend, and that's landing them in court.

"I think there has always been a sort of, you show me yours and I'll show you mine, and a curiosity there," Porter County, Ind., Prosecutor Brian Gensel said. "The problem now is the stakes are so much higher because if a juvenile sends a picture of themselves to someone else, well, that can be disseminated now to the entire world within minutes."

And that's distribution of child pornography, Gensel said.

Last week, two middle school students in Valparaiso, Ind., were caught sending nude pictures of themselves to each other on their cell phones. The students were caught when the 13-year-old girl's cell phone rang in class, and her teacher confiscated it, according to a police report. The girl cried that she would get in trouble because a 12-year-old boy sent her a "dirty picture."

The boy sent the girl a picture of his genitals and requested that she do the same, the report said. The girl then texted him a picture of her naked, police said.

The students have been charged with child exploitation and possession of child pornography, both felonies. They were referred to the county's juvenile probation department, which will determine whether authorities pursue or drop the charges, Gensel said. If convicted, the students could be required to register as sex offenders, he said.

On Jan. 21st, 6News' Jack Rinehart reported a story headed "Bill Would Lessen Punishment For Teen Sexting: Legislation Would Give Prosecutors, Judges More Options." It began:
Indiana lawmakers will consider a bill that would give prosecutors and judges more options when charging teens accused of sexting.

Currently in Indiana, minors convicted of sending or receiving sexually explicit images via cell phone are charged with a felony, which carries a of penalty of up to eight years in prison and requires registration as a sex offender, 6News' Jack Rinehart reported.

A Senate bill sponsored by Sen. Jim Merritt, R-Indianapolis, would make teen sexting a status offense, giving courts several sentencing options, including requiring the offender to get counseling, attend education programs and perform community service.

The bill is SB 224 and it is eligible for second reading in the Senate.

Here is a letter from Sen. Merritt published in the Jan. 15, 2010 Indianapolis Star.

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to Indiana Law

Environment - More on: The other side of CAFO manure spills and run-off

Updating this ILB entry from Dec. 11, 2009, the Fort Wayne Journal Gazette has an editorial today headed "Don’t spread the manure" that reads:

Spreading fertilizing manure on a frozen field – sort of like spitting into the wind – is an ill-advised activity that’s nearly certain to create problems. But a little spit in the face is nothing compared with the environmental havoc a manure spill can cause.

The recent spill from a confined animal feeding operation in DeKalb County proves the point. It should prompt state environmental officials and other state leaders to consider measures that would help prevent CAFOs from causing environmental damage.

House Bill 1161, proposed by Rep. Phillip Pflum, D-Milton, would have barred confined feeding operations from two miles of a state-managed park or reservoir. It also limited manure application within that boundary. But the bill failed to pass in the House on Thursday. [ILB - Yeas 40, Nays 57]

Large animal feeding operations are not necessarily an environmental enemy. According to officials with the Indiana Department of Environmental Management and neighbors, the owners of Irish Acres, the CAFO responsible for the DeKalb spill, are conscientious. When runoff from a frozen field contaminated the Haverstock Ditch, a tributary of the St. Joseph River, the dairy took responsibility and acted quickly to clean up the mess.

Had the contamination not been addressed promptly, it would have led to serious problems, including a fish kill in the St. Joseph River. IDEM officials took ammonia readings at the manure spill site that went beyond the agency’s field testing capabilities, which max out at 8 parts per million. Ammonia levels should be 2 ppm or lower.

Unfortunately, not all CAFO owners are so responsible. And there are too few regulations on large animal feeding operations to ensure that minimum standards are applied. State legislators should look for reasonable regulations to guide CAFO owners and protect the environment.

See also this JG story from Jan. 28, 2010 headed "DeKalb dairy cleans tainted creek."

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to Environment

Ind. Courts - Continuing with "ACLU Lawsuit claims Indiana law examiners violate the ADA "

Updating this Dec. 10, 2009 ILB entry about the lawsuit that, to quote a NLJ story, the ACLU filed:

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).
On Jan. 29, 2010, SD Indiana Judge William T. Lawrence issued this 10-page entry on the Plaintiffs’ Amended Motion for Class Certification, in the case now captioned Amanda Perdue, et al. v. The Individual Members of the Indiana State Board of Law Examiners. Judge Lawrence concludes:
For the foregoing reasons, the Plaintiffs’ Amended Motion for Class Certification (Docket No. 41) is GRANTED as to Plaintiff Perdue. Because the Court is unable to determine whether the ACLU has standing, the Court cannot find that the ACLU is an appropriate class representative. Accordingly, the Amended Motion for Class Certification is DENIED as to the ACLU. Within 21 days of the date of this Entry the ACLU shall file a brief in support of its standing. The Defendants shall have 14 days to respond, and no reply is necessary. If the Court finds that the ACLU has standing, and if the organization still wishes to be a class representative, then the ACLU may file an appropriate motion at that time.

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to Indiana Courts

Ind. Gov't - "Mistake found on Indiana tax form"

John Paul of WSBT-TV South Bend reports:

SOUTH BEND ‒ There are a lot of details to pay attention to when you are filing taxes, but one South Bend woman noticed something wasn't quite right on Indiana's IT-40 EZ tax booklet. It turns out the worksheet has an error.

One thing Dawn Williams knows is numbers, and while she was filing taxes for a friend she noticed the numbers on the IT-40 EZ worksheet were not adding up.

“I kept doing it over and over and it kept coming out the same way. And I said ‘This cannot be right.'”

She continued plugging the numbers on paper and online. Ad each digit kept coming up the same exact way ‒ it showed her friend owed more than $800. Her instincts told her there was no way her friend could owe so much, and it didn't take care long to see the Indiana Department of Revenue apparently made a mistake on the worksheet. * * *

The Indiana Department of Revenue confirmed the error, and officials told Dawn what she knew all along. * * *

Indiana's Department of Revenue says it has taken steps to make sure the error is fixed. WSBT was told the error is still in the IT-40 EZ booklet, but has been corrected in worksheets online. A spokeswoman said if you've already filed, the system will identify and correct any errors. If you are expecting a large refund, you may get more than you thought. And if you owe, you could end up paying less.

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to Indiana Government

Ind. Decisions - Interesting discovery ruling from SD Ind.

An interesting order filed Jan. 29, 2010 in federal court in the case of Mack v. HH Gregg, Inc. Here are some quotes (footnotes omitted) from the 5-page order of U.S. Magistrate Judge Debra McVicker Lynch:

Plaintiffs Ryan and Amanda Mack (“Plaintiffs”) filed this breach of contract action on May 21, 2008, alleging that the defendants (collectively referred to as “hhgregg”) failed to install dryers according to installation warnings and/or manufacturer requirements. They seek to represent a class of similarly situated dryer purchasers. The plaintiffs served interrogatories and document requests on hhgregg, requesting identification of all people for whom hhgregg had installed various types of dryer vents. Hhgregg objected to providing all the information and documents requested. As a compromise, it agreed to produce to the plaintiffs a summary of its dryer installation invoices that would include the state of the sale, date of purchase, amount paid for delivery and installation, and the make and model of dryer purchased.

On September 16, 2009, hhgregg provided the plaintiffs this information in an 11,757- page summary in PDF format (the “Summary Document”). After receiving the Summary Document, the plaintiffs found they were unable to edit and manage it because hhgregg had placed an electronic “lock” on it. As a result, the plaintiffs requested that hhgregg produce the Summary Document in its original format. Otherwise, the plaintiffs say, they will be required to retype nearly twelve thousand pages of data before they can manipulate (regroup, for example) the data.

Hhgregg has refused to produce the Summary Document in its original format. It asserts the plaintiffs’ request for the Summary Document in its original format (1) is protected from discovery by the work product doctrine, (2) is not required because the parties never agreed to the format in which the information would be produced, and (3) would be unduly burdensome.

Hhgregg’s work product argument is unpersuasive. Hhgregg asserts that the Summary Document and its format is work product because it was created after this suit was filed and for the purposes of litigation. Although it is true that the Federal Rules of Civil Procedure generally protect information generated for the purposes of litigation, hhgregg voluntarily furnished the information at issue when it produced the Summary Document. Whether that information is unlocked (editable) as opposed to locked (uneditable), has no bearing on its status as work product. See Nat’l Union Elec. Corp. v. Matsushita Elec. Indus. Co., Ltd., 494 F. Supp. 1257, 1260 (E.D. Pa. 1980) (holding that formatting is not work product). The plaintiffs are not asking for additional information beyond what hhgregg has already produced; this dispute is about a mechanical, not a qualitative difference.

Nor is the court persuaded by hhgregg’s argument that production of the Summary Document in its original format would give the plaintiffs a free ride on hhgregg’s preparation work. Hhgregg willingly chose to compile and provide the summary as a compromise of a discovery dispute; it chose to do the work associated with its compilation in lieu of providing all the information and documents the plaintiffs had requested. And, as explained above, there is no substantive difference between the Summary Document as produced and the Summary Document in its original format. Finally, because the Summary Document in its original format is not protected by the work product doctrine, the plaintiffs need not show substantial need to obtain it.

Hhgregg also argues that the plaintiffs cannot now ask for a different format because they did not specify at the outset the format in which the Summary Document was to be produced. The Federal Rules of Civil Procedure address the production of electronically stored information where parties do not indicate the format. It states that “if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii) (emphasis added). Because the Summary Document is an electronic compilation hhgregg created from underlying data, it is not in the form in which it was originally maintained, and, in fact, hhgregg expressly chose not to produce it in that form. It therefore, absent some agreement to the contrary, should have been produced in a reasonably usable form. Here, hhgregg has electronically locked the Summary Document to prevent editing or manipulation. It is 11,757 pages long and contains approximately 600,000 individual sales of dryer installations. In order to rearrange the information or use copy and paste functions, the plaintiffs would need to retype the entire Summary Document. Hhgregg’s deliberate choice to lock the Summary Document made it completely impractical for use. * * *

The motion to compel is GRANTED. Hhgregg shall produce, within 21 days of this Order, the Summary Document in its original format. Hhgregg’s motion to strike portions of the plaintiffs’ reply in support of their motion to compel (Dkt. 114) is DENIED. The arguments the plaintiffs raised in their reply brief were simply responsive to hhgregg’s arguments.

Posted by Marcia Oddi on Saturday, January 30, 2010
Posted to Ind Fed D.Ct. Decisions | Indiana Decisions

Friday, January 29, 2010

Ind. Gov't. - Attorney General Greg Zoeller Announces his First-Year Accomplishments and Future Plans

Here are the press releases, listing examples of accomplishments in 2009, and goals for 2010.

Posted by Marcia Oddi on Friday, January 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

For publication opinions today (4):

In Int'l Brotherhood of Elec. Workers, et al. v. Indianapolis Power and Light Co., an 8-page opinion, Judge May writes:

In a 1995 settlement Indianapolis Power and Light (IPL) obtained a rate increase, part of which would fund a trust for non-pension retiree benefits. IPL continued to fund the trust for six years. When IPL was acquired by a holding company, it curtailed its funding of the trust and cut employee benefits, but it continued charging its customers pursuant to the rate increase settlement. The Indiana Utility Regulatory Commission (“the Commission”) decided the terms of the settlement did not require continued funding, and on appeal, the International Brotherhood of Electrical Workers and some of the IPL retirees (collectively, “IBEW”) dispute the effect of the language in the settlement. We affirm. * * *

We accordingly cannot say the Commission was unreasonable to find the phrase “as proposed by IPL” referred only to accounting methods for SFAS 106 costs and did not require continued funding of the VEBA trust. We therefore must affirm the Commission’s Order.[3]
_________________
[3] While the highly deferential standard of review requires this result, we do not condone the actions of IPL and its parent company in this proceeding. IPL described VEBA funding as one of the components of its rate case proposal regarding retiree benefit costs. It presented schedules showing twenty years of projected contributions, which schedules corresponded to “the rate inclusion . . . sought by IPL in the rate case to cover non-pension retiree benefit costs.” [ILB - there is more to this footnote]

In Paternity of T.P.; B.C., et al. v. M.P. , an 18-page opinion, Judge Bradford writes:
In this paternity action brought by B.C. (“Mother”) against M.P. (“Father”), Appellants-Intervenors M. and M. L. (“Caretakers”) challenge the trial court's denial of their petition for temporary and permanent modification of custody of T.P. Upon appeal, Caretakers challenge the trial court's conclusion that they did not qualify as de facto custodians and its denial of their petition seeking joint legal custody and permanent physical custody of T.P. We affirm.
P.R. Mallory & Co., Inc., et al. v. American Casualty Co., et al. , is a 41-page opinion (including an opinion concurring in result) involving complicated questions of insurance coverage in an environmental cleanup. Judge Brown's opinion affirms the trial court‘s grant of summary judgment to ACC and CCC.

In Edward Figures v. State of Indiana , an 11-page opinion, Judge Robb writes:

Edward Figures appeals the trial court’s order revoking his probation and ordering him to serve the entirety of his previously suspended sentence. Figures raises three issues for our review, which we restate as: 1) whether the trial court abused its discretion in admitting into evidence a probable cause affidavit and case chronology from a previously dismissed battery prosecution; 2) whether sufficient evidence supports the trial court’s finding that Figures violated the terms of his probation by committing a criminal offense; and 3) whether the trial court abused its discretion in ordering Figures to serve the entirety of the previously suspended portion of his sentence. We conclude the trial court did not abuse its discretion in admitting the case chronology but did abuse its discretion in admitting the probable cause affidavit. As a result, insufficient evidence supports the trial court’s finding that Figures committed a criminal offense. However, in light of the two other probation violations found by the trial court, which Figures does not challenge, the trial court properly revoked his probation, and the sentence imposed upon revocation was not an abuse of the trial court’s discretion. Therefore, we affirm the judgment of the trial court.
NFP civil opinions today (6):

Lamar Advertising, Inc., et al. v. View Outdoor Advertising, et al. (NFP) - "The Commissioner properly applied the 500-foot rule and determined that neither View nor Lamar was entitled to a permit. However, there is not substantial evidence to support the Commissioner's decision that INDOT is equitably estopped from revoking Lamar's permit, and we will not reweigh the evidence concerning View's allegations that Lamar made material misrepresentations in its application. Regarding the appropriate remedy, the parties may apply for a new permit, and INDOT may issue or deny permits as it sees fit. Despite the violation of the 500-foot rule that will be created during the permitting process, Lamar need not remove its billboard unless its application is denied. We affirm in part, reverse in part, and remand."

Darryl Eicher, Jr. v. Tina Eicher (NFP)

In the Matter of S.L., Alleged to be CHINS; D.L. and K.L. v. IDCS (NFP)

In the Matter of C.M.S., A.S., & D.S., Alleged to be CHINS; M.S. v. IDCS (NFP)

Term. of Parent-Child Rel. of T.S., et al.; S.F. v. IDCS (NFP)

Term. of Parent-Child Rel. of M.P., et al.; M.P. and C.P. v. IDCS (NFP)

NFP criminal opinions today (14):

Johnny Lee v. State of Indiana (NFP)

Kyle Smith v. State of Indiana (NFP)

Oscar Iraheta-Rosales v. State of Indiana (NFP)

Cory J. Gray v. State of Indiana (NFP)

William Mendenhall v. State of Indiana (NFP)

Rosheen Smith v. State of Indiana (NFP)

Victor Mejia v. State of Indiana (NFP)

Tommy Ray Wallace v. State of Indiana (NFP)

Quinton L. Hamilton v. State of Indiana (NFP)

Angelo Pierre Dove v. State of Indiana (NFP)

Keith Jenks v. State of Indiana (NFP)

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

Vaughn A. Reeves, Jr. v. State of Indiana (NFP)

Chandler Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 29, 2010
Posted to Ind. App.Ct. Decisions

Courts - "PACER: Picking Up the Pace?"

The ILB has posted a number of stories critical of PACER (the system that makes federal dockets and documents available online), including this article on Dec. 3, 2009, from Wired headed "PACER's $0.08 a page rate adds up in a hurry."

Today John R. Tunheim, a U.S. district judge in Minneapolis, defends PACER in this effective article from the New Jersey Law Journal. Some quotes:

Not long ago, someone who wanted a copy of a court document had to travel to the courthouse where that particular case resided, ask a clerk to make a copy, and pay a typically steep copying fee. That's still true in most court systems in this country and abroad, but not in the federal courts.

Remote electronic access to court records, first offered two decades ago by some federal courts, has been available for some time in every federal trial and bankruptcy court and, most recently, every court of appeals. In 2008, there were more than 360 million requests for electronic access to information from the more than 33 million federal cases that have documents online.

I think it is fair to say that no court system in the world offers as many people as easy access to as many documents.

This service is provided through the Judiciary's PACER (Public Access to Court Electronic Records) system, a portal to its Case Management/Electronic Case Files system. PACER users (the 1 millionth PACER account was created in August) can access documents from an individual federal court or through the U.S. Party/Case Index, a tool for locating court records across the federal system.

For nine years I was a member, and recently completed four years as chair, of the Judicial Conference's Court Administration and Case Management Committee, a position that has enabled me to become very familiar with various issues relating to electronic access to case documents. Questions have arisen in recent months about PACER's fee structure, functionality and privacy protections, and I am pleased to address them here.

Only those who use PACER pay for it. The judiciary does not sell court documents, but rather it gets reimbursed for the cost of providing public access to them. If the judiciary did not charge for these services, it could not provide them. Yet PACER is an economical service, and, as Congress has directed, it is fully funded through the fees it takes in.

All court opinions are available through PACER for free. The fee for accessing briefs, complaints and other documents is eight cents per page, with a maximum charge of $2.40 for any single document, no matter its length. User fees totaling less than $10 per year are waived, and exemptions are made for such users as indigents, academic researchers, Criminal Justice Act attorneys, and pro bono lawyers. In all, about 50 percent of PACER accounts are free from any charge.

Nearly 40 percent of PACER's revenues are generated by less than 1 percent of its active accounts, and the vast majority of the remaining PACER accounts incur less than $500 in fees per year. * * *

Certainly PACER and the services it offers can be improved. That is why we are conducting a yearlong comprehensive program assessment to identify potential enhancements to existing services and new public-access features that could be provided to PACER's varied users. User surveys will be a big part of the assessment, and this input will help shape a final report, expected by June.

Functionality is an important component of the assessment. We already know that usage of PACER's U.S. Party/Case Index application continues to grow, with more than 200,000 searches daily. The application has been running in its current format since 1999, and needs updating. Its search functionality is limited, but the judiciary is working on a new version that will provide enhanced search capabilities and result formats that can be easily imported to other programs for analysis. The new version is being tested, and it should be available to users soon.

Furthermore, we continue to explore ways to enhance already available services. A pilot program is under way to evaluate the expansion of PACER to include access to digital recordings of court proceedings in district and bankruptcy courts.

Posted by Marcia Oddi on Friday, January 29, 2010
Posted to Courts in general

Thursday, January 28, 2010

Ind. Courts - More on: Oral argument in COA involving the Paternity of Infant R

Supplementing this afternoon's ILB entry on the Paternity of Infant R, Charles Wilson of the AP has now written a long, comprehensive story on the argument and the issues involved. Don't miss it. Here is a sample:

On Thursday, attorney Steven Litz asked the Court of Appeals to intervene, challenging the constitutionality of Indiana's paternity law because it allows men — but not women — to establish legal parenthood.

Arizona and Maryland courts have struck down similar paternity laws in surrogacy situations, Litz said.

Deputy Attorney General Frances Barrow said courts in Massachusetts and New York had ruled their paternity statutes were inadequate to deal with reproductive technology and said judges should be guided by the principle of equity.

The three-judge panel clearly sympathized with the couple, who sat quietly behind Litz throughout the hearing and declined to talk with reporters. But the judges preferred not to delve into constitutional issues. They spent much the 40-minute hearing trying to craft a simpler solution that could be used as a precedent.

“It seems to me that everyone's singing the same song,” said Chief Judge John G. Baker. “We just want to make sure we're in tune.”

Litz said he didn't care how it was done, as long as V.G. was recognized as the child's mother.

Barrow agreed the Constitution needn't come into play.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Indiana Courts

Ind. Courts - "Simon Property caught in family feud"

Updating this ILB entry from Jan. 26, which included this quote from the Indianapolis Star:

Indianapolis-based Simon Property Group, the world's largest publicly traded retail estate company, filed a complaint Monday in Hamilton Superior Court against Simon's widow, Bren Simon.
This afternoon Jeff Swiatek of the Star reports:
Bren Simon today charged Simon Property Group with breach of agreement for refusing to let her convert to cash or stock her partnership holdings in the company.

The widow of company cofounder Melvin Simon, who died last September, contends in her 13-page filing in Hamilton Superior Court that the company changed its reasoning once for not converting her holdings and settled on a reason that mischaracterizes the agreement governing the rules for doing a conversion.
Advertisement

The company "is not justified in withholding conversion" of her partnership units, her filing says.

The units, which are part of Melvin Simon's $1 billion-plus estate, are worth tens of millions of dollars. * * *

She contends in her filing that David Simon is represented by lawyers in the will challenge, so the company "cannot justify its refusal to convert SPG units to cash or stock when it is apparent that SPG's chairman and CEO himself is attempting to thwart that obligation to convert."

Hamilton County is one of localities in the State where the Court's JTAC division has the Odyssey case management system up and running, with free public access.

So I decided to take a look at exactly what information was available to the public on this case.

Here it is, Simon Property Group INC,Simon Property Group LP vs. Bren Simon, filed 1/25/10 in Hamilton Superior Court 3. Here is the information available to the public, in addition to the names of the parties and attorneys:

Events & Orders of the Court
   OTHER EVENTS AND HEARINGS
01/25/2010  Case Opened as a New Filing
01/25/2010  Complaint/Equivalent Pleading Filed
For Declaratory Judgment Filed.
01/25/2010  Service Issued
By C/M 9121 8052 1390 7038 5959 81 to Bren Simon.
01/26/2010  Appearance Filed
01/28/2010  Answer to a Complaint Filed
(To Court)

Disappointed? The Indianapolis Star story above fleshes out the "details', such as the fact that the "Answer to a Complaint" filed today, 1/28/10, was filed by Bren Simon, is 13 pages long, and includes the contentions summarized in the story.

In other words, the "public access" provided by Odyssey is only the barest of bones. Don't cancel your newspaper subscription!

To see for yourself, go here. Then select "Civil, Family & Probate Case Records." Then I selected "Search by Party" and typed in "Simon, Bren."

Three cases turned up this afternoon. The second is the one in today's story. The other two were the subject of ILB entries earlier this month.

========================================================================

Case NumberStyleFiled/LocationType/Status
29D03-0910-ES-000141In Re: the Estate of Melvin Simon
10/13/2009
Hamilton Sup Ct 3
EU - Estate, Unsupervised
Pending
29D03-1001-PL-000093Simon Property Group INC,Simon Property Group LP vs. Bren Simon
01/25/2010
Hamilton Sup Ct 3
PL - Civil Plenary
Pending
29D03-1001-TR-000002Deborah J. Simon vs Bren Simon
01/07/2010
Hamilton Sup Ct 3
TR - Trust
Pending

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Indiana Courts

Ind. Courts - Oral argument in COA involving the Paternity of Infant R

Today the Court of Appeals heard oral argument in The Paternity of Infant R. (64A03-0908-JV-367). The case summary:

T.G. and V.G. are a married couple and the biological parents of a child born to a surrogate mother. T.G., V.G., and the surrogate filed affidavits in support of a petition to establish paternity and maternity in T.G. and V.G. The trial court denied the petition upon finding that "Indiana law does not permit a non birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother." T.G. and V.G. appeal, arguing Indiana law denies women equal protection and asking that Indiana's paternity statutes be declared unconstitutional as applied to them.
The Panel Members were: Chief Judge Baker, Judges Bailey and Bradford.I have just finished watching the webcast, and recommend it highly for its thoughtful discussion of the issues by the judges and the attorneys. (Access it here.)

Unfortunately, the first few minutes of the argument are lost, then the video blacked out, but keep watching and a few minutes in you will see Steven Litz presenting the case of the couple seeking to establish maternity, followed by Deputy Attorney General Frances Barrow, representing the State.

Mr. Litz suggested two alternatives to the court: (1) declare the paternity statute unconstitutional under the equal protection clause, because it makes no provision for a declaration of maternity, or (2) read the paternity statute to also apply to women.

Ms. Barrow's position was: We don’t disagree with the plaintiffs’ desired outcome of having the genetic mother declared the legal mother. Our view is that the Court could achieve that goal without declaring the statute unconstitutional.

Here are two brief stories on the argument; from WTHR, and from Charles Wilson of the AP.

I'm very pleased to report that I have just received copies of the briefs in the case:

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Indiana Courts

Law - Free Fastcase access on iPhone

This free Fastcase iPhone application may be worth the price of an iPhone, or an iTouch (a.k.a. mini-iPad). See Robert Ambrogi's article here.

I checked out the Fastcase site, including its scope of coverage and normal pricing.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Gina Johnson v. Robert Johnson, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

In the course of settling their dissolution, Robert Johnson agreed to pay Gina Johnson for her interest in the family farm. When Robert later sought to renew a line of credit and restructure the farm’s debt to pay Gina, the bank required Gina’s agreement to give the bank’s lien priority over hers. After she refused, Robert sought a declaratory order subordinating her lien. The trial court granted his motion.

We conclude that the parties’ settlement agreement, though silent on the subject, must have contemplated the regular annual renewal of the farm’s debt to finance its operations but not the higher level of debt necessary to finance Robert’s obligations to Gina. Thus, the trial court’s order impermissibly modified the settlement agreement. We reverse. * * *

If Robert’s declarations about the state of his finances are accurate, he may well be unable to pay Gina without financing higher level of debt on the farm. It is probably in both parties’ interests to negotiate an agreement allowing Robert to meet his obligations. Numerous arrangements that meet both parties’ needs exist, and we encourage them to avoid further litigation on this issue.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana Uniform Consumer Credit Code case

In Midwest Title Loans v. David H. Mills, Dir, Ind. Dept. Financial Institutions (SD Ind., Judge Barker), a 19-page opinion, Judge Posner writes [emphasis added by ILB]:

An Illinois loan company, Midwest Title Loans, Inc., sued under 42 U.S.C. § 1983 to enjoin, as a violation of the commerce clause, the application to Midwest of Indiana’s version of the Uniform Consumer Credit Code (a model code, provisions of which have been adopted in several states). Ind. Code §§ 24-4.5-1-101 et seq. The district court entered a permanent injunction, and the state appeals.

A provision added to the Indiana version of the model code in 2007 and aptly termed the “territorial application” provision states that a loan is deemed to occur in Indiana if a resident of the state “enters into a consumer sale, lease or loan transaction with a creditor . . . in another state and the creditor . . . has advertised or solicited sales, leases, or loans in Indiana by any means, including by mail, brochure, telephone, print, radio, television, the Internet, or electronic means.” § 24-4.5-1-201(1)(d). If the territorial-application provision is triggered, the lender becomes subject to the code and must therefore get a license from the state to make consumer loans and is bound by a variety of restrictions that include a ceiling on the annual interest rate that a lender may charge. * * *

Midwest Title is what is known as a “[car] title lender.” “Cash loans, variously called car title pawn, car title loans, title pledge loans, or motor vehicle equity lines of credit, are the latest, fast-growing form of high cost, high risk loans targeting cash strapped American consumers. Storefront and online lenders advance a few hundred to a few thousand dollars based on the titles to paid-for vehicles. Loans are usually for a fraction of the vehicle’s value and must be repaid in a single payment at the end of the month. Loans are made without consideration of ability to repay, resulting in many loans being renewed month after month to avoid repossession. Like payday loans, title loans charge triple digit interest rates, threaten a valuable asset, and trap borrowers in a cycle of debt.” * * *

Until it received a letter in August 2007 from Indiana’s Department of Financial Institutions advising it of the addition of the territorial-application provision to the code, Midwest had made title loans to Hoosiers (as Indianans like to call themselves) at annual percentage interest rates almost ten times higher than the maximum permitted by the code. They had a maturity of 12 to 24 months, were secured by the title to the borrower’s motor vehicle, and were for no more than half the vehicle’s estimated wholesale value. The loans were made only in person, at Midwest’s offices in Illinois—it had no offices in Indiana. The loan would be in the form of a cashier’s check payable to the borrower, drawn on an Illinois bank. * * *

Midwest advertised the loans on Indiana television stations and through direct mailings to Indiana residents. In 2006 it made more than two thousand such loans to Hoosiers, amounting to 9 percent of its loans that year. * * *

The state asserts an interest in protecting its residents from what it describes as “predatory lending.” * * *

A contrary school of thought points out that people who cannot borrow from a bank because they have poor credit may need a loan desperately. If a ceiling is placed on interest rates, these unfortunates may be unable to borrow because the ceiling may be too low for the interest rate to compensate the lender for the risk of default. As a result, they may lose their house or car or other property or find themselves at the mercy of loan sharks. * * *

We need not take sides in the controversy over the merits of “fringe banking.” It is enough that Indiana has a colorable interest in protecting its residents from the type of loan that Midwest purveys. * * *

The interference was with a commercial activity that occurred in another state. Each title loan that Midwest made to a Hoosier was in the form of a check, drawn on an Illinois bank, that was handed to the borrower at Midwest’s loan office and could be cashed there. Illinois was also where the conditional transfer of title to the collateral was made (the handing over of the keys—the “pawn”), and where the payments required by the loan agreement were received by Midwest. The contract was, in short, made and executed in Illinois, and that is enough to show that the territorial-application provision violates the commerce clause. Of course the loan proceeds were probably spent largely in Indiana, but the same would be true of the winnings of a Hoosier at a Nevada casino. The consequences of a commercial transaction can be felt anywhere. But that does not permit New York City to forbid New Yorkers to eat in cities in other states that do not ban trans fats from their restaurants.

Our conclusion is not altered by the fact that Midwest advertises in Indiana. If Indiana cannot prevent Midwest from lending money to Hoosiers in Illinois, it cannot prevent Midwest from truthfully advising them of this opportunity. A state may not “take the commercial speech that is vital to interstate commerce and use it as a basis to allow the extraterritorial regulation that is destructive of such commerce.” * * *

Nor is the location of the collateral in Indiana a critical difference between this case and the other cases that have invalidated extraterritorial regulations. It just illustrates that a transaction made in one state can have repercussions in another. A firecracker bought by an Illinoisan in Indiana could cause an injury to the purchaser in Illinois. That would allow an Illinois court, in a suit by the injured purchaser against the Indiana seller, to apply its own law. But it would not allow Illinois to forbid Indiana to sell firecrackers to residents of Illinois in Indiana merely because Illinois forbids firms in Illinois to sell firecrackers and thus would not be discriminating against an out-of-state business. A contract can always go wrong and if it does the consequences will often be felt in a different state from the one in which the contract was made and executed.

AFFIRMED.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Ind. (7th Cir.) Decisions

Law - Dawn Johnsen hearing postponed

Dawn Johnsen was on the Senate Judiciary Committee schedule this morning, as part of her "do-over." I've just learned:

Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., just announced that at the request of Republican members of the committee, action on Dawn Johnsen's nomation will be held over until the February business meeting.
Here is some background.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Rusty R. Skinner v. State of Indiana , a 6-page opinion in an interlocutory appeal, Appellant-Defendant Rusty R. Skinner appeals the trial
court’s denial of his motion to compel disclosure of information obtained in the course of an
attorney-client relationship. Judge Bailey writes:

Before trial, the State added Jason Wingler, an inmate at the Morgan County Jail, as a witness and expected Wingler to testify that Skinner made statements to him while in jail that would be contrary to Skinner’s self-defense claim. As a result, Skinner’s counsel filed a Verified Motion to Withdraw / Alternative Motion to Exclude Witness because he had learned of information materially adverse to Wingler in his prior representation of Wingler. The trial court granted the motion to withdraw and appointed new counsel for Skinner.

Skinner, through new counsel, filed a Memorandum in Support of Request to Compel Exculpatory Evidence from Counsel of State’s Witness. Skinner sought to compel his prior counsel to provide the alleged evidence that would impeach Wingler’s credibility. After an in camera hearing with the prior counsel, the trial court denied Skinner’s request finding that no exception to the attorney-client privilege applied and Wingler had not waived the privilege. This interlocutory appeal ensued. * * *

Based on the relevance of the material, its availability from other sources, and the nature and importance of any interests invaded, we conclude that the information sought is not discoverable due to the protection provided by the attorney-client privilege. Therefore, the trial court did not abuse its discretion in denying Skinner’s request to compel discovery of the information. Affirmed.

NFP civil opinions today (1):

Jeffrey Kochis v. City of Hammond, Indiana, Fire Dept. of the City of Hammond, Indiana, et al. (NFP) - "Appellant-Plaintiff Jeffrey Kochis (“Kochis”) appeals a grant of summary judgment in favor of the City of Hammond, Indiana, the Fire Department of the City of Hammond, Indiana, David Hamm, in his capacity as Fire Chief of the City of Hammond, Indiana, and the Board of Public Works & Safety of Hammond, Indiana (collectively, “Hammond”) upon Kochis‟ complaint for reinstatement, alleging that he was demoted in violation of Indiana Code Section 36-8-3-4, which addresses police officer/firefighter discipline and demotion (“the tenure statute”). We reverse and remand for further proceedings. * * *

"Hammond failed to show the absence of factual issues concerning its economic situation in operating the fire department, such that a fact-finder could only conclude that the economic exception to Indiana Code Section 36-8-3-4 applied and that Kochis was not entitled to due process protections. As there exists a genuine issue of relevant fact, summary judgment was improvidently granted."

NFP criminal opinions today (1):

Gary L. Dozier v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Ind. App.Ct. Decisions

Environment - Still more on "Crawford County residents question biomass power project"

Updating this ILB entry from Jan. 20th, Grace Schneider of the Louisville Courier Journal reports today under the headline "Defining 'clean' wood is key for biomass power projects." Some quotes from the lengthy story:

By this summer, Indiana environmental regulators are expected to write the final details of an air-quality permit for the state’s first large biomass power plant near Milltown – with a second one in Scottsburg to soon follow.

But a basic question about both projects remains unanswered: What will the state allow the operators to burn for fuel?

The description of allowable fuels is crucial on several fronts. Residents who are concerned about potential pollution insist the state should narrowly define “clean wood” as wood chips and other unvarnished scrap lumber to ensure that emissions are as free as possible of any hazards.

The partners at Liberty Green Renewables LLC, the Harrison County company that wants to build the two plants, hope the list of permitted fuel fits the boiler they have planned. But Terry Naulty, one of the partners, said they stand ready to comply with whatever regulators decide is appropriate under state and federal rules.

“I don’t know what the final permit is going to contain,” Naulty said. “But we expect it to say ‘clean wood.’”

At the Indiana Department of Environmental Management, where rules for the emerging biomass technology are being drafted, regulators acknowledge that they haven’t settled on a definition for that term.

At a Jan. 13 public meeting on the Milltown project, Matt Stuckey, chief of IDEM’s air-permit branch, said repeatedly that Liberty Green would be required to burn only “untreated, uncoated” wood.

The proposed air permit specifies several types of fuel, including mill residue, tree chips, brush, storm debris, switch grass, cornstalks, waste pallets, crates and other uncoated, solid manufacturing wood waste. It rules out pressure-treated or chemically treated wood or fiberboard.

But near the close of the meeting, Stuckey mentioned that the agency still hasn’t decided what would comprise a final list of fuels. * * *

Liberty Green announced a year ago that it intended to build a $100 million generating plant to sell electric power on more than 100 acres on Ind. 64 near Ind. 66 – the first of what the partnership has projected would be three such Indiana facilities. A second is planned on the east side of Interstate 65, south of Scottsburg’s city limits.

Naulty said the partnership hasn’t announced the location of the third site, although he said it’s not in the region.

In nearly identical air-permit applications, Liberty Green estimated that both 32-megawatt plants in this area would emit 245 tons of nitrogen oxide and 226 tons of carbon dioxide each year. Under federal and state regulations, because the plants would emit less than 250 tons of a particular chemical, neither is considered a “major source” of pollution that would require the owners to install more extensive air-pollution devices like those for large coal-fired power stations.

Besides a large investment of taxable industry in the communities, the developers envision each plant would provide 25 or so jobs and additional positions connected to transporting wood to the plants.

Indiana currently has no biomass-to-electricity generating stations in operation. But [IDEM spokesman Rob Elstro] said it’s common when regulators review projects with innovative technology to also consider vendor guarantees, best engineering practices and emission information from other facilities to help write the final permit.

As with any permit the state issues, he said, a facility would be required to show that it’s meeting all limits and conditions -- something that involves continuous monitoring and tests on the smokestacks.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Environment

Ind. Law - "Enforce guns laws, don't keep secrets" Déjà vu?

Supplementing this ILB entry from yesterday, today's Indianapolis Star has this editorial that begins:

It ought to shock you to know that lots of people in Indiana obtain permits to carry guns despite a history of violence.

It ought to offend you to be told by your elected representatives that you're not supposed to know.
Advertisement

A free press got the word out, by way of a recent Star investigative report warning that government has compromised public safety through failure to follow the law.

Thus far, government's response to the wake-up call has been to roll over and pull up the quilt.

Tuesday, the Indiana House resoundingly passed a bill to deny the press and public access to the public records from which The Star learned that Indiana State Police routinely grant gun permits to individuals known for violence. State law allows for the denial of permits, local police often object to the granting of them, and those who get them sometimes go on to commit crimes.

The newspaper would not have learned this without entree to the total gun permit archive, with its names and addresses. The Star, in its online database, did not publish those names and addresses; only general information about gun permits by race, gender, age and ZIP Code.

That was enough, some lawmakers have said, to scare and even outrage them as to the endangerment of privacy, Second Amendment rights and life itself. Gun owners and non-owners alike bombarded them with pleas to keep the bad guys from knowing who might have a gun in his house and who might be unarmed, supporters of secrecy declare.

Far fewer have spoken up for the cause of open and responsible government. No one thus far has proposed a legislative inquiry into lax enforcement of a legislative mandate governing deadly weapons.

Why Déjà vu? The ILB recalls another situation where newspaper investigations into public records led to the General Assembly making those records secret.

According to ILB entries from 2004, in September of 2003 Indianapolis' WTHR requested a copy of the state pension fund's computerized database to investigate purported inequalities. In March 2004 the NWI Times wrote that it had requested PERF records:

to disclose whether the fund is paying pensions to former Lake County officials convicted of using their public offices to line their pockets dating back to the 1980s and '90s. Leisa Julian, general counsel for the fund, replied last month that state law exempted those records from public disclosure. "We must deny your request," she wrote The Times. The Times made a second request under the Freedom of Information Act last month to divulge whether any of 19 convicted former officials were even fund members and, if so, their years of service.

Julian failed to comply within seven days as the law requires, despite being informed by Michael Hurst, Indiana's public-access counselor, that names and years of service are public documents. She provided the information only last week after The Times threatened to sue and demand the award of attorney's fees.

See ILB entries from March 11, 2004 and March 14, 2004. A Star editorial from March 19, 2004 reads in part:
Legislators, who receive four tax dollars for every dollar they contribute, are the biggest beneficiaries of the newly secret funds, which also enroll judges and prosecutors. It hardly seems a coincidence that the law denying access was passed retroactive to requests by news organizations to view the records. Media investigations in other states have turned up millions in misappropriated public employee pension funds.
The same March 19, 2004 ILB entry (worth reading in full) begins:
Last evening Governor Kernan announced that he had signed into law HEA 1285. As a result, the law is now in effect, retroactive to September 1, 2003. This new law will prevent anyone from accessing PERF information, other than member names and years of service, through a FOIA request.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Indiana Law

Ind. Decisions - Supreme Court decides one yesterday

In Robert Bules and Brian Bules v. Marshall County and Marshall County Highway Dept., a 7-page, 4-1 opinion, Justice Boehm writes:

The Indiana Tort Claims Act provides governmental units immunity from liability for losses caused by temporary weather conditions. We have previously held that this immunity applies during the period of reasonable response to a weather condition. We hold today that that period lasts at least until the weather condition has stabilized, and immunizes the governmental unit from liability for alleged flaws in its remedial steps. * * *

The judgment of the trial court is affirmed.

Shepard, C.J., Sullivan, J., and Rucker, J., concur.
Dickson, J., dissents, believing that the Court of Appeals was correct.

There was no oral argument in this case. Appellee's petition for transfer was granted, with opinion, on Jan. 27, 2010.

From the NFP Court of Appeals opinion in Robert Bules and Brian Bules v. Marshall County and Marshall County Highway Dept. (NFP) - "A genuine issue of material fact exists as to whether Marshall County negligently placed the high water warning signs. The Act does not provide Marshall County immunity for the negligent placement of warning signs even if the resulting accident took place during bad weather conditions. Therefore, the trial court erred when it granted summary judgment in favor of Marshall County. Reversed and remanded."

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Corcoran will face a full resentencing"

Updating yesterday's ILB entry on the 7th Circuit's decision in the case of Joseph E. Corcoran v. Levenhagen,
Rebecca S. Green of the Fort Wayne Journal Gazette reports today in a story that begins:

After a U.S. Supreme Court ruling in the death penalty case of convicted murderer Joseph Corcoran in October, a federal appellate court Wednesday ordered he get a new sentencing hearing.

But even after a new sentence, which still could include the death penalty, the case could continue through the appeals process.

Wednesday’s ruling by the U.S. Court of Appeals 7th Circuit in Chicago ordered a new sentencing hearing to correct “errors” it found in the original sentencing order. First, an Allen Superior Court judge must not consider certain circumstances to be counted against Corcoran – his future dangerousness, his victims’ innocence and the murders’ heinousness.

And, the trial court must consider his age at the time, 22, as something in Corcoran’s favor. According to the transcript of the 1999 sentencing hearing, Allen Superior Court Judge Fran Gull mentioned Corcoran’s age and declined to consider it in his favor.

The new ruling is the latest handed down by the federal appellate court. In December 2008, the appellate court reinstated the death penalty against Corcoran in a 2-1 ruling overturning the decision of a northern Indiana U.S. District Court judge, the late Allen Sharp.

Posted by Marcia Oddi on Thursday, January 28, 2010
Posted to Ind. (7th Cir.) Decisions

Wednesday, January 27, 2010

Ind. Decisions - 7th Circuit decides Corcoran appeal again today

In Joseph E. Corcoran v. Levenhagen (ND Ind., Sharp), a 15-page opinion, Judge Bauer writes:

Joseph Corcoran murdered four people, and an Indiana court sentenced him to death. The district court granted habeas relief on Corcoran’s Sixth Amendment claim. We reversed on the Sixth Amendment issue, Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), but as the Supreme Court explained, we improperly omitted discussion of Corcoran’s other habeas challenges. Corcoran v. Levenhagen, No. 08-10495, 2009 WL 3347947, at *1 (U.S. Oct. 20, 2009). We include that discussion here, after a full and fresh look at the record. We find that all of Corcoran’s remaining habeas challenges are waived, and that three of them are frivolous, but that one of the challenges nevertheless entitles him to a new sentencing hearing. * * *

D. Incompetence To Be Executed

Finally, Corcoran claimed he should not be executed because he suffers from a mental illness. Indeed, the Constitution prohibits the execution of a prisoner who is insane. Ford v. Wainwright, 477 U.S. 399, 410 (1986); see also Panetti v. Quarterman, 551 U.S. 930 (2007). But Corcoran must raise the argument of his incompetence to be executed in Indiana’s state courts before he can do so here. 28 U.S.C. § 2254(b)(1). Indeed, Corcoran made no claim that Indiana lacks an effective process to comply with Ford v. Wainwright. To the contrary, Indiana permits additional post-conviction review on Ford claims “after the usual channels of appeal have been exhausted.” Baird v. State, 833 N.E.2d 28, 29 (Ind. 2005); see also Ind. Post- Conviction Rule 1(12) (allowing a successive habeas petition “if the petitioner establishes a reasonable probability that the petitioner is entitled to post-conviction relief”). Therefore, his Ford claim is unripe.

III. CONCLUSION

The habeas claims actually before this court are meritless, as we previously found in Corcoran, 551 F.3d 703. The claims Corcoran declined to pursue in this court are waived, and three of them are anyway meritless or unripe. But Corcoran’s challenge to the state trial court’s sentencing process has obvious merit, for the reasons discussed above. Therefore, we AFFIRM the district court’s conditional grant of Corcoran’s petition for a writ of habeas corpus, but we modify its order to grant the writ unless within 120 days the state court holds a new sentencing hearing in accordance with this opinion. [ILB - see discussion at pp. 5-9 under "A. Sentencing Process"]

Here is a list of earlier ILB entries on this case.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - "Studies Link Rare Ailment to Pain Pumps "

A very long story today in the sports section of the NY Times includes several Indiana-related references. Some quotes:

When the first cases popped up in orthopedic journals, they read like medical mysteries. Surgeons around the country reported that several active young patients had suddenly developed chondrolysis, a relatively rare ailment in which joint cartilage dies, leaving bone to grind on bone.

Chondrolysis has ended the athletic careers of dozens of high school and college students. In the most severe cases, it has required joint replacements. Many sufferers face lifetimes of pain and disability. * * *

Whether the pumps caused the chondrolysis — and whether manufacturers should have done more to warn surgeons about the potential risks — is the subject of more than 150 lawsuits working their way through state and federal courts. Last Friday, an Oregon jury awarded nearly $5.5 million to a chondrolysis patient, and at least a dozen cases are expected to go to trial this year. * * *

AstraZeneca, which until 2006 sold a local anesthetic that was used in the pumps, is a defendant in 68 active cases, said Tony Jewell, a company spokesman. AstraZeneca did not promote the drug, bupivacaine, for use in pain pumps inserted in the joint, nor did it seek approval for such a use, he said.

Jewell added, “We intend to vigorously defend ourselves in this matter.”

Lawyers for the chondrolysis patients say the pain pump makers were slow to react to evidence that their devices were dangerous.

“It’s a failure-to-warn case,” said Jeff Gibson, whose Indianapolis firm is handling about 50 pain pump cases. “Instead of warning the public, they hid the information.”

