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Sunday, February 28, 2010

Law - "Fourth Amendment Seizures of Computer Data."

Fascinating new Yale Law Journal article by George Washington University Law School Prof. Orin S. Kerr, titled "Fourth Amendment Seizures of Computer Data." A quote from the introduction:

Computer search and seizure inverts the usual pattern of criminal investigations. When searching for traditional physical evidence, the police first search for property and then seize it. Computer technologies often require investigators to obtain a copy first and then search it later. Nearly every case begins with copying data that will later be searched, and government investigators often will prefer to copy more rather than less if the Fourth Amendment allows it.

Posted by Marcia Oddi on Sunday, February 28, 2010
Posted to General Law Related

Courts - "Finding Untainted Jurors in the Age of the Internet"

An article today by Adam Liptak of the NY Times -- here are some quotes:

It has been two decades since the Supreme Court has considered a major change-of-venue case, and its jurisprudence is still rooted in decisions based on small communities dominated by a single local newspaper and perhaps a trio of local television news programs. The law has been slow to adapt to a more general, more intense and yet more atomized media environment.

How potential jurors become informed in the Internet era, experts in jury behavior said, cut in two directions. It may now be harder than ever for defendants to find wholly untainted jurors in their own communities. At the same time, a change of venue in a truly high-profile case is less likely than ever to solve the problem.

And here is the ending:
[M]any judges and experts in jury behavior say it is not particularly difficult to find unbiased – indeed, profoundly uninformed – jurors.

“This may come as a surprise to lawyers and judges,” the full United States Court of Appeals for the District of Columbia Circuit wrote in an unsigned decision affirming the convictions of top aides of President Richard Nixon in the aftermath of the Watergate scandal, “but is simply a fact of life that matters which interest them may be less fascinating to the public generally.”

Posted by Marcia Oddi on Sunday, February 28, 2010
Posted to Courts in general

Ind. Courts - Calamari Productions MSNBC Series “LAKE COUNTY JUVENILE JUSTICE” wins prestigious Gracie Allen Award for Outstanding TV Series

The ILB has had a number of entries on Calamari Productions. From a press release dated Feb. 24, 2010:

NEW YORK - February 24, 2010 - Calamari Productions and MSNBC have received the 2010 Gracie Allen Award® for Outstanding Television Series for the groundbreaking production, “Lake County Juvenile Justice.” The 35th annual Gracie award winners were announced today by the American Women in Radio and Television (AWRT). “We’re incredibly honored to win this esteemed award, and to bring attention to the plight of millions of at-risk kids in the United States,” said Calamari Productions Founder and Chief Executive Karen Grau. “Indiana Supreme Court Chief Justice Randall Shepard and Senior Judge Mary Beth Bonaventura have done an extraordinary service to the community by allowing us to film in these otherwise legally closed confines.”

“Lake County Juvenile Justice” was comprised of six one-hour documentaries. In total, eighteen juveniles were filmed for the series over a ten-month period, illuminating stories that ranged from childhood depression and generational poverty, to youth being sentenced to juvenile prison. The goal for producing the series was to deliver an in-depth, unflinching look at how the juvenile systems work, giving viewers a sense not only for the juvenile court hearings, but for the lives of the kids who have grown up in under-serviced neighborhoods in at-risk families and with significant educational challenges.

"Working with Calamari Productions to achieve Indana Chief Justice Randall Shepard's goal of educating the public on the topic of Juvenile Delinquency and its consequences was truly an honor,” said Mary Beth Bonaventura, Senior Judge, Lake Superior Court, the juvenile judge featured in the series. “The series absolutely captures what takes place from detention of a juvenile to disposition of their cases in the courtroom. Karen Grau is a master at capturing the powerful interactions of kids and their parents and bringing to light the consequences of delinquent behavior on the lives of these kids, their families, and our comuunities."

Posted by Marcia Oddi on Sunday, February 28, 2010
Posted to Indiana Courts

Ind. Courts - More on "St. Joseph County judge wants money to make costly repairs at the Juvenile Justice Center, but county commissioners say they can't just hand it over"

Updating this ILB entry from Feb. 21st, the South Bend Tribune has an editorial today headed "First priority: Fix the JJC's air conditioning." It reads:

St. Joseph Probate Judge Peter Nemeth says that he needs $67,000 to pay for an overhaul the Thomas N. Frederick Juvenile Justice Center's air conditioning chillers. He wants to use money from the probation user fee fund.

But first the St. Joseph County Board of Commissioners has to sign off on the request. The commissioners won't do it.

We've heard this before. It's a familiar refrain in St. Joseph County.

After the commissioners first turned down Nemeth's $67,000 request, even though the County Council had approved it, the council overrode their veto. And now the commissioners say they still won't sign off on the purchase. They're waiting to be told by the Indiana Supreme Court that Nemeth's planned use for the money is proper.

In fact, the pending decision from the Supreme Court will be the resolution of an earlier standoff between Nemeth and the commissioners. It started as a request by Nemeth for $355,000 from JJC and probation user fee funds. The request was approved by the council and commissioners. But then the commissioners reversed themselves.

The first series of events resulted in a mandate by Nemeth, which was supported by as special judge (who also assessed the county $18,000 for Nemeth's legal fees) and now is before the high court.

Nemeth's response to this latest round? He says he'll take more legal action because he's in the right and the air conditioner chillers have to be fixed.

But the commissioners aren't budging.

Ill will between Nemeth and the commissioners notwithstanding, there are some facts at play here.

First, the JJC must have air conditioning. The temperature control system must be repaired. The building cannot be used during warm months without it.

The commissioners and the judge need to do what is necessary to accomplish this task. It is their duty, not a question of goodwill.

It is a shame when officials whose job it is to act in the public interest resort to lawsuits against one another and money wasted on avoidable legal fees. We surely do not want to hear about any more threats of legal action. What we want to hear is that the air conditioners at the JJC have been fixed.

Posted by Marcia Oddi on Sunday, February 28, 2010
Posted to Indiana Courts

Courts - "Kentucky Law firm, medical clinic accused of trading clients"

Reminiscent of this Aug. 9, 2009 ILB entry, quoting a story in the Gary Post Tribune headed "Chiropractor, attorney accused of scam: Accident victim says her saga painful; federal case alleges insurance fraud," is this long story today by Andrew Wolfson in the Louisville Courier Journal. From today's story:

Injured when another car struck hers in June 2008, Sharon Langford of Louisville went to see the law firm of Winters Yonker & Rousselle.

She said the firm told her that her health insurance wouldn't cover injuries suffered in car wrecks and that she should get all medical care at 1st Physician Rehabilitation Inc., a clinic on Crums Lane.

When Langford needed surgery, the firm flew her to another clinic in Florida.

She only discovered later, she said, that both clinics are owned by Gary Kompothecras, a chiropractor who also owns the heavily advertised referral service 1-800-ASK-GARY, which refers clients to Winters & Yonker, as the firm is now known, in Louisville and Florida.

In a suit filed last month against the law firm and Kompothecras' Louisville clinic, Langford said the relationship between the two — and their alleged deception — deprived her of the right to treatment by her doctors and cost her money.

Sam Carl, one of her lawyers, said Winters & Yonker settled her accident case for $200,000, then paid itself $70,000 and the medical providers $64,518, leaving her the smallest share, $62,738. (The balance covered medical expenses before she hired the firm.)

“I felt they weren't honest with me,” Langford, a former state corrections officer, said in an interview.

The law firm and medical clinic call the suit frivolous and say they will prevail.

Posted by Marcia Oddi on Sunday, February 28, 2010
Posted to Courts in general

Saturday, February 27, 2010

Ind. Law - More on: Integrity of Indiana's primary legal resources

If you were interested in this ILB entry on Feb. 25th, this entry yesterday from the Law Librarian Blog will also be of interest. The title: "The Birthing of 21st Century Legal Authority."

Posted by Marcia Oddi on Saturday, February 27, 2010
Posted to Indiana Law

Ind. Courts - Wabash Students Get Up Close Look at Appeals Court"

On Feb. 25th a Court of Appeals panel heard oral arguments in the case of Ben and Shona Erwin v. Brenda Roe (see ILB review here in the Feb. 22nd "Upcoming Oral Arguments"), at Wabash College. Here are some quotes from a Feb. 26th story by Greg Slisz on the Wabash College website:

Court was in session Thursday at Wabash College as the Indiana Court of Appeals held an oral argument in the Goodrich room of the Lilly Library. The hearing was part of Indiana’s “Appeals on Wheels” program, which presents live appellate arguments at various locations around the state.

The case, Erwin vs. Roe, concerned negligence of a child who had suffered lead poisoning. Erwin, tenants of a rented home, alleged that the lead poisoning that their child suffered was due to unsafe lead paint present in the house. Roe, the property’s landlord, had won the case at a lower level court and was the case’s appellee. The case centered on whether or not Roe had prior knowledge of whether or not the property contained lead paint, and if this knowledge was even necessary to be guilty of “negligence per se,” which is negligence that violates a safety regulation. In addition to debating the interpretation of the statute, the two parties also debated about the length of time granted for Erwin’s discovery of evidence. * * *

Rhetoric Professor Todd McDorman, who has helped bring the Appeals on Wheels program to Wabash for the past 10 years, said * * * “We have been doing it every year for pretty much the past decade,” McDorman said. “We’ve heard a variety of court cases, some are civil, some are criminal cases, and I think it gives our students a good opportunity to see the law in action. A number of times we’ve had Wabash graduates come back and argue the case, which I think the students always appreciate, because it helps them self-actualize where they can be in that position in years to come.”

Posted by Marcia Oddi on Saturday, February 27, 2010
Posted to Indiana Courts

Ind. Law - More on: Indiana adoption laws subject of bill

Updating this ILB entry from Feb. 10, 2010, about SB 140, this adoptions bill passed the House 97-0 on Feb. 25, but was amended both in House committee and on second reading.

SB 140 was returned to the Senate with amendments and, also on Feb. 25, the Senate dissented from the House amendments (which would include changes to the termination of parental rights statute, IC 31-35-2). So the bill may go to conference committee, or the Senate may withdraw its objections to the House changes, or the bill may die.

Here is a Feb. 26th WSBT-TV story on the bill, that unfortunately contains inaccurate statements including:

The House approved a bill to improve Indiana's adoption laws Thursday. The bill was passed unanimously by the House. It will now be sent to the Senate where it is expected to do well.

Posted by Marcia Oddi on Saturday, February 27, 2010
Posted to Indiana Law

Friday, February 26, 2010

Ind. Decisions - Supreme Court grants five transfers [Updated]

The ILB has just received notice that the Supreme Court granted transfer Thursday to five cases:

The complete Clerk's transfer list may be available to the ILB on Monday. Or not. See this ILB entry from Feb. 23rd.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "Court reverses Brown County fire district dissolution"

Susanne C. Gaudin, Robyn Rosenberg, et al. v. J.W. Austin, Darrell L. Kent, et al., a decision issued today by the Court of Appeals (ILB entry here, 2nd case), is the subject of this "breaking news" report in the Brown County Democrat. The story begins:

The Indiana Court of Appeals has reversed a summary judgment that said the Brown County Commissioners had the authority to dissolve the Brown County Fire District.

This most recent ruling, filed this morning, notes instead that “the commissioners did not have the authority to dissolve the district by ordinance.”

For background, start with this ILB entry from Jan. 10, 2009.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - Bill with "Wallace language" passes 2nd House

Updating this long ILB entry from Feb. 23rd, which suggested that the new language proposed by the Prosecuting Attorneys' Council and added to SB 224 to address the "Wallace issue" could simply make a bad situation worse (take a look at the Feb. 23rd entry for details), the House passed the bill on Third Reading yesterday 97-0 and it was returned to the Senate with amendments. According to a story by the Indiana Lawyer, the Attorney General worked on the changes, which would put into law:

the procedure and stance taken by the DOC. The language would revise the statute regarding offenders seeking relief from registry requirements by requiring that person to file a petition in court and request a court order for removal. The prosecutor would receive notice and have a chance [ILB - at least 60 days] to respond, and the offender would have to provide information to prove he's no longer eligible for listing on the registry. If the judge orders removal, the DOC would be required to grant it.
In other words, if the Supreme Court's ruling in Wallace means that an individual was required to register as a sex offender under a law that, under the constitution, should not have been applied to him, the individual will have to go through a court proceeding to prove it.

And, as the Feb. 23rd ILB entry ended:

Furthermore, the new language would not take effect until July 1, 2010. What happens until then? And what of individuals whose names already have been removed pursuant to the Supreme Court's decision in Wallace, either by court order, or by sheriffs' actions? What of pending actions?
Adding to the confusion, or at least the ILB's confusion, is this story by Jeff Neumeyer, posted Feb. 25th on the Fort Wayne Indiana News Center's website, that makes no mention of the pending legislation:
Indiana's attorney general says a uniform computer system would aid Hoosier officials in the big task of removing hundreds of names from the state's sex offender registry list.

The job has to be done, because of an Indiana Supreme Court ruling in 2009.

Indiana's high court last year agreed with attorneys for Richard Wallace, who argued the one-time child molester should not have to register as a sex offender in Indiana, because the list wasn't even in existence in the 19-80's when he committed his crimes.

The ruling said that the current provision violates the prohibition on “ex post facto” laws in the Indiana Constitution.

The decision impacts somewhere around two-thousand offenders statewide.

Almost 300 in Allen County alone have already been stripped off the registry because of the 2009 decision.

Attorney General Greg Zoeller told Indiana’s NewsCenter, he will help set up an administrative procedure to remove names that no longer belong.

We asked officer Jeff Shimkus, the sex offender registry coordinator for Allen County, if public protection from sexual predators will suffer under this change.

Cpl. Jeff Shimkus/Allen County Police Dept.: "I still say use the registry, find out who's living in your neighborhood, don't trick or treat at their houses, obviously, don't have your kids spend the night at their houses, but the main thing is don't think that you're safe because the person is not on the registry. You still have to do the research, figure out who this person is."

Shimkus says there may be dozens of people in Allen County who pose a safety threat to children or others, who’ve never committed a crime, and thus wouldn’t be on the list anyway.

Attorney General Zoeller says it may take close to a year to get the statewide registry updated to reflect the recent court ruling.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Law

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

Updating this ILB entry from Feb. 16th, about SB 399 and its potential impact on counties other than Marion, the bill passed Third Reading in the House yesterday, with 98 Yeas and 0 Nays, and has been returned to the Senate with amendments.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 18 NFP)

For publication opinions today (3):

In Syed Tajuddin v. Sandhu Petroleum Corporation Number 3, a 9-page opinion, Judge May writes:

Syed Tajuddin purchased property owned by Sandhu Petroleum Corporation Number 3 at a tax sale. He petitioned for a tax deed, and Sandhu objected. The trial court denied Tajuddin’s petition, finding he did not give proper notice to Sandhu and Sandhu was entitled to equitable relief. The court’s conclusions regarding notice are not supported by the evidence, but Sandhu is entitled to equitable relief. Therefore, we affirm. * * *

[W]e conclude this case is more like Atkins, where we granted equitable relief because the property owner relied on misinformation from a government officer and the tax sale was unlawful.

As we recognized in Swami, a “trial court has full discretion to fashion equitable remedies that are complete and fair to all parties involved.” Id. at 1178. “Equity has power, where necessary, to pierce rigid statutory rules to prevent injustice.” Id. Given the irregularity in the manner in which the property was assessed, we cannot say the trial court abused its discretion by granting Sandhu equitable relief.

In Susanne C. Gaudin, Robyn Rosenberg, et al. v. J.W. Austin, Darrell L. Kent, et al., an 8-page opinion, Judge May writes:
In September of 2007, the Brown County Commissioners enacted an ordinance establishing a fire district. In January 2009, after two new Commissioners were elected, the Commissioners enacted an ordinance purporting to dissolve the district. No petition to dissolve the district or to repeal the ordinance establishing it had been filed. Soon thereafter, Gaudin and the other plaintiffs sought declaratory and injunctive relief, alleging the dissolution ordinance was void because no petition had been filed.

The trial court granted summary judgment for the Commissioners: “there is nothing to compel a conclusion that a governing body with the authority to establish a Fire Protection District does not have a similar authority to dissolve a district by ordinance, particularly one established by ordinance.” (App. at 11.)

We reverse.

In Sunburst Chemical, LLC and Gary Jackson v. Acorn Distributors, Inc., a 7-page, 2-1 opinion, Judge May writes:
Sunburst Chemical, LLC, and Gary Jackson appeal the denial of their motion to transfer venue to Allen County. We affirm. * * *

On March 3, 2009, Acorn filed a complaint against Sunburst and Jackson (collectively, “Sunburst”) in Marion County. The complaint alleged Sunburst’s account with Acorn was past due. On March 23, 2009, Sunburst filed a motion to transfer venue to Allen County, arguing preferred venue was in Allen County because that is Sunburst’s principal place of business and Jackson’s county of residence. Acorn opposed transfer, arguing Sunburst had agreed to venue in Marion County by signing the account credit agreement. The trial court denied Sunburst’s motion. * * *

We agree with Sunburst that jurisdiction and venue are distinct concepts. See Hootman v. Finance Center Federal Credit Union, 462 N.E.2d 1064, 1066 n.7 (Ind. Ct. App. 1984) (noting jurisdiction involves the court’s ability to hear a particular case, whereas venue concerns the proper situs for trial). However, if we were to accept Sunburst’s argument that the agreement does not address venue, it would render the reference to Marion County meaningless. In fact, Sunburst’s argument suggests the entire provision is meaningless as applied to it, and that the provision is meant only to apply to businesses not otherwise subject to jurisdiction in Indiana. However, we must presume that Acorn placed the provision in the agreement for a purpose and that the reference to the courts of Marion County is intended to have meaning. See Shook, 835 N.E.2d at 541. Therefore, we conclude the agreement establishes venue in Marion County, and the trial court did not err by denying Sunburst’s motion to transfer venue. See Mechanics Laundry & Supply, 596 N.E.2d at 255 (enforcing contractual venue provision). Affirmed.

DARDEN, J., concurs.
KIRSCH, J., dissents with separate opinion. [that begins] I respectfully dissent.

Neither Sunburst Chemical, nor Gary Jackson consented to venue in Marion County; nor did they consent to Marion County as a forum for the resolution of any dispute that arose under the credit agreement. While they did consent to the personal jurisdiction of Marion County, they did not enter into a prorogation provision by which only Marion County would have jurisdiction.

NFP civil opinions today (4):

Company v. Review Board and S.H. (NFP) - "Employer's arguments that Claimant's conduct violated Employer's policies regarding break time and limits on personal conversations and Employer's vehicle policy are merely requests that we reweigh the evidence. Our standard of review does not permit us to engage in such an analysis. There is substantial evidence in the record to support the findings made by the Review Board. Those findings in turn support the Review Board's conclusion that Claimant's discharge was not for just cause."

In the Matter of S.V., E.V., and B.V.; J.V. and C.V. v. IDCS (NFP)

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

Term. of Parent-Child Rel. of G.F., B.W., F.W., K.W., and Z.W.; H.W. and C.W. v. IDCS (NFP)

NFP criminal opinions today (14):

State of Indiana v. James Shepherd (NFP) - "The State of Indiana appeals the trial court’s order that granted James Shepherd’s motion to suppress. The State raises the following restated issue: whether the trial court erred when it suppressed all evidence discovered by police after a patrol officer approached a parked vehicle at around 3:30 a.m., discovered an initially unresponsive driver, and smelled alcohol when the driver opened the car door. We reverse and remand."

James Johnson v. State of Indiana (NFP)

Dennis Snowdy v. State of Indiana (NFP)

Stevie Alsum v. State of Indiana (NFP)

Jeffrey Watson, Sr. v. State of Indiana (NFP)

Gregory A. Wilson v. State of Indiana (NFP)

Travis Conn v. State of Indiana (NFP)

James M. Schwartz v. State of Indiana (NFP)

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

Kenya Foy v. State of Indiana (NFP)

Briteya S. Evans v. State of Indiana (NFP)

Jeffrey Armstrong v. State of Indiana (NFP)

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

Michael Orr v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides three Indiana cases today

In Minix v. Canarecci (ND Ind., Miller), an 18-page opinion, Judge Tinder writes:

While incarcerated at the St. Joseph County Jail, Gregory Zick, an inmate with a history of suicidal tendencies, took his own life. Zick’s mother, Cathy Minix, brought suit under 42 U.S.C. § 1983 against several jail officials for their alleged deliberate indifference to Zick’s suicide risk. The district court granted summary judgment in favor of the defendants. We affirm. * * *

Zick’s suicide was tragic, but the evidence produced was not enough to overcome the “high hurdle” set by the deliberate indifference standard for liability under § 1983. Collins, 462 F.3d at 762. We AFFIRM the grant of summary judgment in favor of the defendants.