Tony Jewell, used to be an Associated Press State House reporter in Indianapolis. Jeff Gibson is with Cohen & Malad, LLP, Indianapolis.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Dustin Neff v. State of Indiana , a 4-page opinion on rehearing, Judge Barnes writes:

Dustin Neff petitions for rehearing following our decision in Neff v. State, 915 N.E.2d 1026 (Ind. Ct. App. 2009). There, we held that, although the State failed to prove venue in Hamilton County for a charge of child solicitation, double jeopardy principles did not prohibit a retrial on that charge in Madison County. Id. at 1036-37. Neff challenges our double jeopardy conclusion. We issue this opinion on rehearing but affirm our original decision in all respects. * * *

We reaffirm and adhere to our double jeopardy analysis in our original opinion, including our disapproval of the holdings in Williams v. State, 634 N.E.2d 849 (Ind. Ct. App. 1994), and Elkins v. State, 754 N.E.2d 643, 644-45 (Ind. Ct. App. 2001), trans. denied.

In Curtis Stokes v. State of Indiana , a 14-page opinion, Judge Najam concludes:
Stokes has not demonstrated that he suffered grave peril as a result of the jurors’ knowledge that he was incarcerated pending trial. Accordingly, the trial court did not abuse its discretion when it denied Stokes’ motion for a mistrial. And while Stokes may well have confined Earnest Phillips, Gregory Arnold, Jr., Fred Winfield, or Shantell Williams, the State did not present evidence sufficient to prove that Stokes intended to rob them. Their proximity to crimes committed against the others did not, without more, make them victims of attempted robbery. Accordingly, we instruct the trial court to vacate the entry of judgment on these four convictions. We affirm Stokes’ convictions on all remaining counts.
NFP civil opinions today (2):

Kerry W. Ridge v. Matthew D. Lark (NFP) - "In addition, Ridge encourages this court to adopt section 24 of the Restatement (Third) of the Law Governing Lawyers as the duty of Indiana attorneys to clients who are incapacitated or of a diminished capacity. Ridge claims that public policy necessitates the adoption of this section because it would clarify an attorney’s responsibility to clients who are incapacitated or exhibit a diminished capacity, promote the welfare of clients, and enhance the professionalism and public perception of the Indiana Bar. However, because we concluded above that the trial court’s determination that Ridge did not exhibit a diminished capacity and thus was not incapacitated is not clearly erroneous, we need not address the question of whether Indiana courts should adopt section 24 of the Restatement (Third) of the Law Governing Lawyers as substantive law."

Term. of Parent-Child Rel. of C.L., et al.; Y.L. v. IDCS (NFP)

NFP criminal opinions today (13):

Michael Shireman v. State of Indiana (NFP)

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

Jeremy R. Haney v. State of Indiana (NFP)

Melissa Chandler v. State of Indiana (NFP)

Jason Ross v. State of Indiana (NFP)

Termaine G. Brown v. State of Indiana (NFP)

Ladonna Thomas v. State of Indiana (NFP)

Frederic Shields v. State of Indiana (NFP)

Bruce Hoppas v. State of Indiana (NFP)

William Ladigo v. State of Indiana (NFP)

Christopher Lee v. State of Indiana (NFP)

Charles Davis v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "State will pilot new welfare application system in Evansville area"

Updating this ILB entry from Dec. 13, 2009, Ken Kusmer of the AP reports today in a story that begins:

INDIANAPOLIS – Indiana’s human services agency said Tuesday the state’s third attempt at effectively enrolling and keeping people on food stamps and other welfare benefits has begun rolling out, but one affected caretaker said the frustrations keep mounting.

The Family and Social Services Administration said it has begun implementing what it’s calling a hybrid welfare intake system, involving caseworkers and some automation, in 10 southwestern Indiana counties. It follows the agency’s aborted bid to turn over highly automated welfare intake to private vendors – a plan designed to replace an outdated, paper-based casework system – that remains in 33 counties.

FSSA said the hybrid rollout began last week with phone calls to vendor-run call centers being rerouted to local welfare offices. It continued Monday with 20 state and contract caseworkers moving from the call centers to the 10 counties.

From later in the story:
FSSA chose to implement the hybrid system with automation and more caseworkers in the Evansville area because lawmakers, advocates and service providers there have spoken loudest after their problems with the privatized system.

“It really wasn’t working at all,” said state Sen. Vaneta Becker, R-Evansville. “I think Anne Murphy understands that and is trying to take the good parts of the old system as well as the new system and put them together. It’s really too early to give them a grade one way or another.”

Rep. Gail Riecken, D-Evansville, introduced a bill that would prohibit FSSA from outsourcing eligibility for the food stamps, Medicaid and other benefits received by 1.2 million Indiana residents, or nearly one in every five.

Riecken’s bill is up for a third and final reading in the Democratic-controlled House after being amended Monday to remove the anti-outsourcing provisions and add language creating a panel of lawmakers and an independent third party to monitor FSSA’s delivery of public aid.

The bill’s chances in the Republican-controlled Senate are uncertain.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Indiana Government

Courts - "More court cases to test campaign-finance limits"

Supplementing this ILB entry from Jan. 25, 2010, is this long story today by Fredreka Schouten of USA TODAY. Some quotes:

WASHINGTON — With corporations and unions now free to spend unlimited amounts on campaign ads, a series of court challenges coast-to-coast could unravel other campaign-finance restrictions — including limits on contributions to political groups.

The next test comes today, when a nine-member federal appeals panel in Washington holds oral arguments to consider whether an independent political group, SpeechNow, should be subject to a $5,000 annual cap on donations from individuals. Three judges on the same court last year voted to nullify those restrictions in a separate case involving EMILY's List, which works to elect women candidates who support abortion rights.

The EMILY's List case was one of a string of decisions that have chipped away at campaign regulations since 2007, culminating in last week's sweeping Supreme Court decision that overturned the ban on the use of corporate and union funds for campaign ads that directly call for the election or defeat of presidential and congressional candidates.

"Opponents of campaign-finance laws have teed up a series of cases to push the court ever further toward deregulation," said Richard Hasen, an expert on election law at Loyola Law School in Los Angeles. "It is paying off."

"I'm certainly emboldened" by the high court's decision, said Steve Simpson, a senior attorney with the Institute for Justice, a libertarian public-interest law firm, which represents SpeechNow. The firm also has challenged in federal court an Arizona law that allows public financing of state campaigns.

Last week's opinion by the Supreme Court "says that the court is very concerned about the implications of campaign-finance laws for freedom of speech," Simpson said.

Other pending cases include:

• A lawsuit by the Republican National Committee that seeks to overturn a ban on unlimited contributions to political parties by wealthy individuals, unions and companies. Currently, no individual can give more than $30,400 a year to a national party committee.

• A California lawsuit that argues publicly disclosing the names of donors supporting a 2008 referendum that struck down same-sex marriage in the state is unconstitutional.

Both cases were filed by James Bopp, a Republican lawyer from Terre Haute, Ind., and frequent challenger to campaign-finance laws. He initiated the lawsuit brought by a conservative group called Citizens United that led to the Supreme Court's sweeping decision Thursday.

In April, the Supreme Court will hear another Bopp case, challenging whether it was unconstitutional for the state of Washington to release the names of people who signed a petition that called for a referendum to overturn the state's domestic partnership law.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Courts in general

Law - "Northwestern University Law School is offering a “dovetail” loan forgiveness program that could wipe out all of the student loans for graduates who work in the public sector"

That is the lede to this story by Debra Cassens Weiss in the ABA Journal. More:

Under a new federal program, public interest graduates pay only 10 percent of their income toward student loans. After 10 years in public service, the government forgives all of the remaining loan balance.

Northwestern Law School is offering to cover the annual payments in most cases, resulting in 100 percent forgiveness for student loans when graduates remain in the public sector for 10 years, according to a press release. * * *

Georgetown University Law Center and the University of California's Berkeley School of Law have similar programs.

More on the federal program in this June 22, 2009 story from The National Law Journal.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to General Law Related

Ind. Decisions - 7th Circuit clears up a jurisdictional question related to the Class Action Fairness Act of 2005

Lynne Marek of The National Law Journal has a story today that begins:

The 7th U.S. Circuit Court of Appeals has cleared up a jurisdictional question related to the Class Action Fairness Act of 2005, ending what Judge Richard Posner called the potential for "ping-pong" between the federal and state courts.

The court ruled this past Friday that even if a case transferred to federal court under the act fails to win class certification, it should still continue in the federal system. The opinion noted the 7th Circuit was joining the 11th Circuit in reaching that holding.

"Behind the principle that jurisdiction once obtained normally is secure is a desire to minimize expense and delay," Posner wrote in the unanimous Friday decision. "If at all possible, therefore, a case should stay in the system that first acquired jurisdiction. It should not be shunted between court systems; litigation is not ping-pong."

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Two bad gun laws" moving in the General Assembly

The heading of the editorial Jan. 25th in the Fort Wayne Journal Gazette was "Two bad gun laws." Some quotes:

Americans are familiar with the gun lobby’s influence in Congress, but many Hoosiers may not know their own state legislators are being pressured to pass two pro-gun bills that would ill-serve Indiana.

Both proposals have passed the pro-gun House Natural Resources Committee, which includes Rep. Richard Dodge of Pleasant Lake. Both advance narrow pro-gun interests at the expense of sound public policy and the overall safety interests of Hoosiers.

Both should be defeated.

House Bill 1068 would seal a public record, an act that almost never serves the public. The bill would make permits to carry handguns a private record, no longer open to the public. These are not “gun permits”; these are licenses that specifically allow people to carry handguns in public. Such permits are not necessary to carry rifles or shotguns, nor are they needed to have a handgun in your home.

The move comes after the Indianapolis Star and the Bloomington Herald-Times published information about gun permits. Notably, neither paper published the names and addresses of permit holders – the information the gun lobby says should be secret. The Star’s story, in fact, illustrated exactly why the permits should be a public record: It found numerous instances where the carry permits were wrongly issued to convicted felons or unwisely issued over the recommendations of local police chiefs and sheriffs.

Supporters of the law want to deny the scrutiny that could uncover future cases where convicted felons get permits to carry concealed handguns. And gun rights advocates should note that public scrutiny of records can also guard against people being wrongly denied carry permits.

House Bill 1065 would require businesses to allow their employees to leave guns in their cars in employee parking lots. Consider that the same conservatives supporting this bill generally reject new regulations on business. Consider, too, that businesses have long had the right to control what kind of personal belongings employees are and are not allowed to bring to business property.

Interestingly, the bill specifically would rightly allow schools and universities to continue to ban guns. In other words, the bill notes the dangers in allowing guns to be kept in locked vehicles at schools and colleges but pretends there are no similar dangers at businesses. * * *

Lawmakers, unfortunately, fear the gun lobby, known for vicious and personal verbal and written attacks on anyone who dares to disagree. Hoosiers need to let their lawmakers know that they oppose government secrets and oppose the government telling businesses that they must allow their workers to pack heat on company property.

The headline to this story posted yesterday by by Mary Beth Schneider in the Indianapolis Star is "House OKs bill to keep gun permits secret." The story notes:
House Bill 1068, which was authored by Rep. Peggy Welch, D-Bloomington, was prompted by databases published in The Indianapolis Star and the Bloomington Herald-Times. Those databases did not identify gun permit holders by name or address, but did allow people to search their ZIP code to see the number of permits held in that area.

The Star used the gun permit information to investigate the state’s process for issuing them, learning that violent individuals were granted permits, sometimes against the wishes of local police departments.

Here is a link to the lengthy Oct. 11, 2009 Star investigative story by Mark Alesia, Heather Gillers, Tim Evans and Mark Nichols, headed "Should these Hoosiers have been allowed to carry a gun in public?."

Here is a link to the Star's online database that allows you to see how many gun permit owners live in your area. From "about the database":

In researching a story on repeat violent offenders who managed to get license-to-carry gun permits from the Indiana State Police despite their lengthy criminal records, The Star examined more than 300,000 records in the state police permit database, as of Aug. 20, 2009.

Although the state police database contains the names and addresses of permit holders, those details are not included in the database posted here -- which is limited to demographic profiles of Indiana permit holders by gender, race and age in each ZIP code.

The database available to subscribers of the Bloomington Herald Tribune includes street name, city, county, number of permits on the street, and permit type, according to this story. But not names and addresses.

"Gun bills advance to Senate with ease: One closes database; 2nd allows firearms in cars at workplace," is the headline to this story today in the Journal Gazette, reported by Niki Kelly. A quote:

The second piece of legislation – House Bill 1065 – would allow employees to have guns in their locked vehicles at work.

Many companies have policies against bringing firearms onto their property.

It passed 76-21 with supporters saying employees should have the right to have handguns in their cars for protection to and from work and opponents arguing it violates personal property rights.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Indiana Law

Ind. Courts - "Four lawsuits claim calls violate fed Fair Debt act Cases filed in U.S. District Court in Hammond"

Teresa Auch Schultz reports today in the Gary Post-Tribune:

Four more region residents have filed federal lawsuits, claiming debt collection companies have been acting illegally.

One of the lawsuits, all of which were filed in the U.S. District Court in Hammond, claims that Atlanta Credit and Finance, based out of Virginia, has continually tried collect money from Porter County resident Anthony Glibota that he has already paid.

According to the lawsuit, Glibota had owed money to Capitol One, a debt originally sent to another debt collection company called Allied One. Glibota then paid Allied One the full amount of the debt, according to the lawsuit and bank papers filed with the lawsuit.

However, Capitol One also turned the debt over to Atlantic and the company has continued to try to collect the debt, despite Glibota challenging it, according to the lawsuit. Glibota claims that he has told Atlantic about his payment, but the company has since filed a motion for summary judgment against him.

In another lawsuit, Valerie Rubens, a Porter County resident, claims that Vision Financial Services Inc., in LaPorte, sent her a letter requesting she submit to voluntary wage garnishment. Her lawsuit claims that Indiana law prohibits garnishing wages unless a judge has ruled in favor of it. In the lawsuit, she calls the request misleading, which violates the federal Fair Debt Collection Practices Act.

Rubens' lawsuit was filed as a request to open it up as a class-action lawsuit.

A third lawsuit says that Tyler and Morgan Acquisitions of New York called the mother of David White of Porter County. The caller told her he was an investigator looking into a piece of property. The lawsuit does not say, though, whether the person tried to collect information on White during that call. The lawsuit alleges that the company broke the Fair Debt Collection Practices Act.

In the fourth lawsuit, Kevin Cole of Porter County claims that Transworld Systems based in California called his mother and former employer, telling them the company was trying to collect a debt that Cole owes. Cole claims in the lawsuit that the company already had his contact information but chose instead to call other people instead of him.

Posted by Marcia Oddi on Wednesday, January 27, 2010
Posted to Indiana Courts

Tuesday, January 26, 2010

Ind. Decisions - Still more on: Federal Judge Barker enjoins 10% cuts in foster care payments

Although the ILB posted about Judge Barker's ruling on Jan. 21st and Jan. 22nd, the ruling was announced from the bench, with the written opinion "to follow."

The 38-page opinion in C.H., et. al. v. James W. Payne was filed this afternoon. Access it here.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Continuing with: Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

In this long ILB entry from Jan. 9, 2010, I linked to the complaint filed by the the Indiana ACLU in Does I-III v. Indiana Department of Correction, et al., where, in light of our Supreme Court's decision in Wallace v. State, the complaint asked the court to:

a. Certify this case as a class action with the class as defined above.

b. Declare that subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the sex and violent offender registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.

c. Enjoin defendants from imposing any of the requirements of Indiana's Sex Offender Registration Act, including both registration and listing on the sex and violent offender registry.

d. Award plaintiffs all other proper relief.

Class certification has been granted.

Here is a long list of earlier ILB entries on the Wallace opinion and its impact.

Today the ILB has obtained access to another complaint seeking a judicial declaration of the impact of Wallace on others. The case, John R. Farmer v. IDOC, was filed Nov. 10, 2009.

Some quotes:

Plaintiff, John R. Farmer ("hereafter "Farmer"), by counsel, Kathleen M. Sweeney, respectfully moves for Declaratory Judgment pursuant to Ind. Code § 34-14-1-1 and Article I, § 24, Indiana Constitution against Defendants, State of Indiana and Hendricks Couny Sheriff Dave Galloway for improperly and unlawfully requiring him to register as a sex offender and to list him as a sex offender. * * *

23. Subjecting Farmer to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the Registry when his offense was committed prior to the time the Registration Act was enacted Is a violation of the Article I, § 24, Indiana Constitution which precludes imposition of
ex post facto punishment. * * *

Request for Relief:

a. Declare that subjecting Former to the requirements of Indiana's Sex Offender registration Act that entailS both registration and listing on the sex offender registry when he committed his offenses prior
to the time the Registration Act applied to his offenses is unconstitutional as violating the ex post focto provision of the Indiana Constitution, Article I, § 24;

b. Enjoin defendants from Imposing on Farmer any of the requirements of Indiana's Sex offender registration Act , including both registration and listing on the sex offender registry;

c. Direct defendants to remove Farmer from the sex offender registry;

d. Award attorney's fees and costs; and

e. Award Farmer all other proper relief.

The most interesting part is the response of the Attorney General. As I've reported in past entries, the AG's office has made no official statement on the impact of Wallace, or what the DOC or sheriffs should to comply. This Nov. 18, 2009 ILB entry quoted the AG's office as stating:
To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.
But in a motion filed Jan. 14, 2010 in the Farmer case, the DOC, through its counsel the AG, submits a motion to dismiss in response to John Farmer's compliant for declaratory judgment, on the grounds that "A suit pursuant to this act is inappropriate because the plaintiff has full and adequate remedy provided by another cause of action." Here, from p. 4 of the AG's supporting memorandum:
IC 11-8-8-22 states that a person who is required to register under the Act may petition a court to remove his status as a sex offender if due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender would not he required to register under the Act. This is precisely the relief the plaintiff seeks.

The plaintiff by his own admission is a sex offender and was at one time legally obligated to register as a sex offender. Prior to Wallace, all sex offenders, regardless of the date of the commission or conviction, were required to register pursuant to the Act. However, the Wallace Court held that the Act violated ex post facto prohibitions as applied to a sex offender who committed his crime prior to the Act's 1994 enactment. Wallace, 905 N.E.2d at 373. Thus, Indiana law changed with that decision in 2009.

The plaintiff is seeking for this Court to declare that he is not subject to any provisions of the Act. This is the exact remedy already available to him through section 22 of the Act. This makes a declaratory judgment action inappropriate. Indiana law is clear that a declaratory judgment action should not be resorted to if an adequate remedy is already provided by another cause of action. Section 22 of the Act provides a mechanism for the remedy the plaintiff seeks, and it is through this mechanism, not through a declaratory judgment, the plaintiff should seek relief. Indeed, this was the route that provided the successful means for the petitioner in Wallace's companion case, Jensen v. State, 905 N.E.2d 384 (Ind. 2009).

[ILB emphasis]

[ILB reaction: Interesting: "Thus, Indiana law changed with that decision in 2009." Or, to put it another way, the Indiana Supreme Court does not interpret and apply the law, it changes the law.]

To wrap this up, the ILB has also obtained a deposition in the ACLU class action declaratory judgment action mentioned earlier. Here are some quotes from the testimony of a DOC employee, testifying about what the DOC is doing to implement the Wallace decision:

Q. Now you are obviously aware of the case of Wallace versus State; is that correct?
A. Yes.
Q. And what are you aware of about that case?
A. It deals with registration and registry issues. Came down on April 30th. 2009. I guess specifically?
Q. Uh-huh.
A. That it deals with registration efforts and Richard Wallace specifically and the case referenced as applied to Richard Wallace.
Q. I'm showing you what's been marked as Exhibit 3 and this is something that's posted on the DOC's sex and violent offender registry on lhe website; is that correct?
A. Yes.
Q. And it is my understanding that the reference where it says Indiana Supreme Court cases is what the DOC's response is to the Wallace case with regard to registrants other than Mr. Wallace; is that correct?
A. Yes.
Q. So the DOC is not going through the registry and trying to remove names of persons who may he in the same position that Mr. Wallace was in; is that correct?
A. That is correct.
Q. Absent a court order?
MR. ARTHUR: Can I have that question again'?
(The Court Reporter read back the last preceding question. as set forth herein above.)
MR. ARTHUR: Does your question assume that they haven't asked to be taken off the registry'? r mean obviously if somebody says take me off the registry, they're going to look at it. Do you mean kind of -- are you talking about a Responsa for lack of a better description?
MR. FALK: Yeah. Let's rephrase it.
Q. At this point the DOC is not doing anything without being approached by a sex offender to take their names off the registry in response to Wallace; is that correct?
A. That is correct.
Q. And if a sex offender just happens to call you or contact you or write to you and say. hey, I don't think I should be on the registry anymore because of Wallace, are you removing those people?
A. We are not.
Q. And reviewing what Exhibit 3 says you are waiting until ordered by a court to do that; is that correct?
A. That is correct.
Q. And so the only thing a person can do at this point who thinks they should not be on the registry is to file something in court to require the DOC to remove their name; is that correct'?
A. That is correct.
Q. And do you know what they have to file in court or where they file? Do you know how that is handled?
A. I do not.
Q. In our prior deposition in another case you indicated at this point there is no procedure regarding allowing registrants to appeal or challenge factual errors on their registry history; is that correct?
A. Yes.
Q. And that is still correct?
A. Yes.
Q. And registrants are not informed at this point if they disagree with their listing they can contact you and have you correct that?
A. That is correct.
Q. And I think we established as far as the Wallace case is concemed, they have to go in front of the court and file a lawsuit or do something to get a court order to force their name to be taken off the registry; is that correct?
A. Yes.
MR. FALK: I have nothing further.
MR. ARTHUR: No questions.
___________________

Complaint for Declaratory Judgment

Motion to Dismiss

Supporting Memorandum

ACLU deposition

[More] See also Greer v. Buss (COA, Dec. 17, 2009) (neither rehearing nor transfer sought),

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Ind. Sup.Ct. Decisions

Law - More on "On the Lexis and Westlaw of the (Very) Near Future"

See this lengthy story that will appear in the February 2010 issue of the ABA Journal.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to General Law Related

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

In U.S. v. Warren (ND Ind., Springmann), a 15-page opinion, Judge Tinder writes:

Dawan A. Warren was charged with bank robbery and using a firearm during a robbery. The jury in his first trial was unable to reach a verdict. He was tried again before a second jury and was convicted as charged. Warren appeals, contending that the second trial violated his Fifth Amendment right not to be put to double jeopardy and that the evidence was insufficient to sustain his conviction. We affirm.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 13 NFP)

For publication opinions today (7):

In Robert Howard, et al. v. E & B Paving, Inc., et al. , a 13-page opinion, the issue is whether the Child Wrongful Death Act is applicable. Chief Judge Baker writes:

Amber Howard, appeal the trial court's grant of summary judgment in favor of appellee-defendant E & B Paving, Inc. (E & B), on their wrongful death claim. Specifically, the Howards claim that the trial court erred in determining that they were precluded from pursuing their action against E & B under the Child Wrongful Death Act (the Act) because the designated evidence established that Amber was eligible to register for classes at Ivy Tech, and Ivy Tech considered her a “continuing student.” Thus, the Howards maintain that they should be allowed to recover under the Act because Amber was “enrolled” as a student at a post-secondary educational institution when the accident occurred. Concluding that the trial court properly determined that Amber was not a “child” within the meaning of the Act, we affirm the trial court's grant of summary judgment in favor of E & B.
In West Central Conservancy District v. Dennis J. Burdett , a 10-page opinion involving a dispute over attorney fees, Judge Brown concludes:
We conclude that the issues involved in West Central's action to obtain a judgment against Burdett for unpaid sewer fees and those involved in Burdett's action against West Central regarding the location of its utility lines were sufficiently distinct for the trial court to exercise its discretion to award only those attorney fees incurred in connection with West Central's action for the delinquent fees.
In Anonymous Hospital v. A.K., et al. , a 14-page opinion on an interlocutory appeal brought by the hospital, Sr. Judge Barteau writes:
Hospital appeals the trial court’s denial of its petition for preliminary determination of law and motion for summary judgment. We reverse. * * *

Based upon the foregoing discussion and authorities, we conclude that Hospital’s petition for preliminary determination of law and motion for summary judgment should be granted. Hospital is afforded immunity for the good faith reporting of the suspected child abuse, as required by statute, and we conclude that such immunity extends to the underlying diagnosis for the reasons discussed in this opinion.

Accordingly, we reverse the trial court’s denial of Hospital’s petition for preliminary determination of law and motion for summary judgment.

In William E. Hurt v. Caroline G. Hurt, a 9-page opinion, Judge Brown writes:
William Hurt (“Husband”) appeals the trial court’s order for him to pay Caroline Hurt (“Wife”) the amount of $10,189.14 stemming from their 2004 dissolution decree. Husband raises one issue, which we revise and restate as whether the trial court’s conclusion that pension payouts made to accounts held solely in Wife’s name were for joint living expenses and were not meant to satisfy provisions of the dissolution decree is clearly erroneous. We affirm.
In John C. Smith v. State of Indiana , an 8-page opinion, Judge Riley concludes:
Based on the foregoing, we find that I.C. § 35-38-2-3(f) applies and the trial court did not abuse its discretion when it revoked his probation and ordered execution the remainder of his sentence. Affirmed.
In Luis Palacios v. State of Indiana , a 18-page opinion (including a concurring opinion), Judge Brown writes:
Luis Palacios appeals his conviction for domestic battery as a class D felony. Palacios raises three issues, which we revise and restate as follows: I. Whether Palacios was denied the effective assistance of trial counsel; and II. Whether the evidence is sufficient to sustain Palacios's conviction for domestic battery. We affirm.
In Gregory Galloway v. State of Indiana , an 18-page opinion, Chief Judge Baker writes:
Appellant-defendant Gregory L. Galloway appeals his conviction for Murder, a felony. Galloway argues that he should have been acquitted based on his defense of insanity and that the trial court erred by finding him guilty but mentally ill. Finding that we are compelled by our Supreme Court's opinion in Thompson v. State, 804 N.E.2d 1146 (Ind. 2004), to affirm, we do so. * * *

Because Galloway admitted that he committed the alleged offense, the only issue we must consider is whether the record supported the trial court's conclusion that Galloway was guilty but mentally ill rather than not guilty by reason of insanity. * * *

We sympathize greatly with Galloway's position. That said, we believe that we are compelled by Thompson to affirm. Our Supreme Court has said that trial courts are free to disbelieve expert and lay testimony, even when it is uncontradicted, and here, the trial court chose to do so. Instead, it focused on Galloway's outward demeanor on the day in question—notwithstanding the undisputed evidence that despite his normal seeming behavior, he was, in fact, delusional on that day, believing he was reading his father's mind and that his grandmother was possessed by the devil. Although Galloway's conduct does not foreclose the possibility that he was legally insane at the time of the killing, we are compelled by Thompson to find that it was reasonable for the trial court to conclude that he behaved normally because he was, in fact, sane.

The judgment of the trial court is affirmed.

NFP civil opinions today (8):

Term. of Parent-Child Rel. of A.F.; A.F. v. IDCS (NFP)

Earl Gibson v. Tammy (Gibson) Moynihan (NFP)

Steven E. Durham v. State of Indiana (NFP)

Travelers Property Casualty Ins. Co. v. Steven D. Seddelmeyer (NFP)

Term. of Parent-Child Rel. of I.B.; D.W. v. IDCS (NFP)

S.E.P. v. Review Board (NFP)

Mark E. McDillon v. Northern Indiana Public Service Company (NFP)

Thomas A. Hendrickson v. City of Indianapolis (NFP)

NFP criminal opinions today (5):

Melissa A. Goen v. State of Indiana (NFP)

Andre C. Turner v. State of Indiana (NFP)

Shaun L. Steele v. State of Indiana (NFP)

Antwand Johnson v. State of Indiana (NFP)

Dustin Rodgers v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One yesterday afternoon from Tax Court

In Sharon L. Allport v. Fulton County Assessor, a 5-page opinion, Judge Fisher concludes:

The Assessor explained during the administrative hearing that like Allport’s property, her neighbors’ properties had also been incorrectly classified as “off-water.” While the Assessor did not catch the mistake on those neighboring properties at the same time the mistake was caught on Allport’s property, the classification on those neighboring properties was subsequently changed to “on-water.” Thus, while Allport’s neighbors had the benefit of an incorrect classification (and thus, lower taxes) for a year more than Allport, it is of little consequence. Indeed, there is no sound reason for the Court to award Allport the benefit of a mistake (an incorrect assessment) simply because someone else benefited from the same mistake; to do so would only exacerbate the inequity on an even larger scale.

For the reasons stated above, the Indiana Board’s final determination is AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Public Admonition against Delaware County Circuit Court Juvenile Commissioner Brian M. Pierce

Here is the Court's press release. Some quotes:

Commissioner Pierce admits to violating Rule 1.2 and Rule 1.3 of the Code of Judicial Conduct. The violations stem from a February 2009 incident when he received a parking ticket from the City of Muncie. The code enforcement officer ticketed Commissioner Pierce’s personal vehicle for parking in the wrong direction. Commissioner Pierce confronted the officer, announced he worked as a court commissioner/juvenile court judge, and suggested he would call the sheriff’s department to intervene.

Commissioner Pierce later telephoned the City of Muncie’s Board of Public Works and Safety to complain about the parking ticket. He spoke to the Board’s secretary and identified himself as a judicial officer from juvenile court and demanded to know why city officials were ticketing vehicles after a snowstorm. He suggested he would subpoena the secretary and code enforcement officer into his courtroom to explain the situation.

Commissioner Pierce also spoke to the Deputy Mayor and Mayor and vigorously protested the City’s parking enforcement practices and used profanity on several occasions during the conversations. Commissioner Pierce paid the parking ticket in February 2009.

Commissioner Pierce acknowledges that his behavior violated Rule 1.2 and Rule 1.3 of the Code of Judicial Conduct. Rule 1.2 requires judges to act in a manner that promotes the public’s confidence in the judiciary and to avoid the appearance of impropriety. Rule 1.3 prohibits judges from abusing the prestige of judicial office in an attempt to advance personal interests.

Here is the Public Admonition.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Indiana Courts

Ind. Courts - Still more on "Shopping mall tycoon Melvin Simon's daughter sues widow over will"

Updating this ILB entry from January 21, 2010, John Russell of the Indianapolis Star reports, under the headline "Simon Property files complaint against co-founder's widow", in a story that begins:

Now the company that shopping-mall tycoon Melvin Simon built is becoming legally entangled in the family feud over the late billionaire's will.

Indianapolis-based Simon Property Group, the world's largest publicly traded retail estate company, filed a complaint Monday in Hamilton Superior Court against Simon's widow, Bren Simon.
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She is seeking to convert about 6.5 million shares of "partnership share units" in the family trust into common stock or cash. The amount of stock or cash was not specified.

The company, in its complaint, said the shares cannot be converted because they are tied up in a legal challenge to Melvin Simon's will by Deborah Simon, a daughter from a previous marriage.

The company's complaint said it is not taking sides in the dispute or trying to insert itself into the issues brought up in the family's legal battle over Melvin Simon's will.

Melvin Simon's son, David, is chairman and chief executive officer of Simon Property Group, as well as an heir.

Posted by Marcia Oddi on Tuesday, January 26, 2010
Posted to Indiana Courts

Monday, January 25, 2010

Courts - Still more on: "Prosecutors in Manhattan — aware that the legal clock for bringing a case was running out — devised the novel strategy of indicting the rapist’s DNA"

This ILB entry from Nov. 5, 2009 included this quote from The Recorder:

At issue in People v. Robinson is whether an unknown suspect's DNA profile -- as opposed to a physical description -- can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment's protection against unreasonable searches and seizures.

The case was decided today by the California Supreme Court. A brief AP story is headed "Court OKs 'John Doe' warrants based only on DNA ."

And, thanks to How Appealing, here is a link to the 60-page, 5-2 opinion.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Courts in general

Environment - "Pressure builds as governors seek seat at Obama carp 'summit'"

From the Milwaukee Journal Sentinel, a story by Dan Egan that begins:

The political heat is cranking up on President Barack Obama to take more dramatic steps to block the advance of Asian carp into the Great Lakes.

On Monday, the attorneys general from Wisconsin, Michigan, Ohio, Indiana and Pennsylvania sent a letter to the president asking for a seat at the table for the Asian carp "summit" the administration has scheduled for early next month.

That meeting was requested last week by Gov. Jim Doyle and Michigan Gov. Jennifer Granholm following news that scientists have detected Asian carp DNA in the open waters of Lake Michigan.

On the same day the news broke of the apparent breach of the leaky defense system to protect Lake Michigan, the U.S. Supreme Court sided with the Obama administration and decided not to order two lakeside navigation locks slammed shut in a last-ditch attempt to keep the carp out.

The administration has agreed to meet with leaders of Great Lakes states to discuss strategies to keep the over-sized, leaping fish from establishing a breeding population in Lake Michigan.

But it has apparently not budged on the push to shut the locks, a move that lock closure opponents say could trigger flooding in the Chicago area and have a dramatic impact on the Chicago barge industry.

Yet the drumbeat to shut the locks persists, with last week a Michigan congressman introducing legislation that would force the closure.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Environment

Ind. Decisions - More on: Supreme Court grants transfer in voter ID case

Updating this morning's entry on the voter ID case appeal - League of Women Voters v. Rokita, I'm told that the Court has "tentatively scheduled oral argument on March 4, at 9 a.m."

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Indiana Transfer Lists | Upcoming Oral Arguments

Law - "On the Lexis and Westlaw of the (Very) Near Future"

Interesting. See this entry at WSJ Law Blog.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to General Law Related

Environment - "Feds taking look at 'Easterly's pile'"

From Gitte Laasby's story in the Sunday Gary Post Tribune begins:

Federal officials are investigating a complaint from a Post-Tribune reader regarding mounds of steel mill waste dumped at ArcelorMittal Burns Harbor -- a case that could ultimately be referred to the FBI.

Valparaiso resident Kevin Cornett filed a complaint with the U.S. Environmental Protection Agency inspector general after he read a Post-Tribune investigation in November 2009. It revealed waste has been dumped on open ground at ArcelorMittal, formerly Bethlehem Steel, for up to 24 years.

Storing waste without environmental controls for more than six months is considered open dumping, which is illegal under state and federal law.

According to ArcelorMittal employees, the waste is named after Tom Easterly, the commissioner of the Indiana Department of Environmental Management. Easterly was in charge of environmental matters at Bethlehem Steel between 1994 and 2000. Sources allege IDEM has not enforced against ArcelorMittal because of Easterly's role.

Cornett asked the inspector general to investigate why regional EPA has not stepped in.

"I had enough of (EPA) Region 5 not doing their job. Not overseeing Indiana at all," he said.

EPA Region 5 spokeswoman Karen Thompson confirmed last week that no EPA staff has visited ArcelorMittal Burns Harbor since the Post-Tribune investigation was published.

Cornett told the inspector general in a Nov. 16 complaint that the revelation of waste dumped at ArcelorMittal was "the straw that broke the camel's back."

"BP was allowed to circumvent the air regulations, U.S. Steel has been allowed to dump tons of waste in the water for decades, and now ArcelorMittal is allowed to store waste material 500 feet from Lake Michigan. All with the blessing of our IDEM and the EPA," Cornett wrote in his complaint.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Environment

Ind. Decisions - Transfer list for week ending January 22, 2010

Here is the Clerk's transfer list for the week ending January 22, 2010. It is two pages long.

One transfer was granted last week, in the case of Desmond Davidson v. State of Indiana -- see this Jan. 21 ILB entry for details.

The Voter ID case transfer order, about which I reported earlier today, was issued today and thus will appear on next week's list (for the week ending 1/29/10).

__________

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.

Almost 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, January 25, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "Senate bill intended to crack down on Marion County's traffic court"

Updating this ILB from Dec. 8, headed "Lawsuit challenges Indianapolis traffic court fines," and the last line of this entry from Jan. 20, Jon Murray of the Indianapolis Star had a lengthy story yesterday on SB 399, headed "Fighting a ticket in Marion County could cost you less: Bill limiting fines for drivers who lose their cases follows a suit against Marion County court and its judge." The story begins:

Penalties as high as $500 could be a thing of the past for most motorists who contest traffic tickets under a bill intended to crack down on Marion County's traffic court.

The bill in the state Senate is the latest response to some motorists' complaints of stiff fines and a gruff atmosphere under a judge who took over at the court in early 2009. Objections from drivers who contest their tickets and lose, drawing what they see as punitive fines, were bolstered by a lawsuit filed last month against the judge and the court.
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"This allows them to go, have their day in court, present their evidence, and if they lose, they're not penalized just because they lost," said the bill's author, Sen. Michael Young, R-Indianapolis.

His bill was advanced by a Senate committee last week on a 10-1 vote after testimony from several motorists about the fines and what they considered intimidation at the Marion County court, the state's busiest.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Indiana Courts

Ind. Gov't. - More on "Ky., Ind. appliance rebate plans approved"

The ILB concluded this December 11, 2009 entry with:

So Hoosiers who have been holding off on buying a new dishwasher, or clothes dryer, are out of luck.
Yesterday, Jan. 24, 2010, Dana Hunsinger of the Indianapolis Star reported the news, in a story headed "Indiana conservative on appliance rebates, too: Hoosiers can get cash back only for heating and cooling systems."

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Indiana Government

Courts - "Indiana Crusader Bent on Dismantling Spending Rules"

David D. Kirkpatrick of the NY Times reports in a story on p. 1 of today's Times. It begins:

WASHINGTON — James Bopp Jr. likes to begin speeches by reading the First Amendment. He calls opponents, including President Obama, “socialists.” He runs a national law practice out of a small office in Terre Haute, Ind., because he prefers the city’s conservative culture.

And for most of the last 35 years, he has been a lonely Quixote tilting at the very idea of regulating political donations as an affront to free speech.

Not anymore. Mr. Bopp won his biggest victory last week when the Supreme Court ruled that corporations, unions and nonprofit groups have the right to spend as much as they want supporting or opposing the election of a candidate.

Mr. Bopp was not present in the courtroom. His client — not for the first time — replaced him with a less ideological and more experienced Washington lawyer when the case reached the justices.

But it was Mr. Bopp who had first advised the winning plaintiff, the conservative group Citizens United, about using its campaign-season film “Hillary: The Movie” as a deliberate test of the limits on corporate political spending. And he shepherded the case through appeals to the Supreme Court as part of a long-term legal strategy that he says he has just begun.

“We had a 10-year plan to take all this down,” he said in an interview. “And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.”

“We have been awfully successful,” he added, “and we are not done yet.”

The Citizens United case “was really Jim’s brainchild,” said Richard L. Hasen, an expert on election law at Loyola Law School in Los Angeles.

“He has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result,” Mr. Hasen said. “He is a litigation machine.”

The same week the court issued its ruling, it agreed to hear Mr. Bopp’s next appeal: seeking to prevent the public release of the names of people who signed a Washington State petition opposing same-sex marriage, on the ground that gay rights supporters might harass them.

For Mr. Bopp, it is a chance to chip away at some of the disclosure laws left intact by the Supreme Court’s ruling in the Citizens United case.

Then there is his suit on behalf of the Republican National Committee, pending in the United States Court of Appeals for the District of Columbia Circuit, seeking to overturn some of the limits on direct corporate contributions to the political parties. When Mr. Bopp filed it a few years ago, many legal scholars considered the suit almost pointless because of Supreme Court precedents. But the court’s opinion last week — from a slightly different set of justices — has cast it in a far more favorable light.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Courts in general

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

For publication opinions today (1):

In Charles Receveur v. Edwin Buss, et al., an 8-page opinion, Judge Mathias concludes:

Receveur’s petition for a writ of habeas corpus is more properly considered as a petition for post-conviction relief. Because Receveur’s parole was revoked based upon his failure to take a polygraph examination, and not because of his failure to comply with any of the conditions of parole found in the statute he now challenges, we cannot say that the trial court erred in denying Receveur’s petition.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Leonard Lamont Frye, Jr. v. State of Indiana (NFP)

Kenneth R. Cronin v. State of Indiana (NFP)

Curtis Howard v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS rules in Briscoe v. Virginia

Here is the full opinion:

PER CURIAM. We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009). It is so ordered.
Here are earlier ILB entries on Briscoe, which some believed would be decided in a way to limit Melendex-Diaz requirements re testimony of lab technicians.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Courts in general

Ind. Decisions - Supreme Court grants transfer in voter ID case [Updated]

The ILB has just received word that the Supreme Court this morning has granted transfer in League of Women Voters v. Rokita. No oral argument date has yet been scheduled. Here is the Order granting transfer.

For background in this case of national interest, start with this ILB entry from Nov. 18, 2009.

[Updated at 12:41 PM] See this entry headed "Ind. Supreme Court to wade into voter ID," posted on Indianapolis Star courts and legal affairs reporter Jon Murray's blog.

[Updated at 1:11 PM] Here is a statement just released by the Indiana League of Women Voters.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "Ex-lawyer sentenced in foreclosure fraud"

The Indianapolis Star reported Jan. 20th:

A Fishers man was sentenced Tuesday to six months of house arrest and three years' probation for his role in a series of foreclosure schemes.

Brian L. Nehrig, 43, pleaded guilty to mail fraud and was sentenced by U.S. District Judge Sarah E. Barker. * * *

According to the terms of Nehrig's plea, he will perform eight hours of community service per month for the next three years and pay a $2,500 fine. Barker also ordered Nehrig to give full disclosure of his felony conviction to any future employer. He lost his law license in 2007.

Posted by Marcia Oddi on Monday, January 25, 2010
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/25/10):

Next week's oral arguments before the Supreme Court (week of 2/1/10):

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 1/25/10):

Monday, January 25th

Wednesday, January 27th

Thursday, January 28th

Next week's oral arguments before the Court of Appeals (week of 2/1/10):

Next Tuesday, February 2nd

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, January 25, 2010
Posted to Upcoming Oral Arguments

Sunday, January 24, 2010

Ind. Courts - More on: Mishawaka attorney accused of misconduct

A Nov. 22, 2008 ILB entry began:

Jeff Parrott reports today in the South Bend Tribune in a long story that begins: "State legal officials have accused a local attorney of continuing to practice law while he was suspended for misconduct, along with several acts that would be felony crimes if prosecuted in state and federal courts."
The story included a link to the 27-page complaint of the Indiana Supreme Court Disciplinary Commission, filed Nov. 20th, 2008.

Today Mr. Parrott has a new, related, and very lengthy story. This one is headed "St. Joseph County attorney faces disbarment over alleged violations: Sniadecki allegations include loan fraud, forgery, attempted bribery." It begins:

A local attorney faces disbarment over allegations that, among other things, he continued to run his law office while his license was suspended; forced his secretary to falsify court records; tried bribing a witness in an attorney misconduct probe; and defrauded a longtime, trusting client.

Rod Sniadecki, an attorney since 1992, once held high political aspirations. He ran unsuccessfully for the state Senate in 1996 and served on the South Bend Common Council from 1996 through 1999.

Now Sniadecki, 43, could lose his law license and face criminal charges, should state or federal prosecutors decide to file them.

Administrative hearing officer Christine Talley Haseman, who was a Monroe County Circuit Court Judge when the case began and is now a Lawrence County deputy prosecutor, has recommended Sniadecki be disbarred on allegations that he hid his law license suspension from clients, continued running his office and benefited from his practice during the suspension.

Haseman also found that Sniadecki's conduct amounted to fraud, bribery, perjury, forgery, theft and obstruction of justice. He has not been charged with any crimes.

Neither Sniadecki nor his attorney, Frederick Ettl, replied to The Tribune's repeated requests for comment. But in court documents, Sniadecki has denied the allegations.

Haseman recently filed a scathing assessment of Sniadecki's conduct with the Indiana Supreme Court.

“(Sniadecki's) repeated dishonest and deceitful acts, his willingness to engage others to perpetuate his misconduct, his blatant defiance of the authority of the Supreme Court and his complete lack of candor in these proceedings are profound in their scope,” Haseman wrote.

Haseman found Sniadecki's misconduct was aggravated, which would call for a harsher penalty, by his refusal to admit his wrongdoing.

“(He) could have at any time in these proceedings decided to accept his responsibility, admit his misconduct, and show the court that he has the capacity to be remorseful,” she wrote. “He has chosen a different path, one that goes to the core of our profession.”

Haseman's findings, filed earlier this month, followed a six-day hearing in late August, where 29 witnesses offered 1,800 pages of trial testimony in an attorney misconduct case filed in November 2008 by the Indiana Disciplinary Commission.

Ordinarily, the Supreme Court accepts the hearing officer's findings and must only determine the appropriate form of discipline.

But court rules allow an accused attorney to ask the high court to re-examine the entire case and decide whether the hearing officer made the correct findings of fact and conclusions of law.

Sniadecki has asked the court to give him until March 3 to file a petition seeking that review. That process can take months to resolve.

But the commission views Sniadecki's alleged misconduct as so severe that it has asked the Supreme Court to suspend his license while the review process plays out, said Seth Pruden, interim executive secretary of the Indiana Attorney Disciplinary Commission.

Under the emergency interim suspension request, the commission wants the Supreme Court to suspend Sniadecki's license after giving him 14 days to object.

“The commission has determined that his continued practice for any period of time hereafter poses a serious and substantial threat of harm to clients, the courts and the public,” Pruden wrote.

The Supreme Court had not ruled on the interim suspension request as of late Friday.

The South Bend Tribune provides links to both: (1) the hearing officer's findings; and (2) Rod Sniadecki's response.

Posted by Marcia Oddi on Sunday, January 24, 2010
Posted to Indiana Courts

Saturday, January 23, 2010

Courts - "Citizens United v. FEC in plain English"

From SCOTUSBlog - part of their "plain English" series, by Lisa McElroy.

Posted by Marcia Oddi on Saturday, January 23, 2010
Posted to Courts in general

Ind. Courts - Surrogacy law in Indiana

For Friday, January 28th, the COA calendar lists the following oral argument:

By the description, this is a case of gestational surrogacy where T.G. and V.G. are the "biological parents," providng both the egg and sperm, and the surrogate simply carried the fertilized egg to delivery.