In Gentry v. Sevier (ND Ind., Judge Simon), a 24-page opinion, Judge Der-Yeghiayan, District Judge for the Northern District of Illinois, is sitting by designation, writes:
On June 10, 1999, Kenneth E. Gentry was convicted in the Marion Superior Court of Indiana on three counts of burglary and three counts of theft. During the trial, the Government introduced evidence that was obtained by police officers during an encounter with Gentry when the police officers searched Gentry’s person and a wheelbarrow he was pushing. At no time before or during the trial did Gentry’s counsel move to suppress or object to the introduction of the evidence. Gentry’s habeas petition asserts that by failing to move to suppress or object to the admission of the evidence obtained from the searches by the arresting officers, Gentry received ineffective assistance of counsel. The district court denied Gentry’s habeas petition. For the reasons stated below, we reverse the district court’s denial of the habeas petition. * * *

For the above stated reasons, we conclude that the Court of Appeals of Indiana unreasonably applied federal law when the Court determined that the evidence concerning the search of the wheelbarrow was admissible and held that Gentry’s counsel’s performance did not fall below an objective standard of reasonableness. We REVERSE the decision of the district court and REMAND with instructions to GRANT the petitioner’s request for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. If the State elects not to retry Gentry within 120 days, he shall be released from confinement.

In U.S. v. Meux (ND Ind., Nuechterlien, Magistrate Judge), a 6-page opinion, Judge Der-Yeghiayan, District Judge for the Northern District of Illinois, is sitting by designation, writes:
Shakir Meux was sentenced in the instant case to a term of imprisonment and was ordered to pay a mandatory restitution. All postjudgment proceedings were referred by the district court judge to the magistrate judge. The magistrate judge granted the Government’s motion for turnover of funds. Meux appeals the ruling of the magistrate judge. For the reasons stated below, we affirm the ruling of the magistrate judge. * * *

Meux also argues that the magistrate judge was without jurisdiction to enter a final order directing that the $4,881.00 be turned over to the Government in partial satisfaction of the restitution order. * * *

Meux owed the United States $134,218.52 in restitution. The United States is unmistakably entitled to collect the restitution owed by Meux. Meux had his day in court and the magistrate judge properly ordered the turnover of the $4,881.00, which was in partial satisfaction of the restitution amount. Meux has not shown any meaningful relief he can gain from this appeal, nor has Meux shown any reason to disturb the order of the magistrate judge.

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

Ind. Law - Still more on "Grandparents testify in Indy to establish visitation rights"; Bill defeated [Updated]

Updating this ILB entry from Jan. 31, 2010, which quoted 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, I was surprised when checking legislation this morning to learn that SB 59, the bill to expand grandparent visitation rights, was defeated yesterday on Third Reading in the House, Yeas 46, Nays 53. Surprised, because I have seen no press coverage.

(Incidentally, the Jan. 31st ILB entry was picked up nationally and resulted in many thousands of page views across the country.)

[Updated] Shortly after posting the above this morning, the ILB received a note from Bloomington attorney Karen Wyle (practitioner webpage here), giving some background on the legislation. I'm very pleased to report Ms. Wyle has granted my request to post the information:

I saw your update on Indiana Law Blog re the defeat of SB 59. I thought you might be interested in a brief description of the rise and fall of this bill and its companion bill, HB 1055.

HB 1055 resulted from a House summer study committee; SB 59, from a Senate advisory committee. I know more about the former. That study committee either included or heard from at least one judge and prosecutor. None of the witnesses before that committee opposed that legislation – presumably because none of the many opponents who later emerged (including me) knew about the proceedings. This is an omission we are determined not to repeat.

I and several others with an interest in this issue became involved about the time that SB 59 was passed out of committee. Playing some fierce catch-up, we started with one “Nay” vote in the House committee, proceeded to 6 out of 50 “Nay” votes on the Senate floor, then to a 63-33 vote on the House floor (after some amendments to HB 1055 failed on House voice vote).

Around this time, the Family Law Division and Legislative Affairs Committee of the Indianapolis Bar Association came out against the legislation, while an informal consensus in opposition emerged in the ISBA’s Family Law section.

After testimony from an IBA representative to the Senate Judiciary Committee, the chair of that committee pulled HB 1055 from consideration. The House Committee on Family, Child and Human Affairs heard SB 59, this time with many more opposition witnesses present (although due to time constraints, most were not allowed to speak). The committee vote this time was 8-3, with several committee members expressing reservations and their wishes for narrowing amendments. Two such amendments were proposed and failed on voice vote on the House floor. The final act was the bill’s defeat, 46-53, on 3rd reading, as you saw.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Indiana Law

Ind. Law - Bill containing language permitting courts to order to allow out-of-state rehab under some conditions [Updated]

Niki Kelly reports today in the Fort Wayne Journal Gazette:

The House voted 83-16 Thursday to give back to juvenile judges the authority to send delinquents out of state for rehabilitation if the costs don’t exceed those for an in-state facility.

The provision is now in Senate Bill 149, which contains some smaller tweaks to state law to aid the Department of Child Services.

Gov. Mitch Daniels’ administration has resisted out-of-state placement since the state took over the costs from property taxes.

But Rep. Win Moses, D-Fort Wayne, said he prefers a judge who has talked to the child, parents, probation officers and others to make the decisions rather than a bureaucrat reading a file.

“When a judge says a child should go out of state for the safety of the kid and the betterment of the kid, it shouldn’t be taken lightly,” he said.

The bill returns to the Senate for negotiation in conference committee.

For background, start with this January 31, 2010 ILB entry.

Here is the current version of SB 149. See the language on p. 23 of the bill (p. 25 of the PDF).

[Updated 3/3/10] As of this morning, SB 149 is in conference committee.

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Indiana Law

Ind. Courts - "7th Circuit Judges May Testify in Retrial Over Web Threats"

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

Federal prosecutors are beefing up their case against Web radio talk show host Harold "Hal" Turner, charged with encouraging listeners to murder three federal appellate judges. In Turner's retrial, which starts next week in Brooklyn, N.Y., prosecutors plan to call those judges to the stand.

Last week the prosecutors, who work in the U.S. Attorney's Office in Chicago, overcame objections from Turner's lawyer, Michael Orozco, and won permission to have the three judges from the 7th U.S. Circuit Court of Appeals in Chicago provide testimony, according to documents filed in the case. The targets of Turner's vitriol were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer, a former U.S. Attorney in Chicago.

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

Courts - "SCOTUS to define reach of gun-control laws"

Updating these ILB entries from the fall of 2009 which were headed "The McDonald v. Chicago cert grant," Joan Biskupic of USA TODAY has a long story today on the upcoming oral argument, headed "High court to define reach of gun-control laws." The issue is whether "the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses?" In other words, does the Court's 2008 decision in District of Columbia v. Heller, apply to states and cities.

Lyle Denniston of SCOTUSblog has posted a long analysis of the upcoming argument (Tuesday, March 2 at 10:00 AM) headed "Second Amendment drama: Act II -- McDonald v. Chicago, No. 08-1521, Argument preview."

Posted by Marcia Oddi on Friday, February 26, 2010
Posted to Courts in general

Thursday, February 25, 2010

Ind. Courts - "Federal, state judges will preside over DNA case at law school"

An IU Maurer School of Law press release today announces that this Friday, Feb. 26th:

BLOOMINGTON, Ind. -- A panel of distinguished jurists, including the chief justice of Indiana and one of the state's four appointees to the U.S. Court of Appeals in Chicago, will visit the Indiana University Maurer School of Law on Friday (Feb. 26) at 7 p.m. to hear arguments on an issue at the forefront of debate over technology, privacy rights, and law enforcement -- the constitutionality of collecting and storing DNA evidence from those arrested on certain federal charges.

The arguments will be part of the final round of the law school's annual Sherman Minton Moot Court Competition. This year, more than 125 students competed in the tournament-style competition in which they play the role of appellate lawyers representing clients in a realistic setting.

Judging the final round Friday are Indiana Supreme Court Chief Justice Randall T. Shepard; Judge John D. Tinder of the U.S. Court of Appeals for the Seventh Circuit; Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana; Roderick Morgan, president of the Indiana State Bar Association and partner at Bingham McHale LLP in Indianapolis; and IU Maurer School of Law Dean Lauren Robel.

This year's participants will argue a case based closely on actual events. Both federal and state courts are examining the constitutionality of compulsory DNA laws, including federal regulations that went into effect last year requiring law enforcement to take and keep DNA samples from anyone arrested for certain federal crimes, regardless of whether the DNA sample is needed to solve the crime or the citizen is later exonerated.

Professor Seth Lahn, faculty advisor for the Moot Court program, noted the timeliness of Friday's argument, about the proper balance between citizens' privacy rights in a free society and the needs of law enforcement in an age of terrorism. "There are at least three cases currently before federal courts of appeals about whether sweeping DNA collection statutes, like the ones that exist in more than 20 states in addition to the federal level, are 'unreasonable searches' under the Fourth Amendment to the U.S. Constitution," Lahn said. * * *

Friday's event, in room 123 of the IU Maurer School of Law, is open to the public and will be followed by a reception on the third floor of the school.

Readers will recall, as posted in this Feb. 9th ILB entry, that our Supreme Court heard oral arguments on Jan. 11, 2010 in the case of Arturo Garcia-Torres v. State of Indiana - re DNA cheek swabs and the 4th amendment.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Indiana Courts

Law - More on: Four Indiana nominees on Committee on the Judiciary agenda tomorrow

Updating yesterday's ILB entry, here is a just-posted report by Andrew Ramonas of Main Justice. It is headed "Healthcare Summit Bumps Johnsen Vote." Some quotes:

The Senate Judiciary Committee Thursday postponed for the fourth time a vote on on the nomination of Dawn Johnsen to head the Justice Department Office of Legal Counsel because of the White House health care summit with members of Congress this morning.

Committee chairman Patrick Leahy (D-Vt.) said the health care summit, which several members of the panel attended, was an “extraordinary circumstance.” Traditionally, panel members can only ask to hold over a nominee once.

Johnsen, who has been on the panel’s agenda since Jan. 28, was held over the first time at the request of panel Republicans. The committee was then forced to hold her over twice more because the panel lost its quorum and its ability to conduct business. * * *

“Next week we will complete action on Dawn Johnsen,” Leahy said.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Donald and Sandra Myers v. Andrew Yoder, et al. , a 20-page opinion (including a concurring opinion), Chief Judge Baker writes:

Appellants-plaintiffs Donald W. Myers and Sandra F. Myers (collectively, the Myerses) appeal the trial court's grant of summary judgment in favor of appellees-defendants Amy Krueger, Bixler Insurance, Inc. (Bixler), and Cincinnati Insurance Company (Cincinnati Insurance) (collectively, the appellees), regarding the Myerses' claim that the appellees were negligent in failing to advise them about their homeowner's insurance policy.Specifically, the Myerses argue that a genuine issue of material fact exists as to whether the appellees breached their respective duties to provide adequate coverage to them. * * *

In light of our discussion above, we conclude that there was no long-standing, intimate relationship between the Myerses and the appellees that would justify imposing a duty on the appellees to advise the Myerses' about the amount of homeowner's insurance that they needed for the residence. Moreover, the Myerses have failed to identify any special circumstances that might justify the imposition of such a duty. Thus, the trial court properly entered summary judgment for the appellees. The judgment of the trial court is affirmed.

BAILEY, J., concurs.
ROBB, J., concurs with opinion. [that begins, at p. 18] I concur in the majority opinion, but write separately to note that although an insurance agent does not have a duty to provide advice to the insured unless a special relationship exists between the two, see slip op. at 9 (citing Craven, 588 N.E.2d at 1296), I do not view every instance of an insured requesting “full coverage” to be a request for advice, however.

In Menard, Inc. v. Mary Comstock, et al. , a 9-page, 2-1 opinion, Judge Crone writes:
Menard, Inc. (―Menard‖), appeals the trial court’s decision to grant the motion to correct error filed by Mary Comstock, as personal representative of the estate of C.J. Comstock, and to amend the amount of damages awarded to Mary. We reverse and reinstate the jury verdict.

Issue. Did the trial court abuse its discretion by granting Comstock’s motion to correct error and amending the amount of the damages award? * * *

Based on the foregoing, we conclude that the evidence is sufficient to support the jury’s verdict as a matter of law and that the trial court erred in reversing that verdict pursuant to Trial Rule 59(J)(5). Therefore, we reverse the trial court’s order granting Mary’s motion to correct error and remand for reinstatement of the jury’s verdict awarding damages to Mary in the net amount of $8212.99. Reversed and remanded for proceedings consistent with this opinion.

VAIDIK, J. concurs.
RILEY, J., dissents with separate opinion. [that includes] I respectfully dissent from the majority’s opinion reversing the trial court’s order which granted Mary’s motion to correct error and amended the jury’s damages award. * * *

Indiana Trial Rule 59 (J) gives a trial court the discretion to amend a jury award in the case of inadequate damages. The trial court, finding that the jury had erred in its award by failing to calculate C.J.’s lost income, increased the jury award to $149,240.71. I cannot conclude that the trial court abused its discretion as Mary clearly proceeded under a wrongful death claim, presented uncontroverted evidence of C.J.’s lost income, and the jury was instructed as to the wrongful death claim—not the survival claim.

In Adoption of L.D.; A.B. and N.E. v. Jo.D. and Ja.D., a 20-page opinion, Judge Najam concludes:
In sum, Mother's contention that the Paternal Grandparents should have obtained her consent for the adoption is not properly before us, and we dismiss the appeal with respect to this issue. Further, Mother has not shown that service of process by publication in the Indianapolis Recorder was inadequate. Nor has N.E. shown that the adoption statute's failure to require that she, as a grandparent, receive notice of the adoption proceeding violates her due process rights in that a grandparent does not have a liberty interest in visitation with her grandchildren. And, finally, N.E. has not shown that she is entitled to visitation under the Grandparent Visitation Act following entry of the Decree because the adoptive parents, Paternal Grandparents, were neither stepparents nor biologically related to L.D. before the adoption. As such, we affirm the trial court's order denying the motion to set aside the Decree. Affirmed in part and dismissed in part.
NFP civil opinions today (1):

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

NFP criminal opinions today (7):

Michael L. Ott v. State of Indiana (NFP)

Matthew James Walker v. State of Indiana (NFP)

Carlos Ramirez v. State of Indiana (NFP)

Robert Spann, Jr. v. State of Indiana (NFP)

Dennis Lane v. State of Indiana (NFP)

Michael Ball v. State of Indiana (NFP)

LaQuintin Abbey v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Ind. App.Ct. Decisions

Courts - "If the President’s priority were to appoint a brilliant, moderately liberal jurist in whose views he has confidence (because she has a track record), he would appoint 7th Circuit Judge Wood."

And many continue to hope he will.

The quote used in the heading is from an entry by Supreme Court practitioner Tom Goldstein of SCOTUSBlog fame, dated Feb. 23, 2010, and titled "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice: And Justice Ginsburg will look across the bench at her new colleague and smile." Far into the lengthy entry, Goldstein begins his discussion of Judge Wood:

As I suggested above, on some level, this is all about the decision whether to nominate Seventh Circuit Judge Diane Wood. If the President’s priority were to appoint a brilliant, moderately liberal jurist in whose views he has confidence (because she has a track record), he would appoint Judge Wood. No judge on the left in the country is so uniformly respected for her intellect and thoughtfulness. She is amazingly articulate, and at a hearing would be no less impressive than was Chief Justice Roberts. She will be the near-uniform choice of the groups on the left – at least those who have given up on the dream of Pam Karlan.

Judge Wood is not remotely a fire-brand liberal. Few lawyers known for their service in the antitrust division are. But because she has at least a record of decisions on hot-button issues like abortion, there would be a genuine fight over her confirmation. Committed conservatives will oppose any realistic candidate (just as committed liberals were going to oppose anyone whom President Bush nominated), but a nominee with a paper trail will put in play the moderate Senators whom the Administration absolutely needs for the rest of its domestic agenda.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Courts in general

Courts - "Georgia Headed to Court Over Voter ID Law" [Updated]

Main Justice has this story dated Feb. 23, 2010, reported by Andrew Ramonas. Some quotes:

The Voting Rights Act of 1965 requires Georgia and several other states to secure permission, known as pre-clearance, from the DOJ or to obtain a favorable judgment in the D.C. U.S. District Court before changes affecting state voting procedures can go into affect.

The Georgia law at issue requires new voters to undergo a background check that uses information from two databases that contain driver’s license information and Social Security numbers to verify citizenship. * * *

Georgia Secretary of State Brian Kemp said the state plans to file a lawsuit seeking clearance for a state law that has twice failed to pass muster with the Department of Justice Civil Rights Division. * * *

Kemp said he also would seek approval in the suit for a second law, passed last year, that would require voters to present one of several forms of identification verifying U.S. citizenship in order to register to vote.

In May 2009, the DOJ Civil Rights Division informed the state of Georgia that it could not approve the database law because it unfairly burdened a disproportionate number of minorities.

In a letter to Kemp dated Monday, DOJ Civil Rights Division chief Thomas Perez said the DOJ had not changed its position on the program and noted that the state has not yet to submit requested information on both programs.

“[Our] review indicates that the state has not provided any additional information or arguments related to the original voter registration verification program …to support [your] request that the objection to the original program be withdrawn,” Perez wrote. “In light of these considerations, I remain unable to conclude that the state of Georgia has carried out its burden of showing that the original [program] has neither a discriminatory purpose nor a discriminatory effect.”

ILB Note: I rearranged the order of several paragraphs for clarity.

[Updated at 2 PM] A new article uploaded to SSRN: "The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy," by Atiba R. Ellis, West Virginia University - College of Law. The abstract begins:

This article argues that photo identification laws represent a continuation of the use of economic forces as a way to block people of lower economic status from participation in the electorate. These laws are similar to other restrictions on the franchise, such as property requirements and poll taxes, because the rules required the voter to demonstrate the ability to meet an economic test – the ability to show a certain property value, the ability to pay a tax, or the ability to obtain a photo ID. The potential effect of such photo-voter identification laws is that the voters at the lowest end of the socioeconomic scale are effectively excluded from voting because they are the least able to afford the cost of voting exacted by the law.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Courts in general

Ind. Law - Integrity of Indiana's primary legal resources

The ILB hasn't had the opportunity in some time to write about its issues with the Indiana rules, which are available only online; the Indiana Code, which for all practical purposes also is only available online, and which does not contain all of the statute law in effect; the problems related to authentication of both these resources, etc. The problems continue unabated and will be addressed again in coming months.

Meanwhile, here are three general articles of interest:

  1. "Preserving Born-Digital Legal Materials - Where to Start?" 2-14-10 LLRX

  2. "Avoiding a Digital Dark Age: Data longevity depends on both the storage medium and the ability to decipher the information" March 2010 American Scientist

  3. "The Death of Twentieth-Century Authority " - Jan. 21, 2010 SSRN

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Indiana Law

Ind. Decisions - "High court overturns South Bend cocaine-near-school conviction"

The Supreme Court's decision Feb. 23rd in the case of Reynaldo A. Griffin v. State (ILB summary here) is the subject of a story today in the South Bend Tribune, reported by Jeff Parrott. Some quotes:

The Indiana Supreme Court has overturned a South Bend man’s conviction for possessing cocaine near a school, finding that prosecutors had not proven he was there more than “briefly.”

The high court also ruled that prosecutors failed to prove children were present in the area at the time.

A St. Joseph County jury in 2008 convicted Reynaldo A. Griffin, 22, of Class B felony possessing cocaine within 1,000 feet of a school.

At about 2:15 a.m. on June 25, 2006, South Bend police officer Keith Walker saw Griffin walking a mo-ped down the middle of Campeau Street, near Perley Elementary.

Because there had been many mo-ped thefts in the area that spring and summer, Walker approached Griffin and checked the moped’s vehicle identification number.

Observing Griffin “get more and more irate,” Walker patted him down and placed him in his patrol car while he waited for dispatch to tell him the mo-ped’s status.

While moving the mo-ped off the street, Walker said he found a plastic bag containing 0.77 grams of crack cocaine under the mo-ped.

Walker testified at trial that he had seen Griffin walking the mo-ped near the school for about five minutes before approaching him.

Cocaine possession typically is a Class D felony, punishable by six months to three years in prison. But Indiana statute allows prosecutors to upgrade the charge to a Class B felony, punishable by six to 20 years, if they can prove the defendant possessed the drug within 1,000 feet of a school.

To justify the higher charge, prosecutors must prove both that the defendant was more than “briefly” in the school zone and that children were present in the area.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS loosens Miranda rule on questioning suspects without a lawyer

NPR's Nina Totenberg has the story here this monring. Some quotes:

The U.S. Supreme Court has created a new rule governing the repeat questioning of suspects without a lawyer.