Joanna L. Grossman, a professor of law at Hofstra University, has a two-part article this week on FindLaw, headed "Time to Revisit Baby M?: A Trial Court Refuses to Enforce a Surrogacy Agreement." Part I begins:

The facts underlying a contentious recent New Jersey family law case go as follows: A gay male couple, desiring to become parents together, utilized surrogacy to bring twins into the world. The sperm came from one of the men; a woman donated eggs, and another woman gestated the resulting twins. The entire arrangement was set forth, and agreed to, in a series of contracts. The purpose of these agreements was to ensure that the two women would have no parental rights with respect to the children, while the two men would both be legal fathers of the children.

However, a trial judge in New Jersey has just ruled that the contracts are unenforceable, and that the twins' legal parents are the man who provided the sperm and the woman who carried the twins. The ruling, A.G.R. v. D.R.H., provides an opportunity to consider the complicated, and often uncertain, law of surrogacy twenty years after the issue was foisted into public debate by the notorious Baby M case.

Part II concludes:
As is often the case with family law, social change and science have clearly outpaced the law in this context. Reasonable minds may differ on how to answer the basic legal questions surrounding surrogacy, but individuals who wish to utilize surrogacy to become parents deserve renewed attention to the issue, so that they may have certainty as to whether the child they are joyfully expecting will be legally their own.
Indiana's fact situation is fairly simple, compared to the New Jersey case described by Prof. Grossman.

However, ILB readers will undoubtedly recall an earlier, and still pending, Indiana "surrogate" case, involving the Melinger twins, born to a surrogate in Indianapolis Methodist Hospital, adopted by a man from New Jersey. Here is a list of ILB entries in that case.

After reviewing the case, it seems pretty clear (IMHO) that Melinger provides no guidance on surrogacy law in Indiana. After review, it appears to involve a gestational surrogate (Zaria), with egg and sperm from unknown donors, meaning no biological connection between either Zaria or Melinger and the twins.

The facts in the case are hard to come by. It appears from published reports that "Sperm was used from a donor in California" and that according to the initial Supreme Court ruling:

[Melinger's attorney] also allowed the surrogate mother to give an untrue statement when she claimed in an affidavit that she was inseminated with sperm from Melinger and a donor, according to the ruling.

"The adoption judge's effort to deal with these successive shifting factual claims was understandably daunting," Chief Justice Randall Shepard wrote.

The Court of Appeals on Dec. 21, 2007, had upheld the adoption granted by Hamilton Superior Court. The facts, as set out at the beginning of the COA opinion, begin:
On April 8, 2005, Z.H., an African-American, gave birth to twin girls at Methodist Hospital. The twins were nine weeks premature and were placed in the neo-natal intensive care unit. Z.H. listed Melinger as “Father” on the girls’ birth certificates. (Ex. at 16-17.) On April 11, Z.H. and her husband signed an affidavit and consent to adoption that indicated Z.H. was inseminated with combined sperm from an anonymous donor and Melinger on September 22, 2004; husband was not the father; they did not know who the father was; and they wanted Melinger to adopt the twins.
Surrogacy was not an issue in the case (as stated explicitly in the adoption court's opinion and quoted in the COA opinion), it was decided based on adoption law.

The Supreme Court reversed, on April 8, 2009, ruling: "for want of compliance with the Interstate Compact and remand with directions to comply with the Compact, and thereafter to issue further judgment accordingly. The order granting Petitioner preliminary custody may remain in effect pending completion of this directive and such eventual order as the trial court may enter." From the opinion:

Actually, it turned out that Zaria had received donor eggs, so the grounds on which Litz asserted the children to be biracial were untrue. (Id. at 54.) The earlier representation that Petitioner was a sperm donor likewise turned out to be untrue. (Tr. at 115.)
The Supreme Court denied rehearing on Sept. 30, 2009.

Posted by Marcia Oddi on Saturday, January 23, 2010
Posted to Indiana Courts

Friday, January 22, 2010

Law - "On the Isolation of Legal Practice and Suicide"

A sobering article today in the WSJ Law Blog about solo or small firm practice. A quote:

[T]he profession is increasingly becoming isolating, partly because of technology. “Unless you attend court on a regular basis or participate in bar association events, you no longer interact face-to-face with your fellow attorneys. Instead, face-to-face has given way to Facebook, list servers, e-mail, text messaging and sometimes the antiquated telephone.”

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to General Law Related

Courts - "Judge Stevens bemoans changed court" in campaign finance dissent

That is the headline to a story today in USA Today by Joan Biskupic, that begins:

WASHINGTON — When liberal Justice John Paul Stevens dissented Thursday as the Supreme Court permitted new corporate spending in elections, he invoked the names of influential and long-gone justices.

He began with retired Justice Sandra Day O'Connor, with whom he had worked on a 2003 case the majority was partially overruling. He referred to the late Justice Thurgood Marshall's warning in a 1990 case, also overturned, about how corporate money can distort political debate. Stevens then cited the late Justice Byron White about the importance of deferring to Congress, which had passed the law the majority discarded Thursday.

As Stevens invoked lions of the past and decried the majority's decision, he spoke for twice as long from the bench as Justice Anthony Kennedy had for the majority. Over the course of his 20 minutes, Stevens also spoke with more passion — and more weariness.

His words about the changed court reminded spectators not only of a passing era in campaign finance law but of all that Stevens had witnessed over his nearly 35 years on the bench, including the ideological shift to the right under Chief Justice John Roberts, appointed by President George W. Bush in 2005.

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Courts in general

Ind. Decisions - No 7th Circuit Indiana opinions today, but one of definite interest yesterday

In U.S. v. Mann (ND Ind., Lozano), a 15-page opinion, Judge Rovner writes:
Matthew Eric Mann entered a conditional guilty plea to one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced Mann to sixty-three months imprisonment to be followed by five years of supervised release. Police discovered evidence supporting the child pornography charges while executing a warrant to search Mann’s computers and hard drives for the unrelated crime of voyeurism. Mann preserved the right to appeal the district court’s denial of his motion to suppress the child pornography on the grounds that the search exceeded the scope of the warrant. Although we are troubled by some aspects of the search, we ultimately conclude that, with one immaterial exception, the officer executing the search did not exceed the scope of the original warrant. * * *

On appeal, Mann maintains that the district court erred by denying his motion to suppress. In particular, Mann claims that the searches that uncovered the child pornography on his computer exceeded the scope of the original warrant and that the plain view doctrine does not apply on these facts. The government insists that the searches did not exceed the scope of the original warrant, and that the incriminating child pornography was in any event discovered in plain view.

See discussion of this opinion in "Plain View for Computer Searches Generates Two Circuit Splits in Two Days: United States v. Williams and United States v. Mann," an entry yesterday in the Volokh Conspiracy by Prof. Orin Kerr of GW Law. It begins:
Should courts adopt a new set of Fourth Amendment rules to regulate how the police can search computers for evidence? In particular, does the fact that so much electronic evidence outside the scope of a warrant can come into “plain view” during a computer search require a different approach to whether that evidence outside the scope of the warrant should be admitted?

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Ronald D. Osborn v. State of Indiana , a 4-page opinion where appellant-petitioner appeals the post-conviction court’s denial of his motion to correct erroneous sentence, Judge Riley's opinion concludes:

Here, Osborn’s motion to correct erroneous sentence is based on his claim that the State presented insufficient evidence at his trial. This is not an error that would be clear from the face of the judgment imposing the sentence in light of the statutory authority. Rather, Osborn’s claims would require consideration of the record, which is not appropriate in proceedings considering a motion to correct erroneous sentence. Therefore, the trial court did not abuse its discretion by denying Osborn’s motion to correct erroneous sentence.
In Adoption of J.C., J.A.C. v. T.C. , a 9-page opinion, the Natural Father appealed the trial court's Decree of Adoption of the minor child J.C. in favor of Adoptive Father. Judge Riley's opinion concludes:
Based on the totality of the evidence before us, we agree with the trial court that Natural Father's consent to the adoption is not required as he has clearly abandoned his minor child within the requirements of I.C. § 31-19-9-8(b). Even prior to his incarceration, Natural Father's interaction with J.C. was limited, not taking advantage of the full visitation time that he was granted and stopping all visitation on February 14, 2008, a full five months before his incarceration. Even during his incarceration, his efforts to communicate with J.C. were almost non-existent and failed to amount to a sincere attempt to stay involved in J.C.'s life. See Williams v. Townsend, 629 N.E.2d 252, 254 (Ind. Ct. App. 1994) (holding that the father's communications were token efforts where he sent an occasional letter or card while incarcerated and took no legal action to enable visitation or communication). Therefore, we affirm the trial court's decision.
NFP civil opinions today (3):

Tanya Alton v. Matthew Alton (NFP) - "Tanya Alton (Tanya) appeals from the trial court’s grant of Matthew Alton’s (Matthew) motion to correct error, in which the trial court altered the distribution of marital assets set forth in its final dissolution decree based upon post-dissolution evidence submitted during the motion to correct error hearing. Wife presents one issue for our review: Did the trial court err in granting Matthew’s motion to correct error?"

Term. of Parent-Child Rel. of S.F., et al.; M.F. & T.F. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.M.G. and A.G.; A.G. v. IDCS (NFP)

NFP criminal opinions today (4):

Jeffrey Baker v. State of Indiana (NFP)

Dale Brown v. State of Indiana (NFP)

Derrick Love v. State of Indiana (NFP)

Travis G. Raber v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Ind. App.Ct. Decisions

Environment - More on "Court won't close shipping locks to keep out carp"

Updating this Jan. 20th ILB entry, what is next? Two stores:

"Army Corps to sample two Indiana rivers for Asian carp" is the headline to this Jan. 20th AP story in the Chicago Tribune that begins:

The U.S. Army Corps of Engineers plans to collect water samples this spring from two northwestern Indiana rivers that flow into Lake Michigan as part of its ongoing efforts to track the spread of invasive Asian carp.

Major Gen. John Peabody of the Army Corps' Cincinnati office said samples will be taken from Indiana's portions of the Grand Calumet and Little Calumet rivers once ice melts and fish become more active.

"Our intent is to aggressively sample when warmer weather and higher fish activity returns. The fish don't move a whole lot in the wintertime," Peabody said Wednesday.

The Corps hopes to have a plan in place with the Indiana Department of Natural Resources within two months to sample water in the rivers, which flow into Lake Michigan.

"Asian carp summit could be held in early February" is the heading to this Jan. 21st AP story in the Washington Post that begins:
LANSING, Mich. -- The White House said Wednesday it wants to hold a meeting in early February with Great Lakes governors concerned about Asian carp invading the lakes.

The Democratic governors of Michigan and Wisconsin requested the summit Tuesday after the U.S. Supreme Court rejected Michigan's request for a preliminary injunction to temporarily shut the shipping locks near Chicago and work out a way to stop the carp.

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Environment

Law - Obama resubmits Dawn Johnsen nomination to Senate

The story in the Blog of Legal Times begins:

President Barack Obama isn't giving up on filling three open slots at the Justice Department with the people he wants. This week, the president resubmitted three nominees whose names had been returned to the White House in December.

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to General Law Related

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

This August 22, 2009 ILB entry discussed the trial then taking place before Judge David Dryer of Marion Superior Court, Civil 10. The trial is still going on, and Judge Dryer has now ruled on the reressed memory issue.

Today Robert King of the Indianapolis Star reports under the headline "Ruling in priest sex abuse case may set precedent: Judge will allow testimony about accuser's 'repressed memories.'" From the story:

A Marion County judge will let jurors hear testimony about the "repressed memories" of a man whose allegation of sexual abuse by a Catholic priest is based on memories so painful that experts say he lost access to them for decades.

The decision by Superior Court Judge David Dreyer could break new ground in Indiana. * * *

The case involves a man identified in court papers as John Doe RG. Now a 44-year-old business executive, he contends that, as a boy, he was repeatedly molested by former Indianapolis priest Harry Monroe while he was a parishioner at St. Andrew Catholic Church.

In 2005, the man filed a lawsuit against the Archdiocese of Indianapolis involving Monroe. Twelve other accusers followed with their own lawsuits, each arguing that the church kept Monroe's history of abuse hidden even as it moved him to new parishes and new victims.

So far the archdiocese has failed in its attempts to get the first three of the 13 cases tossed out. Dreyer ordered Wednesday that the repressed-memory case and a case involving a former altar boy at St. Catherine must go forward. Another judge ruled in 2007 that a third case should go forward. The trials should begin later this year.

None is likely to be as hotly contested as the repressed-memory case. Both sides have lined up Harvard University experts and others to testify about the validity of repressed memories.

Dreyer, who heard attorneys argue the matter in August, said expert testimony on repressed memory was reliable enough to let a jury decide how much weight to give it.

Attorney Pat Noaker, who represents all 13 plaintiffs and argued for the repressed-memory testimony, said the decision is in line with other cases across the country.

"The judge's decision may be the first of its kind in Indiana," he said. "However, it is consistent with what the majority of states have allowed. And that is to let repressed memory go to a jury."

Here is a list of earlier ILB entries on Harry Monroe.

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Indiana Courts

Ind. Decisions - More on: Federal Judge Barker enjoins 10% cuts in foster care payments

"Federal judge temporarily blocks payment cuts by DCS: For now, ruling halts payment cuts to foster and adoptive parents" is the headline to a story today in the Indianapolis Star, reported by Tim Evans, in a story that begins:

Foster and adoptive parents in Indiana have won a round in the fight to keep their monthly subsidy payments from being slashed -- cuts their ACLU lawyer said would be "devastating."

U.S. District Judge Sarah Evans Barker temporarily blocked the state Department of Child Services from cutting the payments, which help cover families' expenses for children formerly in the state agency's care.
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The ruling, which came Wednesday when Barker consolidated two lawsuits challenging the cuts, means service providers such as residential treatment facilities also will continue to receive their full payments.

Barker's ruling did not comment on the merits of the claims against DCS or the agency's rationale for the cuts, which officials proposed in December in response to the state's fiscal crisis.

See also yesterday's ILB entry.

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Law - More on: Legislation proposed to remedy Indiana's 2009 golf cart legislation [Updated]

Updating this ILB entry from Dec. 13th, which explained the need to correct the golf cart legislation last year, WTCA 1050, Plymouth, reports:

Golf cart owners are one step closer to being able to drive on certain county roads across Indiana.

With overwhelming support, the Indiana House passed legislation (House Bill 1078) by State Representative Nancy Dembowski (D- Knox) that will enable a county to adopt a strict ordinance to allow licensed drivers to use golf carts on roads with speed limits of 35 mph or less.

“Many counties across Indiana and had been excluded from provision of a state law passed in 2009 that gave cities and towns the authority to allow golf carts on their streets,” said Dembowski. “HB 1078 will give parity in local ordinances.”

“For the residents who live in the Bass Lake, Koontz Lake and Lake Maxinkuckee communities, driving golf carts on streets is a major mode of transportation. HB 1078 will allow those residents living in those counties to have the same advantages as cities and towns,” she added.

Any fines for violations would be deposited into the county’s general fund.

“I have more than 25 lakes in my district, so I hope with HB 1078 I can get some relief for residents,” said Dembowski.

[Updated 1/25/10] Here is an extended version of Rusty Nixon's story in the Marshall County Pilot News, some of which was quoted above. State Rep. Nancy Dembowski (D- Knox) is quoted:
“Many counties across Indiana had been excluded from provision of a state law passed in 2009 that gave cities and towns the authority to allow golf carts on their streets,” said Dembowski. “HB 1078 will give parity in local ordinances.”

“For the residents who live in the Bass Lake, Koontz Lake and Lake Maxinkuckee communities, driving golf carts on streets is a major mode of transportation. HB 1078 will allow those residents living in those counties to have the same advantages as cities and towns,” she added.

The legislation will allow the Marshall County Commissioners to pass their own ordinance that will govern the use of golf carts on those county roads. * * *

The current law prohibits the operation of golf carts on any county road.

“For example the (Plymouth Country Club) golf course out at Pretty Lake has two county roads going through it that actually separate parts of the course,” said Kevin Overmyer, president of the Marshall County Commissioners . “Technically it’s illegal for golfers to cross those roads in their golf carts to get to the other holes. They can actually be ticketed for doing so.”

The new law, if passed, will allow Marshall County to fix those problems.

“There are places around Lake Maxincuckee, and Bass Lake where this is a problem,” said Overmyer. “There are parts of the (Culver) Academy that are separated by county roads and crossing them in a golf cart has been a violation. This really wasn’t a problem before the new state law went into effect July 1. Cities were allowed to make their own ordinances but counties weren’t.”

Posted by Marcia Oddi on Friday, January 22, 2010
Posted to Indiana Law

Thursday, January 21, 2010

Ind. Decisions - Still more on the webcasting of COA oral arguments

The ILB has just received this note from the Information Technology Coordinator at the Court of Appeals:

Dear Ms. Oddi, Due to an erroneous entry on our online oral argument calendar, the traveling oral argument of Zimmer, Inc. vs. Todd O. Davis (43A05-0904-CV-195) was set for webcasting.

The Court has corrected the calendar and will not be webcasting the oral argument in this case. We apologize for the error.

The Court is interested in webcasting all oral arguments; however, our technological restraints will not permit us to webcast the oral argument at this time. We hope to develop this capability in the future.

For background, see this ILB entry from yesterday, Jan. 20th, 2010.

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Upcoming Oral Arguments

Ind. Decisions - One case granted transfer Jan. 21st

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 case:

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Federal Judge Barker enjoins 10% cuts in foster care payments

On Dec. 16, 2009, the ILB quoted a story that began:

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

This entry from Dec. 25, 2009 quoted a story that began:
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.

And this ILB entry from Jan. 3, 2010 quotes a story that begins:
A pair of lawsuits filed against the Indiana Department of Child Services about proposed reductions in payments to service providers, foster parents and families who have adopted children in the state agency's care will be joined together in federal court.

The two suits were filed independently in December -- one in Marion Superior Court, the other in federal court -- after DCS announced plans to begin reducing the amounts paid to its community partners this month because of the state's budget crisis.

The first suit was filed Dec. 14 in Marion Superior Court by IARRCA -- An Association of Children & Family Services, a coalition of 110 agencies serving 4,600 children for whom DCS is financially responsible. The second was filed Dec. 22 in federal court by the American Civil Liberties Union of Indiana on behalf of a group of foster parents and children, and parents who have adopted children in the care of DCS and those children.

Both suits ask the courts to block the pay cuts, which they say violate federal law.

This morning, Jan. 21, 2010, at the the end of a hearing, Judge Sarah Evans Barker granted the preliminary injunctions sought in each of the now-consolidated cases, and ordered that payments continue at their pre-cut (2009) level pending further order of the Court. The order was made from the bench, with a written decision/order to follow. Here is the minute entry from this morning that concludes:
The Court announced its ruling from the bench, granting the two motions for preliminary injunction. A written ruling will follow. No bond will be required.

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Fortson v State, an 11-page opinion, 5-0 opinion, Justice Rucker writes:

Defendant was spotted driving a stolen pick-up truck within a few hours after the owner reported it missing. After being stopped by police officers, the defendant was belligerent and uncooperative insisting he did not steal the truck. Defendant was convicted of receiving stolen property and on appeal argued the evidence was not sufficient to sustain the conviction. A divided panel of the Court of Appeals agreed and reversed Defendant's conviction. Among other things the court reasoned that although the unexplained possession of recently stolen property standing alone may be sufficient to support a conviction for theft, it is not sufficient to support a conviction for receiving stolen property. * * *

In reversing the trial court on sufficiency of evidence grounds the Court of Appeals concluded that in this case the circumstances did not support a reasonable inference that Fortson knew the property was stolen. The court noted that there was no evidence that Fortson attempted to conceal the truck from the officers, physically resist the officers, flee, or that he provided evasive answers. The court concluded, “Although Fortson was found to be in possession of recently stolen property, the State failed to provide any other facts to support an inference of knowledge . . . . [B]ecause the State could only prove that he was in possession of recently stolen property, that fact alone cannot support the inference that Fortson knew the truck was stolen.” Fortson, slip op. at 6. We agree. And with our holding today, the same conclusion would obtain had Fortson been charged with theft as opposed to receiving stolen property.

We reverse the judgment of the trial court.

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Gregory Davis and Jeffrey Kirk v. City of Kokomo, Indiana, a 27-page opinion, Judge Darden writes:

Gregory Davis and Jeffrey Kirk appeal the trial court’s order affirming in part the findings of the Kokomo Board of Public Works and Safety (“Board”) that they had committed violations that warranted disciplinary action. We affirm.

Issues: 1. Whether the trial court erred in deferring to the Board’s construction of the Kokomo Police Department’s general orders and collective bargaining agreement and affirming in part the Board’s findings. 2. Whether the Board’s decision was improperly influenced by ex parte information and pressure from the local administration.

In Darrell Kenton Henderson v. Brittany Lee Henderson , an 11-page opinion, Judge Crone writes:
Darrell Kenton Henderson (“Husband”) appeals the marriage dissolution decree holding him in contempt of the trial court’s provisional order regarding parenting time and awarding primary physical custody of his two minor children to petitioner Brittany Lee Henderson (“Wife”). We reverse the finding of contempt, vacate the dissolution decree, and remand for a new hearing. * * *

We conclude that Husband has made a prima facie showing that the trial court violated his state constitutional and statutory rights in failing to hear evidence at the final hearing on the petition for marriage dissolution. Therefore, we vacate the dissolution decree and remand for a new hearing.

NFP civil opinions today (1):

In the Matter of B.M. Alleged to be CHINS; T.M. v. IDCS (NFP)

NFP criminal opinions today (2):

Lamar Crittenden v. State of Indiana (NFP)

James B. Cameron v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Shopping mall tycoon Melvin Simon's daughter sues widow over will"

Updating this ILB entry from Jan. 9, 2010, Jeff Swiatek of the Indianapolis Star has this story today, headed "Bren Simon files response to lawsuit." Some quotes:

Bren Simon says her late husband and billionaire shopping-mall magnate Melvin Simon changed his will in part to prevent his three children from having a say over their stepmother's personal finances after he died.

The allegation of distrust within one of Indiana's most well-known and moneyed families comes in a 24-page court document Bren Simon filed today, vehemently denying a stepdaughter's complaint that she coerced her gravely ill husband to change his will to reduce the amount of money his children would inherit. * * *

The children from Melvin Simon's first marriage, to the former Bess Meshulam, are Deborah Simon, who filed the complaint against Bren Simon earlier this month contesting the new will; Cynthia A. Simon Skjodt; and David E. Simon. * * *

Deborah Simon's complaint also contends that the new will drastically reduce the inheritances going to her, her sister Cynthia and brother David.

Melvin Simon's first marriage ended in divorce and he and Bren were married in 1972.

Bren Simon's filing also asks the court to list David and Cynthia Simon Skjodt as additional plaintiffs in the lawsuit "to reflect the true parties responsible for instituting this proceeding."

Deborah Simon's attorney could not be reached for comment late Wednesday. Simon Property Group spokesman Les Morris would not immediately comment.

Bren Simon is bringing in two new attorneys for her defense: Michael Ciresi and David Beehler, partners at the Minneapolis law firm Robins, Kaplan, Miller & Ciresi.

[More] See this story in the ILJ, headed "Simon says husband's shrinking fortune spurred new will."

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Indiana Courts

Environment - Expanding Use of Wind Power v. the power grid

This story today in the NY Times A quotes:

The Energy Department under President Obama has been a proponent of renewable energy, and the study tackles one of the biggest questions involving wind energy: How much can the power system use and still remain stable, given that the amount of electricity generated by wind turbines is as fickle as the breeze?

The answer, according to the study, is that heavy reliance on wind energy is “technically feasible” but will require significant expansion of the power grid.

That expansion would require spending about $93 billion in today’s dollars, according to David Corbus, a senior engineer at the National Renewable Energy Laboratory, which supervised the study. He said that sum, large as it is on its face, was “really, really small compared to other major costs” in the power system.

A bigger obstacle is how to overcome a political impasse over building power lines, and how to find, and finance, sites for 10 times more generating capacity. The study did not address those questions.

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Environment

Courts - This is the day for Citizens United v. FEC [Updated]

The SCOTUS is holding "a non-argument session to announce one or more opinions" at 10:00 AM. Follow it live at SCOTUSBlog.

[More] Adam Liptak writes in the NY Times:

The Supreme Court will hold a special session on Thursday, presumably to issue decisions. Such special sessions are unusual, leading many to suspect that the court will release its long-awaited decision in Citizens United v. Federal Election Commission, a major campaign finance case. The court has already taken the rare step of hearing arguments in the case twice. For the second argument, the court asked the parties to offer their views on whether it should overrule a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and part of the 2003 decision that upheld the central provisions of the McCain-Feingold campaign finance law.
Here is the opinion, 183-page in total.

[Updated at 11:08 AM] "Supreme Court rolls back campaign spending limits" is the headline of this AP story by Mark Sherman. It begins:

WASHINGTON -- The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns.

By a 5-4 vote, the court overturned a 20-year-old ruling that said companies can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

It leaves in place a prohibition on direct contributions to candidates from corporations and unions.

Critics of the stricter limits have argued that they amount to an unconstitutional restraint of free speech, and the court majority agreed.

"The censorship we now confront is vast in its reach," Justice Anthony Kennedy said in his majority opinion, joined by his four more conservative colleagues.

Strongly disagreeing, Justice John Paul Stevens said in his dissent, "The court's ruling threatens to undermine the integrity of elected institutions around the nation."

Joan Biskupic and Fredreka Schouten, now have this story, along with a timeline, at USA Today.

[More] "Free Speech v. Democracy: Rounding Up The Citizens United Reactions" from the WSJ Law Blog by Ashby Jones.

Posted by Marcia Oddi on Thursday, January 21, 2010
Posted to Courts in general

Wednesday, January 20, 2010

Environment - More on "Crawford County residents question biomass power project"

Updating this Jan. 15, 2010 ILB entry, quoting a story in the LCJ, the weekly Corydon Democrat has a very long story today about the same Jan. 13th meeting. First, here is how the ILB began to the Jan. 15th entry:

Interesting, especially in light of: (1) this ILB entry from Jan. 7, 2010 headed "Environment - Rules proposed again to regulate outdoor wood-fired boilers," and (2) the active opposition [reported in the LCJ biomass story] of Forrest Lucas, the motor oil magnate, who paid $121.5 million for the naming rights for Indianapolis' football stadium, is this long story today by Grace Schneider of the Louisville Courier Journal.
Now, here is a sample from the middle of today's story from the Corydon paper:
Several people, including Cara Beth Jones, the other co-chair of the Concerned Citizens, said they didn't understand how IDEM could consider regulating outdoor wood-fired boilers after receiving just 41 complaints but potentially approve an air permit for the biomass plant when more than 2,000 people have signed a petition against its construction.

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Town of Dyer, Lake County, Indiana v. Town of St. John, Indiana, CWS, LLC, et al., a 14-page opinion dealing with annexation, Judge Barnes writes:

The restated issue before us is whether the trial court properly denied the validity of Dyer's attempt to annex land that St. John also was attempting to annex. * * *

The trial court correctly concluded that Dyer's complaint for a declaratory judgment and permanent injunction against St. John failed to state a claim upon which relief could be granted because Dyer's own annexation ordinance was void and invalid for attempting to annex multiple, disconnected parcels of land in a single proceeding. We affirm the dismissal of the complaint. Affirmed.

Joshua G. Nicoson v. State of Indiana is a 9-page, 2-1 opinion involving double jeopardy. Chief Judge Baker writes:
Today we decide an issue of first impression regarding the application of double jeopardy principles when a defendant's sentence is enhanced based on his use of a deadly weapon. Appellant-defendant Joshua G. Nicoson appeals the five-year sentence enhancement that the trial court imposed for the use of a firearm following his conviction for Criminal Confinement with a Deadly Weapon, a class B felony. Specifically, Nicoson argues that the enhanced penalty constituted an impermissible “double enhancement” in violation of double jeopardy principles. Concluding that the enhancement was proper and no double jeopardy violation occurred, we affirm the judgment of the trial court. * * *

In sum, the enhancement of the sentence is connected to, and punishes a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon. Thus, the trial court sentenced Nicoson for criminal confinement as a class B felony because he was in possession of a deadly weapon, and it subsequently enhanced the sentence pursuant to Indiana Code section 35-50-2-11in light of Nicoson's use of the gun. As a result, we reject Nicoson's argument that the sentence amounted to an impermissible double enhancement in violation of federal or state double jeopardy prohibitions.
The judgment of the trial court is affirmed.

MAY, J., concurs.
DARDEN, J., dissent with opinion. [that begins, at p. 8] I respectfully dissent. As noted, Nicoson was charged and convicted of confining the victims while “armed with a deadly weapon,” and of “us[ing]” a firearm while committing the confinement. The majority concludes that the second offense/conviction merely constitutes an enhancement of the first, but I cannot agree. If that “deadly weapon” is a firearm, how could a person thereby armed not also commit the offense of confinement “us[ing]” a firearm?

NFP civil opinions today (5):

Spine, Sports, and Pain Medicine, P.C. v. Daniel H. Nolan, M.D. (NFP) - "In sum, the evidence demonstrated that Spine did not have an office in Warsaw on June 8, 2007, when the Agreement was signed. Moreover, the Agreement prohibited Dr. Nolan from competing within twenty-five miles of any office of Spine that previously or currently existed when Dr. Nolan tendered his resignation from Spine’s employment. Because Spine did not “previously or currently” have a Warsaw office as of that date, the Agreement did not prohibit Dr. Nolan from opening a medical practice in Warsaw. As a result, Spine cannot enjoin Dr. Nolan from working at that location, and we conclude that the trial court properly denied Spine’s motion for a preliminary injunction.
The judgment of the trial court is affirmed."

Term. of Parent-Child Rel. of L.W.; G.W. v. IDCS (NFP)

D.S. v. Review Board (NFP)

Term. of Parent-Child Rel. of M.A., et al.; S.A. v. IDCS (NFP)

Term. of Parent-Child Rel. of T.J., et al.; T.J. v. IDCS (NFP)

NFP criminal opinions today (5):

Chad Buttery v. State of Indiana (NFP)

Robert W. Smith v. State of Indiana (NFP)

Annalisha Murray v. State of Indiana (NFP)

Scott Bryant v. State of Indiana (NFP)

Keith Chandler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Ind. App.Ct. Decisions

Courts - No Citizens United v. FEC from the SCOTUS this week

Updating this ILB entry from Jan. 14th, SCOTUSBlog reports that no Citizens United decision will issue today.

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Courts in general

Ind. Law - Some legislation of interest moving

CAFOs within 2 miles of state parks, reservoirs - From the Richmond Palladium Item, this story dated Jan. 20, 2010, beginning:

A bill that would prohibit starting a confined feeding operation or the spreading of manure within two miles of state parks and reservoirs was approved Tuesday by the Indiana House Agriculture and Rural Development Committee, Chairman Phil Pflum said.

State Rep. Tom Knollman, R-Liberty, was the only Republican who voted for the bill, which was approved on a 7-5 vote, Pflum said.

Representatives of the Indiana Farm Bureau and Indiana Pork Producers spoke against the bill.

The bill is HB 1161.

Open records law fines. See this editorial today in the Evansville Courier & Press. A quote:

[O]n Tuesday, a bill, which would allow fines against government workers who knowingly and intentionally violate the law, unanimously passed the House and was sent to Senate.

The House bill was authored by a member of the Evansville-area delegation, Rep. Russ Stilwell, D-Boonville, the House Majority Leader.

We note also that signing on as co-author was House Speaker Patrick Bauer, D-South Bend, perhaps the state's most powerful lawmaker.

Constitutional amendment on tax caps. Niki Kelly's report today in the FWJG on HJR 1 begins:
Hoosiers will get the final say on a measure placing property tax caps into the state’s constitution after the Indiana Senate voted 35-15 in favor of the effort.

It was the final legislative hurdle for the tax caps, which now will be voted on by all Hoosiers in the Nov. 2 election.

Excessive traffic court fines. Ogden on Politics has a good report here. The bill is SB 399. Here is a comprehensive ILB entry on this issue from Dec. 8, 2009.

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Indiana Law

Ind. Decisions - More on the webcasting of COA oral arguments

The ILB "Upcoming Oral Arguments" entry Monday re the Court of Appeals scheduled argument at Purdue University Jan. 27th in the case of Zimmer, Inc. vs. Todd O. Davis noted:

The court's site says this will be WEBCAST, which would make it the first COA argument outside the Statehouse to be webcast; even those held at IU Law's court center have not been webcast.
The Fort Wayne Journal Gazette's editorial column, "Furthermore", picks up on that this morning, under the heading "State Supreme Court webcast good model for public access":
Next week, the Indiana Court of Appeals will webcast arguments heard by a three-judge traveling panel at Purdue University. The state’s second-highest court routinely schedules oral arguments at law schools, colleges, high schools and county courthouses across Indiana as a way to help Hoosiers learn about the judicial system.

This is the first time, however, the court has opened the on-the-road proceedings to an Internet audience.

Hopefully, this is the beginning of a Court of Appeals trend to webcast all off-site oral arguments. While the "Appeals on Wheels" program, bringing the Court to locations throughout the State, is certainly worthwhile, it has been disappointing that webcasts of the arguments selected for this program, often the most interesting, have not been available, presumably because of technology problems.

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Upcoming Oral Arguments

Courts - "Court won't close shipping locks to keep out carp"

Updating this story from yesterday, and many earlier ILB entries about the Asian Carp threat, the NY Times had this story yesterday in its Science Section, headed "Carp DNA Is Found in Lake Michigan ." Some quotes:

Experts said the most recent findings, from Calumet Harbor and the Calumet River, could mean that the carp has found its way beyond an elaborate barrier system built at the cost of millions of dollars to prevent the fish’s access to the Great Lakes and its delicate ecosystem, where it has no natural competitors and would threaten the life of native fish populations. * * *

The positive DNA findings were announced on the same day the United States Supreme Court denied a request by the State of Michigan for an emergency injunction to force the closing of the locks of a Chicago shipping canal that gives direct access to the lake — a coincidence that drew intensified calls for help from some Great Lakes states.

The Corps of Engineers and Illinois officials had argued against closing the canal.

But Gov. Jennifer M. Granholm of Michigan and Gov. James E. Doyle of Wisconsin called on the Obama administration on Tuesday to convene a summit and identify an emergency “rapid response” that Great Lakes states must adhere to to protect the waters from being overrun with Asian carp.

Joel Hood of the Chicago Tribune has a long story today headlined "Asian carp DNA found in Lake Michigan: Supreme Court won't force Illinois to shut waterways to lake." Gitte Laasby of the Gary Post-Tribune has this story, headlined "Asian carp DNA found in Lake Michigan."

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Courts in general | Environment

Ind. Courts - Today at 2 PM, CJ Shepard to deliver state of the Judiciary [Updated]

From the press release:

Chief Justice of Indiana, Randall T. Shepard, will address a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the accomplishments and challenges facing the judicial branch will be held January 20, 2010.
[Updated] Here is the text of the State of the Judiciary address.

Posted by Marcia Oddi on Wednesday, January 20, 2010
Posted to Indiana Courts

Tuesday, January 19, 2010

Ind. Decisions - "Appeals court rules against Schrenker's wife"

The opinion in Michelle Schrenker v. State of Indiana, issued earlier today by the Court of Appeals (ILB entry here - 4th case), is the subject of a just-posted story on the Indianapolis Star website. Some quotes:

A state appellate court says a court-appointed receiver must continue to control the assets of Michelle Schrenker, the ex-wife of embattled Fishers investment adviser Marcus Schrenker.

Schrenker tried to fake his own death in a plane crash in January 2009 to dodge a state securities fraud investigation. He has been accused of misappropriating $1.5 million in investors' funds and is awaiting trial in Hamilton County.
Advertisement

Michelle Schrenker appealed a ruling from Hamilton Superior Court 4 that appointed someone to control her assets. * * *

The state's appellate court upheld the Hamilton County court ruling because Michelle Schrenker's withdrawal from that account created a "substantial causal connection" to the investors' lost money, according to the ruling.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 15, 2010

Here is the Clerk's transfer list for the week ending January 15, 2010. It is five pages long.

Two transfers were granted last week, in the cases of Eads v. Community Hospital and in Sheehan Construction v. Continental Casket -- see this Jan. 14 ILB entry for details.

Shepard, C.J., and Dickson, J. voted unsuccessfully to grant transfer in Terrence Miller v. State of Indiana, an opinion from Oct. 30, 2009.

Shepard, C.J., and Sullivan, J., voted unsuccessfully to grant the petition to transfer in the case of Mike A. Abdalla, et al. v. Raed I. Qadorh-Zidan, et al., decided Sept. 10, 2009 by the COA.

Transfer was denied, 5-0, re the Sept. 29, 2009 decision in Liberty Landowners Assoc. v. Porter City Commissioners, et al., the hospital zoning challenge about which the ILB has had a number of entries.

__________

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.

Almost 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 Tuesday, January 19, 2010
Posted to Indiana Transfer Lists

Courts - "Court won't close shipping locks to keep out carp"

So reports USA Today in this AP story, accompanied by a video labeled "Asian carp poisoning begins in an effort to keep them from infesting the Great Lakes." Some quotes:

WASHINGTON (AP) — The Supreme Court on Tuesday refused to order the closure of shipping locks near Chicago to prevent invasive Asian carp from infesting the Great Lakes.

The high court refused to issue a preliminary injunction that would have immediately cut off a link between the Mississippi River and the Great Lakes basin. Michigan, Wisconsin, Ohio, Pennsylvania, Minnesota and New York want a permanent block between the rivers and the lakes to keep out the fish, which have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. The fish have swarmed waterways near Chicago leading to Lake Michigan.

Illinois and the Obama administration oppose the closure of the locks, saying federal agencies are working to keep Asian carp out of the lakes.

Scientists fear that if Asian carp reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40% of their body weight daily in plankton, the base of the food chain for Great Lakes fish.

In addition to immediate closure of the shipping locks, the states also wanted a permanent separation between the carp-infested waters and the lakes. That would mean cutting off a link between the Mississippi and Great Lakes basins created more than 100 years ago, when Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago operate canals and other waterways that open into Lake Michigan.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Courts in general | Environment

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

In Gastineau v. Wright (SD Ind., McKinney), a 5-page opinion, Judge Kanne writes:

This is an appeal by Robert Duff, attorney for the plaintiffs-appellants, from the district court’s corrected order on plaintiffs’ motions for attorney’s fees. Following a settlement on the first scheduled day of trial for the sum of $45,045.77, Duff submitted a motion requesting $140,290.00 in fees.2 In its discretion, the district court determined that Duff’s experience and performance warranted much less, awarding $52,305.00 in fees. Duff argues that the district court erred in determining a reasonable fee by reducing his billable rate and the number of hours billed. Because we find that the judge did not abuse his discretion in setting the amount of the fee, we affirm. * * *

This is clearly the case of an experienced district judge that considered the various factors in setting a reasonable attorney’s fee and provided a sufficient explanation. Because there was no abuse of discretion, we AFFIRM.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Ind. (7th Cir.) Decisions

Environment - Asian carp plea denied by SCOTUS

Lyle Denniston of SCOTUSBlog reported here, shortly after 10:00 AM:

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.

Without comment, the Court refused to issue a permanent injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.

The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in Wisconsin, Michigan and New York v. Illinois.

[More] Tony Mauro of the Blog of Legal Times has this brief report.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Courts in general | Environment | Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Gregory Compton, et al. v. First National Bank of Monetary, et al. , a 12-page opinion, Judge Vaidik writes:

In light of the 2005 amendment to Indiana Code section 30-5-9-2(b), the common law presumption of undue influence does not apply to a transaction where the principal takes action, the power of attorney is unused, and the attorney in fact benefits. Here, Stephen Craig Compton and his son Scott W. Compton, who also served as Stephen's attorney in fact, and Scott's wife Angela F. Compton entered into contracts while Stephen was hospitalized shortly before his death. Because the evidence shows that Stephen took action, the power of attorney was unused, and Scott benefited from the transaction, the common law presumption of undue influence does not apply. Because the evidence shows that Stephen acted under his own free will in executing the contracts, we conclude that the trial court properly granted First National Bank of Monterey's petition for completion of those contracts.

In Mark E. Hicks v. Tammy L. (Hicks) Smith , a 15-page opinion, Judge Robb affirms the lower court. Some quotes:

There are two exceptions to the rule prohibiting retroactive modification of support already accrued, however. First, retroactive modification is allowed where the parties have agreed to and carried out an alternate method of payment which substantially complies with the spirit of the decree. * * * Second, retroactive modification is allowed where the obligated parent, by agreement with the custodial parent, “takes the child into his or her home, assumes custody, provides necessities, and exercises parental control for such a period of time” that a permanent change of custody is effected. * * * Neither of these exceptions apply to this case, as Mark failed to pay any support as ordered, * * * and Tammy neither agreed to nor acquiesced in Mark’s custody of Brandon. * * *

Conclusion. The trial court did not abuse its discretion in awarding a judgment on Mark’s child support arrearage to Tammy and denying Mark’s request to award the judgment directly to Brandon. Affirmed.

MATHIAS, J., concurs.
DARDEN J., dissents with separate opinion. [that concludes] Although I cannot find that the trial court’s order exceeds the parameters of black-letter law, likewise I cannot find it to be an equitable order based upon the circumstances here. It is undisputed that Father fed, clothed, sheltered, and cared for Brandon for all the years they were missing, and while it may not be proper to fully credit him for those expenses in the ultimate determination of his legal liability for child support, I find the order appealed to constitute an unwarranted windfall for Mother. As a result, I would reverse and remand for the trial court to hear evidence of actual expenses and/or expenditures that Mother incurred on Brandon’s behalf as the custodial parent during the relevant time period, or to further consider Father’s argument that past-due child support should be deposited into a trust for the benefit of Brandon.

Phyllis Barrett, et al. v. City of Brazil - "Based upon the foregoing analysis, we conclude that the Board erred in dismissing Phyllis’ claim for worker’s compensation benefits. Reversed and remanded."

In Michelle Schrenker v. State of Indiana , a 12-page opinion, Judge MAY writes:

Michelle Schrenker and her husband Marcus were the subjects of an action by the Indiana Securities Commissioner. Marcus had been a registered investment adviser representative but he continued to provide investment services after his registration expired. He ultimately fled the state ―with an unknown amount of investor money and/or assets purchased with investor money.‖ (App. at 15.) The Commissioner‘s complaint named Marcus, Michelle, and their three corporations as defendants, and alleged the defendants collectively engaged in acts that violated the Indiana Securities Act. The trial court appointed a receiver over Michelle‘s assets after she agreed to a preliminary injunction that would prevent her from transferring any assets until an accounting could be completed. We affirm the appointment of a receiver. * * *

In the case before us, by contrast, it is apparent there was a substantial causal connection between Michelle‘s culpable conduct, in the form of withdrawing investor funds from the HIS account, and the harm the investors suffered in the form of lost money. Therefore, the court did not err in concluding Michelle materially aided Marcus in violating the Securities Act. The appointment of a receiver was not an abuse of discretion, and we affirm.

NFP civil opinions today (4):

Paternity of R.M.C.; P.M.C. v. J.J.P (NFP) - "The record supports the conclusion there has been a substantial change in circumstances and R.C.'s best interests are served by awarding primary physical custody to Father. Accordingly, we affirm."

Alan Shirkey v. Future Enterprises, Inc. d/b/a Langham (NFP) - "The trial court properly granted summary judgment to Langham on Shirkey's breach of contract, promissory estoppel, and unjust enrichment claims. We affirm the trial court's grant of summary judgment."

Richard A. Swoboda v. Richard Stalbrink (NFP) - "In sum, the only evidence Swoboda received notice of the hearing was the court’s own inquiries with its staff, to which Swoboda had no opportunity to respond. There is no documentation in the record that Stevens was served with notice, and the CCS makes no mention of Stevens being served. * * * As noted above, the CCS [chronological case summary] contains several inaccuracies, which raise substantial doubt that Swoboda was served with notice. Therefore, we conclude the trial court abused its discretion by denying Swoboda’s motion. * * * The summary judgment for Stalbrink is reversed, and the case is remanded for a new hearing on the motion.

Emilio D. Soria v. Swee Kim Lee (NFP)

NFP criminal opinions today (4):

Juanita Hart v. State of Indiana (NFP)

Anthony Davis v. State of Indiana (NFP)

Stephen L. Hearld v. State of Indiana (NFP)

Nicholas Hair v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "Grandparents testify in Indy to establish visitation rights"

Kelly Lynch reported Jan. 17, 2010 in the Evansville Courier & Press on SB 59, which was approved by the Senate Judiciary Committee last Tuesday. The digest:

Grandparent and great-grandparent visitation. Allows great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. Allows a grandparent or great- grandparent to seek visitation if the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent. Establishes factors for the court to consider in determining whether granting a grandparent or great-grandparent visitation rights is in the best interests of the child. Makes conforming changes. (The introduced version of this bill was prepared by the child custody and support advisory committee.)

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Indiana Law

Ind. Courts - New Albany hopes to keep profits from speeding fines

Daniel Suddeath reported in the New Albany News & Tribune on Jan. 16, 2010:

As frustrating as getting a speeding ticket can be, violators can’t accuse New Albany police officers of padding city finances when they hit the emergency lights and make a traffic stop.

That’s because only $4 of the average speeding fine goes back to the city. The minimal amount is designated for training expenses.

For years there hasn’t been a city court or a county court to hear the speeding cases, thus most of the money collected from tickets written in New Albany has gone to the state.

But that could change soon, as the City Council has received an ordinance that would keep the majority of speeding ticket dollars in New Albany. If passed on three readings, City Clerk Marcey Wisman said New Albany could begin receiving all but court costs from its speeding violations as early as mid-February. * * *

If the system had been in place in 2009, it would have meant approximately $480,000 in additional revenue for the city. The money would be placed in a non-reverting fund for expenses related to ticket writing, such as handheld machines and printers.

“These are expenses the city has to take on anyway,” Wisman said.

But instead of coming out of the general fund, the fines would cover the cost of upgrading equipment.

Along with City Attorney Shane Gibson, Wisman has investigated the process for about two years and wondered why New Albany hadn’t established its own ordinance for much longer.

One of the big steps was finding a judge that would hear the speeding cases, as necessitated by state law. Luckily, Wisman gained a commitment from Floyd County Superior Court No. 2 Judge Glenn Hancock.