Until now, if a suspect refused to talk without an attorney, police were supposed to leave him alone. Once the suspect was released, it was not clear whether police could make a second attempt at interrogation or how long they had to wait. On Wednesday, the Supreme Court set a bright line of 14 days. After that, police have to readvise a suspect of his rights, but if this time they can get him to talk without his lawyer, the confession can be admitted in court. * * *

Two justices did not join the opinion in full. Justice Clarence Thomas thought there should be no limit on when police can requestion a suspect. And Justice John Paul Stevens objected to the 14-day rule as so short that it made police appear to "lie" when they promise a suspect initially that he has the right to an attorney. The simple solution, suggested Stevens, is to provide such an attorney before trying to requestion a suspect. But he agreed that the 2 1/2-year hiatus in the Shatzer case was sufficiently long that police acted properly.

Tony Mauro reports in the National Law Journal under the headline "'Miranda' Dealt One-Two Punch by High Court." His story begins:
It has not been a good week for the famed Miranda warning at the hands of the Supreme Court.

In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations.

The Court on Wednesday issued Maryland v. Shatzer, establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent.

The Maryland case came down a day after the justices decided Florida v. Powell, in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.

Posted by Marcia Oddi on Thursday, February 25, 2010
Posted to Courts in general

Wednesday, February 24, 2010

Ind. Gov't. - David Pippen named Gov. Daniels' general counsel

David Pippen, Governor Daniels' policy director for environment and natural resources for the past two years, will become his general counsel effective March 1, 2010, replacing Mark Massa, who has resigned to run for the office of Marion County prosecutor.

Previously, Pippen was an attorney in private practice for 13 years, the last four with the Indianapolis firm of Plews Shadley Racher & Braun. His practice has included concentrations in real estate, administrative law, transactions, and litigation.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Government

Ind. Law - More on "Surprises" in the 2009 budget continue to be revealed [Updated]

This Dec. 2, 2009 ILB entry was about "The City of Mishawaka has gone to court to challenge a ban on additional Capital Avenue curb cuts." The entry explains in detail how language hidden in the 2009 special session budget "bans additional curb cuts on Capital [and] also neglects to allow for a curb cut at the busy intersection Douglas Road and Capital Avenue." [That entry cites IC 8-23-8-10 -- see note at the end of this entry.]

This evening Jeff Parrott reports in the South Bend Tribune:

A St. Joseph County judge today barred the state from closing off any Capital Avenue driveways or intersections until he rules on a lawsuit the city of Mishawaka and Memorial Health System have filed against the state.

The dispute centers on the city's and Memorial's desire to see development of a new Evergreen Road, which would intersect Capital and align with the Toll Road's existing interchange at Capital.

Memorial wants to develop the land, and the city seeks the property tax revenue from that development, along with other future commercial growth along the new road that would connect Capital with Fir Road, according to court records.

Memorial had obtained a permit from the Indiana Department of Transportation to build the Evergreen intersection. Memorial owns about 23 acres of land to the west but has yet to announce any specific development plans.

Without the intersection, the development won't happen.

But InDOT in August notified Memorial that it would no longer be granting the permit, and cited a new law passed by the Indiana General Assembly in last year's short budget session.

A late amendment to the state budget bill, crafted by Rep. Craig Fry, D-Mishawaka, required InDOT to restrict intersections with Capital to nine specific roads, and Evergreen was not one of them.

The city and Memorial argue the law violates the state constitution because it focuses on a specific roadway. At a hearing today, Judge Michael Scopelitis could have granted the city's and Memorial's request to declare the entire law unconstitutional, but he stopped well short of that, for now.

Instead, Scopelitis ordered InDOT to leave open any existing driveways and intersections along Capital until the lawsuit plays out.

The city has argued that Fry's law, because it failed to list Douglas Road or Capital's Toll Road interchange, requires InDOT to close those two, along with all residential driveways and local street intersections on Capital, south of Lincoln Way.

Ed Sullivan, an attorney representing the city, told the judge that the city has tried to solicit a commitment from InDOT pledging not to make the closures, but InDOT has refused.

But Jack Watson, an attorney for InDOT, told Scopelitis the city has no interest in making the closures.

The true issue in dispute, the Evergreen intersection's fate, could be resolved in the General Assembly. A House-passed bill did not allow the intersection, while a Senate-passed version has.

Because Fry has said he won't sign off on the Senate version, the difference must be worked out in a yet-to-be-scheduled conference committee.

Fry has said he doesn't want Capital to become another commerce-congested roadway, while city officials deny the Evergreen intersection would cause that to happen.

[Update posted 2-25-10] This current version of HB 1125, authored by Rep. Fry and returned to the House with amendments on Feb. 22, 2010, makes additional refinements to last year's surprise provision, continuing to designate by statute the precise location of curb cuts on Capital Avenue.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Law

Ind. Decisions - Supreme Court issues one today

In Washington Township Fire Dept. v. Beltway Surgery Center, a 3-page, per curiam opinion, the Court writes:

The Court of Appeals held the employer, not the medical provider, has the burden of proving whether the charges for medical services provided to an employee exceed the employer's liability to pay under the Worker's Compensation Act (the "Act"). See Washington Twp. Fire Dep't v. Beltway Surgery Ctr., 911 N.E.2d 590 (Ind. Ct. App. [June 24,] 2009), reh'g denied. We agree and adopt the opinion of the Court of Appeals.[1] * * *

We grant transfer, adopt and incorporate by reference the opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A)(1), and affirm the Board.
[1] The Court of Appeals reached the same result in five unpublished decisions pending before this Court. Because we grant transfer in this case to express our agreement with the Court of Appeals, we find it unnecessary to grant transfer in the other decisions. Simultaneous with this opinion, we are denying transfer in Onward Fire Dep't v. Clarian Health Partners, No. 93A02-0811-EX-1007 (Ind. Ct. App. June 24, 2009); Adecco, Inc. v. Clarian Health Partners, No. 93A02-0811-EX-1008 (Ind. Ct. App. June 25, 2009); Morgan County Comm'rs v. Clarian Health Partners, No. 93A02-0811-EX-1009 (Ind. Ct. App. June 25, 2009); City of Michigan City v. Mem'l Hosp., No. 93A02-0811-EX-1010 (Ind. Ct. App. June 24, 2009); and Wayne Twp. Fire Dep't v. Beltway Surgery Ctr., No. 93A02-0811-EX-1011 (Ind. Ct. App. June 25, 2009).

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS denies review of Seymour-based Rose Acre Farms takings judgment

Updating previous ILB entries, Gabriel Nelson of the NY Times reported yesterday:

The court also declined to review Rose Acre Farms Inc. v. United States, a case in which an egg farm sued the federal government for damages after the government cracked down on potential contamination by harmful bacteria. After an outbreak of salmonella that caused hundreds of illnesses was traced back to the farm, the Department of Agriculture destroyed some of the farm's eggs and required the company to sell others on the less-lucrative market for liquid, pasteurized eggs.

Rose Acre sued USDA, claiming the company was entitled to recoup lost revenue because the government response constituted a "regulatory taking," as defined by the 5th Amendment of the Constitution. The Court of Federal Claims awarded the company $5.4 million in damages but that award was overturned last March by the U.S. Court of Appeals for the Federal Circuit.

Environmentalists worried that a reversal of the appeals court's decision could discourage the government from enforcing regulations.

In its petition for review, Rose Acre Farms argued that the government responded to contamination fears in a way that focused the economic impact "narrowly and devastatingly, upon egg producers generally and Rose Acre specifically."

The Supreme Court's decision to pass on the case leaves the Federal Circuit's decision as the precedent for future takings cases involving federal agencies. Because that court is the destination for nearly all appeals on federal claims cases, the ruling carries substantial weight, said Glenn Sugameli, a staff attorney with Defenders of Wildlife.

"A decision at that level is normally final right now, absent Supreme Court review," Sugameli said. If the Supreme Court had stepped in and sided with Rose Acre Farms on the takings claim, he added, "you could end up with all levels of government always erring on the side of not protecting public health."

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Courts in general | Environment

Ind. Courts - "Clark Council funds courts, building renovation"

Updating this ILB entry from Feb. 11, 2010, headed "Under pressure, Clark Council to give courts $620,000," Ben Zion Hershberg reports today in the Louisville Courier Journal:

The Clark County Council approved a $2 million bond issue Tuesday to help finance a long-delayed county government building renovation and provided $565,000 from its rainy day fund to keep the courts operating through the year.

The actions at a special meeting followed a warning from council member Barbara Hollis that the county’s budget crisis could get even worse.

In previous years, Hollis said, basing budgets on estimates that weren’t accurate left the county in a hole. The final budget should be available from the state before the next council meeting on March 19, she said, urging the council to delay acting on the court requests until then.

“I don’t think there’s so much of an emergency that we can’t wait three weeks,” she said.

But council member Chuck Moore disagreed. The courts requested that funding be restored to 2009 levels after it was cut 30 percent at the end of last year.

“We’re not funding the essential operations of the courts,” Moore said, noting that the judges could use a judicial mandate to require the county to provide even more funding. Such a mandate also could lead to a legal battle that would cost still more, he said.

Clark County Superior Court Judge Vicki Carmichael also urged the council to quickly provide what the judges requested.

“I’ve been told by the (Indiana) Supreme Court and the State Board of Accounts I can’t use money” the way she’s been paying court expenses, Carmichael said.

She said the four county courts have been using money collected from probationers and people using alcohol and drug programs to cover court costs. Such fees are supposed to be used only to help pay for programs in which they’re collected, so it must be refunded, she said.

The council voted 5-2, with Hollis and Jackie Dickman voting no, to restore funds to each of the courts from the rainy day fund.

The ILB has a number of additional entires on the funding of Clark County courts.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Courts

Ind. Gov't. - "Districts' lawsuit may spark political fireworks"

Andy Gammilland Bill Ruthhart have a lengthy front-page story today in the Indianapolis Star about a law suit filed in Hamilton County by three school districts: Hamilton Southeastern Schools, Franklin Township Schools and Middlebury Schools. The printed Star story is accompanied by an excellent graphic explaining "how funding works"; unfortunately the online version is not legible. The story begins:

The coalition of school districts challenging Indiana's school funding filed its lawsuit Tuesday, but the case has the potential to become a political hot potato.

Legislators likely will be pitted against the courts, politicians within both parties may form strange alliances and school districts that otherwise have nothing in common could win -- or lose.

Already, legislative leaders objected Tuesday to the idea that schools would second-guess them, and other school districts were faced with the possibility of a redistribution of state money.

In their filing, Hamilton Southeastern Schools, Franklin Township Schools and Middlebury Schools asked a Hamilton County court to rule that the state isn't living up to the Indiana Constitution's requirement for a "uniform" system of public schools.