For the cases that make it that far, Hancock’s court will be scheduled to hear the claims at 1:30 p.m. the last Tuesday of each month.

“By going through Judge Hancock’s court rather than having a city court, you save tons of money because you’re not paying another judge. A judge that is also going to have to have an office and a staff,” Wisman said.

Just like the state, those that receive speeding tickets can still enter a diversion program to avoid losing driver’s points off their license. The diversion money would also stay in New Albany.

The effort would include the Floyd County Clerk’s office, which is where violators would pay their speeding tickets if the council approves the ordinance.

Wisman said County Clerk Linda Moeller has agreed to aid the city if the change is made. The county would be paid a portion of the court fees from each fine for its involvement.

Wisman said the plan is to begin with speeding fines and then see if there are other violations that can be handled locally.

“Eventually I believe we’ll be able to add more,” she said.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Indiana Courts

Ind. Law - Bills on political yard signs, voter ID

Fort Wayne Journal Gazette editorial page editor Tracy Warner includes in his commentary today:

Campaign yard signs might be coming home. Developers who create subdivisions frequently seek to promote attractive appearances and eliminate clutter, but homeowners and politicos have long wondered about the First Amendment implications of neighborhoods prohibiting political signs. A bill before the Indiana Senate would eliminate any uncertainty.

Senate Bill 64 would override neighborhood restrictive covenants on political signs and explicitly allow them from 30 days before until five days after an election. The proposal would still allow some loose restrictions on size and location, but the bill would specifically allow “a sign that is at least as large as signs commonly displayed during election campaigns” placed in a homeowner’s window or property.

Expressly allowing the signs has even more importance in Fort Wayne, where the City Council voted in 2007 to crack down on placing signs in the public right of way. With the signs essentially limited to private property, the Senate bill – approved by the Committee on Elections – would clearly allow homeowners in all neighborhoods to display them.

Voter ID fix. Indiana Republicans derided the Indiana Court of Appeals for ruling the state’s Voter ID law was unconstitutional, all but calling the judges incompetent. The ruling, they said, will never stand.

Perhaps, but just in case, Republican state Sen. Michael Young has filed Senate Bill 91, which would address the very defect in the law that the appeals court cited. The court ruled the Voter ID law created unequal standards for people voting at the polls on Election Day, who must produce ID, and those voting absentee, who don’t. Young’s bill would require absentee voters to produce a voter identification.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Indiana Law

Ind. Law - "Lawyers offer free advice in downtown Lafayette to mark Martin Luther King Day"

Eric Weddle reports in the Lafayette Journal Courier in a story that begins:

Someone received a get-out-of-jail-free call Monday.

Throughout the day people from Tippecanoe and surrounding counties stopped by Indiana Legal Services in downtown Lafayette for free assistance offered in honor of Martin Luther King Jr. Day.

Estate questions were a common theme of the 55 people who stopped by for 10- to 15-minute consultations. But one query was about a friend held in a county jail.

"There was a mix-up over which county had jurisdiction," attorney Tim Peterson said about the unnamed person who believed the incarceration was in limbo. After a few phone calls by a volunteer attorney, the matter was cleared up.

"For something like this, you need an attorney who knows how the system works," Peterson said. He is plan administrator for Indiana District 4 Pro Bono Corp., which is run out of the office. "It just so happens we had someone here who knew the counties involved. We will get that client out."

Established in 2002, the Talk to a Lawyer Today event brings together attorneys statewide to offer free legal consultations to members of the public who might not otherwise be able to afford an attorney. It is sponsored by the Indiana State Bar Association, Indiana Bar Foundation and the Indiana Pro Bono Corp.

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Indiana Law

Ind. Courts - Correction re Indiana's U.S. attorney appointments

Reader Joel Schumm writes this morning:

Hi Marcia, You mention at the end of your post yesterday on the federal judge nominees that there is still no word on U.S. Attorney nominees. That is true in the Southern District, but David Capp, the acting/interim U.S. Attorney, has been nominated in the Northern District.
Worse yet, the ILB reported the appointment here on December 24th! The mind dims ...

Posted by Marcia Oddi on Tuesday, January 19, 2010
Posted to Indiana Courts

Monday, January 18, 2010

Courts - "Mass. law on wine shipping unconstitutional"

Snipits from the AP story by Bob Salsberg:

BOSTON -- A Massachusetts law that sharply restricts out-of-state winemakers from shipping their products directly to consumers in the state is unconstitutional, a federal appeals court ruled.

Thursday's decision by the 1st Circuit Court of Appeals to uphold a lower court ruling could open the door for connoisseurs in Massachusetts to purchase more of their favorite wines online or by mail order from domestic producers.

The law, approved by the Legislature in 2006 over the veto of then-Gov. Mitt Romney, created a multi-tiered system in which wineries that produce more than 30,000 gallons a year must decide whether to sell retail in Massachusetts through an in-state wholesaler or apply for a license to ship wines directly to consumers. They cannot, however, do both.

The cap does not affect any of the nearly three dozen wineries based in Massachusetts, all of which are small and produce under the 30,000-gallon limit.

"We hold that (the law) violates the Commerce Clause because the effect of its particular gallonage cap is to change the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts's wineries and significantly burdens out-of-state competitors," the appellate court wrote in its decision.

Family Winemakers of California, a Sacramento-based group representing about 650 producers, argued the law was "protectionist" and effectively kept 98 percent of domestic wine out of direct reach of Bay State consumers.

Here is the opinion.

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Courts in general

Ind. Courts - "A public reprimand might be the only sanction attorney Jennifer Abrell faces for revealing information about a client represented by her law firm"

So begins this story in today's Muncie Star-Press, reported by Rick Yencer. More:

That's what a hearing officer for the Indiana Supreme Court Disciplinary Commission has recommended in the case of a Muncie woman who complained that Abrell, president of the Muncie Community School Board, told friends about a domestic dispute involving the woman's estranged husband and children before the couple eventually reconciled.

Howard Circuit Court Judge Lynn Murray conducted a closed hearing last month on the complaint and issued recommendation that will be considered by the court. * * *

Murray found the failure to maintain client confidences by an attorney was "a serious violation of ethics that undermines the heart of an attorney-client relationship." The judge recommended a public reprimand, recognizing Abrell had no prior record of discipline and had been cooperative in the investigation.

The Supreme Court could decide within a matter of weeks on what sanction Abrell faces.

The case represented an issue of first impression about whether, and at what point, confidentially attaches communications between individuals not in an attorney-client relationship.

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Indiana Courts

Ind. Courts - Part II of "Indiana courts moving toward unified records system"

Part I appeared in the ILB on Jan. 4, 2010. The entry quoted at length from Harold J. Adams' LCJ story that began:

After nine years and $51 million spent, Indiana is progressing toward a statewide computer system that may eventually connect the records of all the state's 401 courts to each other, other state agencies and the public.
It described the tension between the Supreme Court's efforts to install its Odyssey case management system (CMS) in eventually all 92 counties, and the private company, CSI Computer Systems of Fishers:
CSI now handles court records for 51 Indiana counties and is trying to expand. It was among the unsuccessful bidders for the statewide contract awarded in 2005 to Tyler Technologies of Plano, Texas. Tyler's Odyssey system, which began deploying with a pilot project in 2007, is now in 15 Indiana counties.
At the end of the entry I provided some background information about intra-county case management systems and inter-county networking of court docket information.

What could be called "Part I and a half" appeared in the ILB on Jan. 11th and was headed "What is the genesis of SB 60?." The entry quotes at length from the minutes of the Oct. 29, 2009 Sentencing Policy Committee, which led to the drafting and introduction of SB 60 into this year's session. SB 60 "Creates the judicial computer systems commission to evaluate court and law enforcement computer systems and the judicial technology and automation project.."

A good recap of many earlier postings can be found in this Oct. 13, 2009 ILB entry, which might be labeled "Part 0.5." The entry includes a link to the 2009 Senate regular session budget provision that, like this year's SB 60, tries to get a handle on the JTAC project.

Part II. Two interim legislative committee meetings addressed the JTAC project. The second was the Oct. 15, 2009 meeting of the Commission on Courts. Here are the official minutes of the Oct. 15th meeting.

I was able to attend the Oct. 15th meeting and was able to take fairly comprehensive notes of the testimony relating to the JTAC projects. If you have been following this issue, I urge you to read them closely. You will find discussion of JTAC's timetable for converting all 92 counties to Odyssey, and of the frustrations of many of the county's clerks.

You will notice in my notes that reference is made to action by the General Assembly last year that resulted, effective July 1, 2009, with 10% of the annual JTAC fees (resulting from the collection of $7.00 for every case filed in Indiana) going to the Attorney General, rather than JTAC. Mark Goodpaster of LSA's fiscal office, in answer to a question, said that would amount to $700,000 annually, 10% of the $7,000,000 per year JTAC had received. The amendatory language is a pp. 420-421 of HEA 1001 of the 2009 special session. Essentially it diverts to:

the homeowner protection unit account established by IC 4-6-12-9 one hundred percent (100%) of the automated record keeping fees collected under IC 33-37-5-21 with respect to actions resulting in the accused person entering into a pretrial diversion program agreement under IC 33-39-1-8 or a deferral program agreement under IC 34-28-5-1.

I have problems with computing how JTAC ends up with $7 million per year (or $7 million less $700,000) if the total number of cases filed each year is over 2 million -- $7 x 2 million = $14 million.* I'm sure there is an explanation, but I haven't found it. If I understood that, then maybe these other questions I have would also have clear answers:

_________
* IC 33-37-5-21 says " This section applies to all civil, criminal, infraction, and ordinance violation actions." This Table of the Court's shows 2,001,731 cases filed in 2008.

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Indiana Courts

Ind. Courts - "Senator Bayh Makes Historic Judicial Announcements"

Here is the complete text of Senator Bayh's press release:

Indianapolis – Senator Evan Bayh today announced the nomination of three Hoosiers for lifetime appointments to the federal bench, breaking a major judicial barrier in Indiana on the Martin Luther King, Jr., federal holiday.

At a press conference at the Birch Bayh Federal Building where he once served as a law clerk, Bayh announced that the White House had accepted his recommendation to submit for Senate approval three “outstanding, mainstream Hoosiers” to become U.S. district court judges.

The nominees are Tanya Walton Pratt and Jane Magnus-Stinson for the U.S. District Court for the Southern District of Indiana and Jon DeGuilio for the U.S. District Court for the Northern District of Indiana.

President Barack Obama will formally nominate each when the Senate reconvenes this week after its winter recess.

“Today, we take a historic step in creating a more diverse federal judiciary in our state,” Bayh said. “These highly qualified individuals have impeccable records and rich backgrounds that will help move us closer to our goal of realizing equal justice under law.”

Bayh added, “Mr. DeGuilio, Judge Magnus-Stinson and Judge Pratt have each shown themselves to be deserving of the public trust. They have demonstrated the highest ethical standards and a firm commitment to applying our country’s laws fairly and faithfully. They know their job is to interpret our laws, not write them.”

Senator Bayh made these recommendations after close consultation with Senator Dick Lugar. Bayh and Lugar have a history of making bipartisan judicial recommendations regardless of which political party is in power, most recently recommending Judges John Tinder and David Hamilton for seats on the United States Court of Appeals for the Seventh Circuit.

“Senator Bayh has discussed with me his strong support for judge candidates Superior Court Judge Tanya Walton Pratt, former U.S. Attorney Jon DeGuilio and Magistrate Judge Jane Magnus-Stinson, and I appreciate his deliberative process,” Senator Lugar said. “I look forward to Senate confirmation of these Hoosier nominees.”

All three judicial nominees announced today are “recognized leaders in the Indiana legal community,” Bayh said. All three have “demonstrated the experience, insight, and non-ideological temperament that Hoosiers expect from their judges,” he added.

If confirmed, Magnus-Stinson and Pratt will double the number of female federal district judges in Indiana history. Their confirmation would mark a major step forward in creating a more diverse federal judiciary. Pratt would become the first African-American federal judge in Indiana history.

As Indiana governor, Bayh appointed the first African-American judge to the Indiana Supreme Court when he appointed Myra C. Selby to the state’s high court in 1995. Prior to that, Bayh appointed the first African-American judge in state history to the Indiana Court of Appeals with the appointment of then-Judge Robert Rucker. Justice Rucker now sits on the Indiana Supreme Court.

Biographical information about today’s U.S. District Court nominees:

Jon E. DeGuilio: DeGuilio served as U.S. Attorney for the Northern District of Indiana from 1993 to 1999. He is currently Executive Vice President, General Counsel, and Corporate Secretary for NorthWest Indiana Bancorp/Executive Vice President for Peoples Bank. DeGulio received his law degree from Valparaiso University School of Law and his undergraduate degree from University of Notre Dame. He is a former partner with the law firm of Barnes & Thornburg.

Magistrate Judge Jane E. Magnus-Stinson: Jane Magnus-Stinson was appointed U.S. Magistrate Judge for the Southern District of Indiana in 2007. Prior to that, she served as a judge in the Marion Superior Court from 1995 to 2007. Magnus-Stinson served as legal counsel and deputy chief of staff to then-Governor Evan Bayh from 1991 to 1995. She maintained a civil litigation practice at the firm of Lewis & Wagner from 1983 to 1990. She is a 1983 graduate of Indiana University School of Law at Indianapolis and a 1979 graduate of Butler University.

Judge Tanya Walton Pratt: Judge Tanya Walton Pratt currently serves as a judge in the probate division of Marion Superior Court. From 1997 to 2008, she was a judge in that court’s criminal division, where she handled major felonies and presided over 20 to 35 jury trials annually. Before that, she worked as an attorney in private practice and as a deputy public defender in Marion Superior Court. Walton Pratt is a graduate of Spelman College and Howard University School of Law.

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Indiana Courts

Ind. Courts - More on: Obama to nominate two women to fill SD Indiana vacancies

Updating this ILB entry from Jan. 16th, Indy 6News is reporting "2 Women Among Bayh's Federal Judge Nominations: Bayh's Office Confirms 2 Nominees," the Bayh nominees for the SD Indiana judgeships are U.S. Magistrate Judge Stinson and Marion County Superior Court Judge Tanya Walton-Pratt.

The formal announcement of the nominees, along with the name of the third nominee, to fill a federal judicial vacancy in the Northern District, is expected at a 2 PM press conference.

More: In the ND, Jon E. DeGuilio will fill the seat vacated by Judge Sharp's retirement.

[Still more] No word on nominees to fill the U.S. Attorney slots in either the Northern or South Districts of Indiana.

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Indiana Courts

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

Good morning and welcome to another work week. Here is the answer to "What did you miss from the ILB during the past weekend?"

From Sunday, Jan. 17, 2010:

From Saturday, Jan. 16, 2010: From Friday afternoon, Jan. 15, 2010:

Posted by Marcia Oddi on Monday, January 18, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/18/10):

Thursday, January 21st

Next week's oral arguments before the Supreme Court (week of 1/25/10):

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 1/18/10):

Thursday, January 21st

Next week's oral arguments before the Court of Appeals (week of 1/25/10):

Next Monday, January 25th

Next Wednesday, January 27th

Friday, January 28th

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, January 18, 2010
Posted to Upcoming Oral Arguments

Sunday, January 17, 2010

Ind. Courts - Supplementing "Cass Superior Court Judge rejects traffic violator plea deal"

The ILB had an entry Jan. 12, 2010, quoting a story from the Logansport Pharos-Tribune that began:

A judge has rejected a plea deal in a case involving a Logansport man with a lengthy rap sheet of traffic offenses, including driving while suspended for life.

On Monday, Cass Superior Court II Judge Rick Maughmer said he could not accept terms of an agreement that called for 50-year-old Niger Castro Lopez to spend two years on in-home detention followed by six years of probation. The judge said because of repeated offenses that punishment would be too lenient.

Lopez is facing a charge of operating after lifetime suspension, a class C felony that carries a maximum of eight years in the Indiana Department of Correction.

Today Alicia Gallegos of the South Bend Tribune has a long Sunday story about another case, this one involving drunken driving, headlined "Is legal system tough enough? Man accused of drunken driving, causing officer's death had multiple DUIs on his record, but saw very little punishment." A quote from the story:
Some, such as Dave Beaty, South Bend Fraternal Order of Police president, believe Devine's history is a classic example of a convicted criminal's past never being taken seriously.

"They start to look at the justice system as a joke," Beaty said of habitual offenders. "Ideally, in a better system, you give breaks for maybe first-time offenders. But you can't do it the 10th time. That's not working."

Beaty and others, such as advocates with Mothers Against Drunk Driving, believe the court system is too soft on drunken drivers and that too often it takes causing a serious injury or even death for drivers to face stiffer penalties.

Devine is now charged in connection with last weekend's death of Mishawaka Police Cpl. James Szuba, who was killed when Devine's SUV plowed into his police cruiser during a pursuit. Tests showed Devine's blood alcohol level was almost triple the legal limit.

Advocates say laws in Indiana need to be stricter and more done within courts to keep intoxicated residents from driving.

Court officials argue they only have so much discretion when it comes to the guidelines of Indiana law and a wide range of factors affect charging and sentencing decisions.

Meanwhile, legislation introduced just last week means a new mandated regulation for drunken drivers might be in the works.

Posted by Marcia Oddi on Sunday, January 17, 2010
Posted to Indiana Courts

Ind. Decisions - More on "Valpo couple wins flooding suit judgment "

There is a second story within the week about a Valpo resident being granted a default judgment for more than "$100,000 for flood damage and property value losses because [the City] didn't file a timely response to a lawsuit." This Jan. 12the story was from the NWI Times. It reported:

But the victory might be short-lived. The city intends to seek a reversal of that judgment, said David Hollenbeck, city attorney.
However, no clue is given as to how the City plans to go about addressing the fact that it failed to file a timely response, and why it thinks it will be successful, other than City Attorney David Hollenbeck's statement in the story that "Hollenbeck said the deadline was missed because of confusion between his office and the city's insurance provider."

The second story is a brief report today in the Gary Post-Tribune, reported by James D. Wolf, Jr. Some quotes:

VALPARAISO -- The city officially owes a resident more than $100,000 for flood damage and property value losses because it didn't file a timely response to a lawsuit.

However, that may change on Feb. 18.

Judge Roger Bradford will decide then whether to set aside a default judgment he granted earlier this year.

The 8:45 a.m. hearing is scheduled a month before a March 18 hearing that would decide what the city owes the property owners, Bradford's staff said. * * *

The Brown's attorney, Michael Harris, filed the suit last November.

He said in December that a retention pond dam behind Inman's Fun & Party Center spilled over, sending 50,000 gallons of water into the Browns' home.

City Attorney David Hollenbeck said he and the city's insurance company have been talking with the attorneys in Harris' firm but didn't file a response to pleading on time.

Harris asked for a default judgement last week.

It was granted but is now under contention.

Hollenbeck said, "I have filed the appropriate pleadings to have it set aside."

If the default judgement is set aside, the March 18 hearing will be canceled.

Posted by Marcia Oddi on Sunday, January 17, 2010
Posted to Ind. Trial Ct. Decisions

Saturday, January 16, 2010

Courts - Broadcasting same-sex marriage trial, or not; Making anti-same-sex petition signers' names secret, or not

Broadcasting same-sex marriage trial, or not. Updating this ILB entry from Jan. 13th, Robert Barnes of the Washington Post had a story yesterday headed "High court's broadcast ruling under microscope." A few quotes:

The question of whether the trial should be broadcast, seemingly a politically neutral question, has been cast in decidedly ideological terms beyond the court. Conservatives view the proceedings as a show trial from one of the nation's most liberal cities meant to promote a gay rights agenda. Liberals said the trial would expose bigotry on the part of those who promoted Proposition 8.

Those issues were not in front of the court, of course. But they create an atmosphere of "what side of the cultural divide are you on," [Andrew Koppelman, a law professor at Northwestern University] said.

The unsigned opinion represented the views of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Justice Stephen G. Breyer was joined in his signed dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor.

[Dale Carpenter, a civil rights and constitutional law professor at the University of Minnesota] said he thought the ruling brought two ominous messages for proponents of same-sex marriage. One was that the majority seem to regard [Judge] Walker with skepticism for his efforts to more broadly disseminate the trial. The other was an acceptance of the argument from proponents of Proposition 8 that they face harassment and even physical threats for their testimony, and that even limited broadcast of their appearances at the trial would cause them irreparable harm.

"Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment," the majority said, citing newspaper articles. The dissent dismissed such concerns, noting the witnesses have already demonstrated themselves as opponents of same-sex marriage in ways "far more likely to make them well known than a closed-circuit broadcast to another federal courthouse."

A quote from what Emily Bazelton writes in Slate:
Also, weirdly, all of this fuss is about Judge Walker's decision—approved by 9th Circuit Judge Alex Kozinski—to stream live video to five other courthouses across the country, while forbidding any rebroadcast. Judge Walker had planned to also post the video to YouTube with a time delay, but that process hadn't been sorted out yet (because of technical difficulties), so the YouTube idea isn't ready for review. The Supreme Court has surely killed it, but the formal disconnect means that the court came down from on high and interrupted its own busy week to block people from watching the gay marriage trial in five courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena. Really? What would have been the harm in as many press and interested observers who could have crammed into those courthouses watching a feed, when there are already hundreds of them at the trial? What's the Supreme Court afraid of—a love-in?

In his dissent, Judge Stephen Breyer expresses much puzzlement. (Joining him are Justices Sotomayor, Ginsburg, and Stevens.) Breyer asks a basic question: What is the legal source of the court's authority to tell a district court how to change its own rules? Breyer lists the judicial councils with the power to set rules for this California trial court. The Supreme Court isn't on it. The justices haven't interfered with the Circuit Judicial Councils that preside over such rule-making for 80 years—that is, since their creation. Breyer can't find any precedent for what the court is doing. He calls it "inadvisable" and says the court is micromanaging. He is being polite. His most pointed dig is to quote Scalia saying, in a previous case, "I do not see the basis for any direct authority to supervise lower courts." That was then, apparently.

Making anti-same-sex petition signers' names secret. And just yesterday the Supreme Court granted cert in a test of whether referendum-signers have the right to keep their names secret. Adam Liptak of the NY Times has an article about the grant today. Some quotes:
WASHINGTON — The Supreme Court on Friday agreed to decide whether the First Amendment requires that the names of people who sign ballot-initiative petitions be kept secret.

As in the court’s decision on Wednesday to block the broadcasting of the trial of a challenge to a ban on same-sex marriage in California, the appeal was brought by opponents of such unions who said they feared harassment should their views be made widely known.

The new case arose from an effort to overturn a Washington State domestic partnership law known as the “everything but marriage” act. Opponents of the law gathered more than 130,000 signatures, enough to place a referendum on the November ballot.

Several groups asked the state to turn over the names, under its public records law, and two groups said they intended to post the names on the Internet. Their goal, according to a news release, was to encourage conversations among friends, relatives and neighbors that “can be uncomfortable for both parties.”

Protect Marriage Washington, a group that supports traditional marriage, sued to block release of the names, saying disclosure would probably result in “threats, harassment and reprisal.”

A federal judge granted the request, but the judge’s order was overturned by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco.

The Ninth Circuit panel said it was unclear whether petition signatures were speech protected by the First Amendment. In any event, it said, the signatures were gathered in public with no promise of confidentiality and collected on sheets with space for 20 signatures each.

Even if the names had warranted some First Amendment protection, the panel said, that protection was overridden by two justifications: protecting the integrity of elections through transparency and providing voters with information about who supported placing the referendum on the ballot.

As in the same-sex marriage case, the Supreme Court intervened at an unusually early stage in the Washington case, staying the Ninth Circuit’s ruling in October. That had the effect of blocking disclosure of the names through the election in November. The effort to overturn the everything-but-marriage act failed.

The case is Doe v. Reed. Rick Hasen of Election Law Blog writes: "the case, like Citizens United and the Prop. 8 trial case, fits into the meme of conservatives facing harassment for their views (sometimes even if their views represent the views of a (slim) majority of the population!)."

Here is what Lyle Denniston wrote yesterday in SCOTUSBlog. A quote:

The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving gay rights opponents’ claims that publicity about their political activity has led to threats and even some violence against them. On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.

Posted by Marcia Oddi on Saturday, January 16, 2010
Posted to Courts in general

Courts - "Something's Fishy at the High Court"

Tony Mauro of The National Law Journal explains how the case got to the Supreme Court so fast, in this entry today. Some quotes:

The answer is that Michigan, in its effort to keep the carp from overtaking Lake Michigan, used as its vehicle three original-jurisdiction Supreme Court cases dating back to 1922.

In that year, states surrounding the Great Lakes sued the state of Illinois and the Metropolitan Sanitary District of Chicago to halt the diversion of Great Lakes water by Chicago to flush its sewage into the Mississippi River.

These suits, known then as the "Great Lakes cases," have a rich history, including the appointment by the Court of Charles Evans Hughes, the then-future chief justice, as special master to gather facts and offer a recommendation to resolve the dispute. The cases have remained open ever since. Michigan said the imminent danger of the carp reaching Lake Michigan was within the scope of the original cases. Illinois and the U.S. solicitor general disagree.

It was no surprise that Michigan would use the 90-year-old cases to raise the current controversy, said Noah Hall, professor at Wayne State University Law School, who has written extensively on Great Lakes water issues. "Those cases are the defining source of law for Great Lakes management, not some forgotten artifact," he said.

And it turns out Prof. Hall has a blog titled Great Lakes Law, with a special page collecting the links to all the Supreme Court filings involving the Asian carp.

Posted by Marcia Oddi on Saturday, January 16, 2010
Posted to Courts in general | Environment

Ind. Courts - Obama to nominate two women to fill SD Indiana vacancies

The Indianapolis Times Blog reported last evening in a post that begins:

U.S. Sen. Evan Bayh will reveal President Barack Obama's nominees to fill two spots on the U.S. District Court for the Southern District of Indiana at a press conference on Monday, the Indianapolis Times has learned.

The president's two nominates to be Indiana's newest U.S. District Court judges are expected to be U.S. Magistrate Judge Jane Magnus-Stinson and Marion County Superior Court Judge Tanya Walton Pratt:

Posted by Marcia Oddi on Saturday, January 16, 2010
Posted to Ind Fed D.Ct. Decisions

Friday, January 15, 2010

Environment - More on "SCOTUS Expected To Hear Asian Carp Arguments Today"

It never happened. Tina Lam of the Detroit Free Press reports this evening:

The U.S. Supreme Court, which met today in a closed conference, took no action on the Michigan attorney general’s request for an injunction to shut down Chicago-area locks to keep Asian carp out. The court is closed Monday. No dates are set for the court to decide on the injunction or even whether to accept the case.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Environment

Ind. Decisions - One Indiana decision today from 7th Circuit

In U.S. v. Jason E. Clinton (ND Ind., Van Bokkelen), a 10-page opinion, Judge Bauer writes:

Jason Clinton appeals his conviction and sentence for unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Clinton claims that the district court erred by admitting evidence of the handgun, and by finding that his prior behavior leading to a conviction for criminal recklessness under Indiana law was a “crime of violence” for purposes of enhancing his sentence to one hundred months under the United States Sentencing Guidelines § 2K2.1(a)(4)(A). We have reviewed the district court’s legal conclusions de novo and its findings of fact for clear error. Finding no error, we affirm.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In State of Indiana v. Michael Haldeman/ Rachel Lawson, an 8-page, 5-0 opinion, Justice Dickson writes:

Each of these two consolidated appeals presents the same question: whether the State must comply with Indiana Criminal Rule 25, which imposes a stay pending preliminary appellate review of a warrant authorizing interception of telephonic or telegraphic communications, not-withstanding the legislative repeal of the statutory provision requiring such review. We hold that the State was not authorized to disregard its obligations under Rule 25, which was in effect and had not been repealed or modified. Under the facts of these cases, however, the failure to seek preliminary appellate review does not require reversal because the defendants have not demon-strated that the State's failure affected their substantial rights. * * *

The trial court suppressed the evidence in these cases solely because of the State's failure to comply with the preliminary appellate review requirement of Rule 25. The State appealed and, pursuant to Appellate Rule 56(A), immediately sought emergency transfer to this Court, which we granted. * * *

In each of the two cases, both of which were pending before Judge Christopher Burnham, Morgan Superior Court No. 2, the same attorney represented each defendant and filed a substantially identical motion to suppress the wiretap evidence and all derivative evidence, based upon the State's failure to seek preliminary appellate review pursuant to Rule 25. The defendants' motions did not otherwise challenge the warrants on procedural or substantive grounds, including probable cause, reasonableness, or improper execution by the officers. In identical, thoughtful, eight-page orders issued the same day, Judge Burnham granted each motion to suppress. From these orders the State appeals. * * *

The legislature's repeal of Indiana Code § 35-33.5-3-3, which required an automatic ap-plication to and review by the Indiana Court of Appeals before the execution of a wiretap war-rant, did not invalidate Criminal Rule 25 and its requirement that a prosecutor must file a petition for review by said court before implementation of a wiretap warrant. The State failed to comply with Rule 25 with respect to the warrants which were the bases for the evidence in the present cases. Neither defendant has asserted or demonstrated, however, that compliance with Rule 25 would have produced any impediment upon the execution of the warrants. Because the defen-dants thus failed to establish that the error or defect in failure to comply with Rule 25 affected the defendants' substantial rights, it was legal error to grant the motions to suppress.

We reverse the trial court orders granting the defendants' motions to suppress and remand each of the cases herein consolidated for further proceedings.

Shepard, C.J., and Sullivan and Boehm JJ., concur. Rucker, J., concurs in result.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Ind. Sup.Ct. Decisions

Environment - "Crawford County residents question biomass power project"

Interesting, especially in light of: (1) this ILB entry from Jan. 7, 2010 headed "Environment - Rules proposed again to regulate outdoor wood-fired boilers," and (2) the active opposition of Forrest Lucas, the motor oil magnate, who paid $121.5 million for the naming rights for Indianapolis' football stadium, is this long story today by Grace Schneider of the Louisville Courier Journal. A few quotes:

A crowd of Crawford County residents has urged Indiana environmental regulators to postpone action on an application to build a wood-burning power plant near Milltown and instead order a full environmental impact study.

Community members cited concerns about public health – especially at a nearby elementary school – and questioned how the Indiana Department of Environmental Management would test and monitor the so-called “biomass” plant to ensure its operators stay in compliance with emission limits.

More than 200 people, some wearing T-shirts that said “No Biomass Incinerator,” turned out Wednesday for a meeting that lasted more than 4-1/2 hours at the county’s 4H Fairgrounds, where agency officials responded to questions about a draft air-quality permit outlining proposed emission limits and other requirements for the $90 million project.

Liberty Green Renewables LLC, the company seeking the permit, has estimated its operations would emit 245 tons of nitrogen oxide and 226 tons of carbon dioxide each year, in addition to 11 tons of chemicals classified as hazardous air pollutants. Besides the air permit, Liberty Green’s partners have applied for a separate permit to disburse more than 200,000 gallons of cooling water daily across its site near the corner of Ind. 66 and Ind. 64.

The company also is seeking to build a similar power plant near Scottsburg in Scott County, and regulators have scheduled a public meeting for Feb. 3 at 5:30 p.m. at Scottsburg High School. * * *

Many of the questions raised at the session focused on the state’s oversight of the plant – about testing the wood that would be used to fuel it and about maintenance and ash disposal.

“Who’s going to be watching over what they burn?” asked Forrest Lucas, owner of lubricants manufacturer Lucas Oil Co.

Lucas, who recently hired lawyers to review the issue, told Matt Stuckey, chief of IDEM’s air-quality permitting branch, that despite Liberty Green’s claims that only “clean wood” would be burned, company executives told him during a meeting that they expect to burn wood from demolished houses – material that Lucas said would contain lead, asbestos and metals.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Environment

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

For publication opinions today (1):

In Michael P. Dunn v. State of Indiana , a 9-page opinion, Judge Crone writes:

Michael P. Dunn appeals his conviction for battery causing serious bodily injury, a class C felony, arguing that the trial court abused its discretion in admitting evidence. We affirm. * * *

The prosecutor asked her whether she remembered making a phone call to Rollins about an hour after the incident and leaving a voicemail message, and she again stated that she did not remember. Id. at 319-20. The prosecutor then asked that the voicemail message be admitted. Defense counsel again objected because a foundation had not been laid for its admission. Id. at 321-22. The prosecutor responded that Rollins had testified on redirect that he received a phone call from Mathys about an hour or an hour and a half after the incident. Outside the presence of the jury, the State played the voicemail message to Mathys to refresh her memory. The jury was brought back into the courtroom, the prosecutor asked Mathys whether it was her voice on the voicemail message, and she testified that it was. The trial court then admitted the voicemail message over Dunn’s objection, and it was played to the jury: * * *

Dunn argues that, because the State failed to lay a proper foundation, the trial court erred in admitting Mathys’s voicemail message to Rollins. * * *

Dunn contends that the voicemail message was inadmissible pursuant to Indiana Rules of Evidence 602 and 701. * * *

[W]e conclude that the admission of the voicemail message did not violate either Evidence Rule 602 or 701.4 We therefore affirm the trial court.
______________
[ILB: Of interest, particularly in light this post earlier today, is footnote #3 on p. 3.] [3] The appellant’s appendix contains a copy of the entire transcript and exhibit volume, as well as numerous other court documents that are unnecessary for the resolution of the issue on review. The result is a five-volume appellant’s appendix of over 800 pages, an enormous waste of paper and expense. We refer appellant’s counsel to Indiana Appellate Rule 50, which describes the proper contents of an appendix, including, among other things, only those portions of the transcript that are important to the issues on appeal.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Leon Wooden v. State of Indiana (NFP)

Victor Sobolewski v. State of Indiana (NFP)

Gordon Armour v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Ind. App.Ct. Decisions

Environment - "SCOTUS Expected To Hear Asian Carp Arguments Today"

Holland Michigan's WHTC is reporting:

The fight to close locks in Chicago feeding into Lake Michigan to prevent the spread of the Asian carp into the Great Lakes goes to the U.S. Supreme Court today. Justices are scheduled to hear arguments on the case today. Five states, including Michigan, and Ontario are suing to close the Chicago Ships and Sanitary Canal to protect the fishing industry. A spokesman for Attorney General Mike Cox said it's not known if the justices will rule today or not.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Environment

Ind. Courts - Returning to: Appellate Clerk's Office now authorized to serve orders, notices and opinions via e-mail

In this entry on Wednesday, Jan. 13th, the ILB related practitioners' problems with the Appellate Court Clerk's Office's current implementation of the revision to Appellate Rule 26, requiring the Clerk to transmit orders, opinions, and notices by e-mail to all parties represented by attorneys.

I would like to clarify that nothing in that post was intended as criticism of the operation of the Indiana Court of Appeals. The Court of Appeals has no say over the operations of the Clerk's Office. The COA is simply a customer, much like the practitioner, although the COA handles over 90% of the State's appellate business.

This matter of who to look to for corrections and improvements has come up in the past, re issues relating to the timely posting of opinions, the sudden and complete disappearance of certain cases from the Clerk's docket, and the timely transmission of fully-briefed cases to the COA itself (see, eg this ILB entry from 4/1/09).

The COA also has had no input into the building and maintaining of the Clerk's docket, or into the hiring of the Director of Appellate Court Technology and has no role in his job description or performance.

Finally, with regard to a reader's comment that with respect to the Rule 26 "electronic" notices, "each e-mail message and confirmation from the attorney is being printed out and placed in the physical file" in the Clerk's Office, belying the "green court" designation, it is only the Court of Appeals, not the Supreme Court, and not Clerk's Office, that has been named a Law Office Climate Challenge Partner by the Section of Environment, Energy, and Resources (SEER) of the American Bar Association. As indicated in this press release from April 27, 2009, of which the COA is justly proud:

The Court of Appeals of Indiana has taken a number of steps to improve the environment, including implementing a paper recycling plan in all offices, changing purchasing practices such that all copier and printer paper is 100% recycled and other office supplies are 30-100% recycled content, and implementing a policy whereby opinions to be handed down are circulated electronically instead of making a hard copy for each office.

Posted by Marcia Oddi on Friday, January 15, 2010
Posted to Indiana Courts

Thursday, January 14, 2010

Law - Senate Republicans want new Judiciary Committee hearing on Dawn Johnsen because of Christmas Day bombing attempt

Really. See this Roll Call report ($$) that begins:

Republicans on the Senate Judiciary Committee called on Chairman Patrick Leahy (D-Vt.) to hold new hearings on Dawn Johnsen to become the new assistant attorney general for the Office of Legal Counsel, arguing that the failed Christmas Day bombing and other events require the panel to hold fresh hearings on her nomination.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to General Law Related

Law - "BigLaw Stepping Up on Haiti Aid"

The WSJ Law Blog has a rundown here.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to General Law Related

Ind. Decisions - Two cases granted transfer Jan. 14th

The Clerk's transfer list should be available hopefully by Monday. Meanwhile, the ILB has just received notice that transfer was granted today in two cases:

(Notice that both COA and the new Supreme Court case numbers are listed. This is very helpful and appreciated.)

More on the opinions themselves later.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Indiana Transfer Lists

Courts - "Judge finds jury misconduct in taser death case" [Updated]

A federal district court decision today dealing with both tasers and juror misconduct (by accessing the internet).

The AP has this brief report:

LOUISVILLE, Ky. -- A federal judge has ruled there was jury misconduct in a civil case brought against Louisville police by the estate of a man who died after being shocked with a Taser.

U.S. District Judge John G. Heyburn II ruled Thursday that jurors researching information about Tasers on the Internet could have affected the panel's inability to reach a verdict on whether officer Michael Campbell should have any liability in the death of Larry Noles. * * *

Noles' estate sued police after his death claiming officers deprived Noles of his civil rights by using excessive force to take him into custody.

Heyburn set Campbell's retrial for February.

Recall this ILB entry from Jan. 1, 2010, headed "Federal Court Limits the Use of Tasers," involving a 9th Circuit decision.

[Updated at 5:00 PM] Here is Judge Heyburn's 2-page opinion in Meinhart v. Campbell. Here is all that is said re the misconduct:

Everyone agrees that certain misconduct occurred among several jurors in connection with the jury deliberations in this case. That misconduct could well have affected the jury’s view about the lethal or non-lethal nature of taser use. Normally, in such a circumstance the proper course of action would be to set aside all verdicts and retry all claims. However, in our case, the evidence at trial may make such action inappropriate as to Metzler.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Courts in general

Ind. Gov't. - "Geographic Distribution of Per Capita Net Tax Payments"

An editorial today in the Indianapolis Star points to a report of the Indiana Fiscal Policy Institute. The editorial begins:

Imagine yourself as the perfect statistical Hoosier taxpayer. Now decide where in the state you wish to reside.

If you chose Vanderburgh County, it'll cost you -- $1,251.08 a year, according to the Indiana Fiscal Policy Institute.

If you landed in Cass County, the state actually pays you -- a princely $1,944.11.

These per-capita figures are the lows and highs of a first-of-its-kind study of the flow of state tax dollars in Indiana. They're part of a big picture that refutes the cherished myth of favoritism toward urban areas.

In fact, when it comes to state revenues, the opposite is the case. With few exceptions, metropolitan counties such as Vanderburgh, Marion, Hamilton and Bartholomew tend to send the state more money than they get back in services. Rural counties such as Cass, Miami and Sullivan actually are net gainers.

All told, urban counties paid 82.5 percent of taxes in calendar 2008 and fiscal 2009, the institute says, while getting back 76.7 percent of revenue. The Indianapolis-area counties paid more than one-third of all state taxes and got back about 28 percent of state spending.

Here is the 12-page report, with some tremendously instructive graphics, such as those on p. 7 and p. 8.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Indiana Government

Ind. Decisions - "Victim’s threat sparks mistrial in carjacking"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

The trial of an accused armed robber ended in a dramatic mistrial Wednesday when the victim threatened to kill the defendant and stormed off the witness stand.

The woman, Jessica Simon, had been shot in the abdomen after she and her sister were carjacked by two men outside a home on Avondale Drive in September. * * *

It was during cross-examination that the proceedings seemed to be too much for Simon, who grew visibly impatient with defense attorney Quinton Ellis’ questioning.

When he asked her whether she struggled with the robber over her purse, Simon lost her composure.

“He (expletive) took it,” she yelled. “He (expletive) shot me.”

Then Simon screamed at Figgs and made her way toward the defense table, threatening to kill him. She was redirected by the bailiffs and ushered out of the courtroom.

Allen Superior Court Judge John Surbeck declared a mistrial, over the argument of Allen County Deputy Prosecutor Wendy Davis Williams.

Figgs remains in custody, and a new trial will take place in March.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (1):

In Grabill Cabinet Company v. Debra C. Sullivan, a 9-page opinion, Judge Bradford writes:

"A guaranty is defined as „a promise to answer for the debt, default, or miscarriage of another person.'” S-Mart, Inc. v. Sweetwater Coffee Co., 744 N.E.2d 580, 585 (Ind. Ct. App. 2001) (citation omitted), trans. denied . “It 'is an agreement collateral to the debt itself' and represents a 'conditional promise' whereby the guarantor promises to pay only if the principal debtor fails to pay." Id (citation omitted). * * *

The language of Sullivan's guaranty could not be more clear. * * *

Sullivan, however, contends that the guaranty is invalid because Grabill never signed it. * * *

We cannot agree with Sullivan on this point. Although the Statute of Frauds requires a guaranty to be in writing, only the “party against whom the action is brought” need sign it, and that requirement has been met here. See Ind. Code § 32-21-1-1(b). Indeed, this seems to be one of those propositions so well-settled in Indiana law that it is difficult to find recent cases restating it. * * *

In light of the clear language of the Statute of Frauds and Indiana Supreme Court precedent regarding guaranties, we are compelled to reverse the trial court's entry of summary judgment in favor of Sullivan and its denial of Grabill's motion to reconsider the denial of Grabill's summary judgment motion. We remand for entry of summary judgment in favor of Grabill on the issue of the enforceability of the guaranty and for calculation of Grabill's award.

We reverse the judgment of the trial court and remand with instructions.

NFP civil opinions today (1):

Timothy S. Egnew v. Purey R. Egnew (NFP)

NFP criminal opinions today (2):

Curtis Travis v. State of Indiana (NFP)

Derrick Brewer v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments

A reminder -- three oral arguments this morning before the Supreme Court, including Garcia-Torres, involving whether the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause. Check here for details on all three cases.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Upcoming Oral Arguments

Courts - More on both the Citizens United and Prop. 8 cases

The anticipated SCOTUS ruling re Citizens United v. FEC apparently will not issue this week. Yestersday Rick Hasen of Election Law Blog had an entry headed "The Surprising Citizens United-Prop. 8 Case Connection at the Supreme Court." Worth reading, particularly in conjunction with this ABC News story by Matthew Mosk, headed "Citizens United v. the FEC: The Return of Corporate Influence Peddling? As Supreme Court Weighs Landmark Case, Wealthy GOP Donors Bankroll Attack on Campaign Finance Law." A quote:

The lawyer who has handled the bulk of the cases is a Republican National Committeeman from Terre Haute, Indiana, James Bopp Jr. Citizens United, which hired Bopp in this latest case, is a conservative advocacy group that has produced searing documentaries aimed at Democrats. It was one of these, called "Hillary The Movie," that gave rise to this court challenge, which explores whether the government can restrict when the movie airs, or force the group to reveal who financed it.

"It's very clear that there is a coordinated effort going on to looking for each and every venue and each and every issue, to go shopping for cases and for friendly circuit courts, because they feel if they can get these questions to Supreme Court, they like their chances," said Meredith McGehee, who as policy director for reform-minded Campaign Legal Center has regularly fought these battles. "Jim Bopp is at the heart of it."

Bopp has quietly become one of the most influential figures in the world of campaign finance, having played a central role in the slow but steady dismantling of the current election restrictions.

Bopp launched the initial series of legal challenges to McCain-Feingold on behalf of Republican Sen. Mitch McConnell. In 2007, Bopp won a case before the Supreme Court on behalf of Wisconsin Right to Life that shredded one provision of the McCain-Feingold law, undoing limits on attack ads that are dressed up to look like commercials about policy issues. And he has three more cases in the pipeline aiming carefully crafted legal arguments at other core elements of the federal finance laws.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Courts in general

Ind. Law - Indiana State Treasurer urges Hoosiers to make a will

Several papers this week, including the Herald-Argus, have carried this press release from Treasurer Richard Mourdock:

A few times each year, the Treasurer of State’s Office receives a letter from an attorney or a probate court containing court documents and a check made payable to the State of Indiana. While it is certainly not unusual for my office to receive checks made out to the state, in these instances, sadly, it’s because a fellow Hoosier has passed away without a will and no heir could be found.

Indiana law provides that the estates of Hoosiers who die without a will and without immediate family go to the state. Last year, my office received over half a million dollars in this manner. I’m certain had these Hoosiers known this was going to be the end result that they would have chosen to make a will.

As the State Treasurer, I would like to encourage all Hoosiers to take the time in 2010 to seek out a competent attorney and execute a will. By doing so, you will ensure your last wishes for your money and possessions are clearly defined, and your loved ones are not left with the burden of spending unnecessary time and money in court to claim your estate. In the event that you do not have immediate family, consider

leaving your estate to a cherished friend, your church, or a meaningful charity. The ultimate “death tax” can be self-imposed. If you die without a will, all of your life savings could end up in the hands of the government. Plan ahead: Take the time to execute a will.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Indiana Law

Courts - "Kentucky's judicial branch has joined a Web site promoting government transparency"

From the Lexington Herald-Leader:

Gov. Steve Beshear and Chief Justice John D. Minton Jr. announced Tuesday that Kentucky's Open Door Web site has been upgraded to include all judicial branch expenditure and contract data.

Minton says it's part of an effort to increase the court system's accountability to Kentucky taxpayers. * * *

The Web site is updated twice daily and is maintained by the Finance and Administration Cabinet.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Courts in general

Ind. Courts - "Embattled Delaware County prosecutor McKinney gets court date"

Rick Yencer reports today in the Muncie Star-Press:

MUNCIE -- Delaware County Prosecutor Mark McKinney will face voters before facing a hearing officer on a disciplinary complaint over his handling of drug forfeiture cases.

Boone Circuit Court Judge Steven David has set a hearing for July 6 in Boone Circuit Court, Lebanon, on the Indiana Supreme Court Disciplinary Commission complaint alleging conflict of interest and conduct prejudicial to the administration of justice.

The complaint filed by Mayor Sharon McShurley nearly two years ago alleged McKinney's work as a civil attorney in drug forfeiture cases for the former Muncie-Delaware County Task Force represented a conflict with his duties as deputy prosecutor and later as the county's elected prosecutor. She also claimed McKinney misled local courts about drug forfeitures that were done without court adjudication. Last year, the disciplinary commission verified the complaint.

The prosecutor, a Democrat who intends to seek re-election when filing for the 2010 election begins next Wednesday, again said he would be glad to get his side of the story out. He is challenged in the May 4 primary election by J.A. Cummins, a senior prosecutor and former chief deputy prosecutor in Delaware County. No Republican candidates for prosecutor have so far come forward. * * *

McKinney had defended his representation of the DTF in civil drug forfeitures and later agreed to settle the complaint by taking a 90-day suspension from the practice of law. A majority of the Indiana Supreme Court rejected that suspension, saying it was insufficient in light of the misconduct.

Charles Kidd, staff counsel for the disciplinary commission who will present the case, indicated the hearing would be public. The hearing officer generally has 30 days to present a report to the Supreme Court to make a recommendation of whether the disciplinary action warrants a reprimand or possible suspension of a law license.

If McKinney won the primary and then lost his law license before the Nov. 2 election, the local Democratic Central Committee would have to appoint a candidate.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Indiana Courts

Ind. Courts - Evans-Koethe: "No recollection of details from shooting"

Updating this ILB entry from Jan. 6th, Alicia Ebaugh reports today in the LaPorte Herald-Argus:

LA PORTE — Jennifer Evans-Koethe, the suspended La Porte Superior Court 3 Judge, claims to have “no recollection” of many events cited in three judicial misconduct charges against her, asking in her response to have the charges dismissed.

Her response to the Indiana Commission on Judicial Qualifications’ charges was due Jan. 11, days after a Lake County jury found her not guilty of attempted obstruction of justice, a Class D felony.

The commission filed its judicial misconduct charges against Evans-Koethe last month, accusing her of deliberately withholding or misrepresenting pertinent information during taped statements and asking a police officer to destroy a handwritten note, which was potential evidence.

In doing so, Evans-Koethe violated rules of conduct for judges and attorneys that require them to “avoid impropriety and to act at all times in a manner promoting the public’s confidence in the integrity of the judiciary,” and “to not engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” the commission wrote.

In her response, Evans-Koethe denies being asked about the whereabouts of her Glock 9mm handgun when police came to her home in response to a shooting Dec. 22, 2008, saying she had no recollection of being questioned there. Evans-Koethe told officers she accidentally shot herself after an argument with her husband, Stephan Koethe. * * *

She also denies deliberately omitting disclosure of the note in a recorded statement.

Evans-Koethe was suspended as La Porte Superior Court 3 judge by the Supreme Court effective May 11, with pay, which is about $120,000 a year.

Within 30 days, the Indiana Supreme Court will appoint three masters (judges) to hear the case. Those masters will hear the evidence and submit a fact finding to the court.

“Ultimately, it is the Supreme Court that will determine what, if any, discipline is appropriate for Judge Koethe,” said Kathryn Dolan, Indiana Supreme Court public-information officer.

If charges in the three counts of judicial misconduct are affirmed, that could lead to her removal from the bench by the Indiana Supreme Court, the loss of her attorney’s license or both.

Posted by Marcia Oddi on Thursday, January 14, 2010
Posted to Indiana Courts

Wednesday, January 13, 2010

Courts - More on: Dispute about televising Calif. federal same-sex marriage test may prove instead a test between authority of Judicial Conference and the federal Circuits [Updated] [Updated again]

Updating this ILB entry from yesterday, Jan. 12, 2010, Tony Mauro of The National Law Review has now written an overview of the dispute, with links to the documents. The heading: "Top 9th Circuit Judge, Judicial Conference Tangle Over Video at Proposition 8 Trial ."

[Updated at 5:30 PM] Well, the news is not good if you favor public access to the courts.

Lyle Denniston has this entry, posted within the half-hour, headed "Prop 8 Court TV blocked: TV ban may outlast the trial." It begins:

Splitting 5-4, the Supreme Court on Wednesday blocked any television broadcast to the general public of the San Francisco federal court challenge to California’s ban on same-sex marriage. The stay will remain in effect until the Court rules on a coming appeal challenging the TV order. The Court, chastizing the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion. The ruling came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired. * * *

The Court’s main opinion opened with a display of pique at the trial judge and the Ninth Circuit Court for moving to allow TV broadcasts of the hotly controversial trial.

Tony Mauro of The Blog of Legal Times has this brief entry, that concludes:
Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. "The public interest weighs in favor of providing access to the courts," wrote Breyer. This post will be updated soon with more details.
[Updated 1/14/10] See this from the WSJ Law Blog, including this quote from the dissent in the SCOTUS opinion denying broadcast of a video feed of the Prop. 8 trial to a handful of other federal courts:
It is particularly inadvisable for this Court to consider this kind of question because it involves local rules and local judicial administration. Here, for example, the Court decides just how a district court should modify its own local rules; in a word, this Court micromanages district court administrative procedures in the most detailed way.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Courts in general

Ind. Gov't. - Still more on: Harold Holzer and the closed Lincoln Museum

Updating this ILB entry from Dec. 9, 2009, the Indiana Museum announces today in a press release:

INDIANAPOLIS - One of the nation's most-prized collections of Abraham Lincoln treasures has proven its fiscal mettle despite a serious national recession. The Friends of the Lincoln Collection in Indiana (Friends), which is raising funds for the care and display of the collection, today announced that the campaign has received $6.9 million in pledges and gifts during its first six months.

"There's no doubt that Abraham Lincoln holds a special place in the hearts of Hoosiers," said Ian Rolland, co-chairman of the Friends' fundraising committee. "In less than six months, we've surpassed the halfway point towards our $12.5 million goal for an endowment that will care for these historic treasures for many generations to come." * * *

To undertake the important work of preserving and sharing the collection for generations to come, the Friends group was established to help support the Allen County Public Library and Indiana State Museum in their conservation and exhibiting plans. The collection includes rare signed copies of the Emancipation Proclamation and the Thirteenth Amendment to the United States Constitution; copies of rare books about Lincoln; and tens of thousands of other unique and valuable documents and materials. On display at today's announcement were the last portrait for which Lincoln sat, a February 1865 painting, finished posthumously, by Matthew Wilson; and side-by-side cased ambrotypes of Lincoln's sons Willie and Tad.

Funds raised include a $3 million lead gift from Lilly Endowment, plus significant gifts from individuals and organizations throughout Indiana. * * *

At the Allen County Public Library, documents and photographs are available for in-person research today. The entire collection will, over time, be digitized for online use.

In Indianapolis, highlights from the Lincoln Collection go on display at the Indiana State Museum on February 12 with the premier of an exhibition called "With Charity for All: The Lincoln Financial Foundation Collection." It continues through July 25, 2010.

That exhibit is paired with a traveling Lincoln exhibition from the Library of Congress called "With Malice Toward None: The Abraham Lincoln Bicentennial Exhibition." It also opens February 12 at the Indiana State Museum and continues through April 11, 2010.

The Dec. 9, 2009 ILB entry included this quote from the FWJG:
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.
IMHO, at this point, it would be good if the State already had created, at a minimum, an online catalog of all the Lincoln documents and texts and the timetable for their digitization.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Indiana Government

Ind. Gov't. - V. Sue Shields appointed to Indiana Gaming Commission

Gov. Daniels this morning announced his appointment of the highly-regarded former jurist, V. Sue Shields (Noblesville), retired federal magistrate judge and earlier a judge on the Indiana Court of Appeals, to the 7-member Indiana Gaming Commission The commission licenses and regulates the state’s gaming industry.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Indiana Government

Ind. Decisions - No opinions posted as of yet today [Updated]

There may be a glitch, or there may be no new opinions ...

[Updated at 3:00 PM] Apparently there are no new appellate opinions today.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Appellate Clerk's Office now authorized to serve orders, notices and opinions via e-mail [Updated]

Updating this ILB entry from Jan. 5, 2010, quoting a message from Kevin Smith, Clerk of the Appellate Courts, that began:

On October 2, 2009, the Indiana Supreme Court amended Appellate Rule 26 to
require the Clerk to transmit orders, opinions, and notices BY ELECTRONIC
MAIL to all parties represented by attorneys. This amendment becomes
effective January 1, 2010.
and this brief update from Jan. 6th.

The ILB has received a note this morning for an appellate practitioner:

The Appellate Clerk's office is now sending out a separate e-mail FOR EACH PENDING CASE we have, and we have to confirm that our e-mail address works to receive service. For some of us who have quite a few pending cases, this is going to be burdensome to answer each and every one. Imagine the Attorney General, who is on EVERY criminal appeal; he's going to have to respond to each and every e-mail. This seems like a lot of work for no reason.

What's even funnier is that this process is to help the Court move towards electronic filing, theoretically to save the cost of paper and to be more efficient overall. Yet I have learned that each e-mail message and confirmation from the attorney is being printed out and placed in the physical file. So much for being a "green" Court.
ILB thoughts. Several things crossed my mind when I read this note.All in all, the goal of electronic filing seems a very long way off.

[Updated at 5:26 PM]
Another reader writes:
This really ticks me off, as well -- esp. if you get the wrong case for the practitioner or the party the first try. You can't return to a previous page of litigants when you are searching for a particular case; instead, you have to start all over again and put in the litigant's name. It is pretty frustrating. I thought they might fix that, but I don't see that happening.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Indiana Courts

Law - "28 percent of accidents involve talking, texting on cellphones"

From the Washington Post Breaking News Blog, a long story by Ashley Halsey III that includes:

Twenty-eight percent of traffic accidents occur when people talk on cellphones or send text messages while driving, according to a study released Tuesday by the National Safety Council.

The vast majority of those crashes, 1.4 million annually, are caused by cellphone conversations, and 200,000 are blamed on text messaging, according to the report from the council, a nonprofit group recognized by congressional charter as a leader on safety.

Because of the extent of the problem, federal transportation officials unveiled a organization Tuesday, patterned after Mothers Against Drunk Driving, that will combat driver cellphone use. The group, FocusDriven, grew out of a meeting on distracted driving sponsored by the U.S. Department of Transportation in the District last year.

Virtually everyone owns a cellphone, and it's evident to anyone who drives regularly that huge numbers of people, including some who support a ban, use them while driving. Persuading people to break that habit could be a tall order for FocusDriven. * * *

"It's not easy to enforce [a ban], but it's not impossible," said Chuck Hurley, executive director of MADD, who attended Tuesday's announcement of the new group's formation. "The main reason people talk on their cellphones is because they can. Eventually, [signal blocking] technology will address that."

Smith said law enforcement needs stronger laws and better tools to enforce them.

"Using a subpoena to get cellphone records has got to be a standard procedure," she said. "Perhaps cars should have a data recorder, like [an airplane's] crash recorder to use in these cases."

Whether the political will to enforce bans on cellphone use while driving exists is another matter.

Bans on text messaging while driving illustrate the challenge. Nineteen states and the District have banned it, but in four of those states, Virginia, New York, Washington and Louisiana, the laws require that an officer have some other primary reason for stopping a vehicle.

"That makes it impossible for police to enforce it effectively," said Illinois state Sen. John J. Cullerton (D), a leading traffic safety advocate. "It's a convenient way to compromise and get bills passed in state legislatures."

The South Bend Tribune had a story Jan. 6, 2010 headlined "Cell phone ban in South Bend brings few tickets: Enforcement spotty in school zones." Reported by Jeff Parrott, here are some quotes:
After their first semester of enforcing the new ban on cell phone use while driving in school zones, not many police officers scored high marks.

But it's a tough subject.

That's how some Common Council members reacted when hearing that only eight officers, out of more than 200 on the force, wrote tickets under the new ordinance from the time it took effect in August through December.

Just 13 of the $75 tickets were written, all of them in the after-school hour, according to records The Tribune obtained from the city clerk's office. * * *

"It's a hard ordinance to enforce," Goen said. "The officer has to sit in a school zone, watch that the yellow light is flashing, then watch the cars to see who is talking, then make sure the traffic is clear so you can safely pull out and pull the person over."

Common Council President Derek Dieter, also a police officer, said he was not surprised that so few tickets were written. Darkness makes it hard for officers to see into car windows before school, and after school, they are often busy fighting crime, he said.

When the council passed the ordinance 8-1 in July, Mayor Stephen Luecke encouraged members to consider banning cell phone use by drivers on all city streets.

Five months later, the council has yet to broach the issue. Dieter said he's leaning against it.

Dieter estimated that 30 percent to 40 percent of the drivers he sees are talking on cell phones.

"It's an important issue but there are a lot of things that need our attention before that," Dieter said. "I think police have more important things to do than look for the average citizen driving down the street and talking on a cell phone."

Council member Ann Puzzello, a retired teacher who pushed the ordinance the most in July, said she doesn't fault officers for the low number of tickets.

See also this ILB entry from Jan. 2, 2010, headed "More on: 'Lawmaker to push texting-driving ban.'" A check this morning shows SB 18 (texting while driving) still in committee, but with a number of members adding their name to the bill.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to General Law Related

Courts - Citizens United v. FEC decision today? No again.

Updating yesterday's ILB entry, the anticipated opinion in Citizens United v. FEC, the campaign finance case, was not issued today, Jan. 13, 2010.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Courts in general

Courts - "Indianapolis man 1st to be prosecuted under federal computer-extortion law"

Tom Spalding reports in the Indianapolis Star:

A 28-year-old Indianapolis man was sentenced today to two years in state prison for trying to extort $208,00 from an insurance company after stealing a computer server.

Kevin M. Stewart was the first to be prosecuted under a law that makes it a crime to commit extortion with material from a protected computer system. U.S. District Court Judge Sarah Evans Barker issued the sentence in U.S. District Court in Indianapolis.

In March 2006, Stewart burglarized the Indianapolis office of AIG Medical Excess, threatening to release clients' personal data on the Internet. The server contained the names of more than 900,000 insured persons, as well as their personal identifying information, and confidential medical information and e-mail communications. At the time of the burglary, Stewart was an employee of a private security firm that provided security services to the insurance company.

On July 23, 2008, Stewart delivered a package to the insurance company. The package included a letter stating that he possessed the stolen server and its confidential data. He asked for $1,000 a week for four years, but the FBI and others intervened. The Indiana State Police, the Indiana Department of Natural Resources, Indianapolis Metropolitan Police Department, and Attorney General also were part of the investigation.

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Ind Fed D.Ct. Decisions

Courts - More on "Can sex offenders be held after serving criminal sentences?" [Updated]

Updating this ILB from yesterday, Adam Liptak's coverage today in the NY Times clears up some questions I had when I read skimmed reports on the oral arguments. Liptak's story is headed "Supreme Court Weighs Authority, Not Legality, of Civil Confinements." The story begins:

WASHINGTON — The Supreme Court heard arguments on Tuesday about the controversial practice of keeping sex offenders locked up after they have completed their criminal sentences — but from an unusual angle.

The question was not whether the continued civil commitment of prisoners for fear that they remain “sexually dangerous” violates due process principles. It was, rather, whether Congress had the constitutional power to authorize the practice at all for federal prisoners. State civil confinement laws are not at issue in the case.

How Appealing has collected today's stories here.

[Updated 1/17/10] "U.S. Supreme Court: Throwing away the key for sex offenders?" is the headline to a Jan. 17th story by Michael Kirkland of UPI that reports:

WASHINGTON, Jan. 17 (UPI) -- The U.S. Supreme Court, after hearing argument last week, is set to decide whether the U.S. government has the power to commit indefinitely any federal prisoner who shows signs of being a sexual predator.

The issue is not whether it is a good idea to keep someone behind bars after serving a sentence but who has committed no new crime -- though there is considerable disagreement about the wisdom of such a policy. The issue is whether the federal government is usurping the power of the states. * * *

In 2006, President George W. Bush signed the Adam Walsh Child Protection and Safety Act, which among other things allows "the federal government to place in indefinite civil commitment 'sexually dangerous' persons," a federal appeals court said. The civil commitment procedures are not limited to prisoners convicted of sexual offenses, but can be applied to any prisoner in federal custody who has a history of illegal sexual conduct or attempts at such conduct.

So far, the commitment provisions of the federal act have been sparsely applied. Of the 15,000 or so federal prisoners with a history of sexual offenses, only about 100 have faced commitment procedures. But the program could be rapidly expanded in the face of public pressure.

In January 2009, an appeals court panel in Richmond, Va., said the act's provision granted "the federal government unprecedented authority over civil commitment -- an area long controlled by the states." The appeals court panel agreed with a federal judge that the provision "exceeds the limits of congressional power and intrudes on the powers reserved to the states." The Obama administration then asked the Supreme Court for review.

About 20 states have civil commitment laws to continue to imprison sexual predators after they have served their sentences.

In 1997's Kansas vs. Hendricks, the Supreme Court ruled 5-4 that the Kansas Sexually Violent Predator Act -- which sets up procedures for the civil commitment of persons who due to a "mental abnormality" or a "personality disorder" are likely to engage in "predatory acts of sexual violence" -- did not violate the "due process," or fair proceedings, guarantee of the Constitution.

But in 2002's Kansas vs. Crane, the high court ruled 7-2 that Kansas and other states must make some determination that a sexual predator cannot control his behavior when committing someone to an indefinite term.

The Supreme Court heard argument last week in the Adam Walsh Child Protection and Safety Act challenge. The dispute is making for some strange bedfellows. * * *

Besides the Obama administration, 31 state attorneys general told the Supreme Court they support the federal act.

The case is U.S. v. Comstock. The State of Indiana does not appear as a signatory on the posted AGs' brief

Posted by Marcia Oddi on Wednesday, January 13, 2010
Posted to Courts in general

Tuesday, January 12, 2010

Law - Are thngs looking up for Dawn Johnsen nomination? [Updated]

David Ingram of the Blog of Legal Times is reporting:

[L]ast year Specter helped delay Johnsen’s nomination. Specter was the top Republican on the Senate Judiciary Committee at the time. * * *

A statement from Specter's office [at 3:48 PM]: “After voting 'pass' (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor.”

[More] Here is the back-story, via Main Justice.

[Updated on 1/13/10] The Washington Post and Politico both have brief reports today on Specter's announcement and its possible effect.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to General Law Related

Courts - Dispute about televising Calif. federal same-sex marriage test may prove instead a test between authority of Judicial Conference and the federal Circuits

So concludes Lyle Denniston today in this SCOTUSblog entry, headed "Court TV and judicial powers."

[More] See this WSJ Law Blog entry by Ashby Jones that begins:

In this video on Monday, we reiterated what others have long said — that the Boies/Olson Prop. 8 trial could be the one that ultimately lands in the lap of the Supreme Court. If it does, it could go a long way in resolving one of the more divisive social and legal issues of the day.

The case could also do much to move along another debate — whether television cameras should be allowed in federal courtrooms. * * *

Meanwhile, there’s another storyline to mention here: Ninth Circuit judge Alex Kozinski, not known for kow-towing to authority, recently reiterated his feeling on the topic. * * *

According to the Recorder’s Dan Levine (who’s “tweeting” the Prop. 8 trial), the U.S. Judicial Conference, which sets policies for the federal judiciary, asked Kozinski to “consider” implementing conference policy against cameras in the court. Kozinski, who has what Levine calls a “turbulent history with Conference oversight,” wrote back defending the Ninth Circuit’s power to broadcast.

Wrote Kozinski:

Like it or not, we are now well into the Twenty-First Century and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Courts in general

Ind. Courts - Two interesting bills considered by House Judiciary today

The AP is reporting, via Fox 28:

Indiana lawmakers want to find ways to keep students who get into minor trouble at school out of juvenile court.

Supporters of the bill say zero-tolerance policies enforced by police clog juvenile courts with arrests for disrupting class and other minor offenses without improving school safety. They also say even a minor juvenile arrest can put youths on a path toward dropping out and going to prison.

The bill would set up a statewide study group that includes police, judges, teachers and others who work with children. Its goal would be to recommend better methods for handling juveniles who get in trouble at school.

The bill was approved by the House Judiciary Committee on Tuesday and now moves to the full House.

The 22-page bill is HB 1193 and seems broader than the above report.

Another bill considered by the same House Judiciary Committee today is HB 1167, authored by Rep. Moses, coauthored by Rep. L. Lawson. I've seen no report yet on the Committee's action, but it bears watching, as this has been a matter of controversy between the courts and the IDCS over the past year. The digest:

Placement of children outside Indiana. Removes a provision that states the department of child services (department) is responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana only if the director of the department or the director's designee recommends or approves the placement. Provides that the department is responsible for these costs and expenses if a juvenile court places a child in a home or facility that is located outside Indiana and the: (1) juvenile court makes written findings based on clear and convincing evidence that the out-of- state placement is appropriate because there is not a comparable facility with adequate services located in Indiana or the location of the home or facility is within a distance not greater than 50 miles from the county of residence of the child; or (2) placement is recommended or approved by the director of the department or the director's designee.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit issues interesting Wisconsin opinion today, and an Indiana decision [Updated]

And it is written by District Judge Van Bokkelen, of the ND Ind., sitting by designation. The opinion, in U.S. v. Danny Turner, begins:

Danny Turner was convicted by a jury of three counts of dealing crack cocaine. The district court sentenced him to 210 months of imprisonment on each count, to be served concurrently. Turner appeals, arguing that the district court should not have allowed a chemist to testify at trial about the nature of the drug exhibits because the chemist did not himself test those exhibits. Turner also believes that the district court should not have admitted the drugs into evidence because the government did not establish a proper chain of custody. We conclude that the district court was correct in both instances, and we affirm its judgment.
Note: I'm not clear on why the U.S. is shown as appealing here in the opinion's header.[Updated] Additional decisions have appeared on the 7th Circuit list, including an Indiana case:

In Angela N. LaFary v. Rogers Group (SD Ind., McKinney), an 11-page opinion, Judge Wood writes:

Angela LaFary liked her job as a field clerk at the Martinsville, Indiana, office of Rogers Group, Inc. (“RGI”), a company in the business of producing crushed stone for road construction and similar uses. Shortly after she became pregnant, however, RGI transferred her to Bloomington, eventually letting her go after she had taken more than six months of leave necessitated by complications with her pregnancy. LaFary sued RGI for age discrimination, sex discrimination, and retaliation. The district court granted RGI’s motion for summary judgment on all counts. LaFary appeals the decision on the sex discrimination and retaliation claims. As LaFary sees it, she was transferred from Martinsville to Bloomington because she was pregnant, and she lost her job because she asked for and took leave to deal with complications with her pregnancy. The district court found, however, that the evidence LaFary proffered at the summary judgment stage was not enough to support a prima facie case for either theory. It therefore granted summary judgment in RGI’s favor. We affirm.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Ind. (7th Cir.) Decisions

Environment - "IDEM quietly admits mistakes were made" says Gary Post-Tribune editorial

From today's Gary Post-Tribune, this editorial:

When someone has made a mistake, a public mea culpa might be in order. But sometimes, quiet action is better.

Take for instance two recent movements from the Indiana Department of Environmental Management after months of uncompromising reporting by the Post-Tribune, the watchdog of Northwest Indiana.

First, the state hired a chief of staff for IDEM Commissioner Tom Easterly.

Under Easterly's direction, IDEM has made a series of missteps, from failing to disclose public information about impaired waters, to closing its own enforcement office, to removing information about climate change from its Web site.

The agency also has mishandled documents about tons of waste at ArcelorMittal's Burns Harbor plant. The waste is dubbed "Easterly's pile" from his tenure when the plant was run by Bethlehem Steel.

The agency clearly needs someone with managerial experience and crisis management, which is what they get with Kent Abernathy -- although it would have been nice if he had some environmental management knowledge.

The second step noted this past week was by Easterly himself, who said IDEM likely will issue a revised air permit for BP's Whiting plant.

Since its issuance, there have been questions about whether the initial permit accounted for all emissions from BP's plant expansion.

And that's the very reason for the revised permit -- not all emissions were noted in the original permit, according to Easterly himself.

There's no need for breast-beating and hand-wringing.

Quiet change is admission enough.

Better yet, that quiet change leads to action.

That action will improve air quality in the state and, we hope, improve environmental management in Indiana for years to come.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Environment

Ind. Decisions - "Valpo couple wins flooding suit judgment "

Bob Kasarda reports today in the NWI Times:

VALPARAISO | A local couple recently won a default judgment against the city in a lawsuit over flooding in their home at 1804 Silhavy Road.

But the victory might be short-lived.

The city intends to seek a reversal of that judgment, said David Hollenbeck, city attorney.

Porter Superior Judge Roger Bradford granted the default judgment at the request of the couple's attorney, Mike Harris, who argued the city had failed to respond to his client's complaint within the 23-day required period.

A hearing is scheduled for March 18 to determine how much the city is to pay for damages.

Hollenbeck said the deadline was missed because of confusion between his office and the city's insurance provider.

The civil suit was filed by Richard and Janet Brown, who claim the lower level of their home was covered with more than 2 feet of water during a heavy rain Sep. 13, 2008.

Their suit claims the flooding occurred because the city dammed up the natural drainage in the area when it created a retention pond on an adjacent site. The home, patio and storage barns are reportedly about 2 to 3 feet lower than the drainage level established for the retention pond.

The city also had been sued by the owners of Schultz Floral Shop, 2204 Calumet Ave., who blame Valparaiso infrastructure improvements for causing flooding on their property Sept. 13 and 14, 2008.

In the more recent suit, the Browns claim the flooding caused $91,679 in out-of-pocket damages to their property and the ongoing cost of battling recurrent mold. The flooding also hurt the value of the house -- the owners are required to disclose the property's potential to flood to any prospective buyers.

The Browns said they tried a few times to resolve the issue with city officials, but were denied any relief.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Ind. Trial Ct. Decisions

Environment - "SCOTUS To Consider Carp Case On Friday" and "Carp DNA found closer to the lake"

From Chicagoist, this story by Marcus Gilmer:

The U.S. Supreme Court has set this Friday, January 15, as the day it will consider the lawsuit against the state of Illinois to close the locks on Chicago-area waterways to prevent the spread of Asian carp into the Great Lakes. The Court will consider the case in closed conference. The lawsuit was filed by the state of Michigan with Minnesota, Wisconsin, Indiana, Ohio, and New York jumping on board. Even the Canadian province of Ontario is getting involved. The SCOTUS was originally slated to take up the carp case last Friday but delayed it for a week. * * *

The SCOTUS could issue its ruling as early as Friday afternoon (Monday is Martin Luther King, Jr. Day, a federal holiday). The SCOTUS will either grant Michigan's request for a temporary injunction to close the locks, set a date for open hearings, or dismiss the suit.

Dan Egan reported yesterday in the Milwaukee Journal Sentinel in a story that begins:
Environmental DNA samples taken in recent weeks reveal that Asian carp apparently have infested another waterway just below the shores of Lake Michigan, this time north of downtown Chicago, the Journal Sentinel has learned.

U.S. Solicitor General Elena Kagan made reference to some "initial indications" of more waters infested with the jumbo-sized fish in a Jan. 6 memorandum to the U.S. Supreme Court. Kagan is opposing the State of Michigan's request for a Supreme Court injunction to close some navigation locks to keep the invasive fish from spilling into Lake Michigan.

To date, no actual Asian carp have been found above an electric barrier on the Chicago Sanitary and Ship Canal, about 20 miles south of the shores of Lake Michigan. But in November, the Army Corps of Engineers acknowledged that water samples tested positive for Asian carp "environmental" DNA above the barrier.

Those samples, taken by a team of University of Notre Dame researchers, indicated the fish are about six miles from the shore of Lake Michigan on the Calumet River south of downtown Chicago, just below the O'Brien lock.

Now a fresh batch of tests reveals that the carp have made their way up the northern branch of the Chicago River north of Chicago. That river has a direct connection to Lake Michigan via a "sluice gate" and pumps operated by the Metropolitan Water Reclamation District of Greater Chicago.

That system sucks Lake Michigan water into the North Shore Channel, which flows into the Chicago River, and it is one of the structures the state of Michigan - backed by Wisconsin, Ohio, New York and Minnesota - wants to close. The system also acts as a safety valve in big rains, sending floodwater backward through the gate and into Lake Michigan.

"On Dec. 31, 2009, the Corps learned that the University of Notre Dame laboratory has initial indications of two positive eDNA results for Asian carp in a new area, specifically silver carp near the Wilmette pumping station," states Kagan's memo.

The filing said the Army Corps was expecting a report confirming the finding by Jan. 7.

That report has arrived at Corps offices, and it shows the carp have made the advance north of downtown.

The story (from yesterday) concluded:
The Supreme Court may decide whether to consider the case at a conference Friday, though nothing has been announced officially. Meanwhile, Illinois Sen. Dick Durbin is planning to host a meeting Tuesday morning at Chicago's Shedd Aquarium for officials from the Army Corps and the EPA, among others, to talk about what steps the federal government intends to take to keep the fish from invading the Great Lakes.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Environment

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

For publication opinions today (1):

In Jason Smither v. Asset Acceptance, LLC , a 16-page opinion, Judge Barnes writes:

Jason Smither appeals the trial court's grant of summary judgment in favor of Asset Acceptance, LLC (“Asset”). We reverse and remand.

Although Smither has raised a number of issues, the primary and dispositive issue in this case is whether the applicable statute of limitations barred Asset's action against him. * * *

The Illinois Appellate Court recently addressed whether an action to collect credit card debt was governed by that state's statute of limitations for “actions on unwritten contracts,” or the statute of limitations for “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing . . . .” Portfolio Acquisitions, LLC v. Feltman, 909 N.E.2d 876, 881 (Ill. App. Ct. 2009). * * *

Feltman is highly instructive. It establishes that credit card accounts are unlike promissory notes or installments loans, such as mortgages, student loans, and car loans. In those types of written debt obligations, the total amount of indebtedness and a defined schedule of repayment, including precise dates for payment and the amount of each payment until the debt is fully repaid, typically are included in the loan document from the outset. With a credit card, although a credit limit may be established, the precise amount of debt that a consumer may undertake is unknown at the outset and fluctuates, depending on how the card is used. Instead, the creditor sends monthly statements to the debtor indicating the amount of that month's required minimum payment, which may vary depending upon how much the card has been used, whether the creditor has imposed fees of different kinds, whether the interest rate for the card is variable, and how previous payments have been made. Long-standing Indiana law also holds, “"The mere existence of any written document associated with a cause of action does not enable a claimant to avoid [the] statute of limitations for unwritten contracts [and actions on account]. The written document must in fact be the basis for the claim being pressed." McMahan v. Snap on Tool Corp., 478 N.E.2d 116, 123 (Ind. Ct. App. 1985). * * *

With Feltman's observations and our own, we note that credit card accounts would appear to closely resemble the common law definition of an “open account.” * * *

Thus, we will treat Smither's debt as an open account debt for statute of limitations purposes. The general rule is that the statute of limitations for an action on an open account “commences from the date the account is due.” 1 Am. Jur. 2d Accounts & Accounting § 22 (2005). It is also clear that when the last activity on an open account, such as the charging of an item or the making of a payment on the account, has occurred beyond the statutory limitations period, any action as to the entire balance of the account or any part of the balance is time-barred. See Hawkins v. Barnes, 661 So.2d 1271, 1272-73 (Fla. Ct. App. 1995). There is no indication in case law or other authorities that a creditor can indefinitely postpone the commencement of the statute of limitations by continuing to send additional statements demanding payment after the first demand has gone unpaid. * * *

Viewing Smither's credit card account as an open account, Providian and its successor Asset had, at the very latest, six years from March 11, 2000, to file suit against Smither seeking collection of any part the debt he incurred. Even if we were to assume Providian could have invoked the optional acceleration clause at a later date and thereby delay the running of the statute of limitations, it never did so. Thus, Asset's lawsuit filed on May 30, 2006, is completely time-barred.

We observe that, although this is an appeal from the grant of Asset's motion for summary judgment, “When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion . . . .” Ind. Trial Rule 56(B). It is clear not only that the grant of summary judgment in favor of Asset must be reversed, but also that Smither is entitled to summary judgment on remand because of our resolution of the statute of limitations issue.

Conclusion. Asset's claim to any portion of Smither's Providian credit card balance is barred by the statute of limitations. We reverse the grant of summary judgment in favor of Asset and remand for the trial court to enter summary judgment in favor of Smither.

NFP civil opinions today (2):

Robin (Caldwell) Kroot v. Christopher Caldwell (NFP)

In Paternity of G.H.W.; H.A.F. v. Y.K.W. (NFP), an 8-page, 2-1 opinion, Judge Barnes writes:

H.F. (“Mother”) appeals the trial court's calculation of child support to be paid by Y.W. (“Father”). We reverse. * * *

Generally, we agree with Father that trial courts have substantial discretion in calculating child support and that our decision in Freese intended that all relevant factors be taken into account when calculating child support. Nevertheless, Father offers no explanation for the $53.00 per week difference between the Guideline formulation for calculating child support and the Freese formulation for calculating child support. * * *

In the absence of evidence to support a deviation from the Guideline formulation, the trial court improperly ordered Father to pay $53.00 per week in child support. The trial court should have ordered Father to pay $106.00 per week in child support. We reverse.

MATHIAS, J., concurs.
BROWN, J., dissents with opinion: I respectfully dissent from the majority, concluding that neither case law nor the Indiana Parenting Time Guidelines prohibit the trial court from appropriately exercising its discretion as it did in this case. I would therefore affirm the trial court's decision.

NFP criminal opinions today (4):

Juan I. Olvera v. State of Indiana (NFP)

Jamar Alston v. State of Indiana (NFP)

Harold Ferrin v. State of Indiana (NFP)

Kevin S. Neal v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Ind. App.Ct. Decisions

Courts - Citizens United v. FEC decision today? No.

An anticipated opinion in Citizens United v. FEC, the campaign finance case, was not issued today.

See Sept. 6, 2009 ILB entry here.

This story from yesterday's Washington Post included this quote:

At the September arguments in Citizens United v. Federal Elections Commission, the more conservative justices indicated deep skepticism about the constitutionality of the bans on corporate spending. But because of the circumspect court's private deliberations, it is hard to speculate about the cause for delay -- except that the justices are deeply divided.

One possibility is that a broad decision declaring the restrictions unconstitutional has drawn lengthy dissents from those in the minority, who have no incentive for rushing the ruling. But equally possible is a failure to find a majority for such clear guidance and a multitude of competing opinions in which a narrow majority agrees only on the outcome in this specific case.

The ruling could come by Tuesday.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Courts in general

Courts - "Can sex offenders be held after serving criminal sentences?"

The SCOTUS is hearing arguments today in the case of U.S. v. Comstock (08-1224). See this How Appealing post for links to several stories, including Nina Totenberg's over 5-minute story this morning on NPR. See also this from SCOTUSblog.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Courts in general

Ind. Courts - "Three Indiana teen girls sue City of Madison over strip search"

Grace Schneider of the Louisville Courier Journal has a lengthy story today about a case pending in U.S. District Court in New Albany. Some quotes from the beginning of the story:

MADISON, Ind. — The high school girlfriends weren't known as troublemakers. One was a cheerleader, another a soccer player and the third grew up working on her family's farm.

But the Madison Consolidated High School seniors found themselves shivering on a winter night three years ago in a deserted church parking lot, surrounded by police, being questioned about drugs — and then strip searched.

"We were all so scared," one of them, Kristy Lessley, said in the first interview the women have granted since the incident Jan. 19, 2007. "We just froze."

The fear and embarrassment, however, soon turned to anger for Lessley and her friends, Kara Rhodehamel and Kayla Messer, who sued the city of Madison, former Mayor Albert Huntington, former City Attorney Robert Barlow, former Police Chief Robert Wolf, City Councilman James Lee and four police officers, claiming they were illegally strip-searched and confined. * * *

The case, pending in U.S. District Court in New Albany, was later expanded to include accusations that Wolf and others knowingly withheld key documents, destroyed evidence of police misconduct and generally stonewalled to protect themselves and officers.

Those claims prompted a federal judge to twice sanction and fine the defendant city and police representatives for interfering with discovery — penalties that Indiana University law professor Alex Tanford said are uncommon in such cases.

"Things have to be pretty bad" for a judge to impose sanctions and fines in the middle of a lawsuit, said Tanford, who was provided information about the case for an interview.

No trial date is currently set; a date set previously was postponed. The women are seeking unspecified damages and a jury trial.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Indiana Courts

Ind. Courts - "Notre Dame anti-abortion protesters to get new judge"

Updating this ILB entry from Dec. 3, 2009, Alicia Gallegos of the South Bend Tribune reports today:

MISHAWAKA — After an extensive debate, a Mishawaka judge has recused herself from the cases of nearly 90 anti-abortion protesters who have opted to take their cases to trial.

St. Joseph Superior Judge Jenny Pitts Manier confirmed Monday that she had recused herself from the cases.

The cases stem from a large group of people who were arrested on University of Notre Dame property in May protesting President Barack Obama's selection as commencement speaker. All 88 of the anti-abortion advocates have opted to take their trespassing cases to trial.

Manier's recusal comes after repeated arguments by defense attorney Thomas Dixon that Manier is biased and should not oversee the cases because of her husband's past post as a University of Notre Dame professor.

Manier previously has disagreed, arguing that her husband has no personal or professional interest in the outcome of the Notre Dame cases at hand and that their relationship in no way affected her court rulings.

After several motions and hearings, the recusal dispute was sent to the Court of Appeals for a final ruling. But Manier reversed her decision before the higher court reviewed the issue, thus making the appeal moot.
When asked Monday, Manier said she could not comment on her reasons behind the recusal because the cases were still pending.

“I think it would be inappropriate for me to say anything more but I'm recusing myself,” she said. * * *

Manier has directed the cases to St. Joseph County Chief Judge Michael Scopelitis who will now assign the case to a new judge.

Dixon said there is still no telling when or if the cases will head to trial, but added that not having to wait on the Court of Appeals decision will no doubt speed up the court process.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Indiana Courts

Ind. Courts - "Cass Superior Court Judge rejects traffic violator plea deal"

Kevin Lilly reports in the Logansport Pharos-Tribune today:

A judge has rejected a plea deal in a case involving a Logansport man with a lengthy rap sheet of traffic offenses, including driving while suspended for life.

On Monday, Cass Superior Court II Judge Rick Maughmer said he could not accept terms of an agreement that called for 50-year-old Niger Castro Lopez to spend two years on in-home detention followed by six years of probation. The judge said because of repeated offenses that punishment would be too lenient.

Lopez is facing a charge of operating after lifetime suspension, a class C felony that carries a maximum of eight years in the Indiana Department of Correction.

According to court records, an Indiana State Police trooper pulled Lopez over near Broadway and 10th Street on Feb. 15 after he allegedly failed to signal a lane change. A check on Lopez’ driving record revealed that his license had been suspended for life.

Past driving offenses include multiple arrests and citations for operating while intoxicated, driving without insurance and driving while suspended that date back to 2002.

Deputy prosecutor James Ackermann asked the court to accept the plea deal, as did defense attorney Jay Hirschauer. Both said the deal was fair and the best one Lopez could possibly get.

Hirschauer called Lopez a political refugee who did not understand why the consequences of driving without a license were such a serious offense and that he could end up in prison. His client, who required the services of an interpreter, drove to get to and from work, Hirschauer said.

Judge Maughmer explained that because Lopez had been put on probation in the past and drove anyway, Lopez needed a stiffer penalty that would send the message that driving without a license will not be tolerated.

The case has been put back on the court’s trial calendar. Lopez, who is out of jail after paying a $10,000 surety bond, is scheduled to be back in court March 29. Trial is set for April 14.

Posted by Marcia Oddi on Tuesday, January 12, 2010
Posted to Indiana Courts

Monday, January 11, 2010

Ind. Decisions - Transfer list for week ending January 8, 2010

Here is the Clerk's transfer list for the week ending January 8, 20010. It is five pages long.

One transfer was granted last week, in the case of James Hobbs v. State of Indiana - see this Jan. 8 ILB entry for details.

J. Sullivan and J. Rucker voted to grant transfer in one case where transfer was ultimately denied 3-2: D. B. v. State of Indiana, a NFP opinion from Nov. 13, 2009.

Transfer was granted, with an opinion, in the NFP COA case of Gary M. Hevner v. State of Indiana. See ILB summary of the Jan. 6th Supreme Court opinion here.

___________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the Oct. 9, 2009 list.

Almost 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, January 11, 2010
Posted to Indiana Transfer Lists

Ind. Law - What is the genesis of SB 60?

Senate Bill 60, which, according to the digest:

Creates the judicial computer systems commission to evaluate court and law enforcement computer systems and the judicial technology and automation project.
was introduced by Senator Steele and has been referred to the legislative Committee on Corrections, Criminal, and Civil Matters. The next meeting of that committee, which is chaired by Senator Steele and is made up of members M. Young R.M., Bray, Delph, Head, Waterman, Waltz, Hume R.M.M., Lanane, Tallian, Taylor, will be Tues., Jan 12th at 8:30 am. SB 60 is not on tomorrow's agenda.

The digest or SB 60 also indicates that "The introduced version of this bill was prepared by the sentencing policy study committee." That led me to review the minutes of the Sentencing Policy Committee to see the discussion of the Committee's proposal. The Oct. 29, 2009 minutes, for the last 2009 meeting of the Committee, cover the genesis of SB 60 -- discussion begins at p. 3:

Senator Steele introduced the issue of a legislative oversight board for the computer systems used in the criminal justice field. He passed out a handout on the subject. (Exhibit B)

Ms. Peggy Mayfield, the Morgan County Clerk, and Ms. Bev Elliott, the LaGrange County Clerk, spoke about their experiences in maintaining court records. They noted that they are not satisfied with the Odyssey system and that it is only used in 39 of 400 courts and 13 of 92 counties. Both Morgan and LaGrange Counties use other computer systems and they are satisfied with those systems. They noted that they would like to interface with Odyssey. These counties pay fees to the state for Odyssey even though they do not use it. Also, the system that they use has features that are not available in the Odyssey system.

Mr. Kevin Cook of CSI Computer Systems Inc. and Mr. Nick Bankhauser of Doxpop spoke about the advantages of using third-party record management systems. The system that CSI has in many counties in the state is less costly than the implementation of Odyssey has been thus far. Responding to questioning from Senator Steele, Mr. Cook said that CSI must remain competitive in the marketplace, and that forces his company to offer services at a low price. He noted that it costs under $100,000 to implement his system in most counties and that for all of his counties his total yearly maintenance charges are approximately $700,000.

Ms. Mary DePrez, the Director and Counsel of Trial Court Technology, explained that many of the cost estimates that are used for the Odyssey system are larger than the actual costs. She shared the advantages of Odyssey and noted the value of having one statewide system to manage court records.

The committee discussed the merits of Odyssey and the accomplishments of JTAC. Senator Steele outlined the composition of the commission that he suggested in Exhibit B. This proposal would create the Judicial Computer Systems Commission to evaluate court computer systems and the judicial technology and automation project. On voice vote, the committee members added the executive director of the Public Defenders Council and a representative from the DOC to this proposed commission.

The PD was moved and passed by a roll call vote of 10-6.

Exhibit B is found on pp. 5-6 of the minutes and appears to be the same as the text of SB 60. Unfortunately, I was unaware that the Sentencing Committee would be taking up Odyssey last October, or I would have made an effort to attend and take notes.

How does this recommendation tie in with the recommendation of the Commission on Courts to raise the automated recordkeeping fee, which funds JTAC, from $7 to $10 per case filed? I was able to attend the meeting of the interim Courts Commission last fall where this increase, and the whole Odyssey program, was discussed. I have finally transcribed my extensive notes and hope to post them shortly.

Posted by Marcia Oddi on Monday, January 11, 2010
Posted to Indiana Courts | Indiana Law

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

For publication opinions today (1):

In Northwest Towing & Recovery v. State of Indiana , a 14-page opinion, Chief Judge Baker writes:

Sometimes actions that are merely tangential in nature can produce Solomonic judicial actions and results. Today we are called upon to review the resolution of a dispute regarding a vehicle that was towed to and stored at Northwest Towing & Recovery’s (Northwest) facility at the Muncie Police Department’s request following a deadly traffic accident that ultimately resulted in a criminal conviction against the driver of the vehicle. The vehicle’s owner, who was not a party to the criminal proceedings, requested the return of the vehicle, and Northwest sought to recover its unpaid storage fees in excess of $3600.

Appellant, Northwest appeals the denial of its motion to correct error after the trial court limited its storage-fee lien to $1500 in accordance with Indiana Code section 32-33-10-5(b) against appellee Frances Brinkley, the owner of the vehicle. Specifically, Northwest maintains that the judgment must be set aside because Frances was not the “real party in interest” in accordance with Indiana Trial Rule 17(A). Northwest also asserts that it had a lien on the vehicle pursuant to Indiana Code section 9-22-5-15, exclusive of the limiting provisions of Indiana Code section 32-33-10-5(b), and that the trial court’s order requiring it to transfer the title back to Frances violated its due process rights. Frances cross appeals, claiming that the trial court abused its discretion in ordering her to pay anything for the return of her vehicle.

Concluding that the trial court properly ordered Frances to pay Northwest’s storage fees in an amount that did not exceed $1500, and finding no other error, we affirm the judgment of the trial court.

NFP civil opinions today (1):

Brigid Jacobs (Flannery) v. George Jacobs (NFP) - "Brigid Jacobs (Flannery) (“Wife”) appeals the trial court's order denying her petition for the modification of the dissolution decree between her and George Jacobs (“Husband”). She raises several issues, of which we find the following dispositive: whether Husband committed constructive fraud by failing to disclose that his military pension was a marital asset subject to division in the dissolution. * * *

"While Wife may have been entitled to a portion of Husband's military pension, Husband had no duty to provide legal advice to Wife on Indiana law regarding the distribution of such pensions in dissolution proceedings. Wife failed to seek legal counsel to properly advise her and cannot hold Husband responsible for her failure to do so. The trial court's decision to deny Wife's petition to modify the dissolution decree due to constructive fraud was not clearly erroneous. Affirmed."