They point to complex mechanisms that provide a cash cushion for districts with declining enrollment and funnel more money to districts with high poverty.

That, they say, shuts out growing and more affluent districts, even if they desperately need more money.

"What we're asking is that the money that is available is distributed more uniformly," Hamilton Southeastern Superintendent Brian Smith said. "The formula is not based on empirical evidence. It's a political formula."

Urban districts counter that their students present more challenges and cost more money to teach. Shrinking districts argue that they need money to prevent dramatic cuts each year.

The fireworks that already have started could last for years.

Indiana Attorney General Greg Zoeller and one prominent state senator already have denounced the suit.

Oddly enough, though, Gov. Mitch Daniels and Superintendent of Public Instruction Tony Bennett -- both defendants -- have close ties to those behind the lawsuit.

Bennett's chief of staff is a former member of the Hamilton Southeastern board, and the district's law firm has hired strategist Lou Gerig, who has done public relations work for the Daniels administration.

This lawsuit has been in the works for some time. This ILB entry from Oct. 17, 2009 is headed "Middlebury schools to sue over funding formula." This entry from Oct. 18, 2009 includes an editorial from the Fort Wayne Journal Gazette, aimed at the "restoration grant." A quote:
If the state is to continue demanding accountability for school dollars, as it must, lawmakers must also ensure those dollars are distributed equitably, without the last-minute gimmicks that make a mockery of any formula.

That’s what seemingly occurred with the restoration grant. It was devised to ensure school districts received, at minimum, the amount they received in 2009.

In the last hours of the special session, when figures were released detailing how the biennial budget would treat each school district, almost everyone was satisfied with the final figures, given the state’s dismal financial outlook. After the budget was approved, however, a closer look at the numbers showed that some districts were treated better than others. * * *

In spite of assertions that only a handful of people in the state understand the funding formula, it’s quite simple. It’s what happens beyond the base formula that’s baffling.

This year, it was the appearance of the restoration grant. It uses a complex, two-tiered calculation that steers $238 million to 73 percent of the state’s school districts. Indianapolis Public Schools receives an additional $381 per pupil outside the basic formula. Gary Public Schools nets an extra $14.6 million over two years. Hamilton Southeastern Schools, where former Southwest Allen County Superintendent Brian Smith’s new school board is preparing to sue the state for inequitable funding, is in line to receive an extra $6.1 million. * * *

The state has made progress in improving the imbalance left by the 1973 property tax legislation and, on whole, done a better job than many other states in ensuring equity across the board. But a General Assembly that has placed achievement demands on all schools, regardless of available resources, has an obligation to ensure state dollars are distributed fairly.

The "restoration grant" impact is the last step illustrated in the Star's graphic today.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (6):

Christina Ann Schmitt v. David Schmitt (NFP) - "Based on the foregoing, we conclude that the trial court did not abuse its discretion by determining that the unpaid employment taxes was a legitimate business debt of A.J. Schmitt Jewelers, and reducing the net worth of the business by that amount."

Nancy Sue Conway, et al. v. Dr. John Schneider, et al. (NFP) - "The “trigger date” was outside the two-year statute of limitations running from when WVIC last treated Nancy; thus, she had two years from the “trigger date” in which to file her proposed complaint. The proposed complaint was not time-barred as to WVIC. The “trigger date” was within the two-year statute of limitations running from when Dr. Schneider (of Ortho Indy) last treated Nancy; thus, she had until the end of the two-year limitations period in which to file her proposed complaint. She did not do so; the proposed complaint is time-barred as to Dr. Schneider and Ortho Indy.
Affirmed in part, reversed in part, and remanded."

D. Richard Craft v. Anne M. Craft (NFP)

Term. of Parent-Child Rel. of T.M. and I.McD.; B.M. v. IDCS (NFP)

Term. of Parent-Child Rel. of X.H.; S.H. & R. M. v. IDCS (NFP)

M.M. v. B.M. (NFP) - "We affirm the custody order and affirm the support order conditioned on attachment on remand of a support worksheet consistent with the ordered amount."

NFP criminal opinions today (4):

T.B. v. State of Indiana (NFP) - "The juvenile court did not abuse its discretion in admitting evidence regarding T.B.’s identity. However, as the State concedes on appeal, the juvenile court abused its discretion in ordering restitution without evidence to support its order. Affirmed in part, reversed in part, and remanded."

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

LaQuintin Abbey v. State of Indiana (NFP)

Mateo Cruz v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana case today

In Whitlock v. Brown (ND Ind., Sharp), a 15-page opinion, Judge Sykes writes:

Jo and Jesse Whitlock were camping at the Indiana Dunes State Park and found several bags and other items of property that looked as if they had been left behind at another campsite. They put the items in their truck, intending to turn them in to the park office. They then left the campground to run errands and forgot the bags were in their truck. By the time they returned a few hours later, the owner of the bags had reported them stolen. When the Whitlocks went to the park office to turn in the property, they were accused of theft.

Officer Shawn Brown of the Indiana Department of Natural Resources (“DNR”) interviewed the couple. They told him they had picked up the property intending to turn it in at the park office but simply forgot. Jo Whitlock added that she decided to take the unattended bags because she was afraid “some corrupt DNR employee” would steal the absent camper’s belongings. This comment was gratuitous—and foolish, too, under the circumstances. Brown thought there was probable cause for a conversion charge and applied for an arrest warrant. The Whitlocks were charged with conversion and the warrant was issued. They were arrested and spent four days in jail before being released on bond. The charges against them were later dropped.

The Whitlocks sued Brown, claiming he violated their Fourth Amendment rights by omitting exculpatory facts from his warrant application. The district court entered summary judgment for the officer, holding that he had violated the Whitlocks’ rights but was nevertheless entitled to qualified immunity because a reasonable officer would have believed there was probable cause to arrest the couple for conversion. The Whitlocks appealed.

We affirm. The district court was right to apply qualified immunity, but its analysis took a wrong turn. The precise constitutional question in this case is not whether there was probable cause for the arrest but whether Brown intentionally or recklessly withheld material information from his warrant application. As such, the proper focus of the qualified-immunity inquiry is whether it would have been clear to a reasonable officer that the information allegedly omitted was material to the probable-cause determination. Under Pearson v. Callahan, 129 S. Ct. 808 (2009), we are permitted to skip directly to the second question, and we do so here. Although it is clearly established Fourth Amendment law that an officer may not intentionally or recklessly withhold material information from a warrant application, it is not clear under Indiana law that the information Brown allegedly withheld was material to the probable-cause determination for a charge of criminal conversion. Brown is therefore entitled to qualified immunity.

An interesting statement from pp. 13-14, also continued in a footnote:
In the end, however, any consideration of implied consent is academic. The Whitlocks have not directed us to any Indiana cases purporting to establish an impliedconsent defense to a charge of criminal conversion, either as a general matter or more specifically where lost or mislaid property is involved. Nor have we found any ourselves. Given the breadth of Indiana’s criminal-conversion statute and the apparent absence of an implied consent defense, the Whitlocks’ excuse was irrelevant to the probable-cause determination—or at least of such questionable relevance that Brown is entitled to qualified immunity. At best, Indiana law is undeveloped in this area.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: 7th Circuit decides two Indiana cases today, in one opinion

Updating this ILB entry from Dec. 22, 2008, where the 7th Circuit decided the case of Carr v. United States, the SCOTUS is today hearing oral argument in the case.

Anna Christensen has a good preview of the argument here on SCOTUBlog. A quote:

On February 24, in No. 08-1301, Carr v. United States, the Court will consider the application of SORNA’s registration requirements to individuals who not only were convicted before SORNA’s enactment but also traveled before the statute became law. This will be the Court’s first consideration of sex offender registration laws since it upheld two state statutes against Ex Post Facto Clause and due process challenges in 2003.

In 2004, petitioner Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender there after his release from custody. When Carr moved to Indiana at the end of 2004, however, he failed to register there – a failure that was discovered in July 2007, when he was arrested for an unrelated incident. After Carr was indicted for failing to register under SORNA, he moved to dismiss the indictment on the ground that his interstate travel pre-dated SORNA and a conviction would thus violate the Ex Post Facto Clause. The motion was denied; Carr entered a conditional guilty plea and appealed the denial.

And here from Sentencing Law and Policy Blog, an entry headed "Ex Post Facto day for sex offenders at the Supreme Court".

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "It's a Crime: The law on harassment"

"It's the Law" is defunct, but another NW Indiana reporter, Kevin Nevers, may be trying his hand. The Chesterton Tribune editor's note to this Feb. 23, 2010 story is: "This piece is the first in an occasional series on law enforcement and the judicial system, “It’s a Crime.” Today’s topic: Harassment."

It is a long column, here are some quotes:

Harassment is a Class B misdemeanor punishable by a term of up to six months in jail and a fine of $1,000.

Indiana Code defines it as occurring when “A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication,” makes a telephone call, sends a telegram, writes a letter, broadcasts over a CB radio, or uses a computer network to communicate with another person or to transmit “an obscene message or indecent or profane words.”

As Porter County Prosecuting Attorney Brian Gensel told the Chesterton Tribune, the key statutory element of the crime of harassment is “no intent of legitimate communication.” He gave this example. Say an estranged husband and wife are talking on the phone about the custody of their child. “There may be cussing and shouting, there may be trash talk, but at the end of the call they make some arrangement or reach some agreement about their child’s upraising. That’s not harassment. If there’s some legitimate communication beyond merely haranguing, then it’s not considered harassment. But if one parent is just calling up the other and screaming for the sake of screaming, then that may be harassment.”

Harassment can be a tricky crime to prosecute, Gensel noted. For one thing, “there’s the difficulty in interpreting a basis for what constitutes meaningful communication between the parties involved. Obscene calls are clearly harassment. But a text or call with a legitimate nugget of communication is not. It has to be wholly devoid of legitimate communication to be considered harassment under the law.”

For another, there really needs to be documentation of the harassment—a recorded call or a text—for a prosecution to be successful. “Otherwise, it’s just one person’s memory of what was said,” Gensel observed.

On occasion, a decision may be made not to prosecute because the harassment “was an isolated incident,” Gensel said. “Typically police officers took at whether the harassment is part of a continuing pattern and so do we.”

For the record, in November 2009 a Porter man was charged with harassment after Chesterton Police said that he e-mailed photos of himself to a Westchester Public Library employee and then left a note for her indicating that he was “waiting” for her.

Harassment as his deputies usually see it, Gensel said, tends to involve ex-friends, acquaintances, and family members in face-to-face or telephonic communication. Cyber-harassment is an altogether different issue. “One of the dilemmas about e-mails is who’s doing it, where are they doing it, and how will you find them?”