NFP criminal opinions today (5):

Eric Hull v. State of Indiana (NFP)

Steven Matheny v. State of Indiana (NFP)

Dionne Stewart v. State of Indiana (NFP)

Courtney Simmons v. State of Indiana (NFP)

Daren Danzy v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 11, 2010
Posted to Ind. App.Ct. Decisions

Courts - Briscoe v. Virginia oral argument this morning before SCOTUS

See the SCOTUSlaw blog entry here.

See also Nina Totenberg's report this morning on NPR, headed "Criminal Prosecutors Pin Hopes On Sotomayor."

Here is a long list of earlier ILB entries on Briscoe, which revisits last term's ruling re admission of lab testimony.

Posted by Marcia Oddi on Monday, January 11, 2010
Posted to Courts in general

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

Good morning and welcome to another work week. Here is the answer to "What did you miss from the ILB during the past weekend?"

From Sunday, Jan. 10, 2010:

From Saturday, Jan. 9, 2010: From Friday afternoon, Jan. 8, 2010:

Posted by Marcia Oddi on Monday, January 11, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/11/10):

Thursday, January 14th

Next week's oral arguments before the Supreme Court (week of 1/18/10):

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 1/11/10):

Tuesday, January 12th

Thursday, January 14th

Next week's oral arguments before the Court of Appeals (week of 1/18/10):

Next Thursday, January 21st

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, January 11, 2010
Posted to Upcoming Oral Arguments

Sunday, January 10, 2010

Ind. Courts - "LaPorte County's work release program could be in jeopardy"

Alicia Ebaugh of the Michigan City News-Dispatch reports today in a story that begins:

La Porte County's work release program for prisoners may be in jeopardy, court and county officials said Thursday. Electronic monitoring, too. The county's Community Corrections building at 500 Monroe St., La Porte, is crumbling, and it doesn't meet Americans with Disabilities Act standards. The county needs to replace the building by September or shut it down.

What will happen to the programs then? Something will likely be figured out, said Community Corrections Director Eric Yandt, but county judges have been preparing their defendants for the worst.

In exchange for his guilty plea in La Porte Superior Court 1, Matthew Harvell agreed Thursday to serve one year in prison and five years on work release for his alleged role in a burglary.

"I've been telling this to all my defendants. If work release is not available, you'll have to serve the last five years of your sentence in the La Porte County Jail," Superior Court 1 Judge Kathleen Lang said to Harvell at his plea hearing.

"What? That's not what I agreed to," he replied incredulously.

"I have no choice. I cannot send you to work release if there is no work release," Lang said.

As a result, Harvell rejected the plea agreement, sending prosecutors and his public defender, James O. Cupp, back to negotiations.

For the past few months, Lang has been warning everyone whose plea agreements include work release that it may soon no longer exist.

"It's really frustrating for me. I have to tell them so they are fully informed of what's going on," she said. "Work release is a great program, it's something we need to have. It's a big part of their re-entry to society, it allows them to earn money to support themselves and their families."

Work release also helps people pay restitution to victims, as well as jail and court fees, said Atley Price, La Porte County chief deputy prosecuting attorney.

"If it does end, the county needs to realize there are a significant number of people already on work release and in the pipeline to go into it," Price said. "We would have to send them all to jail, and that could cause severe overcrowding."

Posted by Marcia Oddi on Sunday, January 10, 2010
Posted to

Ind. Law - Wine shipping in Indiana; and our other alcohol laws

Wine shipping. The ILB has had a number of entries over the years on wine shipping, and many of them have quoted from Dan and Krista Stockman's weekly column in the Fort Wayne Journal Gazette, "Uncorked." From this week's column:

Way back in 2005, the U.S. Supreme Court handed down a decision that wine lovers – including us – hailed as one that would finally end the confusion of the nation’s many wine shipping laws.

Boy, were we ever wrong.

More than four years later, things are more confusing than ever, and though we’ve written about the issue time and time again, we continue to get letters from readers asking us to explain it again. We’re happy to do that, but we also have an even better suggestion: Write to your state legislators, because they are the ones who created the system we have in Indiana now, and only they can change it.

And here’s an even better reason to write to them – the liquor lobbyists benefit greatly from the current system, and they are dropping bags of cash on your elected representatives every chance they get. So if you don’t write or call them, whom do they have left to listen to? That’s right, the guy with free tickets to the luxury suite over the Colts’ 50-yard line who wants to pay for their next re-election.

The column continues with advice on ways to work within the system.

On other Indiana alcohol laws
, Mike Smith of the AP reports in a story that begins:
The General Assembly plans to consider changes to Indiana’s alcohol laws this session, including proposals that would allow microbreweries to sell takeout beer on Sundays and permit alcohol sales during voting hours on Election Day.

But sweeping changes aren’t likely to be approved. A summer study committee opposed changes that would allow Sunday carryout sales of alcohol from liquor stores, grocery stores and convenience stores or let venues besides liquor stores and certain bars sell takeout cold beer. Key House and Senate committee chairmen say they’ll support those recommendations.

The study committee also voted against allowing microbreweries — smaller establishments that have limits on how much beer they can make each year — to sell their beer for takeout on Sundays.

But Republican Sen. Ron Alting of Lafayette, chairman of the Senate Public Policy Committee, has filed a bill that would allow such sales. He plans to give it a hearing before his panel.

Alting noted that farm wineries in Indiana are allowed to sell their products for takeout on Sundays and said microbreweries should have the same privilege.

“It’s a tourism issue and it’s a specialty item and it’s a true art,” Alting said.

Posted by Marcia Oddi on Sunday, January 10, 2010
Posted to Indiana Law

Ind. Courts - "Chance of getting bond reduction depends on the judge" in Monroe Circuit Courts

Laura Lane of the Bloomington Herald-Times has a very lengthy and interesting report today ($$) on the Monroe Circuit Courts. Unfortunately it is available only to subscribers and is too long to quote in full. Here are some quotes:

Get arrested for a significant crime, and chances are you will have to post bail to regain your freedom.

How much depends on the seriousness of the offense. And also on the judge assigned to your case.

As Monroe County’s four criminal court judges struggle to keep the local jail population down in accord with an agreement in a federal lawsuit alleging overcrowding, the issue of bond comes center stage. When it’s low, inmates have a better chance of paying the required 10 percent to a bail bondsman to buy their way out of the slammer. When the bail amount is high, people charged with crimes often sit for months awaiting their day in court.

One judge, Teresa Harper in Monroe Circuit Court 9, has a reputation in the justice system for being more likely to reduce bond than the other three judges who handle the county’s criminal court cases. Word apparently has spread; some inmates have inquired about having their cases assigned to Harper’s court. And when police crack a big case, detectives have been known to grumble when the defendants end up in Harper’s court.

While guidelines suggest how much bail should be set for specific charges, judges also use their experience and their discretion when establishing a person’s bail.

For example, Monroe County’s bail schedule calls for $20,000 surety bond and $500 cash for Class B felony crimes. A person can be released on a surety bond after posting 10 percent of the total to a bondsman to help guarantee the defendant appears in court. That’s the purpose of bond, to assure people charged with crimes show up for hearings, not to punish them. If they fail to appear, the judge can revoke their bond and put them in jail.

“We have to consider that establishing a bond that is more than what is required to make them appear in court is contrary to the law,” Harper said.

But sometimes, bail amounts don’t seem to add up. Sometimes, it’s unclear why some criminals catch a break — say a reduction in bond that might allow them to get out of jail — and others are left to languish behind bars until their cases are resolved. * * *

Indiana’s Circuit Court judges, who are elected by voters, come to the bench with different levels and kinds of experience. Monroe Circuit criminal court judge Marc Kellams, as well as Todd and Diekhoff, come from prosecution backgrounds. Kellams’ first legal job was as an intern in the Monroe County prosecutor’s office, and he then worked as a civil attorney. Todd was a prosecutor in the Air Force in the 1970s. Diekhoff worked as a deputy prosecutor from 1989 until she was elected judge in 2004. Diekhoff, more likely to increase the bail of a serious offender than to lower it, was the chief trial attorney for major felonies when she left the prosecutor’s office and donned a judicial robe.

Her experience may be anti-crime, but even Diekhoff lowers bond. Last Tuesday, she drastically reduced the bond of a 30-year-old woman charged with neglect in the death of her son. The charge is a class A felony, and the county bond schedule sets $50,000 as the standard bail for the offense.

But Jessica Merryman was being held on 10 times that amount, $500,000. The investigation into her son’s death was ongoing and a more serious charge against her was possible. Diekhoff previously had refused to lower Merryman’s bail, but agreed to after defense lawyer Ron Chapman argued his client had never been in trouble with the law and was not a flight risk.

Harper got her experience on the other side of the courtroom than her fellow criminal court judges. She was a defense lawyer who worked a decade for the Indiana Public Defenders Office and was its chief deputy when she left in 1995. She served as editor of the Indiana Public Defender Council’s “Defender” publication from 1995 to 1998 and was a training director for the National Legal Aid Defender association from 1999 until 2004.

When Harper was sworn in as judge in 2007 after receiving 53 percent of the vote, she vowed “to be the best judge I can be.” She was assigned civil court duties, and heard 30 percent of the divorces filed, one-fourth of the protective orders and half of the small claims cases. When a new criminal court was established in 2008, Harper transferred to it.

“I can’t wait,” she said when the change to criminal court was announced. “I’m really excited about getting back to the subject matter of my old professional life.”

On Friday, she reiterated her love for the job, and said she does not believe she is more lenient than her counterparts in criminal court. Asked if she thinks there is a perception she is not tough enough, she said, “No, I don’t think so. I do what I’ve been elected to do: look at the facts that come before me and apply the law well.” Indiana’s Code of Judicial Conduct limits her ability to publicly comment on decisions from her court. The 40-page code demands that judges “uphold and promote the independence, integrity and impartiality of the judiciary.”

It says judges should expect to be the subject of public scrutiny, that they shall perform their duties without bias and should not be swayed by “public clamor or fear of criticism.”

And it clearly states judges cannot make public statements that might affect a pending case, although there is a caveat allowing them to explain court procedures and also to respond to “allegations in the media or elsewhere concerning the judge’s conduct in a matter.” The cases cited in this story from Harper’s court are either pending or still eligible for legal appeals to a higher court.
Jail ruling calls for balance

Todd, with more than three decades on the bench, is the Monroe County court system’s presiding judge. The judicial brethren are a close-knit group, and they do not criticize each other, at least not publicly.

But he acknowledged that with experience and criminal court exposure come more refined and competent judicial decisions. “Experience is always a valuable commodity,” Todd said. “Exposure to different circumstances over a broad range of different cases and different individuals is helpful in making these kinds of decisions. You have background to draw from.”

When it comes to deciding what bail, if any, a person should be held on, Todd uses tools other than his experience to help him make judgment calls. First, he considers the nature and gravity of the charged offense, a defendant’s criminal history, employment, community ties, addictions, character, mental health and other traits. In the end, though, bail decisions sometimes involve assessing information as well as rolling the dice.

And Monroe County’s judges are under new and strict constraints to keep the jail population down. Under settlement terms of a federal lawsuit in which inmates claimed unconstitutional conditions at the overcrowded jail, a population cap has been set by a federal judge. When the number of inmates gets close to the limit, prisoners either have to be let out of jail or transferred to another one, which can be expensive.

Todd says judges are expected to strike a balance between keeping dangerous people behind bars while making sure inmates they release appear in court and commit no more crimes. “You face situations where you learn to trust the person in front of you or to have suspicions,” Todd said. “There are some things that I do today that are substantially different from when I started on the bench because of what I have learned along the way.”

The task is more difficult now than it was just a few years ago. Todd cited statistics showing that in June 2007, the Monroe County Jail had 19 inmates facing Class A felonies, the most serious level of criminal offense besides murder. In August 2009, the number was 43. There also were more Class B felons behind bars in 2009 than in 2007.

“We have 70 percent more of the worst kinds of offenders in jail and fewer minor felonies, which I think shows we are letting less serious offenders out of the jail,” Todd said. “There are people who think the jail is full of first-time pot smokers, and I can assure you that is not the case.”

He is not comfortable releasing any inmate he feels could be a threat to public safety. “If there’s somebody that needs to be kept in jail, I am going to keep them in jail. Public safety will always be my first priority, and you cannot make bail recommendations and disregard that,” he said. “You get as much information as you can, you make an assessment and you try to make the right decision overall. You hope you are right more than you are wrong. I think history would show we have done a pretty good job here.”

Harper said if a defendant standing before her requesting lower bond has no criminal record, is employed, supporting a family and genuinely remorseful, those things matter in her decision-making process.

Sometimes, she said, you have to believe the person accused of the crime and give him or her a break. Sometimes, she said, it makes sense to put someone on home detention and require substance abuse treatment instead of incarceration. She also said if there are facts that warrant going higher on the bond schedule, she will set bail higher than called for in the guidelines.

Posted by Marcia Oddi on Sunday, January 10, 2010
Posted to Indiana Courts

Saturday, January 09, 2010

Courts - "Reform of New York’s Small-Town Courts Stalls "

William Glaberrrson reports today in the NY Times:

The most ambitious efforts in decades to reform New York State’s vast network of small-town courts — where sessions can be held in a garage, and where more than 1,450 judges who are not lawyers conduct trials — have stalled in Albany. Even a seemingly modest compromise, one that would allow a defendant to request that the judge be a lawyer, seems doomed, its sponsor says.

Just a few years ago, critics of the courts said major changes seemed possible after nearly 100 years of failed efforts. The Legislature and a judicial commission held hearings and state court officials instituted reforms.

But efforts for the more extensive changes have recently slowed to a crawl. The seemingly simple idea that the local justices have law degrees went nowhere. Now, even the compromise legislative proposal giving people facing jail the option of having their cases transferred to a judge who is a lawyer is failing in Albany. * * *

After a series of articles in The New York Times in 2006 showed extensive failings in the courts — including town and village justices who mishandled money, made racist remarks, released friends without bail, denied some defendants lawyers and jailed some of them without trials — state court officials appointed that commission, which concluded by proposing the measure that Mr. O’Donnell later introduced.

After the articles in The Times, the chief judge at the time, Judith S. Kaye, also made the most sweeping changes in the town and village courts in generations. She required for the first time that there be a word-for-word account of proceedings, improved supervision of the justices and increased classroom training of the non-lawyer justices — who make up nearly three-quarters of the bench — from one to two weeks, with added studies at home.

The 1,250 town and village courts, also known as justice courts, handle some two million cases annually, including traffic and small civil cases and misdemeanor trials that can lead to jail sentences of up to a year. They also set bail in cases as serious as murder and rape, though felonies are transferred to other courts for trial.

The ILB had a number of entries about the New York plan in 2006, including this one from Nov. 23, 2006.

On Sept. 27, 2006 the ILB wrote: Well, what about Indiana? This excerpt from the Indiana Courts website explains that in Indiana:

City and town courts may be created by local ordinance (local law). Currently there are forty-eight city courts and twenty-seven town courts in Indiana. Plainfield, Avon, Carmel, and Jamestown are just a few examples of cities and towns that have city/town courts. City and town courts handle minor offenses such as violations of city ordinances (laws), misdemeanors, and infractions. These courts commonly handle traffic matters. City and town courts are not courts of record (their proceedings are not recorded), so appeals from city and town courts go to the circuit or superior courts and are decided as if they have never been to court before. Did you know that with some exceptions, the city and town court judges are not required to be attorneys?
And in 2009, on Nov. 17th, the ILB reported on a plan to reshape the Indiana courts. The entry included quotes from a LCJ story on the plan, including:
There are 75 city and town court judges in Indiana, including four in Clark County. Floyd County has none.

“I think the system's working pretty well the way it is,” said Sam Gwin, the Clarksville Town Court judge who served as Clark County Court judge in the 1970s and ‘80s before that court was converted to Clark Superior Court 3. “… That's quite a traumatic change to have the state take over everything.” * * *

Part of the plan hinges on creating a new system of judicial districts in which multiple counties would organize to share resources, civil case jurisdiction and governance.

The current system has counties organized into 14 districts. But most acknowledge, as Cody said, that “the current districts have no particular meaning.”

Proponents argue that state-funded districts would allow courts to share resources across county lines.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Courts in general

Law - "Obama Takes New Route to Opposing Parts of Laws"

Charlie Savage, who has written much on presidential signing statements, including on Aug. 10, 2009, "Obama’s Embrace of a Bush Tactic Riles Congress", today reports in the NY Times that:

Mr. Obama has not issued a signing statement since last summer, when one claim set off a bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.

Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said. * * *

Still, Jack L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in 2003-04, argued that an approach of issuing fewer signing statements would “not be terribly consequential” in practice because the executive branch could still override a provision that its legal team later pronounces unconstitutional. * * *

Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr. Goldsmith said the administration’s approach of issuing fewer signing statements would mean “somewhat less accountability.”

“I think it’s a bad development if they are not going to highlight for the nation in all these new statutes where they think there are problems,” he said.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to General Law Related

Ind. Decisions - More on: Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

Updatng this ILB entry from yesterday, Jan. 8th, about the Indiana Supreme Court's April 2009 decision in Wallace v. State, where the Court wrote:

Conclusion. Richard Wallace was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted. We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. We therefore reverse the judgment of the trial court.
To repeat some excerpts from yesterday's Fort Wayne Journal Gazette story, which was quoted at length in yesterday's ILB entry:
At issue are different interpretations of the state high court’s ruling: Officials with the Indiana Department of Correction – which keeps the state’s official registry – believe the ruling applies only to Richard P. Wallace. Allen County police, prosecutors and local judges have determined the ruling applies to everyone. * * *

The situation opens the door for each county to interpret the ruling differently, throwing off uniformity across the state at a time when the state’s goal, in order to comply with federal laws, was to be more standardized regarding sex offenders, Shimkus said.

“It’s going to cause problems with the state site because its accuracy can’t be guaranteed,” Shimkus said.

Sometime after the court’s ruling on the Wallace case last year, officials with the Allen County Prosecutor’s Office met with officials from the Allen County Sheriff’s Department to decide what the decision actually meant, Shimkus said.

The consensus was that the names of offenders who committed crimes before the creation of the registry had to come off the local list. * * *

Like the meeting in Allen County, officials with the Department of Correction, the Indiana Attorney General’s Office and the Indiana Prosecuting Attorneys Council met after the Wallace decision was passed down.

But the consensus was different from the Allen County interpretation.

“The Supreme Court did not order us to review every individual; it referred to only Wallace,” [Brent Myers, director of registration and victims services for the Indiana Department of Correction] said.

The feeling after the meeting with the attorney general was that offenders who thought they should be off the registry because of the Wallace decision should take it up with the local courts, Myers said. There, an impartial review could be done.

If the DOC receives a court order to remove a name from the list, then that name will be removed, Myers said. So far, the department has received fewer than 70 such orders from local judges.

Allen Superior Court Judge Fran Gull said the criminal division has been inundated with requests to remove sex offenders from the state’s registry, including requests from offenders who were never prosecuted in Allen County.

And Gull has also seen requests from out-of-state offenders or even federal offenders wondering how, or whether, the changes apply to them.

“I don’t know what the status of the law is in other states,” Gull said. “Hell, I don’t know the status of the law in the state of Indiana. It changes all the time.”

As they work through the petitions that fall within local jurisdiction, Gull said they are strictly applying the statute. If the offenders committed their crimes before the registry was in effect, then their names are off the list.

Late yesterday the ILB received a note from Indianapolis attorney Cara Wieneke - here is a quote:
I read with great interest your post today on the mess surrounding Indiana's sex offender registry. I just learned today that I successfully petitioned to have my client removed from the sex offender registry, thanks to the Supreme Court's ruling earlier this week in another case.

The ruling was Hevner. But I thought it was a pretty straightforward issue even before that opinion.

[ILB - In Hevner, decided 1/6/2010, the Supreme Court held "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender."]

My client's case was on all fours with that case, and I'm happy that the trial court agreed. But now I have no clue how to actually get my client off the registry. I assumed that the order needed to be directed to the local sheriff, but after reading your post it looks like I now need to contact the DOC as well.

Exactly. According the the FWJG and earlier press reports, some county sheriffs are removing names on their own from their local registries, some sheriffs are requiring court orders, the DOC is requiring court orders for the state registry. And there are reportedly hundreds if not thousands of names across the state that fit the Wallace criteria. A Nov. 11, 2009 story reported "On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered." A Nov. 18, 2009 story reported "In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list."

Ms. Wieneke also wrote that she had heard that the Indiana ACLU has filed suit "against the State for this whole thing with the State choosing not to remove people until they actually hired a lawyer to help them get off the list."

Sure enough. The ILB contacted Gavin Rose of the ACLU of Indiana, who responded this morning:

The case is Does I-III v. Indiana Department of Correction, et al., Cause No. 49D13-0905-PL-023351 (Marion County Superior Court). The case was filed shortly after Wallace and was stayed by agreement of the parties for a short period while rehearing in Wallace was pending. I am attaching the complaint as well as the order certifying the case as a class action (which was stipulated to by the parties)—these are the only documents of note filed to date, but I would be happy to let you know when summary judgment is sought.
Here are the complaint and order. The complaint defines the class as:
[A]ll persons designated as "sex offenders" under Indiana law and listed on Indiana's sex and violent offender registry and/or required to register as "sex offenders" pursuant to Indiana law, who committed their sex offenses prior to the effective date of the registration requirements.
The legal claim:
Subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.
The complaint asks the court to:
a. Certify this case as a class action with the class as defined above.

b. Declare that subjecting persons to the requirements of Indiana's Sex Offender Registration Act that entails both registration and listing on the sex and violent offender registry where the persons committed their sex offenses prior to the time the Registration Act applied to their offenses, is unconstitutional as violating the ex post Jacto provision of the Indiana Constitution, Art. 1, § 24.

c. Enjoin defendants from imposing any of the requirements of Indiana's Sex Offender Registration Act, including both registration and listing on the sex and violent offender registry.

d. Award plaintiffs all other proper relief.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Shopping mall tycoon Melvin Simon's daughter sues widow over will"

John Russell has a thorough story today in the Indianapolis Star, complete with a copy of the 16-page complaint filed in Hamilton Superior Court. Some quotes from the long story:

Less than four months after shopping mall tycoon Melvin Simon died, his family is fighting over the billionaire's vast fortune.

One of Simon's daughters, Deborah J. Simon, is accusing her father's second wife, Bren, of coercing her ill husband into signing a new estate plan a few months before his death, while he was gravely ill and dependent on her for care.

The new plan increased Bren Simon's share of the estate by hundreds of millions of dollars, according to a complaint filed Thursday by Deborah Simon in Hamilton Superior Court. The change essentially eliminated all charitable donations and dramatically reduced the inheritances of Deborah and her two siblings, the complaint claims.

"In fact, Melvin was so ill that he was unable to sign either his new will or trust agreement himself, necessitating someone to hold a pen in Melvin's hand and move his hand as he allegedly 'signed' both documents," the complaint says. * * *

Last March, Forbes magazine estimated Melvin Simon's net worth at $1.3 billion, but that amount is likely to have climbed in recent months. Much of Simon's wealth was tied to the company, which has seen its shares soar more than 200 percent from March 2009 lows. * * *

The Simon case could have repercussions for charities that stood to reap millions from the estate. During his lifetime, Melvin Simon donated more than $150 million to charitable causes, including Indiana University and the Indianapolis Museum of Art. Yet under the new estate plan, his charitable giving could be stopped until 66-year-old Bren Simon dies -- which, according to actuarial tables, is not expected for about 20 years, the complaint says. * * *

The earlier estate plan called for Melvin Simon's assets to be divided into three equal portions: one-third for Bren; one-third for a trust with Bren as the sole income beneficiary, with the remainder to pass to Melvin's children upon her death; and one-third to a series of trusts that would donate tens of millions of dollars each year to various charities, with Melvin's children receiving the remainder, if any, after a predetermined period. * * *

The new estate plan radically changed that, the complaint says. It calls for Bren to receive one-half of the fortune outright, while the other half is to be placed in a trust with Bren as the sole income beneficiary. * * *

Melvin's "cognition, memory and understanding" were impaired, and he was unable to hold the pen and sign his name, according to the complaint. Bruce Jacobson, an accountant and financial planner for Melvin and Bren, held and moved Melvin's hand as he signed the new plan, the complaint says.

Greg Andrews has this story in the IBJ. Some quotes:
The court filings charge Bren manipulated her husband for her own financial benefit and that her “unlawful” actions were facilitated by a team of professionals. Those included Krieg DeVault partner Eric Manterfield, who represented Bren as executor of the estate, and Bruce Jacobson, an accountant who was a longtime financial adviser to Melvin and Bren. Manterfield declined to comment. Jacobson and a Baltimore attorney representing Bren did not immediately respond to messages Friday afternoon.

According to the filings, prior to last February’s changes, Melvin’s estate plan divided assets into these three equal portions:

— One-third going directly to Bren.

— One-third placed in a trust, with Bren receiving all its income during her lifetime. After her death, the principal would pass to Melvin’s four children.

— One-third going to charitable trusts that were to donate tens of millions of dollars a year to local and national charities. Anything remaining after a predetermined period would go to Melvin’s children.

Under the new estate plan, Bren would receive one-half of the estate outright, and the other half would go into a trust, with Bren receiving all its income during her lifetime. Court papers say changes to Melvin’s estate plan created inconsistencies and conflicts that make it unclear what would happen to the principal after her death.

But court papers say that even if the principal ultimately goes to charities, that likely won’t happen for a long time—a delay that seems in conflict with the wishes of a man who gave away more than $150 million during his lifetime. The filing notes that actuarial tables indicate Bren, now 66, is likely to live another 20 years.

Trusts filed with the court show that prior to the changes to Melvin’s estate plan, local charitable, religious and educational organizations had been in for a windfall. One filing shows Simon earmarked $10 million for the Jewish Federation of Greater Indianapolis, $2 million for Congregation Beth-El Zedeck, $2 million for the Indiana University Foundation and $1 million each for Butler University, the United Way of Central Indiana and The Children’s Museum of Indianapolis.

Court papers charge the changes occurred in whirlwind fashion that would have been inappropriate even if Melvin hadn’t been ill.

In early February, court papers say, Baltimore attorney Marianne Schmitt Hellauer, who is representing Bren as executor, held an initial meeting with Melvin at his Indiana home. The filing says that at the gathering Hellauer patched in Manterfield by speaker phone and told him how Melvin’s estate plan was to be changed.

Court papers say Manterfield apparently did not talk with Melvin about the changes during that call. And, in the week between that meeting and the execution of the documents Feb. 13, Manterfield did not provide Melvin any materials explaining or summarizing the changes, Deborah alleges in her complaint.

At the Feb. 13 meeting, her attorneys charge, “Melvin was unable to hold the pen and sign his name, and Jacobson held and moved Melvin’s hand as Melvin allegedly signed the altered will and trust.”

The complaint says the Simon children were told about the new will at a meeting Oct. 13, nearly a month after Melvin died. The filings say no parties involved in the revisions made a video or audio recording of the process.

Indianapolis law firm Ice Miller is representing Deborah Simon. An attorney for the firm declined to comment.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court suspends Spencer lawyer"

Laura Lane reported yesterday ($$) in the Bloomington Herald-Tribune:

Spencer attorney Paul Watts will not be practicing law for 120 days after being disciplined by the Indiana Supreme Court for his part in drafting a will for a 95-year-old man without consulting him about his wishes.

The will named Bloomington lawyer David Colman, who had represented George Archer in the past, as beneficiary of the elderly man’s estate, which in the end was worth more than half a million dollars.

According to the court’s recent disciplinary ruling, Colman arranged for the will to be executed in 2004. He told Watts that Archer was competent, and wanted Colman to inherit money the frugal man had saved over his lifetime while living in a decrepit mobile home and driving an old truck with the bumpers tied on with baling wire.

Colman, an attorney in Bloomington since 1970, was sanctioned by the state Supreme Court in the matter as well. In May 2008, his license to practice law was suspended for three years for his part in the drafting of Archer’s will.

A man Archer had done yard work for intervened on Archer’s behalf and had an independent lawyer review the will and the circumstances around its creation. That lawyer drafted a new will, and when Archer died in 2007 at the age of 100, the reclusive gardener’s money went to Indiana University’s Hilltop Garden program.

His $650,00 gift was the largest donation Hilltop has ever received.

The Supreme Court discipline order states that Watts violated three rules of professional conduct Indiana attorneys must adhere to, citing failure to explain a matter to a client to the extent necessary for an informed decision, representing a client where there might be a personal interest for the attorney and knowingly helping someone prepare a legal document that gives that person or someone related to him a “substantial gift.”

Chief Justice Randall Shepard’s decision reflects concern that Watts “maintains he did nothing wrong in failing to communicate at all with G.A. about his will, trusting the conflicted Colman to communicate on his behalf ... He says it was his practice to draft wills for elderly, bedfast clients without consulting them, relying instead on information provided by family members in order to minimize legal fees for the clients.”

Shepard said Watts’ belief he could ethically do that “displays a troubling lack of insight into his duty of undivided loyalty to the client.”

Shepard wrote that if Watts wanted to save his clients money, he should have reduced the amount he charged.

Here is the Supreme Court's order, from Dec. 22, 2009.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Attorney's actions bring Behrman case back into spotlight"

Kim King of Fox 59 Indianapolis had this long story last evening. Some quotes:

INDIANAPOLIS - The mysterious murder of IU sophomore Jill Behrman in 2000, and conviction of suspect John Myers in 2006 is a case anyone living in Indiana the past decade will never forget. * * * Fox59 has now learned Patrick Baker, the Indianapolis attorney who agreed to represent John Myers pro bono, for free, faces charges he violated rules of professional conduct in the Behrman case. * * *

Belton [ILB - no first name given in the Fox story] oversaw the case filed against Baker and is familiar with the charges.

"The case has three aspects, one how Baker got the case improperly, second how he improperly pointed the finger to another person and third how he asked Myers' family for money for the prosecution even though the family didn't have any money and Mr. Myers was a pauper," said Belton.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Indiana Courts

Courts - "Social networking among jurors is trying judges' patience"

Del Quentin Wilber reports today in the Washington Post in a long story that begins:

Al Schuler, one of 12 jurors weighing the fate of a 23-year-old charged with killing a homeless man in Maryland, was confused by the word "lividity" and what role it might have played in explaining the circumstances of the victim's beating death.

So, one night after deliberations, the retired engineer did what so many people do in the digital age: He looked up the definition on Wikipedia, the online encyclopedia. "It was just a definition, like going to the dictionary," Schuler said. "It was very innocent."

A Maryland appeals court didn't think so. In throwing out the defendant's first-degree murder conviction and ordering a new trial, the court ruled that Schuler's inquiry violated an Anne Arundel County judge's order prohibiting jurors from researching the case.

Schuler's query is just the latest example of how modern technology and an information-saturated culture are testing centuries-old notions of how juries and judges mete out justice. The issue garnered national attention recently in Baltimore, where five jurors were accused of using a social-networking site to inappropriately discuss the ongoing trial of the city's mayor.

Judges and legal experts are particularly concerned about how technology and culture are affecting jurors and a defendant's right to a fair trial. The Internet has provided easy and instant access to newspaper archives, criminal records, detailed maps, legal opinions and social-networking sites, such as Facebook, all at the anonymous click of a mouse in jurors' homes or on the tiny keyboards of their cellular phones.

"This is a generational change, and I don't know if the legal system is ready for it," said Thaddeus Hoffmeister, a law professor at the University of Dayton Law School, who closely studies jury issues.

Judges have long instructed jurors to avoid reading newspaper stories about trials and to not discuss the case with one another, aside from their deliberations. They also warn them not to conduct their own investigations. The rules are designed to ensure that jurors contemplate only the evidence admitted at trial and at the appropriate time. (Jurors are free to discuss cases when they are over.)

Still, in the good old days, the hurdles for industrious jurors were fairly high: They had to physically visit a crime scene or the library or the court clerk's office. To talk about the case with other jurors, they had to pick up a phone or meet in person.

Today, technology has wiped out those barriers, and people have become increasingly reliant on the Internet for information. They have also become more comfortable blogging about the most mundane aspects of their lives -- let alone a sexy trial.

Legal scholars and lawyers disagree about how to handle the problem. Some say judges should warn jurors more explicitly about the Internet, while others advocate giving jurors more information during trials.

Most throw up their hands. No matter what steps are taken, they say, jurors will probably just keep Googling and texting and tweeting.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Courts in general

Ind. Courts - "David Camm lawyer withdraws"

Ben Zion Hershberg reports today in the Louisville Courier Journal:

Citing “other personal and professional commitments,” David Camm’s primary lawyer has withdrawn from the pending third trial of his murder case.

Katharine Liell of Bloomington has represented Camm for nearly eight years, taking the case soon after Camm’s first conviction in 2002 for the murder of his wife Kimberly and their two children, Bradley 7, and Jill, 5, in September 2000.

“I remain committed to assisting in whatever way I can,” Liell said Friday. “But this battle needs a new commander.”

On Thursday, Warrick County Superior Court, where Camm was tried for the second time in 2006, appointed Richard Kammen, an experienced Indianapolis-based defense lawyer, to replace Liell as Camm’s primary lawyer. Stacy Uliana, who represented Camm with Liell, also was appointed Thursday to work with Kammen. * * *

Four years ago when the Warrick County trial was beginning, Liell said, “my circumstances were different.

“I have three teenagers now” in addition to a busy legal practice, she said.

She said she was delighted that Kammen will become lead defense counsel, having worked with him for 4-1/2 years early in her career.

“He is a wonderful attorney” with experience in many state and federal murder cases, she said.

Sam Lockhart, Camm’s uncle and a leader of efforts to free him, said Liell will be missed.

“She put everything into freeing” his nephew, Lockhart said.

Liell and Uliana have asked for the appointment of a special prosecutor to replace Henderson, claiming he has a conflict of interest because he negotiated a book deal about the Camm case last year.

Henderson has denied having a conflict. He said the book deal was contingent on Camm’s conviction being upheld.

Posted by Marcia Oddi on Saturday, January 09, 2010
Posted to Indiana Courts

Friday, January 08, 2010

Ind. Decisions - One case granted transfer Jan. 7th

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 case:

Posted by Marcia Oddi on Friday, January 08, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray

Jeff Wiehe and Rebecca S. Green of the Fort Wayne Journal Gazette have an important story today, one that the ILB has looked into before. Here are some quotes:

“It’s really, really affected my life in the past five years,” said Call, who claims he was wrongly convicted by a jury of child molesting in 1991 and had to appear on the state sex offender registry after it was created in 1994. “Before I was on the list, I hated the fact I was accused of that crime, but as soon as I got on the list, things got hard.”

A ruling by the Indiana Supreme Court last year [April 2009], though, found that Richard P. Wallace, a man convicted of child molesting in 1989, no longer had to register with the state as a sex offender because he committed his crime before the law that created the registry was enacted.

That ruling has thrown the state and local sex offender registries into disarray.

Allen County officials say that like Wallace, Call is no longer required to register as a sex offender. His name and face have been scrubbed from the Allen County sheriff’s online registry. Officials with the Indiana Department of Correction, though, are refusing to erase any names from the state’s official registry without a court order.

The Allen County registry is supposed to be an offshoot of the state registry, something the sheriff’s department created as a way for local residents to search using the sheriff’s Web site. Now, though, the registries do not match.

At issue are different interpretations of the state high court’s ruling: Officials with the Indiana Department of Correction – which keeps the state’s official registry – believe the ruling applies only to Richard P. Wallace. Allen County police, prosecutors and local judges have determined the ruling applies to everyone.

Cpl. Jeff Shimkus of the Allen County Sheriff’s Department is part of the agency’s Sex Offender Registration and Notification Team. As the officer charged with enforcing the registry laws, Shimkus said more trouble may be ahead.

The situation opens the door for each county to interpret the ruling differently, throwing off uniformity across the state at a time when the state’s goal, in order to comply with federal laws, was to be more standardized regarding sex offenders, Shimkus said.

“It’s going to cause problems with the state site because its accuracy can’t be guaranteed,” Shimkus said.

Sometime after the court’s ruling on the Wallace case last year, officials with the Allen County Prosecutor’s Office met with officials from the Allen County Sheriff’s Department to decide what the decision actually meant, Shimkus said.

The consensus was that the names of offenders who committed crimes before the creation of the registry had to come off the local list.

Also removed were the names of people who had committed lesser crimes that previously did not require registration.

For instance, between 1994 and 1997, people convicted of rape were required to register only if the victim was younger than 18. Someone who raped an adult in 1995 would not have been required to register. But laws were later amended to require all convicted rapists to register as sex offenders.

Now, people convicted of rape before the law was amended no longer appear on the Allen County sex offender registry, local officials said.

“We don’t have to like it, but that’s what the law says,” said Shimkus of the decision.

For nearly four months, Shimkus’ team, including himself, Cpl. Michael Smothermon and Crystal Barker, pored over 625 files of sex offenders. By the time they were done removing names, 375 remained on the registry.

Some other Indiana sheriff’s departments are falling in line with what Allen County is doing. Officials with the Kosciusko County Sheriff’s Department have been combing sex offender files in their registry but have yet to find any offenders who are affected by the Wallace ruling, according to department spokesman Sgt. Chad Hill.

Other departments, like the DeKalb County Sheriff’s Department, are not removing any names unless given a court order, much like the Indiana Department of Correction.

“Our role is to determine who has to register,” said Brent Myers, director of registration and victims services for the Indiana Department of Correction. “Whether or not local sheriffs are enforcing who has to register, that’s something they have to talk about with their legal counsel.

“Unfortunately, the (Wallace) decision, like a lot of decisions, is very complicated, and there’s not a one-size-fits-all option.”

Like the meeting in Allen County, officials with the Department of Correction, the Indiana Attorney General’s Office and the Indiana Prosecuting Attorneys Council met after the Wallace decision was passed down.

But the consensus was different from the Allen County interpretation.

“The Supreme Court did not order us to review every individual; it referred to only Wallace,” Myers said.

The feeling after the meeting with the attorney general was that offenders who thought they should be off the registry because of the Wallace decision should take it up with the local courts, Myers said. There, an impartial review could be done.

If the DOC receives a court order to remove a name from the list, then that name will be removed, Myers said. So far, the department has received fewer than 70 such orders from local judges.

Allen Superior Court Judge Fran Gull said the criminal division has been inundated with requests to remove sex offenders from the state’s registry, including requests from offenders who were never prosecuted in Allen County.

And Gull has also seen requests from out-of-state offenders or even federal offenders wondering how, or whether, the changes apply to them.

“I don’t know what the status of the law is in other states,” Gull said. “Hell, I don’t know the status of the law in the state of Indiana. It changes all the time.”

As they work through the petitions that fall within local jurisdiction, Gull said they are strictly applying the statute. If the offenders committed their crimes before the registry was in effect, then their names are off the list.

And like Shimkus, Gull believes the confusion could increase.

“I knew it was going to be bad,” she said. “And I don’t think it is as bad as it is going to get.”

Future problems could include offenders not realizing they are eligible to be removed from the registry. The DOC is not doing anything to help, Gull said.

For more, see these ILB entries from last November.

At the end of this ILB entry from Nov. 11, 2009, I looked at what information was now given re the Wallace decision on the DOC site. The DOC page says simply - if you believe the case has an impact on your requirement to register, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases." In other words, individual affirmative action is required to remove a name from the list. And the sheriffs' site is even less informative - the Indiana Sheriffs' Sex and Violent Offender Registry appears to make no reference to the changed requirements due to the Wallace decision.

This Nov. 18, 2009 ILB entry quotes from a story by Jack Rinehart of Channel 6 News, including:

On the advice of the state attorney general, the Marion County sheriff will now allow those required to register retroactively to have their names removed from the list, 6News' Jack Rinehart reported.

"We're not going to remove anybody. We're taking no enforcement action," said Lt. Bob Hanna, who oversees the Sheriffs' Sex and Violent Offender Registry. "As far as removing faces, names and addresses, we won't do that without a court order."

Sex offenders who registered retroactively can petition the court that held jurisdiction over their case to remove their names from the registry. They will then have to present that order to the local sheriff's department.

In Marion County, which currently has 3,606 registered offenders, more than 800 sex offenders would be eligible to have their names removed from the list.

My question to the Indiana Attorney General elicited this response last Nov. 18th:
To clarify, the Attorney General’s Office has not issued a communication to county sheriffs on this subject. The Wallace decision still is under consideration and review. We have discussed enforcement options with our client, the Department of Correction. But we have not issued a published legal advisory opinion on this subject.

Posted by Marcia Oddi on Friday, January 08, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "American Bar Assn. allows unneeded new law schools to open and refuses to regulate them"

That is the charge in this opinion piece today in the LA Times, written by Mark Greenbaum.

Ashby Jones of the WSJ Law Blog picks up the ball here, writing:

Greenbaum suspects, as others have in recent years, that law schools make misleading claims about their graduates employment statistics to entice students. This phenomenon, asserts Greenbaum, is at least partly to blame for why we’re seeing so many lawyers out of work these days.

Posted by Marcia Oddi on Friday, January 08, 2010
Posted to General Law Related

Law - "President Obama will renominate Dawn Johnsen"

So reports Charlie Savage of the NY Times in this story today that begins:

President Obama will renominate Dawn Johnsen to lead the Justice Department’s powerful Office of Legal Counsel, along with his choices for five other jobs that the Senate did not act on last year, a White House official said Thursday.
[More] The Bloomington Herald-Times also has a story ($$) this morning, by Andy Graham, that begins:
Indiana University’s Dawn Johnsen has been renominated by President Barack Obama to head the U.S. Office of Legal Counsel.

Johnsen, a professor at IU’s Maurer School of Law, was initially nominated last January, but the full U.S. Senate never voted on the matter before recessing in December, which meant her name was sent back to the White House. The Obama administration responding with her renomination essentially starts the process anew. Johnsen will have to again clear the Senate Judiciary Committee, whose approval she initially earned last March, before her nomination can proceed to the full Senate for consideration.

Johnsen has said she will withhold comment until the confirmation process is complete, and a phone call Thursday night failed to reach her husband, former Monroe County Community School Corp. board member John Hamilton.

Posted by Marcia Oddi on Friday, January 08, 2010
Posted to General Law Related

Thursday, January 07, 2010

Ind. Gov't. - "Sex abuse high at 13 juvenile centers" Pendleton highest in nation [Updated]

Devlin Barrett of the AP has the story on the Washington Post website. A few quotes:

WASHINGTON -- A government study issued Thursday finds 13 juvenile detention facilities around the country have high rates of sex abuse and victimization, where nearly 1 out of every 3 inmates reported some type of victimization. * * *

About 10 percent reported incidents involved facility staff people, and nearly all of those complaints were against female staffers. About 2 percent of the reported incidents involving abuse perpetrated against young inmates by other youths.

Approximately 26,550 juveniles are held in such facilities around the country, and the survey - conducted for the government by Westat, a company based on Rockville, Md. - collected information from about 9,000 of them.

The study identified six facilities where the survey found at least 3 out of every 10 inmates said they were sexually victimized while in custody: Pendleton Juvenile Correctional Facility in Indiana; Corsicana Residential Treatment Center in Texas; Backbone Mountain Youth Center in Swanton, Md.; Samarkand Youth Development Center in Eagle Springs, N.C.; Cresson Secure Treatment Unit in Pennsylvania; and the Culpeper Juvenile Correctional Center, Long Term, in Mitchells, Va.

At Pendleton, the rate of incidents was double the national average for such facilities.

Another seven sites reported nearly as high levels of sexual abuse or victimization: Victory Field Correctional Academy in Vernon, Texas; Indianapolis Juvenile Correctional Facility; Shawono Center in Grayling, Michigan; Woodland Hills Youth Development Center in Nashville, Tenn.; L.E. Rader Center in Sand Springs, Okla.; Bon Air Juvenile Correctional Center in Virginia; New Jersey Training School in Monroe Township, N.J.

At those 13 facilities, most reports of sexual victimization involved nonconsensual sex acts with another youth or serious sex acts with facility staff.

Staff sexual misconduct was higher in state-run facilities than in privately or locally operated sites, the study found, and smaller facilities tended to have fewer incidents of sexual victimization.

Here is the report, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09, issued today.

[Updated 1/8/10] A reader points out that the use of the term "juvenile detention facilities" is incorrect with respect to the Indiana institutions:

IC 31-9-2-71 defines a juvenile detention facility (for Indiana) by referring to IC 31-31-8-2 which makes it clear that a juvenile detention facility is related to a juvenile court function.
Pendleton Juvenile Correctional Facility, a maximum-security lockup for boys, and the Indianapolis (now Madison) Juvenile Correctional Facility, are both part of the state corrections system.

Jon Murray of the Indianapolis Star has a long story today on the government report, headlined "Juvenile prisons grapple with sex abuse findings: two Indiana facilities have rates much higher than national average."

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

Kentucky National Insurance Co. v. Empire Fire & Marine Insurance Co. is a 65-page opinion with 37 footnotes, written by Judge Brown, in which Judge Crone concurs and Judge May "concurs in result."

NFP civil opinions today (0):

Unsupervised Estate of Ethel M. Freyer v. Cathy E. Drake (NFP) is a 23-age opinion by Judge Darden, including a dissent by Judge Robb that begins on p. 18. Judge Darden writes:

Estill Wesley appeals the trial court‟s order on the objections of brothers Estill Wesley (“Estill”) and George Tully (“George”), both trust beneficiaries, to the trust accountings filed by their sister, Cathy Drake (“Cathy”), as successor trustee of the Robert D. Freyer and Ethel M. Freyer Revocable Living Trust (“the Joint Trust”) and the Ethel M. Freyer Revocable Trust, as amended (“the Ethel Trust”). We affirm.
NFP criminal opinions today (1):

James K. Hart v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Ind. App.Ct. Decisions

Environment - More on "IDEM fills long-vacant chief-of-staff post, denies agency shakeup"

Updating this ILB entry from Jan. 5, 2010, Gitte Laasby of the Gary Post-Tribune has a lengthy and detailed story today headed "No enviro experience for new IDEM chief of staff."

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Environment

Courts - "Lawmakers quiz court on computer costs "

That is the headline from a story from the Dec. 8, 2009 Oklahoma Tulsa World. Some quotes from the report by Barbara Hoberock:

OKLAHOMA CITY — Lawmakers quizzed court officials Monday about why putting the state's 77 district courts online in a unified system was taking so long and costing so much money.

They were also critical of passing on a 7 percent cut to district courts that resulted in job losses.

The House and Senate Subcommittee on the Judiciary and Public Safety had a joint meeting to go over the budgets of a number of law enforcement agencies and judicial entities, including the Administrative Office of the Courts.

Michael D. Evans, the administrative director of the courts, said he expects the unified system to be online in less than three years.

But Rep. Randy Terrill, R-Moore, the chairman of the House Subcommittee on the Judiciary and Public Safety, said he doubted that time frame could be met.

Lawmakers passed a measure in 2007 increasing a court fee to $25 from $10 to pay for the system.

The fees took effect in 2008, Evans said.

About 12 years ago, the Legislature authorized the online system and promised funding. The first year, it provided funding, but not the second year, Evans said. As a result, a lack of staff and funding meant the system could not move forward. "We couldn't plan what we were going to do until we had the money," Evans said.

Terrill said the fund now has $15.9 million.

Sen. Anthony Sykes, R-Oklahoma City, the chairman of the Senate Subcommittee on the Judiciary and Public Safety, said the courts have spent about $57
million since 1998 on developing the system.

In addition, Terrill said, the judicial revolving fund has $5.6 million, while the law library fund has $3.6 million and the lengthy trial fund has $3.9 million. The system could reduce the lengthy trial fund and the law library fund considerably, Terrill said.

The courts sent $6 million from the Management Information Services fund to pay for judicial retirement at a time when it cut district courts by 7 percent, Terrill said.

So, the MIS "fund wasn't so sacred when it came to judicial retirement," he said.

From the Charleston WV Gazette's Statehouse Blog yesterday, this item from Alison Knezevich:
In response to Gov. Manchin’s call for midyear budget cuts, the state Supreme Court will trim $2 million from its budget, Chief Justice Robin Jean Davis announced this afternoon.

Davis says the budget cuts won’t reduce personnel or services. Most of the cuts will come from the court system’s technology budget, meaning a plan to link all the state’s court computer systems to a centralized database will be slowed.

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Courts in general

Environment - Rules proposed again to regulate outdoor wood-fired boilers

Several years ago there was a lot of smoke over an IDEM proposal to solicit public comments about whether there was a need to impose some restrictions on the use of outdoor wood-fired boilers in Indiana. As a result, it seemed the idea was dropped. Thereafter, one community after another has tried to address the problem on the local level. The U.S. EPA has also become involved. All of this has been covered, over the years, in a long list of ILB entries. The most recent, from Feb. 26, 2009, begins:

The ILB has had dozens of entries, going back as far as Dec. 2005, on the regulation of wood-fired outdoor boiler in Indiana. IDEM originally was going to do it, then backed off and left local government to deal with the problem on its own.
Yesterday, over four years later, IDEM followed up on its Dec. 1, 2005 First Notice of Public Comments with a Second Notice. Some quotes:
The Indiana Department of Environmental Management (IDEM) has developed draft rule language for a new rule, 326 IAC 4-3, concerning air emissions from outdoor hydronic heaters. By this notice, IDEM is soliciting public comment on the draft rule language. IDEM seeks comment on the affected citations listed and any other provisions of Title 326 that may be affected by this rulemaking. * * *

This rulemaking only applies to outdoor hydronic heaters, also referred to as outdoor wood boilers or outdoor wood burning furnaces. Indoor wood heating appliances are already subject to federal emission limitations for new units. Indoor wood burning appliances and other sources of wood smoke are sufficiently different in potential emissions, stack heights, design, operating conditions, or frequency of operation to distinguish them from outdoor hydronic heaters. After a delay in proceeding following the request for public comments on the First Notice of Comment Period, IDEM is now proposing to move forward with this rulemaking. The proposed requirements in this rulemaking will not be effective until the rulemaking process is complete. The rulemaking process includes two public hearings before the Air Pollution Control Board: preliminary adoption and final adoption. At a minimum, this rulemaking would not be effective until late 2010.

In an effort to control heating costs, Indiana citizens are increasingly turning to outdoor hydronic heaters to heat and provide hot water for their homes and other structures. Outdoor hydronic heaters are free standing appliances that burn wood or some other fuel to heat water. The heated water is pumped, typically through underground pipes, to the structure or multiple structures to be heated and the cooled water is returned to the outdoor hydronic heater for reheating. A unit typically looks like a small shed with a short smoke stack and is usually located in close proximity to the building to be heated. Outdoor hydronic heaters are much larger and differ in design, operation, and emissions produced from indoor wood stoves, pellet stoves, fireplaces, and barbecue pits.

According to sales data provided by outdoor wood boiler manufacturers, the Northeastern States for Coordinated Air Use Management (NESCAUM) estimates that 7,518 units have been sold in Indiana since 1990. IDEM has received 41 formal complaints about smoke from outdoor wood boilers located around the state. Some local jurisdictions in Indiana have also received complaints about outdoor hydronic heaters, leading to local bans on the placement of new units in the cities of Indianapolis, Evansville, Petersburg, Loogootee, and Batesville. LaPorte has requirements in place to limit the emissions from new units. Currently, outdoor hydronic heaters are not regulated in Indiana at the state level, nor are they regulated at the national level.

The Notice continues, at length, and includes summaries of public comments from the First Notice, plus the text of the Draft Rule.

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Environment

Ind. Decisions - "Contracts Trump IP Rights, 7th Circuit Says in Licensing Fee Dispute"

The Jan. 5, 2010 7th Circuit opinion in WI Alumni Research v. Xenon Phara is the subject of a brief article today by Andrew Longstreth of The American Lawyer. A quote:

In an eloquent discussion of the ruling, Dennis Crouch of Patently-O explains that Xenon's Sidley Austin attorneys had tried to invoke the law of concurrent patent ownership, which generally holds that joint patent owners don't have to share licensing revenue. But both the district court and the 7th Circuit found that the rule doesn't apply when the parties have reached an agreement to the contrary. Even if that agreement does not explicitly revoke the law of concurrent patent ownership, the 7th Circuit concluded, the contract holds.

Posted by Marcia Oddi on Thursday, January 07, 2010
Posted to Ind. (7th Cir.) Decisions

Wednesday, January 06, 2010

Ind. Courts - "Camm lawyers renew special prosecutor request, citing book deal"

Ben Zion Hershberg reports this afternoon in the Louisville Courier Journal:

Lawyers for David Camm have renewed their request for a special prosecutor for his retrial, disputing Floyd County Prosecutor Keith Henderson’s defense of a book deal on the highly publicized murder case.

Despite a court filing by Henderson saying the book deal was contingent on Camm’s guilty verdict being upheld on appeal, the prosecutor’s conflict of interest remains, Camm’s lawyers said.

“The case was still going” during Camm’s appeal when Henderson agreed to the book deal, said Stacy Uliana, one of Camm’s lawyers. She said Henderson participated in the appeal by sitting at the table with lawyers for the Indiana Attorney General’s office who argued before the Indiana Supreme Court in May 2008.

Henderson didn’t return calls Wednesday seeking comment on the filing by Camm’s lawyers, which came late last month in response to his filing against the appointment of a special prosecutor.

Henderson has said in past statements and in court documents that his agreement to write a book about Camm wasn’t a conflict because the publisher understood the deal would be canceled if the verdict was thrown out. The conviction was overturned in June.

“No funds or expense reimbursements whatsoever were retained” once that happened, Henderson said. * * *

Camm’s lawyers have asked for the case to be moved because of publicity in Warrick County and are seeking a hearing on whether Henderson should be replaced.

“We want to see the contract” for the book so the court can determine whether it’s a conflict of interest, Uliana said.

No hearing on the special prosecutor request has been scheduled.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Law - "Dawn Johnsen On Track For Re-Nomination" [Updated]

"Johnsen On Track For Re-Nomination" is the headline to this story by Andrew Ramonas of Main Justice. But other than the first sentence, the rest of the story seems simply a rehash of previously reported background:

Former Office of Legal Counsel nominee Dawn Johnsen is on course for re-nomination, an administration official told Main Justice today.
[Updated 1/7/2010] Maureen Groppe of Gannett has a story that begins:
WASHINGTON -- White House spokesman Robert Gibbs said Tuesday he doesn't know if the president will renominate an Indiana law professor to a top post at the Justice Department.
Gibbs was also quoted in the Main Justice story.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to General Law Related

Ind. Courts - "LaPorte County judge will remain suspended" [Updated]

So reports WSBT-TV South Bend this evening:

Prosecutors had claimed [Jennifer Evans Koethe] asked a police officer to get rid of evidence after she accidentally shot herself at her home in December of 2008.

When those allegations surfaced, the state suspended Koethe from serving as a judge for alleged judicial misconduct. She will appeal that before the Indiana Judicial Qualification Commission next Monday.

The Indiana Supreme Court will review her case and decide on any disciplinary action. There is no timetable for that decision to happen, but she will remain suspended with pay.

[Updated 1/7/10] Craig Davison has a story in the LaPorte Argus-Herald that concludes:
The Commission charges Evans-Koethe with one count of misconduct centers on her “conduct in deliberately withholding or misrepresenting pertinent information.” The other two counts relate to her request to a police officer that he destroy a note that was potential evidence.

Evans-Koethe’s answer to the commission’s charges is due to the Supreme Court on Monday. Within 30 days after the answer is submitted, the Court will appoint three masters (judges) to hear the case. Those masters will hear the evidence and submit a fact finding to the Supreme Court.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides another ex post facto challenge to sex offender law requirements

In Gary M. Hevner v. State, filed late this afternoon, a 6-page, 5-0 opinion, the Supreme Court concludes: "Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender," reversing the trial court decision, which had been affirmed by this March 31, 2009 NFP Court of Appeals opinion.

In today's opinion, Justice Rucker writes:

We consider a claim that the Indiana Sex Offender Registration Act (“the Act”) constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense. * * *

At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender and thus was not required to register as such. * * * While Hevner was awaiting trial in 2006, the Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5. See Pub. L. No. 140-2006, §§ 13, 41. Effective July 1, 2007 – before Hevner was convicted but after he was charged – the legislature amended the statute to require anyone convicted of possession of child pornography to register as a sex offender regardless of whether the person had accumulated a prior unrelated conviction. * * * Thus, at the time of his conviction, Hevner was required to register as a sex offender. * * *

As a general rule, a court must sentence a defendant under the statute in effect on the date the defendant committed the offense. Biddinger v. State, 868 N.E.2d 407, 411 n.6 (Ind. 2007). Between October and November of 2005, when Hevner committed the crime of possession of child pornography, only persons convicted of a prior possession offense were required to register as sex offenders under the Act. By the time of Hevner‟s trial and sentencing the Legislature had amended the Act making it applicable to first time offenders. As applied to Hevner 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 the crime was committed. * * *

Because of the ex post facto provisions of the Indiana Constitution, the trial court may not order Hevner to register as a sex offender. And for the same reasons we discussed in State v. Pollard, Hevner is not subject to prosecution for violation of Ind. Code § 35-42-4-11, the residency restriction statute. * * *
However, having been convicted of possession of child pornography, a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that “have a reasonable relationship to the treatment of the accused and the protection of the public.” Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied. We cannot conclude that prohibiting Hevner from residing within 1,000 feet of school property is an unreasonable condition.

We reverse that portion of the trial court‟s sentencing order directing Hevner to register as a sex offender. This cause is remanded for further proceedings.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "Some foes of health-care bill hope courts will stop legislation"

The Washington Post had a long story Sunday, reported by Ben Pershing, that began:

Opponents of the health-care reform bill are not giving up the fight, and some think their last, best hope to halt the legislation lies not in the U.S. Capitol but in the court across the street.

A small but vocal contingent of legal scholars and many Republican lawmakers argue that the measures passed by both chambers are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2 percent of their income to the government. * * *

Conservatives have advanced other constitutional arguments against the reform plans, including that regulating insurance companies represents the illegal seizure of private property and that the Senate bill's excise tax on high-cost health plans impermissibly affects some states more than others.

In addition, 13 state attorneys general (from South Carolina, Washington, Michigan, Texas, Colorado, Alabama, North Dakota, Virginia, Pennsylvania, Utah, Florida, Idaho and South Dakota) have signed a letter that begins:
The undersigned state attorneys general, in response to numerous inquiries, write to express our grave concern with the Senate version of the Patient Protection and Affordable Care Act (“H.R. 3590”). The current iteration of the bill contains a provision that affords special treatment to the state of Nebraska under the federal Medicaid program. We believe this provision is constitutionally flawed. As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision.

It has been reported that Nebraska Senator Ben Nelson’s vote, for H.R. 3590, was secured only after striking a deal that the federal government would bear the cost of newly eligible Nebraska Medicaid enrollees. In marked contrast all other states would not be similarly treated, and instead would be required to allocate substantial sums, potentially totaling billions of dollars, to accommodate H.R. 3590’s new Medicaid mandates. In addition to violating the most basic and universally held notions of what is fair and just, we also believe this provision of H.R. 3590 is inconsistent with protections afforded by the United States Constitution against arbitrary legislation.

Indiana's Attorney General has issued a press release this afternoon headed "Attorney General Zoeller to review Senate healthcare proposal." Some quotes:
INDIANAPOLIS – At the request of Senator Richard Lugar, Indiana Attorney General Greg Zoeller will conduct a legal analysis of the constitutionality of provisions of the federal healthcare bill regulating states that the U.S. Senate recently passed.

Under a state law, Indiana Code 4-6-8-2, the Indiana Attorney General's Office has the authority to review existing or proposed federal legislation for any of Indiana's U.S. senators or U.S. representatives at their request. Zoeller has received requests from Senator Lugar and other members of Congress asking the Attorney General's Office to perform legal research and analysis on particular provisions of Senate Amendment 2786 to the Patient Protection Affordable Care Act (H.R. 3590), and report back to them.

Zoeller said attorneys in his office will review questions of the bill's constitutionality and its impact upon state government agencies if the U.S. Senate version of the bill were to pass as written. He plans to provide a report to the congressional delegation and their legislative staffs in time for House-Senate conference-committee negotiations in Congress. * * *

Zoeller said that based on Lugar's request for advice, his office will review whether the provision funding Nebraska's expanded Medicaid obligations -- but not those of other states -- would be constitutionally valid.

Zoeller noted that the request to provide a legal review of the federal legislation will be given top priority by the Attorney General's Office, in consultation with state agencies whom Zoeller represents.

"Having worked on the staff of former Senator Quayle in the 1980s, I recognize that compromises sometimes are made during the legislative process to ensure passage, and that complex bills are often rewritten during the final reconciliation process," Zoeller noted. "At the state government level, the Attorney General's Office can assist our federal legislative colleagues by providing an objective evaluation of the current bill's legality, which will assist our congressional delegation in the final negotiations." * * *

As long as his review is under way, Zoeller will not be involved in any other review or possible legal challenge to the federal legislation that is being explored in other states.

"Shortly after taking office, I met in Washington, D.C., with members of Indiana's congressional delegation following a letter that notified them of this authority the state Attorney General has to perform legislative research and analysis. This little-known provision in state law was intended for a circumstance such as this, where proposed federal legislation could have a sweeping impact on state government," Zoeller said. "I am pleased to be able to assist in this matter through the authority of that statute."

The release also includes the text of IC 4-6-8-2:
The attorney-general shall also make any reasonable or appropriate investigation or study of any such existing or proposed federal legislation whenever he is specifically requested so to do by any of this state's senators or representatives in congress and report the result thereof as requested. (Formerly: Acts 1943, c.229, s.2.)
[More] See this article, haded "Lugar wants AG to review health bill," from Maureen Groppe of the Star Washington Bureau

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to General Law Related

Ind. Courts - "Business sues Mishawaka over ordinance on sexual devices"

Sue Lowe reports today in the South Bend Tribune:

The city of Mishawaka has stopped Pleasureland Museum from selling "sexual devices."

So, now the owner is taking the city back to federal court to challenge the part of Mishawaka's ordinance regulating sexually oriented businesses.

The lawsuit challenges the city's right to prohibit the sale of sexual devices at the business at 114 W. Mishawaka Ave.

The lawsuit was filed by attorneys Fred R. Hains and Peter M. Yarbro on behalf of Pleasureland Museum Inc.

The license to operate the business is held by Antonio Macri, and Yarbro confirmed that Macri is the owner of the business.

Macri was not available for comment Tuesday at the Pleasureland location in Mishawaka or the one in Osceola. Ed and Shirlee Balanow, who owned the business when Mishawaka passed the ordinance regulating it in 1999, are both now deceased. The Balanows filed a lawsuit challenging the constitutionality of the ordinance shortly after it was passed.

The city stopped enforcing a part of the ordinance that required that an applicant for a license to run or work at a sexually oriented business provide their Social Security number, home address, fingerprints and a photograph after that requirement was found unconstitutional in a case involving a Cumberland, Wis., ordinance.

In 2002 the 7th U.S. Circuit Court of Appeals upheld the city's definition of a sexually oriented business and the city's right to require a license to operate or work at one.

The case was returned to U.S. District Court Judge Allen Sharp for a ruling on whether the city could restrict the sale of sexual devices.

According to the latest lawsuit, no action was taken by either side on that question, and the case was dismissed in 2003.

The city didn't enforce the part of the ordinance prohibiting the sale of sexual devices until Pleasureland's most recent annual permit renewal, according to the lawsuit.

Mayor Jeff Rea said he has been told by his attorneys not to talk about the lawsuit while it is pending.

But he did say that if a policeman doesn't write a speeding ticket at one location for five years, that doesn't mean the speed limit there has changed.

Attorneys for Pleasureland argue that the prohibition against the sale is a violation of the right to privacy and that the definition is too vague. They also argued that enforcement of the ordinance is arbitrary.

"The city has conceded that sexual devices which are sold in pharmacies are not prohibited, but those previously sold by Pleasureland are prohibited," the attorneys wrote.

The ordinance also prohibits the sale of items including muzzles, whips, chains, leather restraints and racks. The lawsuit said those items remain available in the city, including at pet stores, tack shops, hardware stores, department stores and furniture stores.

Pleasureland lawyers ask that the city be prohibited from enforcing the part of the ordinance concerning sexual devices.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides CHINS case

In N.E., Alleged to be CHINS; N.L. v. IDCS, a 9-page, 5-0 opinion, Justice Sullivan writes:

The trial court adjudicated a child to be a “Child in Need of Services” (“CHINS”) with-out specifically alleging that the child was a CHINS with respect to the child’s father. The father contends that the CHINS adjudication does not apply to him. The question in a CHINS adjudi-cation is not parental fault, but whether the child needs services. Because a CHINS determination regards the status of the child, the juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory elements have been established. * * *

At the close of evidence, the [trial] court found that N.E. was a CHINS; N.E. remained in foster care. On May 30, 2008, the court held a dispositional hearing and found the children to be wards of the State. The trial court made no specific findings as to Father or its reasons for not placing N.E. with Father.

Father appealed. A divided Court of Appeals reversed, concluding that the State had not alleged, and the juvenile court had not determined, N.E. to be a CHINS with respect to Father. In re N.E., 903 N.E.2d 80, 89 (Ind. Ct. App. 2008). Judge Vaidik dissented. [ILB - see correction below] She was of the view that “a CHINS determination regards the status of the child,” and that once properly deter-mined, it was applicable to both parents. Id. at 89-90. However, both the majority of the Court of Appeals and Judge Vaidik concluded that the juvenile court’s dispositional decree was deficient in not articulating reasons for not placing N.E. with Father. * * *

We disagree with our colleagues and hold that a CHINS determination establishes the status of a child alone. Because a CHINS determination regards the status of the child, a sepa-rate analysis as to each parent is not required in the CHINS determination stage. As Judge Vai-dik points out in her dissent, the conduct of one parent can be enough for a child to be adjudi-cated a CHINS. Id. at 89-90. Indeed, to adjudicate culpability on the part of each individual parent in a CHINS proceeding would be at variance with the purpose of the CHINS inquiry: determining whether a child’s circumstances necessitate services that are unlikely to be provided without the coercive intervention of the court. See I.C. §§ 31-34-1-1 & -2. Said differently, the purpose of a CHINS adjudication is to protect children, not punish parents. * * *

We vacate that part of the juvenile court’s judgment pertaining to N.E. and remand for proceedings consistent with this opinion.

ILB: One correction, the COA decision was from 2009, not 2008, see the ILB entry here from March 19, 2009.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to

Environment - Status report on Asian carp controversy [Updated]

Updating this long list of earlier ILB Asian carp entries, SCOTUSblog this morning has a great wrap-up of the status of the lawsuit to date.

[Updated at 11:10 AM] See this story from today's Chicago Tribune headed "Illinois agencies question science behind Asian carp fears."

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Environment

Ind. Courts - Suit filed to require St. Joseph Co. and South Bend to comply with the ADA by improving access to county court buildings"

Erin Blasko reports today in the South Bend Tribune on a new ADA lawsuit filed in federal court Monday. Some quotes:

Kent Hull, with offices in South Bend, filed the lawsuit on behalf of four disabled area residents — Victoria Means, Tonia Matney, Stephen Hummel, and Margaret Hummel.

An attorney with Indiana Legal Services, he represents the plaintiffs in two separate, unrelated civil cases pending in St. Joseph County Superior Court.

The 10-page complaint claims the county and city "acted with intent" in failing over a period of nearly two decades to provide disabled persons adequate access to two court buildings — the St. Joseph County Courthouse in South Bend and County Services Building in Mishawaka.

It seeks relief in the form of damages and preliminary and permanent injunctions against the defendants, identified as the St. Joseph County Board of Commissioners, St. Joseph Superior Court, and city of South Bend.

The city is named because it operates a parking lot that serves the courthouse but "is not sufficiently plentiful and is located a great distance from the courthouse," according to the complaint.

Reached Tuesday, Hull, who also is disabled, said he filed the complaint based on the county's apparent indifference to ADA compliance, evidenced by its continued inaction in regard to the issue.

Since passage of the ADA in 1990, appeals to the county to improve access to county buildings, including court buildings, have continually been ignored, Hull said, "and at a certain point I think we need to have the federal court order the county to bring the courthouse into compliance."

As evidence of a "lack of accessibility" at court buildings, the complaint lists: entryways, jury boxes and deliberation rooms, witness stands, speaking podiums, spectator seating areas, clerk counters, restrooms and drinking fountains, and the courthouse elevator.

Readers may recall the 2004 decision of the SCOTUS in the case of Lane v. Tennessee, which involved a suit against a state, rather than a county. This story at the time by the NYTs' Linda Greenhouse began:
States that fail to make their courthouses accessible to people with disabilities can be sued for damages under federal disability law, the Supreme Court ruled on Monday in a significant break from recent decisions that gave the states broad immunity from suit under various federal laws.

The 5-to-4 decision was a narrow one not only in the vote margin but also in the scope of the holding. Rather than validate, or even address, Congress's decision in the Americans With Disabilities Act to open the states to suit for failing to make accessible a broad array of public services and programs, Justice John Paul Stevens confined his majority opinion to the specific context presented by the case: access to court.

The case was brought by six disabled Tennessee residents, including a man who refused to crawl or be carried up to a second-floor courtroom in a county courthouse to answer a criminal traffic complaint. He sued after the state charged him with failing to appear for his hearing.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Ind. Decisions - More on: ND Judge rules LaPorte must replace crumbling sidewalks

Last Friday, Jan. 1, the ILB reported here on federal Judge Miller's ruling, including extensive quotes from the 30-page opinion.

Today Stan Maddux of the South Bend Tribune reports:

LAPORTE — The already cash-strapped city of LaPorte might appeal a federal court ruling that could force officials here to spend millions of dollars to repair sidewalks.

If the ruling is upheld, Mayor Kathy Chroback said, other financially burdened municipalities could be susceptible to being sued and find themselves in the same predicament.

"It's going to set a precedent for every city in the state," Chroback said.

The City Council and mayor are scheduled to meet with city attorney Don Baugher at 5 p.m. Thursday in an executive session at city hall.

The purpose is to discuss the city's legal options. * * *

The Dec. 29 ruling out of U.S. District Court in South Bend mandates the city of LaPorte comply with the Americans with Disabilities Act by upgrading the condition of the sidewalks.

A 2007 estimate indicated it would cost more than $30 million to fix all of the sidewalks in LaPorte.

The court decision was in response to a lawsuit filed by LaPorte residents Alvin Levendoski and Jon Culvahouse. * * *

Baugher said the city and plaintiffs in the case will later meet with the federal judge to find out how the court wants to schedule the repairs.

The prospects of a legal challenge are being discussed with the Indiana Association of Cities and Towns, he said.

Under city ordinance, Baugher said, property owners in LaPorte are responsible for maintenance of sidewalks.

But Baugher said the courts have ruled cities in Indiana have the responsibility for sidewalks as it pertains to the ADA, without specifying "exactly what we have to do."

"There's still a possibility that we might appeal that decision," Baugher said.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: Appellate Clerk's Office now authorized to serve orders, notices and opinions via e-mail

Updating this ILB entry from yesterday, the word I'm hearing is - Don't stop checking the docket! At least not yet.

Apparently, orders currently are not being sent out electronically at the same time as docket entries, if at all.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Ind. Courts - "Koethe acquitted in obstruction trial" [Updated]

Updating yesterday evening's ILB entry, Ruth Ann Krause of the Gary Post-Tribune reports this morning:

Lake County jurors in Crown Point on Tuesday night acquitted former LaPorte County prosecutor Jennifer Koethe, who was on trial for obstruction of justice by asking an investigator to get rid of a note she'd written during a dispute at home. * * *

She was working three jobs -- as a deputy prosecutor, city attorney for Michigan City and in private practice, and her husband hadn't earned any commissions as a real estate agent that year, said Koethe, who was set to be sworn in as LaPorte Superior Court judge.

Koethe said her pistol and her husband's .357-caliber Magnum revolver had been unloaded the previous night when they went Christmas shopping and left her husband's children with a baby sitter.

During an argument, her husband punched a hole in the kitchen wall.

Koethe said she was upset, felt her husband wasn't listening to her and went into the bedroom, where she wrote about her feelings on a gift box lid. "I wanted to get his attention," Koethe said.

After her husband came back inside from smoking, he saw her on the bedroom floor, the note on one side and her pistol on the other.

He picked up the gun, asked her what she was doing and more discussion followed. "We made up," she said.

Koethe didn't deny asking LaPorte County police Detective Sgt. Patrick Cicero to dispose of the note, which she did not consider evidence in the investigation. "I don't remember asking him to get rid of the note, but if he said I did I must have," she said.

In his closing argument, defense attorney Mike Tuszynski told jurors: "In her mind this wasn't evidence of anything.

"It wasn't her intent to break the law after a lifetime of upholding it," Tuszynski said.

St. Joseph County deputy prosecutor Mark Roule noted that despite Koethe's blood alcohol level being twice the legal limit for intoxication, she was concerned about appearances if the note was made public.

She had the presence of mind to suggest a gunshot residue test to prove she shot herself, and raised concerns about keeping her client files confidential during a police search of her home.

In addition, after asking Cicero to get rid of the note, she mouthed the word, "please," repeatedly when medical personnel were present in the trauma room at LaPorte Hospital.

Roule said he felt he'd proven that Koethe wanted the note removed with the intent to prevent it from being used as evidence in an official investigation.

Obstruction of justice, a felony, carries a maximum three-year sentence.

Here are some quotes from Susan Brown's report in the NWI Times:
In the audience, Koethe's husband, Stephan Koethe, wiped tears from his eyes as Koethe recounted the night's events.

Koethe testified the couple made up and went to bed. Waking later, she saw the gun in their bed and accidentally shot herself.

Earlier medical testimony indicated she had suffered a scalp wound that did not involve the skull but "most likely" left her with a concussion.

"I remember saying over and over it was my fault," she said.

She denied the shooting was a suicide attempt. "I wasn't trying to hurt myself," she said.

Koethe repeatedly testified she found the contents of the note "embarrassing and humiliating."

While she did not want her marital and financial problems revealed, Koethe testified she cooperated in police interviews, telling police "everything."

Stephan Koethe is facing misdemeanor charges of false informing and criminal recklessness in connection with the incident.

[Updated at 9:00 AM] Dustin Grove of WSBT-TV South Bend has a report that concludes:
She said that when her husband walked in, she got up, they talked and then they made up. As she went to bed and started to fall asleep, she said, she turned over and saw the gun.

While she was picking it up, she said, the gun went off. She did not pull the trigger intentionally, she testified.

Her husband then called 911.

It was at the hospital that Koethe asked a police officer to get rid of the note she had written.

"I'd just been elected as judge," she said on the stand. "I didn't want anyone to know we were having financial issues."

Prosecutors said it was obstruction of justice, a Class D felony, to try to have a piece of evidence in a shooting investigation thrown out.

But Koethe said she didn't view it as evidence since it didn't have anything to do with her accidental shooting.

Koethe faced up to three years in prison and could have been removed from the bench if convicted.

Posted by Marcia Oddi on Wednesday, January 06, 2010
Posted to Indiana Courts

Tuesday, January 05, 2010

Ind. Courts - "LaPorte County Judge Koethe's trial in the hands of the jury"

Updating this ILB entry from this morning, Dustin Grove of South Bend WSBT-TV reports this evening:

The trial of a LaPorte County judge accused of obstruction of justice is now in the hands of a jury.

Closing arguments have wrapped up in the state's case against Jennifer Evans Koethe.

Prosecutors say she asked a police officer to get rid of a piece of evidence during the investigation into her own accidental shooting. A special prosecutor was appointed from St. Joseph County and a Lake County jury will decide the verdict.

WSBT's Dustin Grove was inside the courtroom Tuesday in Crown Point with what has been a very unusual case from the beginning. It had to do with the judge accidentally shooting herself at her home in December 2008. * * *

Koethe faces up to three years in prison and she could be disbarred from the bench if convicted. The jury is deliberating. Check WSBT-TV at 6 and 11 tonight for updates on the case.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Indiana Courts

Environment - Feds oppose Great Lakes states' suit re Asian Carp

In a 53-page memorandum for the United States in opposition to the Michigan motion for a preliminary injunction, the:

Solicitor General, on behalf of the United States of America, respectfully submits this memorandum in opposition to the motion for preliminary injunction submitted by the State of Michigan.* * *

Michigan states in its petition for a supplemental decree (at 29-30) that its ultimate goal is a permanent injunction separating the Great Lakes from the Mississippi River system, undoing a connection that for well over 100 years has served the important purposes of flood control, navigation, commerce, and sanitation. A host of responsible actors -- federal, state, and even international -- are deeply and intensely engaged in studying all the considerations involved in preventing the transmission of invasive species through that connection. For this Court to pretermit that process and to decree that the answer is to sever the connection, based on a purported federal common law rule, would be altogether inappropriate.

In a host of ways, the federal government has demonstrated its commitment to protecting the Great Lakes from the expansion of Asian carp. Nothing in federal law warrants second-guessing its expert judgment that the best information available today does not yet justify the dramatic steps Michigan demands.

Thanks to Lyle Denniston, who posted this entry on SCOTUSblog late this afternoon.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Environment

Ind. Courts - "Judge denies Star motion to unseal search warrants in Durham case"

The Indianapolis Star is reporting this afternoon, in a story by John Russell:

A federal judge has denied a motion to unseal search warrants connected to an FBI raid of two businesses owned by Indianapolis business owner Timothy Durham, ruling that no search warrants were ever issued in the case.

The Indianapolis Star and the Akron Beacon Journal filed motions last month in U.S. District Courts in Ohio and Indiana, seeking to unseal warrants. * * *

“The docket of this civil litigation discloses that no search warrants were ever issued in this cause,” wrote Judge Sarah Evans Barker of the U.S. District Court in Indianapolis, in a ruling issued today.

Judge Barker also denied a second motion sought by the papers, petitioning to allow Karen C. Lefton, an Ohio lawyer representing the Akron Beacon Journal, to be admitted to practice in Indiana on the case. The judge wrote that Lefton’s motion did not identify on whose behalf she sought to appear as an attorney.

“In any event, the case having been previously dismissed, there is no pending controversy in which Ms. Lefton might otherwise appear,” the court ruled.

Lefton had filed the motion on behalf of the Akron Beacon Journal and The Star.

The Indianapolis Business Journal and the Wall Street Journal have since joined the fight to unseal the documents, according to stories published today in the IBJ and Akron Beacon Journal.

In an interview, Lefton said search warrants do indeed exist, based on the FBI raid and comments of federal officials, even if the warrants were not part of Morrison's civil motion.

Lefton said she has refiled her motion,seeking to unseal the warrants as part of a "miscellaneous case," thus not attaching it to the civil motion that was dismissed. She has also refiled other motion, identifying her clients as the Akron Beacon Journal, Indianapolis Star, Indianapolis Business Journal and Wall Street Journal.

She said the federal court in Ohio has not yet ruled on her motions.

Here is Judge Barker's denial of the Lefton motions. Here is the IBJ story.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - One today from Tax Court

E.L. & B.L. Holsapple v. Monroe County Assessor is a 5-page opinion. The Holsapples appeared pro se. Judge Fisher writes:

The Assessor seeks to have the Holsapples’ appeal dismissed because it was not timely filed pursuant to Indiana Code § 6-1.1-15-5. * * * The Assessor maintains that because the Petition was not filed until July 3, 2009, the Court lacks jurisdiction to hear the appeal. The Assessor is correct. * * *

The Holsapples maintain, however, that their petition should be deemed timely filed. More specifically, they explain that on June 22, 2009, they mailed their handwritten petition to the Clerk for filing. Nevertheless, on June 24, 2009, the Clerk returned the documents "for reformatting." The Holsapples state that they "reformatted their documents and resubmitted them to the Clerkon July 3, 2009, along with a filing fee of $120." Consequently, maintain the Holsapples, "the Court should recognize their initial submission date of June 22, 2009 and consider the reformatted petition to be an amendment to that filing."[4] * * *

Even assuming the Holsapples’ reformatted petition relates back to June 22, the Court still lacks jurisdiction to hear their appeal. Indeed, copies of their petition were not served upon (i.e., mailed to) the Assessor and the Attorney General, nor was notice of intent to appeal filed with the Indiana Board, until July 6, 2009 – well beyond the 48-day time period mandated by Indiana Code § 6-1.1-15-5 and Indiana Trial Rule 6. * * *

For the foregoing reasons, the Assessor’s motion to dismiss is GRANTED.
________
[4] The Holsapples state that they "believed that the June 24 letter from the Clerk permitted them a reasonable extension to merely reformat their petition and make the technical changes required." The Holsapples go on to say that while they "should have requested in their reformatted petition of July 3 that the Clerk back-date the filing to June 22, [because they were representing themselves] pro se" they did not consider doing so at that time.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Appellate Clerk's Office now authorized to serve orders, notices and opinions via e-mail

Effective January 1, 2010, the Indiana Clerk's office will be serving orders, opinions, and notices via email. Below is the form email sent to everyone with a pending case. A reader writes: "I assume this will save a fair amount of money in copying and postage costs, and we will receive orders more quickly and not have to check the docket/daily opinons as compulsively."

Dear Counsel:

On October 2, 2009, the Indiana Supreme Court amended Appellate Rule 26 to
require the Clerk to transmit orders, opinions, and notices BY ELECTRONIC
MAIL to all parties represented by attorneys. This amendment becomes
effective January 1, 2010.

Our records indicate that you are counsel of record in one or more matters
currently pending before the Indiana Supreme Court, Court of Appeals,
and/or Tax Court. The purpose of this message is to confirm your ability
to receive e-mail from the Clerk's Office at the e-mail address currently
listed for you on the Indiana Roll of Attorneys. Accordingly, PLEASE REPLY
TO THIS E-MAIL MESSAGE WITHIN TWO DAYS, which will serve as our
confirmation from you of your ability to receive electronically transmitted
orders, opinions, and notices at the address listed for you on the Roll of
Attorneys. * * *

Kevin S. Smith
Supreme Court Administrator & Clerk of
the Appellate Courts and Tax Court
200 W. Washington St.
Indianapolis, IN 46204

The reader indicates these will be PDF attachments.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Indiana Courts

Ind. Law - "Treaty signed to not resort to robo-calls during 2010 Indiana campaign"

A press release this morning from the Indiana AG reports:

INDIANAPOLIS – With the 2010 election season approaching, Indiana Attorney General Greg Zoeller urges political parties and candidates to respect Hoosier's desire for privacy by agreeing to avoid making prerecorded campaign phone calls to voters using auto-dialer technology.

Zoeller commended the chairmen of state political parties who today signed what he termed the "Treaty of 2010," an informal agreement to make their reasonable best efforts to not support or encourage the use of auto-dialed "robo-calls" by this year's election candidates at the federal or state levels.

"It's not every day when leaders of political parties come together and shake hands on an agreement over the rules of fair play," Zoeller said. "Since Indiana is likely to have very competitive races this year, locking in this agreement early might help to prevent bad decisions made during the heat of battle. It's in the public's interest for the parties to voluntarily pledge to refrain from robo-calls, and so the Treaty of 2010 signed today will be appreciated by Hoosiers."

Not a legally-binding document, the agreement says the state party chairmen who signed do not encourage the use of robo-calls by candidates or affiliate committees for the duration of the 2010 elections. Although legal challenges to Indiana's Auto-Dialer law are pending in two courts, they are not likely to be conclusively decided before this year's elections are held. So the agreement notes that the political parties do not waive in any way their past, present or future legal positions on the constitutional rights of political free speech involved in robo-calls. * * *

Passed in 1988, Indiana's Auto Dialer law restricts the use of robo-calls -- prerecorded messages placed to thousands of phone customers through automated dialing technology. The state law prohibits robo-calls from businesses in most instances. It allows campaigns and political groups to make robo-calls to households only if a live operator first obtains the consumer's permission, or if the consumer opts in to receiving such calls, typically through an email permission form.

In 2006, then-Attorney General Steve Carter filed lawsuits against two political organizations that had blasted out robo-calls for and against congressional candidates to consumers in Southern Indiana: American Family Voices (AFV) and Economic Freedom Fund (EFF). In 2008, the Indiana Supreme Court gave the attorney general the go-ahead to enforce the Auto-Dialer statute after AFV and EFF had brought legal challenges to the law.

One of the attorney general's lawsuits was remanded back to the trial court in Harrison County, with Zoeller succeeding Carter as the plaintiff. The other is ongoing in Brown County. Rulings are not expected in time for this year's elections. To avoid triggering potential Auto-Dialer violations and additional legal action, the voluntary agreement by political parties discourages campaigns from using robo-calls until the issue is ultimately decided by the courts.

"My office will continue to argue in court that campaign-related robo-calls without the consumer's prior permission violate the law. But I respect the First Amendment rights of political parties and their sincere views on this question. So the willingness of the political parties to respect consumers' telephone privacy during the long campaign is very considerate – and in keeping with Indiana's long tradition of spirited but civil debate," Zoeller said.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Michael Mitchell and Leonard Love v. Nathan Abbott, et al. (NFP), a 7-page, 2-1 opinion involving a suit against the ISP for false arresnt and false imprisonment, Sr. Judge Barteau writes:

Appellants Michael Mitchell and Leonard Love appeal from the trial court’s grant of summary judgment to Appellees Nathan Abbott, the State of Indiana, and the Indiana State Police (collectively, “the State”). We reverse and remand. * * *

In this case, Abbott stopped Mitchell and Love for changing lanes without signaling, which would be a class C infraction and would justify a traffic stop. See Indiana Code §§ 9-21-8-24, 9-21-8-49. However, viewing the facts in the light most favorable to the non-movant, there is a material dispute of fact as to whether Mitchell changed lanes. If, according to our standard of review, Mitchell did not change lanes, then no ordinarily prudent person would believe that criminal activity had occurred. In the absence of reasonable suspicion, Ind. Code § 34-28-5-3 does not justify Abbott’s stop of Mitchell and Love. See Baldwin, 715 N.E.2d at 332. Accordingly, the trial court’s grant of summary judgment to the State was improper. Reversed and remanded.

CRONE, J., concurs.
FRIEDLANDER, J., dissenting with separate opinion. [that concludes] In short, Mitchell’s claim that he did not change lanes at all in the mile before he was stopped does not, for purposes of I.C. § 34-38-5-3, negate Officer Abbott’s claim that he believed in good faith that he witnessed Mitchell execute such a maneuver.

M.S. v. A.S.G. (NFP) - child support issues.

NFP criminal opinions today (3):

John James Paulsen v. State of Indiana (NFP)

Walter Burroughs v. State of Indiana (NFP)

Jamie L. Humphrey v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Ind. App.Ct. Decisions

Environment - "IDEM fills long-vacant chief-of-staff post, denies agency shakeup"

So reports Chris O'Malley of the Indianapolis Business Journal today, supplementing this Gary Post Tribune story from Jan. 2nd, 2010, reported by Gitte Laasby, whose report Saturday included:

Gov. Mitch Daniels has appointed 52-year-old Kent Abernathy to the position. He was a colonel in the U.S. Army and stationed in Iraq in 2007.

IDEM spokeswoman Amy Hartsock confirmed that Abernathy starts next week.

She would not comment on Abernathy's background or how his job will fit with the jobs currently done by IDEM Commissioner Tom Easterly or Assistant Commissioner of the Office of External Affairs Scott Nally.

"As far as his background and what the position will entail, when he starts, we'll be able to provide that information," she told the Post-Tribune.

From today's IBJ story:
“Tom Easterly is staying at IDEM. There’s just a new chief of staff at the agency,” Jane Jankowski, press secretary for Gov. Mitch Daniels, said of new IDEM chief of staff Kent Abernathy. “We’ve been interested in having Mr. Abernathy join the administration for quite some time and he just became available after completing an obligation with the federal government.” * * *

IDEM officials plan to make a formal announcement as early as Tuesday to introduce Abernathy.

“The chief of staff position is one that had been utilized by the agency in the past but has gone unfilled in recent years,” said IDEM spokeswoman Amy Hartsock.

Abernathy will work alongside Easterly “and in coordination with IDEM’s assistant commissioners for the offices of External Affairs, Air Quality, Land Quality, Water Quality, Pollution Prevention and Technical Assistance, and Legal Counsel, to help with the efficient management of the agency’s regulatory programs and outreach initiatives,” Harstock said.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Environment | Indiana Government

Courts - "DOJ Issues Discovery Guidance for Federal Prosecutors" [Updated]

This Blog of Legal Times entry is interesting, particularly as it includes links to the three DOJ memos. The entry begins:

Federal prosecutors today got a roadmap for handling discovery in criminal cases, guidance that stems from the failed prosecution of former Alaska Sen. Ted Stevens last year.

The Justice Department on Jan. 4 issued three memos—including a detailed guidance memo for all federal prosecutors—that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. The memos from Deputy Attorney General David Ogden establish the minimum considerations for prosecutors in every case.

[Updated at 12:45 PM] See also this commentary at Main Justice headed "New DOJ Discovery Policies Fall Short."

See also this entry from the WSJ Law Blog.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Courts in general

Environment - "Ontario wants U.S. court to lock out Asian carp"

Now come the Canadians. Updating earlier ILB entries, the Toronto Star today has a story today that begins:

Ontario wants to join the state of Michigan's legal fight against Illinois over its alleged failure to control the spread of the voracious Asian carp.

This Friday, lawyers representing Ontario will tell the U.S. Supreme Court the province should be allowed to participate in Michigan's effort to force Illinois to shut locks leading to the Great Lakes in order to stop the invasive fish.

Michigan is seeking an injunction to immediately close the Chicago-area shipping locks to prevent a potential ecological disaster if the carp, which can grow to over a metre long and weigh 45 kilograms, make their way through the waterway linking the Mississippi River to the Great Lakes.

New York, Indiana, Wisconsin, Minnesota and Ohio also support Michigan's challenge, which was filed by the office of Michigan Attorney General Mike Cox, a Republican who is running for governor. * * *

On New Year's Eve, Ontario filed a motion supporting Michigan's case. On Friday, the court will start examining everything submitted in the case and decide whether Ontario can participate. Michigan's motion is to close the navigational locks in the Chicago Sanitary and Ship Canal permanently.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Environment

Courts - "Rules vary on phones in courtrooms"

A lengthy AP story in the Omaha World-Herald, dated Jan. 4, 2010, reports:

Cell phone policies vary. Rules are stricter in Iowa’s federal courthouses, where guards confiscate visitor cell phones at the door.

“It is the judge’s discretion, but many courtrooms have signs outside prohibiting the use of electronic devices,” Iowa Judicial Branch spokesman Steve Davis said.

Greg Hurley, a spokesman for the National Center for State Courts, said he was not aware of any all-encompassing national analysis of courtroom cell phone policies. Florida and Indiana ban all cell phones, according to a report compiled by the center. South Dakota prohibits cell phones with cameras. In Illinois, each county can create its own policy.

Is this true? Where is the prohibition?

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Courts in general

Courts - Two federal stories today from the National Law Journal

"Slow Going in Senate for DOJ, Judicial Nominees: Only three circuit and nine district judges confirmed last year," is the heading to this lengthy story by David Ingram, that includes reference to the Dawn Johnsen nomination.

Mike Scarcella's report begins:

A Justice Department report released Monday found continued deficiencies in the protection of federal judges and prosecutors (pdf) even as threats and the like targeting the judiciary and law enforcement increased substantially in recent years.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Courts in general

Ind. Decisions - More on: Court of Appeals refuses to step into commitment dispute

Updating yesterday's ILB entry, the second plaintiff in the case of Steven Thomas, et al. v. Mitchell E. Roob, Anne Walterman Murphy, et al., the AP has more on the second plaintiff in the case, Derrick Dausman, in this expanded story via WIBC Indianapolis. Some additional quotes:

A mentally disabled man facing child molestation charges has been released from an Indiana state hospital to a group home even though the state says he is too dangerous to live free in the community.

Derrick Dausman's attorney says his client may never be mentally competent to stand trial and has filed a motion to dismiss the charges. Todd Whitehurst will argue Dausman's case on Jan. 24 in Wabash Circuit Court in northern Indiana.