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Law

Ind. Courts - "Camm’s attorneys granted initial request for funding"

Matt Thacker reports in the New Albany News & Tribune:

Warrick County Superior Court No. 2 Judge Robert Aylsworth granted a request by David Camm’s attorneys last week for $75,000 from the Floyd County Public Defender’s Office to begin preparation for a third murder trial.

A motion filed in support of the request stated the money would be used for, among other things, securing out-of-state witnesses in support of their motion for a special prosecutor, gathering additional evidence to support a change of venue, determining whether additional tests need to be performed and investigating Charles Boney, who is serving 225 years in prison for his role in the murders of David Camm’s family.

That is only a small portion of what most expect it will cost for Camm’s third trial. * * *

According to the Floyd County Auditor’s Office, the first two Camm trials cost about $2 million. Both sides say the third trial may cost another $1 million.

According to the auditor, the total expenditures for the public defender’s office in 2009 was $415,494. Chief Public Defender J. Patrick Biggs said that number is expected to increase although he does not know how much.

Biggs said he was not expecting to pay money upfront but that he would review the judge’s order, which he had not yet seen.

“Mr. Camm reasonably anticipates the authorizations of more funds in order to provide him with a fair and constitutional defense,” Camm’s attorneys wrote to the judge.

Camm’s public defenders, Richard Kammen and Stacy Uliana, are paid $90 per hour. Biggs said that is the minimum amount allowed by the state’s public defender office.

Money has been a major factor throughout the process, and both sides in the case have tried to paint the other as trying to waste taxpayer money.

Floyd County Prosecutor Keith Henderson previously argued that Camm should be treated like any other indigent inmate and be appointed a local public defender rather than be allowed to hire one through the state public defender’s office.

Biggs said his office was unable to represent Camm due to conflicts with representing different people involved in the case.

“We have so many conflicts with people who have testified or may testify that we had to get off the case,” he said.

Uliana has said they expect new tests and analysis will need to be performed, such as “touch DNA” which can be used on surfaces even if there is no visible stain.

She wants the case moved to Northern Indiana due to media publicity in the southern half of the state, and she said the prosecutor should not try to fight it. The judge recently ruled that questionnaires will be sent to 200 randomly selected Warrick County residents to determine how much they know about the case.

“I do believe the questions will show a polluted jury pool in Warrick County,” Uliana said. “I also hope that the change of venue will not result in a contested hearing, which will only cost Floyd County more money and delay the third trial even further.”

A combination of fortunate timing and planning ahead means that the county does have money set aside to pay for the trial.

“We’re actually not as bad (financially) as we could have been,” Biggs said.

Biggs said his department has $100,000 in a supplemental fund used to pay outside attorneys. He said that about $10,000 has been paid each of the last two years to outside attorneys due to conflicts.

Floyd County Council President Ted Heavrin said $1 million was recently set aside for the Camm case after the county received a sizable reimbursement from the state’s takeover of child welfare services.

“When the state took over the department, they gave us $2 million. We put half in a rainy day fund to use for David Camm if needed,” Heavrin said.

Even before the refund, the county had set aside $50,000 for the Camm case. The county can also receive up to a $50,000 reimbursement from the state, under Indiana Code.

The case remains in Warrick County jurisdiction for now, and no hearings have been set.

The News & Tribune also has run a series of opinion pieces by guest columnist Sam Lockhart. This one from Feb. 15th is prefaced:
Camm’s family, which has publicly fought for his freedom for nine years, includes his uncle and family spokesman Sam Lockhart. The following is part seven of a series of opinion pieces Lockhart has written to explain why the family vehemently believes Camm is innocent and how they believe the investigation and trial went wrong.
Here is the eight and final installment, from Feb. 23, 2010.

Also, from Feb. 21st, a long column by Steve Kozarovich, the paper's editor, headed "Why we ran the Lockhart columns<". Here is a quote:

The case has become so well known and cost Floyd County taxpayers so much — roughly $2 million — that we felt that the defendant’s family has a right to state their “case” as the prosecution did so in two lengthy trials and numerous press conferences.

When Lockhart approached us about submitting a series of opinion pieces about the case, we agreed with the understanding that the pieces would not be a place to spew hate or provide misinformation. Instead, Lockhart presented a piece-by-piece look at his argument, frequently submitted to us with court and police documents defending his position.

In order to follow our own Opinions guidelines we had a responsibility to allow a community member to express his thoughts. Our goal is to spur constructive discussion (not anonymous Web chatter). Doing so, we believe, always moves society closer to ultimate truth.

Sam Lockhart has a right to try and dispel what he believes are myths circulating in the public. Additionally, he is offering up to those who will listen a logical proposal suggesting a special prosecutor and a fresh investigation by professionals from outside Indiana law enforcement in order to ensure truly fresh eyes on the evidence. What’s so wrong with that versus the alternative of another million-dollar trial?

The Tribune does not support — or condemn — Lockhart’s Opinions page submissions. On occasion, our editorial board does take a stand on an issue but we have not in this case because we believe it’s up to a court of law to decide. We also believe Lockhart — as well as Floyd County Prosecutor Keith Henderson or the other side of the victims’ family — have a right to try to set the record straight in the court of public opinion if they elect to do so in this manner.

We never had any intent to cause additional pain to the victims’ families. It is obviously a horrific crime and we offer them all respect and condolences.

Since Lockhart’s first proposal to The Tribune months ago, there was always a plan for the columns to end. They were never planned as an indefinite proposal. The final installment is scheduled for Tuesday’s edition.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit to hear oral arguments in Indiana 11th amendment case today

On July 28, 2009, the 7th Circuit decided the case of Indiana Protection and Advocacy Services v. Indiana FSSA., vacating Judge McKinney's judgment and remanding with instructions to dismiss for want of jurisdiction. Here is the ILB summary.

In the suit, Indiana Protection and Advocacy Services (IPAS) was attempting to access the records of a mentally disabled patient who had died at LaRue Carter, a state hospital, in order "to learn whether she was a victim of abuse, so that it could propose improvements in medical procedures." The hospital declined, citing privacy. "Advocacy Services then filed this suit in federal court, naming as defendants not only the Hospital but also the Indiana Family and Social Services Administration (which superintends the Hospital), plus several state officials. The district court held that defendants must hand over the records."

The 7th Circuit panel, consisting of Chief Judge Easterbrook, Judge Sykes, and Northern District of Illinois Judge Kendall, sitting by designation, ruled: "This suit, between one state agency and another, is outside the scope of §1983 and blocked by the eleventh amendment."

But that was not the end, the Court later voted to hear the case en banc and vacated the July 28th opinion. The oral argument is today at 10:00 AM.

The federal government filed an amicus on the side of IPAS, and the Indiana Attorney General is arguing the other side. This is a 11th Amendment issue pertaining to the question of when and if a state can sue itself. The ILB has obtained a copy of the IPAS brief: the Washington DC firm of Morrison & Foerster is doing the oral argument pro bono.

You will be able to access the oral argument here on the 7th Circuit site, after it is uploaded.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to Ind. (7th Cir.) Decisions

Law - Four Indiana nominees on Committee on the Judiciary agenda tomorrow

On Thursday, Feb. 25th the full U.S. Senate Judiciary Committee on the Judiciary will convene at 10:00 AM to consider, inter alia:

* * * the nominations of Dawn Elizabeth Johnsen, of Indiana, to be an Assistant Attorney General, William Joseph Hochul, Jr., to be United States Attorney for the Western District of New York, and Sally Quillian Yates, to be United States Attorney for the Northern District of Georgia, all of the Department of Justice, and Gloria M. Navarro, to be United States District Judge for the District of Nevada, Audrey Goldstein Fleissig, to be United States District Judge for the Eastern District of Missouri, Lucy Haeran Koh, to be United States District Judge for the Northern District of California, Jon E. DeGuilio, to be United States District Judge for the Northern District of Indiana, and Jane E. Magnus-Stinson and Tanya Walton Pratt, both to be United States District Judge for the Southern District of Indiana.
Unfortunately, the "inter alia" is a very long agenda, including consideration of five pieces of legisation and, on the notice at least, the nominations are at the very end. Readers will recall that at its last full meeting, on Feb. 11th, the Judiciary Committee "held over" Johnsen's nomination.

Thursday's meeting will be webcast, the link is here.

Posted by Marcia Oddi on Wednesday, February 24, 2010
Posted to General Law Related

Tuesday, February 23, 2010

Ind. Decisions - More on: What East Chicago case is being settled here?

Updating this ILB entry from yesterday, that quoted Jon Seidel of the Post Tribune writing:

Indiana Attorney General Greg Zoeller said he will personally ask the East Chicago City Council to vote against a court settlement with Second Century Inc. at its meeting tonight.
Today Christin Nance Lazerus of the Post Tribune reports:
The East Chicago City Council failed to approve a settlement between the city and Second Century Inc., but Monday's meeting likely isn't the last time the council will consider the measure.

The settlement would end a court case that originated in 2005 over a deal, signed by former mayor Robert Pastrick, that directed 0.75 percent, or more than $1 million, of the annual gross revenues of the city's casino boat to Second Century.

The council voted 4-4, which stalled the resolution. Councilman Lenny Fanciski was absent. Jimmy Ventura, Christine Vasquez, Robert Garcia and Richard Medina voted in favor of the settlement, while Adrian Santos, Gilda Orange, Juda S. Parks and Myrna Maldonado voted against it.

Mayor George Pabey or any council member can reintroduce the resolution after 30 days have passed. In the agreement, Second Century will no longer get a share of the casino money and the city will get 54 percent of funds remaining in an escrow account set up at the start of the lawsuit.

Indiana Attorney General Greg Zoeller was present at the meeting to express his disappointment that the settlement doesn't require Second Century to disclose how it has spent $16 million received from the East Chicago casino.

"Up until this point, the city of East Chicago has sided with the state in terms of opening the books of Second Century Inc.," Zoeller said. "We're pursuing the accounting of $16 million that's supposed to be for the economic benefit for the people of East Chicago.

"I ask you to stand firm. This is no time to back down."

Council attorney Joseph Allegretti presented the resolution before the council, but he admitted that he had no hand in negotiating the settlement. Allegretti said there's debate among the parties whether the city needs the council to sign off on the settlement, with Second Century Inc. believing it's not necessary.

City attorney Carmen Fernandez, who was part of the negotiations, wasn't present to answer questions from the council until halfway through the meeting.