"We don't think he is someone who should be out in the general public," Family and Social Services Administration spokesman Marcus Barlow said Monday. "We can't divorce the situation from the public safety risks." * * *

The FSSA had him placed in Logansport State Hospital until he might become competent for trial, but the American Civil Liberties Union of Indiana filed a lawsuit saying the administration and its Division of Mental Health and Addiction had violated the due process rights of Dausman and another mentally disabled man at Logansport by holding them indefinitely.

Last week the Court of Appeals upheld a lower court decision that the ACLU did not have a case.

The ACLU said the men would be better served in group homes or similar community-based care.

"It was pretty apparent to everybody that he was incompetent to stand trial," Whitehurst said of Dausman. "He is still incompetent to stand trial.

"He was born this way," he said. "There's no medication or surgery that's going to cure his condition."

Dausman was released from the state hospital about 68 miles north of Indianapolis in Spring 2009 after a Wabash circuit judge ruled that the state had failed to show he was dangerous enough or gravely disabled enough to be committed. Under state law, officials must institute regular commitment proceedings if defendants like Dausman aren't judged capable of standing trial within six months of placement.

Whitehurst said Dausman had moved to a group home in Warsaw. He said the legal standard for committing someone is higher than that used to determine if a defendant is incompetent for trial.

The state's options now may be limited.

Whitehurst said the state wants to try to have Dausman judged incompetent a second time so he can be placed in Logansport again. "I don't think they can do that," he said.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Former prosecutor's obstruction trial starts" [Updated]

The trial of suspended LaPorte Superior Court Judge Jennifer L. Evans-Koethe began this week. Here are earlier ILB entries. Today Ruth Ann Krause of the Gary Post Tribune has this story. Some quotes:

A Lake Superior Court jury began hearing evidence Monday regarding a former LaPorte County deputy prosecutor who allegedly asked a police investigator to get rid of evidence in a shooting investigation.

Jennifer Evans Koethe has pleaded not guilty after a grand jury indicted her for attempted obstruction of justice, a Class D felony punishable by a maximum three-year sentence.

In his opening statement, St. Joseph County deputy prosecutor Mark Roule told the two-man, four-woman jury that evidence would show Koethe asked LaPorte County police Detective Sgt. Patrick Cicero to "get rid of it." The reference, Roule said, was to a handwritten note Koethe told Cicero she left at her LaPorte home on Dec. 22, 2008, after she said she accidentally shot herself in the head with a 9 mm pistol following a domestic dispute with her husband. The wound was not life threatening.

"His integrity was tested," Roule said of Cicero, who described himself as a staunch campaign supporter who had worked with Koethe on cases she prosecuted. "He passed."

Defense attorney Mike Tuszynski told jurors in his opening statement that said the case boils down to his client's intent and what she meant by her comment while in the emergency room at LaPorte Hospital.

On the witness stand, Cicero said he went to the hospital to take photographs and gather potential evidence. Cicero testified he could smell alcohol on Koethe's breath.

During their conversation, Cicero said an emotional Koethe said she did "something stupid," and talked about arguing with her husband and of financial and other pressures in their marriage. Koethe said she unloaded the pistol, put it to her head and the gun went off. "She just wanted to show him," Cicero said.

After testing her hands for gunshot residue, Cicero said Koethe asked, "Can you make this go away? She said it's not like I would do this on purpose. It's not a suicide."

She told Cicero she'd left a personal note in the bedroom that she'd written on a Carson Pirie Scott gift box that would be embarrassing to her if it were made public a few days before she was to be sworn in as judge. "Can you get rid of it. Just get rid of it," Cicero recalled Koethe saying.

[Updated at 12:49 PM] Another view of the Evans-Koethe trial, this one from Michigan City News-Dispatch reporter Alicia Ebaugh. Some quotes from today's lengthy story:
CROWN POINT, Ind. - "Get rid of it."

The outcome of suspended La Porte Superior Court 3 Judge Jennifer Evans-Koethe's trial will center on those four words, lawyers for both sides said Monday.

"We need to find out what does that phrase mean?" defense lawyer Michael Tuszynski said on the opening day of her trial in Lake County. "What was the intent behind it?"

Evans-Koethe is charged with attempted obstruction of justice, a Class D felony, for asking police to destroy an alleged suicide note during their investigation of how a bullet grazed her head Dec. 23, 2008. If what Tuszynski said at a hearing before the trial holds true, he intends to argue Evans-Koethe's capacity to knowingly tamper with evidence was affected by the bullet wound, as well as by her level of intoxication during the argument she had that night with her husband, Stephan Koethe.

"The jury needs to decide if this was just a drunken ramble, or if she was actually trying to deep-six this note," said Lake County Superior Court 4 Judge Thomas Stefaniak Jr.

Posted by Marcia Oddi on Tuesday, January 05, 2010
Posted to Indiana Courts

Monday, January 04, 2010

Ind. Decisions - Court of Appeals refuses to step into commitment dispute

Among the many opinions issued by the Court of Appeals before the end of 2009 was Steven Thomas, et al. v. Mitchell E. Roob, Anne Walterman Murphy, et al.. Access the Dec. 29th opinion here, third case.

The AP is reporting this afternoon:

A court has declined to help two mentally disabled men seeking release from an Indiana state hospital where they were indefinitely placed until they might become competent to stand trial on child-molestation charges.

The Indiana Court of Appeals upheld a lower-court ruling that the case isn't "ripe" for judgment because the men's arguments are hypothetical. The American Civil Liberties Union of Indiana had argued that the men may never be ready for trial and would be better served in group homes or other community care.

The ruling issued last week said that 1 of the men has been released on bond while doctors at Logansport State Hospital haven't deemed the other man suitable for community-based care.

For a good deal more on the case, see this ILB entry from Sept. 16, 2009, which includes the briefs in the case, and this one from Sept. 21st that quotes a long AP writeup about the then-upcoming oral argument.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana courts moving toward unified records system: But private firm pushes competing setup" Part I

That (excluding the "Part I") is the headline to a lengthy story today by Harold J. Adams of the Louisville Courier Journal. It begins:

After nine years and $51million spent, Indiana is progressing toward a statewide computer system that may eventually connect the records of all the state's 401 courts to each other, other state agencies and the public.

That would allow anyone with Internet access to check the history and status of any court case anywhere in the state. It would also give judges and attorneys a quick way to determine whether someone in their local court has had a role in other cases elsewhere.

But the move toward a single system isn't without its wrinkles. Even though the state system is free to counties, another vendor already handles court records for more than half of Indiana's 92 counties and is fighting to keep that business — and add more. * * *

Indiana's Odyssey system is run by the Indiana Supreme Court through the Judicial Technology and Automation Committee, known as JTAC and headed by Sullivan. The state wants to replace what Sullivan says is a mishmash of 23 different electronic case management systems in use across the state with a single, unified system.

“I and the members of our court — and I think most Indiana judges — are of the view that we would be much better off if all Indiana courts were using the same case management system,” Sullivan said. * * *

But while some counties are eager to connect to Odyssey, others have declared they won't participate.

Kosciusko County Clerk Jason McSherry wants no part of the statewide system.

“From a taxpayer standpoint, I don't have a lot of faith in anything the state or government runs,” McSherry said. “I think they ought to let the private sector take care of that.”

Kosciusko County signed a one-year, automatically renewing contract in October with CSI Computer Systems of Fishers, paying $128,000 upfront for software and agreeing to pay $30,000 per year to maintain the system that will begin operating there on March 1.

In nearby LaGrange County, Clerk Beverly Elliott signed with CSI in 2005 when the state was dumping the initial vendor it chose for the statewide system and trying to find another.

“My main reason for not going on Odyssey is because my system's not even 5 years old. So why should I switch?” Elliott said.

She also said that going with Odyssey “would be a step backwards as far as technology.” The CSI system allows her to scan documents into the database, a feature not offered by Odyssey, she said.

CSI now handles court records for 51 Indiana counties and is trying to expand. It was among the unsuccessful bidders for the statewide contract awarded in 2005 to Tyler Technologies of Plano, Texas. Tyler's Odyssey system, which began deploying with a pilot project in 2007, is now in 15 Indiana counties.

Some background information on CMS systems and networking. Note that the case management system (CMS) is the software system used locally to manage a county court system's records. (BTW, it is not clear to this reader why judges in one county would particularly care what CMS system another county was using.)

Linking up the courts so that they, and the public, can access the various courts' current and historical dockets, is a different process. Doxpop, not mentioned in the LCJ article, is a company that functions to network the data from the courts in more than half the counties in Indiana, regardless of whether the courts in question use the CSI CMS, or the CMS of one of the other providers used by various of the counties. Using Doxpop, courts in various counties can "linkup", and the service is also available to private subscribers, including attorneys.

The Odyssey system is networked by JTAC. Feeds from Odyssey courts are not available to private networks. In Monroe County, which became an Odyssey client last year, Doxpop was no longer allowed to link to the county courts' data feeds. The same would be the case, presumably, for any other company that wished to access a county court Odyssey feed.

Harrison County will become an Odyssey county this week -- see this story in the Corydon Democrat. It will become the 11th Odyssey/JTAC county. There are also Odyssey installations in several city courts and small claims courts in other counties.

Part II coming later this week. Check here for a list of earlier ILB JTAC entries.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Indiana Courts

Courts - "Michigan Supreme Court direction reverses, divide remains"

Updating this ILB entry from Dec. 6, 2009, that quoted a story that began "Can the back-biting, name-calling and playground-level cruelty that pervades Michigan's highest court really get any worse?" today David N. Goodman of the AP has a story that begins:

DETROIT - The Michigan Supreme Court underwent a major transformation in 2009, when a Democrat who defeated a Republican incumbent set in motion a series of rulings that favor injured people with damage claims and tighten judicial ethics.

One thing that hasn't changed is a bitter ideological split that has led to sharp attacks, ridicule and mockery by justices against their colleagues.

Conservative forces that dominated the court for a decade lost their majority after the November 2008 election, when Democrat Diane Hathaway beat Republican Chief Justice Clifford Taylor.

Candidates are nominated by parties but their party affiliations don't appear on the ballot.

"There have been a number of cases when the changing of the guard -- the arrival of Justice Hathaway in place of Justice Taylor -- made the difference," said prominent Detroit appellate lawyer Mark Bendure, who often represents people suing companies for damages.

The GOP still has a 4-3 majority, but Elizabeth Weaver has clashed with fellow Republicans Maura Corrigan, Stephen Markman and Robert Young Jr. for years and frequently sides with the Democrats on civil cases and organizational matters.

In January 2009, Weaver joined Hathaway and Democrats Michael Cavanagh and Marilyn Kelly to select Kelly as chief justice.

Personal conflicts aside, the new court issued several 4-3 rulings in favor of people claiming damages. Three came in July alone when the narrow majority:

-- Let the family of a woman who died after childbirth claim loss of child care and household services in their medical malpractice suit against a Monroe hospital and doctors.

-- Allowed a paralyzed gunshot victim to move ahead with her lawsuit against a Detroit 911 operator who asked if she was "a mental patient" when she called for help.

-- Ordered the Michigan Catastrophic Claims Association to fully reimburse insurance companies for the cost of 24-hour care for two men who sustained brain damage in vehicle crashes.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Courts in general

Ind. Decisions - Transfer list for week ending December 31, 2009

There is no Clerk's transfer list for the week ending December 31, 2009.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Indiana Transfer Lists

Environment - "New York Enters Carp Fight"

As I wrote in this Dec. 31st entry - "only two Great Lake states [remain] outstanding -- Pennsylvania and New York."

Today Chicago 7 reports:

New York's attorney general has said he'll join Michigan's legal fight to keep Asian carp from making their way into the Great Lakes.

Andrew Cuomo says he'll file a brief in U.S. Supreme Court on Monday to support Michigan's request to sever a century-old Chicago canal that connects Lake Michigan and the Mississippi River water basin.

Many of Illinois' neighbors, including Wisconsin, Minnesota and Ohio have signaled support for the suit. Last week Indiana Attorney General Greg Zoeller said he would file a brief with the U.S. Supreme Court in support of a lawsuit filed by Michigan Attorney General Mike Cox.

Here are the ILB's earlier entries on the Asian Carp issue.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Environment

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

Updating this ILB entry from Dec. 27, 2009, the Fort Wayne Journal Gazette has a long editorial today, headed "Futile zoning battle" that looks back - a few quotes:

The exhausting and expensive legal skirmish between New Haven and the operator of a chain of truck stops may have ended last week with the Indiana Supreme Court ruling against New Haven. But both sides paid dearly, and the battle leaves some residents questioning whether New Haven officials are guilty of overzealous zoning enforcement.

New Haven officials have a responsibility to enforce a zoning ordinance that sets parameters for development within the city. But city leaders need to be diligent about balancing their duty to protect the best interests of the community while upholding property owners’ rights and encouraging economic development. * * *

After New Haven planning officials rejected the proposal, the proposed project took a long and meandering trip through the courts – twice reaching the state’s highest court in search of resolution. That resolution came with the Indiana Supreme Court ruling not to hear the case for a second time, effectively upholding decisions from the appeals court and a lower court in favor of Flying J.

A questionable decision from New Haven officials to change the rules for development in the middle of the game necessitated the second round of legal reviews. The city amended its zoning ordinance to limit the size of service stations to 2 acres – after Flying J bought land for the travel plaza.

Flying J representatives contend the city was specifically targeting their project with the amendment. The trial court found that the city “concealed its efforts to adopt the Amended Ordinance from Flying J.”

If the company decides it still wants to build the plaza, it will need to submit a development plan to the New Haven Plan Commission. Considering the company’s previous experience dealing with New Haven and a recent bankruptcy filing, it appears unlikely the project will move forward anytime soon.

New Haven Mayor Terry McDonald said the legal battle was worth it, but after nearly five years of legal wrangling where New Haven taxpayers spent $110,948 in legal fees, the land remains vacant. Flying J doesn’t have a travel plaza – after spending more than $4 million for land, engineering, surveys and legal fees – and New Haven residents can’t look forward to any of the jobs or increased tax revenue the project might have generated.

New Haven officials also need to consider the possibility that they have sent a message that future developers cannot trust the city to follow its own zoning laws.

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Ind. Sup.Ct. Decisions

Catch-up: What did you miss over the long New Year's weekend from the ILB?

Wishing all of you the best in the New Decade! Here is the answer to "What did you miss from the ILB during the past weekend?"

From Sunday, Jan. 3, 2010:

From Saturday, Jan. 2, 2010: From Friday, Jan. 1, 2010:

Posted by Marcia Oddi on Monday, January 04, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Next Thursday, January 7th

Next week's oral arguments before the Supreme Court (week of 1/11/10):

Next Thursday, January 14th

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 1/4/10):

Next week's oral arguments before the Court of Appeals (week of 1/11/10):

Next Tuesday, January 12th

Next Thursday, January 14th

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, January 04, 2010
Posted to Upcoming Oral Arguments

Sunday, January 03, 2010

Ind. Law. - "LED Signals Seen as Potential Hazard" -- Or not

A story from the Jan. 1, 2010 NY Times, reported by Susan Saulny, begins:

CHICAGO — Last April, the driver of a pickup truck approaching an intersection in the far western suburb of Oswego went past a red light obscured by snow and struck a 34-year-old woman turning left in her car.

The woman died and four other people were injured in the accident, which was among the first to raise concerns here and around the Midwest about a relatively new driving hazard related to inclement weather: traffic signals, like those in Oswego, that use light-emitting diodes, known as LEDs.

The new lighting is part of a fast-growing trend in environmentalism. LED bulbs use less energy, last longer and are more visible than their predecessors. They are also known to require less maintenance. But they do not emit nearly as much heat as conventional bulbs, allowing snow and ice to accumulate more easily in certain conditions.

But, reading further:
In the last seven years, Wisconsin has converted more than 90 percent of the lighting under state control to LED bulbs.

“We certainly do see crashes and accidents attributed to the fact that people can’t see the heads,” said Joanna Bush, a traffic signal systems engineer for the Wisconsin Department of Transportation, referring to traffic signals’ colored lenses. “Due to the volume of snow we’ve been getting — good, wet heavy snow — it packs in.” * * *

In Minnesota, an official said there had been snow-packing problems even with conventional bulbs.

“Drivers should take a common-sense approach,” said Maj. Al Smith, a special operations officer with the Minnesota State Police. “If you can’t see the light, just take it as a safety precaution to slow down and be prepared to stop for crossing traffic.”

For most states, the benefits of LEDs are greater than the downside, officials said. LEDs contain no toxic elements and can last so long — for years — that disposal is not much of an issue.

Their tendency to collect snow “isn’t enough to convince us to move over from LEDs,” said Ms. Bush, the Wisconsin official. “When you look at all the things we deal with during a snow event — stop signs and other signs get covered — that hasn’t stopped us from using them.”

From the Dec, 29, 2009 Chicago Tribune, a long story by Gerry Smith that includes:
Towns across Illinois and nationwide have switched to LED traffic signals because they burn brighter, last longer and save money by using 90 percent less energy than older incandescent bulbs. But they also emit less heat, meaning they sometimes have trouble melting snow.

This has caused problems across the Midwest. In Wisconsin earlier this month, snow blanketed LED traffic lights in some towns, leading to "crashes at intersections where drivers aren't sure whether to stop or go," The Associated Press said.

Manufacturers say they are aware of the problem and have looked at solutions, such as adding a heating element to LED signals. But adding heat would diminish the energy savings of LED signals, said Roy Burton, chief executive of Dialight, an LED traffic-signal manufacturer.

"We can remove the snow with heat, but the cost of doing that in terms of energy use has not brought any enthusiasm from cities and states that buy these signals," Burton said. "They'd like to be able to take away this issue, but they don't want to spend the money and lose the savings."

Those savings can be significant. When St. Charles installed LED traffic lights at First and Illinois avenues in 2005, energy costs dropped more than 80 percent, from $63.30 a month to $9.95.

Communities also save money on replacing signals because LED lights last up to 10 times longer than incandescent bulbs. And they can receive funding to cover upfront costs. * * *

Meanwhile, the Illinois Department of Transportation has aggressively pushed for replacing incandescent traffic signals with LED lights, requiring communities that install red-light cameras to use LED traffic lights at those intersections because they burn brighter, said Priscilla Tobias, an IDOT safety engineer.

LEDs "are much more visible to the motorist so they have more time to see the traffic signal and react," Tobias said. "Not only are we addressing energy efficiency, we're also improving safety at intersections."

In Chicago's suburbs, engineers say snow can cover LED traffic signals, but only under certain conditions -- wet, driving snow and freezing temperatures -- and rarely every signal at an intersection.

They say the problem is easily remedied by maintenance crews using brooms and occurs so infrequently -- once or twice a winter -- that it does not outweigh the benefits of energy efficiency.

"Maybe it takes longer to melt and you have to go and clean them off, but it's part of the trade-off for years of energy savings," said Tony Khawaja, a traffic engineer for the Lake County Division of Transportation.

Benjamin Lanka of the Fort Wayne Journal Gazette answered a question on LED traffic signals in his Dec. 19, 2009 "Road Sage" column:
As you know, Chicago and a few other communities in Illinois and Wisconsin have found problems because the lights are so efficient they don’t produce much heat.

During bad winter storms, blowing snow can accumulate on the traffic light, blocking its view for motorists.

Fortunately in Fort Wayne, we haven’t had such problems. The city spent $354,953 in 2005 to change its traffic signals to LED lights, and the conversion was complete in November 2005.

That means they’ve been in place for four winters already, and I have yet to notice visibility problems. The city has about 9,600 LED bulbs.

Frank Suarez, Fort Wayne public works spokesman, said the city actually began testing the newer bulbs in the late 1990s. To date, he said the city has experienced no visibility problems with the bulbs during heavy snows.

He said it might be because some areas get more snow than Fort Wayne, or the shape of other cities’ signals might contribute to snow accumulation.

The good news for Fort Wayne taxpayers is that from 2006 to 2008 the city has saved more than $350,000 in electricity costs by using the LED lights.

The bulbs have also proved to be more reliable than the older bulbs. Historically, the city had more than 300 emergency runs a year to fix broken signals. Since the installation of the LED bulbs, the city has averaged fewer than 20 annual runs.

Some quick facts: LEDs, or light-emitting diodes, last six or seven years as opposed to two years for an incandescent bulb. They use 13 watts of electricity compared with up to 150 watts. The lights are also brighter than incandescent bulbs, helping drivers better see the signal.

Two days earlier, on Dec. 17th, Arthur Foulkes reported in the Terre Haute Tribune-Star:
Terre Haute Mayor Duke Bennett said he is not concerned about switching the city’s traffic lights to energy-efficient LED lights despite some problems with the high-efficiency lights in cold-weather states.

Across the country, many cities and state highway systems have replaced old-style incandescent light traffic light bulbs with LED lights, which use about 80 percent less energy. Terre Haute recently received a federal grant to change all of its traffic lights to the LED-style. * * *

The State of Indiana already has installed many LED traffic lights on U.S. 41 in Terre Haute and elsewhere with no reported trouble, he said.

“A lot of cities have been doing this,” Bennett said. “We’ve not received any information that it is a problem.”

Posted by Marcia Oddi on Sunday, January 03, 2010
Posted to Indiana Law

Ind. Courts - "Two suits over DCS cuts in subsidies to be linked in federal court"

Updating this ILB entry from Dec. 25, 2009 headed "Foster care payments cut by 10 percent," Tim Evans reports today in the Indianapolis Star in a long story that begins:

A pair of lawsuits filed against the Indiana Department of Child Services about proposed reductions in payments to service providers, foster parents and families who have adopted children in the state agency's care will be joined together in federal court.

The two suits were filed independently in December -- one in Marion Superior Court, the other in federal court -- after DCS announced plans to begin reducing the amounts paid to its community partners this month because of the state's budget crisis.
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The first suit was filed Dec. 14 in Marion Superior Court by IARRCA -- An Association of Children & Family Services, a coalition of 110 agencies serving 4,600 children for whom DCS is financially responsible. The second was filed Dec. 22 in federal court by the American Civil Liberties Union of Indiana on behalf of a group of foster parents and children, and parents who have adopted children in the care of DCS and those children.

Both suits ask the courts to block the pay cuts, which they say violate federal law.

"We agreed that IARRCA would join in our case since both cases do concern similar issues," said Ken Falk, legal director for the ACLU of Indiana. "The state agreed to join the cases for all purposes up to, but not including, a trial."

A hearing on requests for a preliminary injunction to block the cuts is scheduled for Jan. 20.

Under a last-minute agreement between IARRCA and DCS, January payments for services provided by member agencies in December will be made at their full amount, rather than the new amounts, according to IARRCA Executive Director Cathy Graham.

Graham said she hopes the federal court will issue a ruling on its request to block the pay cuts before the end of January so member agencies will not see any reductions in pay.

Posted by Marcia Oddi on Sunday, January 03, 2010
Posted to Indiana Courts | Indiana Government

Environment - "Fight Against Asian Carp Threatens Fragile Great Lakes Unity "

The Sunday NY Times has this story by Monica Davey. The story begins:

CHICAGO — Asian carp, the voracious, nonnative fish whose arrival near Lake Michigan is threatening to cause havoc in the Great Lakes, are now setting off strife on land as well.

In an urgent effort to close down Chicago-area passages that could allow the unwanted fish to reach Lake Michigan, the State of Michigan is suing the State of Illinois and other entities that govern the waterways here. Minnesota, Ohio and Wisconsin have filed documents in recent days supporting Michigan’s move, and Indiana says it will soon do the same.

The new rift between these Midwestern states, which would reopen a nearly century-old legal case in the United States Supreme Court over Great Lakes waters, comes at a particularly sensitive moment — just as the numerous entities with interests in the Great Lakes had united in what lakes advocates consider some of their most significant progress in decades.

Posted by Marcia Oddi on Sunday, January 03, 2010
Posted to Environment

Saturday, January 02, 2010

Ind. Courts - "Closing this library, dismantling the resources, dismissing the librarian -- this is very unfortunate and falls into the 'whatever can they be thinking?' category"

The above quote expresses my thoughts on the closing of the Marion County Law Library, one of Indiana's endangered courthouse law libraries, and appeared at the end of this Dec. 24th, 2009 ILB entry headed "County library could be endangered legal resource." That entry featured extended quotes from Zoya Golban, who had been the librarian for a number of years, as well as quotes from a Sept. 21, 2009 story by Francesca Jarosz in the Indianapolis Star, reporting that the City-County Council planned to close the courthouse law library at the end of 2009.

In today's Star, reporter Jarosz follow up, with this story headed "Budget cuts force law library to close."

I'll have quotes from that story later in this entry, but first another story that adds context. Actually, it is an op-ed editorial, in today's NY Times, written by John T. Broderick Jr., the chief justice of New Hampshire, and Ronald M. George, the chief justice of California, and is headed "A Nation of Do-It-Yourself Lawyers." Some quotes:

AMERICA’S courts are built on a system of rules and procedures that assume that almost everyone who comes to court has a lawyer. Unfortunately, the reality is quite different. An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter.

As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need.

As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. * * *

It is essential that we promote other efforts to close the “justice gap.”

One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities. * * *

What could be wrong with this? Well, some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford.

We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers.* * *

We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them. If we are to maintain public trust and confidence in the courts, we must keep faith with our founding principles and our core belief in equal justice under the law.

Indiana has adopted the ABA Model Rule permitting "limited-scope representation." See Rule 1.2(c) of the Indiana Rules of Professional Conduct. (It looks like this change went into effect in 2004.) The Indiana Supreme Court has a number of online self-help aids - see this Self-Service Legal Center. In addition, as this press release indicates, the Supreme Court has authorized $750,000 in funding to Indiana non-profits that provide civil legal aid services to the poor without charge.

Now some quotes from Jarosz's follow-up story this morning, headed "Budget cuts force law library to close."

Librarian Zoya Golban turned off the lights and locked the doors Wednesday at the Marion County Law Library for the last time.

The cozy repository for legal materials and publicly accessible computers on the third floor of the City-County Building will permanently close this year because of city budget cuts.

But the library's closing, court officials say, won't be the end of the help the center provided to the roughly 3,000 Marion County residents who represent themselves in civil cases each year.

Starting Monday, those self-represented (or "pro se") litigants will be directed to an existing cluster of four computers at the Family Resource Center on the main floor of the City-County Building. There, they will be able to obtain help in finding forms they need to file in court and print documents -- functions previously served by the law library.

Those who want to access books the law library offered will be sent to the Indianapolis-Marion County Central Library, which will take on a portion of the law library's collection designed for people representing themselves in court. * * *

Library employees also will receive some training to help pro se litigants, but their resources are limited.

The library's public computers have time restrictions for usage. And since the library's staff has to answer questions on many different subjects, they can't focus solely on people seeking legal information, said Laura Bramble, chief executive officer of the Indianapolis-Marion County Public Library.

"In the past, we could send them on to the Marion County Law Library as they need additional help," Bramble said. "Now we won't be able to do that."

Another unanswered question is to what extent the library, which itself is facing budgetary challenges, will be able to update the books the county law library provides.
Bramble said library staff would have to review how often the materials they receive need to be updated and at what cost. * * *

For litigants such as Troy Davis, getting help with the court process is important. The Indianapolis man, who cannot afford a lawyer, went to the law library last week to find paperwork to file for emergency guardianship of his 17-year-old nephew.

Golban pointed him toward some sample forms for guidance. He left the library a little overwhelmed by the task before him of drafting his own form.

But without any assistance, he said, he would have been lost in a complex legal system.

The Marion County Law Library was a resource that was working and serving a definite need, operating alongside the online forms and the legal aid clinics for those who qualify. It is too bad funding could not be found in the county budget, or the courts' budget. This valuable resource is now gone -- the librarian who could help cut through the complexities let go, the books moved many blocks north to the Marion County Central Library which already has enormous financial burdens along with its many new responsibilities (including serving welfare and workforce development applicants).

Posted by Marcia Oddi on Saturday, January 02, 2010
Posted to Indiana Courts

Ind. Laws - More on: "Lawmaker to push texting-driving ban"

Updating this ILB entry from Nov. 3, 2009, two bills now have been introduced in the General Assembly this year that would ban texting while driving: SB 18 (authored by Senator Holdman) and SB 111 (authored by Senator Lanane).

Today the NY Times has a front-page story by Matt Richtel headlined "Bills to Curb Distracted Driving Gain Momentum." Some quotes:

When its legislature convenes this year, Kansas will consider banning motorists from sending text messages. South Carolina will, too, and debate whether to prohibit drivers from using phones altogether, or requiring them to use hands-free devices when they call. New Jersey lawmakers have proposed banning drivers from manipulating a navigation system in a moving car.

In all, lawmakers have already proposed 200 bills to curb distracted driving, and policy analysts expect to see dozens more in the coming months.

“It’s the hottest safety issue in the states right now by far,” said Jonathan Adkins, spokesman for the Governors Highway Safety Association, which represents state highway safety agencies.

The flurry of state activity — coupled with intensifying action by federal legislators and regulators, and by the cellphone and auto industries — is putting renewed focus on the risks of using phones behind the wheel, according to policy analysts.

They acknowledge that there is no certainty of how many of the bills will become law, and say that the number of bills is running just slightly ahead of last year’s tally.

But they assert the proposals are being met with less resistance than in years past from legislators, and are enjoying newfound industry support. For example, cellphone and auto companies have joined lobbying efforts for legislation to ban texting while driving.

“People are starting to see it like drunk driving, and that’s the comparison we need to continue to make,” said Steve Farley, an Arizona state representative from Tucson. * * *

Generally, states regulate their roadways — which is why, safety advocates say, the actions of state lawmakers play such a critical role in addressing the issue. (Currently, 19 states and Washington ban texting while driving, and six states and Washington require use of hands-free devices by motorists talking on phones.)

The Times story provides this link to its earlier stories on distracted driving.

Posted by Marcia Oddi on Saturday, January 02, 2010
Posted to Indiana Law

Ind. Law - More on: "State hopes database will curb meth"

This ILB entry from Oct. 11, 2009, headed "Cold-med law snares allergy sufferers: Pseudoephedrine buyers limited to 3 grams a week," recounted several stories of innocent purchasers ensnared by Indiana's law strictly limiting purchases of cold medicine.

Today the Fort Wayne Journal Gazette has this editorial, "Better use of meth law," that relates:

Right or wrong, Indiana lawmakers decided in 2005 to limit and track the sales of decongestants, which have a key ingredient used in making methamphetamine. State criminal justice officials are right to now make a significant step toward using the law to help curb meth manufacturing while preventing innocent cold and allergy sufferers from being punished.

While a new initiative to move purchase records of the decongestants from paper to computer is a welcome effort to take full advantage of the law, no one should think that step alone will end meth use and making. * * *

Consumers are limited to buying no more than 3 grams of pseudoephedrine in a week, or about 25 120-milligram pills, more than enough for personal use. But, as Rebecca Green reported in October, people with allergies who legitimately might buy a little extra to stock up can mistakenly run afoul of the law and even be charged with a misdemeanor.

Now, armed with a $200,000 federal grant, Indiana State Police have launched the Indiana Meth Intelligence System. It will maintain a database that would include, among other records, the decongestant purchases. Rather than be a burden for pharmacies, moving from paper to digital records will make sales more efficient. And the system can easily red-flag excessive sales.

At the same time, as Angela Mapes Turner reported Sunday, police believe they can fine-tune the database to screen out people who legitimately buy the over-the-counter medicine for colds or allergies.

Records of arrests and meth-lab busts indicate that the 2005 law was initially quite effective, curbing meth making. But the makers and sellers began to find ways around the law, including making smaller purchases at more pharmacies. The new computer system should help curb that practice.

At the same time, Hoosiers shouldn’t be surprised if the meth heads find new ways to avoid the database. Still, the computer network should help authorities use the law to its potential, and it can be an effective tool – especially if combined with stepped-up education efforts that graphically explain the vile contents of meth and the undeniable ways it hurts users.

Posted by Marcia Oddi on Saturday, January 02, 2010
Posted to Indiana Law

Ind. Law - Indiana's voter ID law: more restrictive than that of other countries?

The Jan. 4, 2010 issue of the subscription-only newsletter, Indiana Legislative Insight, includes this item, reprinted here with permission:

Electoral reform attorney Tova Wang, a democracy fellow at The Century Foundation and vice president for research at Common Cause, co-authors an article in the Harvard Law and Policy Review with Dr. Frederic C. Schaffer, a Harvard, MIT, and University of Massachusetts political scientist who researches global election fraud. "Is Everyone Else Doing It? Indiana's Voter Identification Law in International Perspective" seeks to debunk the argument proffered by supporters of Indiana-like Voter ID requirements that a number of other nations mandate impose polling place IDs.

The authors argue that Indiana's law is considerably more restrictive than those imposed by most other countries, and that many other nations make it easier to obtain the necessary identification than Indiana does.

The article also raises a point we hadn't heard commented upon in the Indiana context: "ID-renting."

The authors explain what this is while contending that our law actually may lead to encouraging the practice:

Paradoxically, the new Indiana law actually increases opportunities for election cheating – in the form of abstention buying, which, like absentee ballot fraud, is relatively low risk for the perpetrator, since nothing detectably illegal need go on at the polling place. We know that political operatives around the world have used voter identification requirements to suppress the vote of opposition supporters by "renting" from individuals their identification documents, making these individuals unable to vote.
The authors explain that:
ID-renting works best where only one form of identification is allowed, or where voters are likely to possess only one of the allowable forms of identification. That roughly half of Indiana registered voters possess only one form of allowable identification (a driver's license) certainly makes ID-renting a feasible strategy in that state.[54] A skeptic might counter that Indiana is not in Africa or Latin America, and that ID-renting could not become a serious problem in the Hoosier state. In this context, it is troubling to note that Indiana politicians in places as diverse as the city of East Chicago and rural Crawford County have already demonstrated a willingness to buy votes under the guise of tree-trimming and sidewalk improvement schemes as well as with cash and, as one legend has it, whiskey. Indiana thus may be more vulnerable to identification renting than most are aware.

Whatever the future of abstention buying in Indiana, the threat of in-person voter impersonation has been low. It has been far more real in at least two places abroad that have recently adopted voter identification requirements. _

_________
[54] Note too that a crafty voter might try to outwit an abstention buyer by "renting out" her driver's license and then voting absentee, which does not require identification. But as long as the buyer defers payment, he can determine, from lists prepared by election officials, which individuals requested and used absentee ballots, and thus which individuals upheld their end of the deal and deserve payment.Here is a link to the 16-page law journal article.

Posted by Marcia Oddi on Saturday, January 02, 2010
Posted to Indiana Law

Courts - More on "Judging the Federal Judges"

In this Dec. 14th entry, the ILB quoted from a Houston Chronicle story, reported by Lise Olsen, headed "Judging the judges: Does secret process let errant jurists get away with breaking the law?" The story is no longer available from the Chronicle, but may be found here (or here).

On Dec. 30th Ms. Olsen had a second report in the Chronicle, this one headed "Judging the Judges: Veil of secrecy stirring calls for change." Here are some quotes from the lengthy story:

Just 12 chief federal judges wield almost exclusive power over secret misconduct investigations of more than 2,000 fellow jurists — though some have themselves been accused of botching reviews or committing ethical blunders, according to a Houston Chronicle review.

At least four current or former chief circuit judges have been the subject of recent high-profile complaints about their behavior; one posted photos of naked women painted to look like cows and other graphic images on his publicly accessible Web site; another manipulated the outcome of a vote in a death penalty case.

Not one faced formal discipline.

Nationwide, the integrity of the federal judicial misconduct system relies heavily on chief judges. Each oversees complaints — more than 6,000 in the last 10 years — against all circuit, district, senior, bankruptcy and magistrate judges in multi-state regions called circuits. * * *

In seven circuits, according to the Chronicle analysis, supervising judges took no public disciplinary action at all in the last decade, meaning not a single federal judge faced any sanctions in 29 states with more than 875 full-time federal judges, despite thousands of complaints. * * *

In 2006, a Supreme Court committee, led by Justice Stephen Breyer, reported the system handled routine matters well, but botched five of 17 high-profile cases, an error rate “far too high.”

The report named no names but described matters bungled by four of 12 regional circuits: the Chicago-based 7th Circuit, the Cincinnati-based 6th Circuit, the San Francisco-based 9th Circuit and the St. Louis-based 8th Circuit, the Chronicle found. * * *

Some chief judges pursued no disciplinary action even after confirming that colleagues improperly dished out insider information, slept during trials, hurled obscenities in court, or broke laws themselves, the Chronicle's review of more than 3,000 records stored in a little-known judicial archive shows.

Yet many complaints, on topics ranging from alcoholism to personality disorders, are successfully managed behind the scenes through counseling, and, when necessary, quiet resignations, circuit court officials say.

“There's a lot more being done that doesn't appear (in public records),” said Collins Fitzpatrick, a longtime 7th Circuit executive who has worked on complaints for years and studied the system.

Posted by Marcia Oddi on Saturday, January 02, 2010
Posted to Courts in general

Friday, January 01, 2010

Ind. Decisions - ND Judge rules LaPorte must replace crumbling sidewalks

A brief AP story this afternoon alerted the ILB to this Dec. 22, 2009 decision in Jon Culvahouse, et al. v. City of Laporte. From the story:

A federal judge says the northern Indiana city of LaPorte must improve or replace its crumbling sidewalks because they violate the Americans with Disabilities Act.

U.S. District Court Judge Robert Miller said in a December ruling that the city must undertake repairs to sidewalks estimated to cost up to $33 million.

Two disabled LaPorte residents sued the city in 2006, claiming the poor condition of city sidewalks prevented them access to municipal services, programs and activities, a violation under the ADA.

The city said property owners were legally responsible for the upkeep of public sidewalks, but the judge disagreed.

A court hearing to discuss the city's compliance options has not yet been scheduled.

Here is the 30-page opinion. Some quotes from Judge Miller's opinion:
Both sides seek summary judgment on the issue of whether sidewalks in the City of LaPorte violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. In reliance on 42 U.S.C. § 12132, the plaintiffs say the City’s sidewalks qualify as a “service, program, or activity” within the meaning of the ADA, so the City must make the sidewalks readily accessible to people with disabilities. The City responds, first, the sidewalks don’t constitute a service, program, or activity under the ADA; second, maintenance of existing sidewalks is the home owner’s responsibility under LaPorte City Ordinance No. 733, so requiring the City to repair or improve sidewalks would require implementation of a new service, program, or activity contrary to the ADA’s requirements; and, third, granting the requested relief would result in an undue financial burden to the City.

Realizing that these motions have been pending for far too long, the court apologizes for the delay and to prevent further delay declines to re-open briefing on the motions. After considering the parties’ arguments, the applicable provisions of the ADA and its 2008 Amendments, and the supplemental authorities cited by the parties, the court denies the City’s motion and grants the plaintiffs’ motion in part. * * *

Even if the parties could agree on the extent and cost of the needed work, they disagree about who has the responsibility to undertake and pay for the work. The plaintiffs say the City is obligated to repair the sidewalks under the ADA, an Indiana statute, and 120 years of Indiana case law. The City disagrees and claims it has no obligation to repair the sidewalks. According to the City, sidewalks don’t qualify as a “service, program, or activity” under the ADA and a 1939 LaPorte Ordinance imposes a duty on real estate owners, not the City, to maintain and repair the sidewalk(s) located on their property. The City also says that because historically it has chosen to not provide sidewalks and sidewalk maintenance to its citizens, any requirement to undertake such work now would amount to a new service not required by the ADA. * * *

The City next claims that even if the court determines that sidewalks are a service, program, or activity under the ADA, the City has no obligation to repair or maintain its sidewalks because the City doesn’t own them. The City says LaPorte Ordinance No. 733 governs. * * *

The City says its hands-off policy is further evidenced by the “hodge-podge and haphazard existence of sidewalks” within the City, which the City claims results from sidewalks being constructed at the whim of property owners completely independent of any ongoing program, service, or activity offered or sponsored by the City. * * *

The court can’t agree with the City’s position. Indiana municipalities have “exclusive jurisdiction over bridges[], streets, alleys, sidewalks, watercourses, sewers, drains, and public grounds inside [their] corporate boundaries, unless a statute provides otherwise.” IND. CODE § 36-1-3-9(a). Indiana courts over the years have continued to recognize municipalities’ authority and duty to keep their sidewalks in a reasonably safe condition for use by the public. * * *

In addition, various sections of LaPorte’s Municipal Code confirm the City’s authority and control over its sidewalks. * * *

Because the court concludes it is unable to determine, based on the record before it and the passage of time since the submission of relevant financial information, what options are or may be available to the City to assist with its obligation to make travel via City sidewalks “readily accessible to and usable by” persons with disabilities as required under Title II of the ADA, a hearing will be scheduled, following consultation with counsel, to discuss implementation of the injunctive relief requested by the plaintiffs.

Posted by Marcia Oddi on Friday, January 01, 2010
Posted to Ind Fed D.Ct. Decisions

Law - "What 'Could' Have Been Entering the Public Domain on January 1, 2010?"

This is an interesting article that highlights how the protection of copyright has been expanded.

Duke Law's Center for the Public Domain has an article that begins:

Current US law extends copyright protections for 70 years from the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1953 would be passing into the public domain on January 1, 2010.

What might you be able to read or print online, quote as much as you want, or translate, republish or make a play or a movie from? How about Casino Royale, Ian Fleming’s first James Bond novel? Fleming published Casino Royale in 1953. If we were still under the copyright laws that were in effect until 1978, Casino Royale would be entering the public domain on January 1, 2010 (even assuming that Fleming had renewed the copyright). Under current copyright law, we’ll have to wait until 2049. This is because the copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as this). All of these works from 1953 will enter the public domain in 2049.

Posted by Marcia Oddi on Friday, January 01, 2010
Posted to Courts in general

Ind. Law - "The tales of two Wilders"

The ILB has posted a number of entries involving either attorney Larry Wilder or Peggy Wilder, both of Jeffersonville, Clark County, over the past several years.

In Part II of its "Clark County: Top Stories of 2009" feature, the Jeffersonville News & Tribune has an item that begins:

As far as news stories concerning a former husband and wife, the name Wilder sure was appropriate in 2009. Jeffersonville Clerk-Treasurer Peggy Wilder and her ex-husband, on-again-off-again-on-again City Council Attorney Larry Wilder, made headlines — locally and regionally in the case of Peggy; locally and nationally in the case of Larry.

He was found asleep in a neighbor’s garbage can — one required for homeowners by an ordinance Wilder helped craft — after a night of drinking in June, with photographic proof. Larry Wilder was not arrested or charged with a crime, but the story quickly took on a life of its own — given extended play by national news coverage, a Father’s Day press conference by Mayor Tom Galligan and an investigation, which turned up nothing, as to who was responsible for leaking the photos of Wilder in the garbage can to the media.

Posted by Marcia Oddi on Friday, January 01, 2010
Posted to Indiana Law

Law - "Feds Warn Small Businesses to Use Dedicated PC for Online Banking"

The ILB has had a number of earlier entries on the growing problem of thefts of funds out of bank accounts by online hackers, includng this one from Oct. 27, 2009.

Kim Zetler of Wired's Threat Level blog has another article today. It begins:

In the wake of a rash of hacks on computers owned by small businesses, the FBI and the American Banking Association have issued an alert advising businesses to use only a dedicated PC for online banking, according to USA Today.

The alert was issued after numerous small businesses, universities and local governments have been targeted by hackers who installed keystroke loggers on their machines to steal banking credentials and siphon millions of dollars from their bank accounts.

The alert advises businesses to dedicate a single computer for online banking activity that is never used for reading e-mail or surfing anywhere else on the web. Using a dedicated computer would lessen the chance of the computer being infected with malware that can help crooks drain a bank account through wire transfers and automated clearinghouse transfers.

The FBI says thieves have stolen about $40 million in this way in more than than 200 cases they’ve investigated in the last two years involving small to mid-size companies and organizations. Such companies generally do not employ dedicated computer security staff or have extensive knowledge about how to protect themselves with firewalls, anti-virus and other measures and policies. * * *

Bank customers with business accounts have fewer protections than customers with personal accounts, which are protected by federal consumer-protection laws. Consumers who report fraudulent activity on their account in a timely manner will generally get their money reimbursed, though it make take time and effort to convince the bank that the transaction was fraudulent.

Business customers are not as lucky and many have found that banks refuse to accept liability for fraudulent money transfers if the bank determines that the customer did not employ adequate security measures, such as a well-configured firewall and up-to-date anti-virus programs.

Here is a long and comprehensive current story from USA Today.

Posted by Marcia Oddi on Friday, January 01, 2010
Posted to General Law Related

Courts - "Federal Court Limits the Use of Tasers "

John Schwartz of the NY Times has this story today. Some quotes, read the entire article for some views on its implications:

In a case that could set the first broad judicial standards for the use of Tasers, a federal appeals court in California has ruled that the police can be held liable for using one of the devices against an unarmed person during a traffic stop.

The United States Court of Appeals for the Ninth Circuit, based in San Francisco, said the electrically disabling device constituted excessive force when used against an unarmed man who did not pose a threat, and it refused to allow a police officer immunity for its use.

In a vividly worded opinion issued by the court this week, Judge Kim McLane Wardlaw described a “bad morning” for Carl Bryan, a 21-year-old Californian who drove over large stretches of Southern California to retrieve car keys mistakenly taken by a friend and ended up being Tasered by a Coronado, Calif., policeman and breaking four teeth when he fell to the ground.

Mr. Bryan was stopped twice on his driving odyssey, once for speeding and once for not wearing his seat belt. After the second stop, he was “agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes,” the court said.

The judge noted, however, that Mr. Bryan did not threaten the officer, Brian McPherson, and was not trying to flee — all elements of a three-part test that the United States Supreme Court has used to determine when significant force is justified. As for the third factor in the court’s test, the severity of the offense at issue, the Ninth Circuit judges observed that “traffic violations generally will not support the use of a significant level of force.”

The court found that the policeman’s use of force so exceeded the threat posed by Mr. Bryan that it denied his request for immunity for his actions and for a quick dismissal of the case against him. Instead, the judges will allow the case to go forward.

The case is Bryan v. McPherson - here is the 22-page 9th Circuit opinion.

Posted by Marcia Oddi on Friday, January 01, 2010
Posted to Courts in general