Fernandez estimated that the city has accrued $450,000 in legal fees, and the court fight continues. Zoeller said he would look to see if the attorney general's office could help with city's legal costs.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Indiana Decisions

Ind. Decisions - More on: Transfer list for week ending February 19, 2010

Yesterday the ILB posted this entry, indicating that although I had received the transfer list, it was not in the usual MS Word format, and that I was endeavoring to obtain a usable copy.

This afternoon, after I had contacted the Clerk's Office three times thinking there had been an oversight, I received a note from the Supreme Court's PR office, informing me that they "soon" intended to make the reports available online themselves, and continuing:

Meantime, the transfer disposition report will remain in Microsft Excel format. The Clerk’s Office has decided to use this for a variety of reasons, including allowing the users of the report to sort its data easily by the criteria in which they are interested.

If you have a concern, please let me know. Otherwise, I hope you and your readers are pleased to learn we are diligently working to make the list more widely available and its data more usable by those who are interested in it. I will keep you updated on our progress.

Certainly I will look forward to it.

When I began posting the transfer lists 6 years ago, it was after talking to the Clerk at that time, telling him that the lists were important to many people, and that the ILB would be pleased to post them, if his office would send them to me each week. (The other recipients of the Clerk's mailing at the time were West and Lexis.)

The ILB has carried out its end of the bargain (although frequently it has required tracking down the week's list, or inquiring to determine whether or not there was a list that particular week). Some time ago, the ILB also made the whole body of lists searchable.

The ILB intends to continue posting the weekly transfer list for its readers, as long as it is able to obtain the list in a timely fashion.

[More] Yesterday's ILB entry now has been updated with the transfer list for the week ending Feb. 19, 2010.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides drug preemption case today

In Mason v. SmithKline Beecham (CD Ill.), an 18-page opinion by a panel including "Philip P. Simon, United States District Court Judge for the Northern District of Indiana, sitting by designation," Judge Evans writes:

Twenty-three-year-old Tricia Mason committed suicide on March 2, 2003, two days after she started taking Paxil, a popular antidepressant. Her parents sued the manufacturer of the drug, the Smithkline Beecham Corporation, claiming it was negligent (among other things) for not warning that taking Paxil increases the risk of suicide, especially among young adults. The district court granted summary judgment for the company in 2008. The court concluded that the Masons’ claims were preempted under federal law because the warnings they say should have been included about Paxil conflicted with the FDAapproved warning labeling for the drug.

One year after the district court granted the defendant’s motion for summary judgment, the Supreme Court decided Wyeth v. Levine, 555 U.S. ___, 129 S. Ct. 1187 (2009), a case that represents a sea change in the way courts are to consider issues of federal preemption. Keeping the changed landscape in mind, we today consider the Masons’ appeal in light of Levine. * * *

Therefore, in light of the extensive showing required by Levine, we conclude that GSK did not meet its burden of demonstrating by clear evidence that the FDA would have rejected a label change warning about the risk of suicide by young adults before Tricia’s life came to an end at 23. Consequently, the plaintiffs’ claims are not preempted.

For these reasons, the judgment of the district court is REVERSED and the case REMANDED for further proceedings.

Also of note in this opinion is a discussion of the tenor of legal briefs, starting on page 2:
Before going further, however, we note that the district court, on the opening page of its opinion granting summary judgment, said:
The Court notes that the portions of the briefs addressing statements of undisputed and disputed fact that have been submitted by both Plaintiffs and Defendant are so replete with argumentative posturing that they are essentially useless both in determining the basic factual information underlying this case, as well as in resolving the pending motions. The inclusion of 13 and 11 pages of “Introduction” that is reminiscent of closing argument is also wholly inappropriate. Counsel should consider themselves on notice that future filings of this nature will be immediately stricken by the Court.
Any improvement in the tone and substance of the briefs on appeal is slight at best. They are still, as the district court observed, “replete with argumentative posturing.” That’s unfortunate. At this point in the proceeding, all that really needs to be said is that Tricia Mason committed suicide two days after taking Paxil. The briefs, however, go far beyond this statement. The plaintiffs paint a rather bright picture of Tricia. The defendant’s picture is much darker.

[The opinion continues with several pages of examples, before concluding this part of the opinion on p. 5.]

If this case ever gets to a jury, it will consider all the facts and circumstances surrounding Tricia’s life and suicide. We need not concern ourselves with how she should be viewed. In addition, a jury might well conclude that she committed suicide without any help from Paxil. These are not our concerns. Our issue is a legal one, and so we soldier on, mindful, however, that the parties have been extremely partisan in the way they have presented the case to us.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Zimmer, Inc. v. Todd O. Davis , an 11-page opinion, Judge Kirsch writes:

Zimmer, Inc. (“Zimmer”) sought a preliminary injunction against its former employee Todd O. Davis (“Davis”) to enforce the confidentiality, non-solicitation and non-competition provisions of their Employment Agreement with Davis.. The trial court denied Zimmer’s request for injunctive relief. Zimmer now appeals presenting the following restated issue for our review: whether the trial court erred by denying Zimmer’s request for a preliminary injunction. We affirm in part, vacate in part, and remand. * * *

We cannot say based upon our review of the record that the evidence of record and the reasonable inferences drawn therefrom are without conflict and lead unerringly to a conclusion opposite that reached by the trial court. The trial court’s findings are supported by the evidence and the findings, in turn, support the trial court’s conclusion to deny Zimmer’s request for injunctive relief based upon the balance of the harms analysis. Because Zimmer has failed to meet one of the four requirements in seeking the issuance of a preliminary injunction, the trial court did not abuse its discretion in denying Zimmer’s request for preliminary injunctive relief. Finding that this ground for denial of injunctive relief was appropriate, we do not address the other grounds cited by the trial court and challenged by Zimmer.

Since we remand for a trial on the merits, we vacate the trial court’s findings and conclusions on the issues of the reasonableness of the Employment Agreement’s restrictive covenants and the affirmative defense of unclean hands. Such issues are best determined by a trial on the merits of this dispute following an adequate time for discovery.

In State of Indiana v. Greg Peters and Tricia Peters, a 10-page opinion, Judge Najam writes:
The State appeals the trial court’s grant of Greg Peters’ and Tricia Peters’ motions to suppress evidence. The State presents a single issue for our review, namely, whether the trial court erred when it granted the motion to suppress. We affirm. * * *

First, the State has waived the issue of whether the officers’ initial, warrantless search was constitutional because the State has failed to make any argument on the issue of the reasonableness of that search under Article I, Section 11 of the Indiana Constitution. The trial court unambiguously rested its holding on Article I, Section 11, and it is well settled that Indiana courts “interpret and apply Article I, Section 11 of the Indiana Constitution independently from federal Fourth Amendment jurisprudence.” * * *

Second, we do not address the State’s alternative argument that the evidence obtained pursuant to the search warrant is admissible because the probable cause affidavit was sufficiently supported by the evidence the firefighters found in the course of their searches. The State raises that issue for the first time on appeal. * * * It is well settled that Indiana’s appellate courts look with disfavor upon issues that are raised by a party for the first time on appeal or in original actions without first raising the issue in the trial court. Byrd v. State, 592 N.E.2d 690, 691 (Ind. 1992). When the State is a party to a state court proceeding, it, like all parties, must comply with the rules then governing, and its actions, like those of all parties, are subject to scrutiny under principles of waiver and estoppel. Id. at 692. The issue is waived.

The State did not carry its burden with respect to either of the two issues it attempts to raise on appeal. This court is a neutral arbiter of disputes and not an advocate for either party. Because the State has waived the issues on appeal, we need not address the merits of the trial court’s ruling on the Peterses’ motions to suppress.

NFP civil opinions today (1):

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

NFP criminal opinions today (9):

Deon Ray Harris v. State of Indiana (NFP)

Willie A. Norman v. State of Indiana (NFP)

Jason Harris v. State of Indiana (NFP)

Alric P. Bolt v. State of Indiana (NFP)

Allan Schlechty v. State of Indiana (NFP)

Drameka L. Swain v. State of Indiana (NFP)

Michael P. Large v. State of Indiana (NFP)

Tory L. Brawner v. State of Indiana (NFP)

George Odongo v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Ind. App.Ct. Decisions

Law - "Thomas M. Cooley Law School Buys Stadium Naming Rights"

Don't miss this just-posted entry in the WSJ Law Blog.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to General Law Related

Ind. Decisions - Supreme Court decides two today on the meaning of "briefly" in "certain drug offenses in, on, or within 1,000 feet of school property"

In Reynaldo A. Griffin v. State, an 8-page, 5-0 opinion, Justice Dickson writes:

For persons charged with committing certain drug offenses in, on, or within 1,000 feet of school property, a public park, a family housing complex, or a youth program center, the resulting penalty enhancement is precluded if both (a) the defendant was in, on, or within the proscribed area only "briefly," and (b) no member of a designated class of young people was within the designated area at the time of the offense. Indiana Code § 35-48-4-16(b). We granted transfer in this case and in Gallagher v. State, also decided today, to address the meaning and application of the statutory term "briefly." * * *

We conclude that the statutory "defense" provided by Indiana Code § 35-48-4-16(b) is not an affirmative defense but a mitigating factor that reduces culpability. Therefore, the evidence at trial was sufficient to raise the defense for the defendant, but it was insufficient to satisfy the State's burden to rebut the defense beyond a reasonable doubt. The State has not proven that the defendant's presence within 1,000 feet of the school lasted longer than reasonably necessary to push the moped down the street nor that his criminal activities while there would have been visible to any children if present. Nor has the State proven the presence of persons (a) under eighteen years of age at least three years junior to the defendant and (b) who were within 1,000 feet of the school property.

We reverse the defendant's conviction of Possession of Cocaine Within 1,000 Feet of School Property, a class B felony, and remand to the trial court for entry of a conviction for Possession of Cocaine, a class D felony, and for resentencing accordingly.

In Stephan M. Gallagher v. State of Indiana, an 8-page, 5-0 opinion, Justice Dickson writes:
We granted transfer in this case and in Griffin v. State, also decided today, to address the meaning and application to be given to the statutory provisions that preclude, in limited circumstances, the penalty enhancement that ordinarily results from drug offenses committed within 1,000 feet of school property, a public park, a family housing complex, or a youth program center.

Appealing his conviction and sentence for Dealing in a Schedule II Controlled Substance Within One Thousand Feet of School Property, a class A felony, the defendant claims errors related to (1) the adequacy of the State's rebuttal of the statutory defense concerning the location of the drug sale, (2) the admissibility of a digital recording, (3) the correctness of an instruction regarding aiding and inducing, and (4) the appropriateness of the sentence. The Court of Appeals addressed and rejected the defendant's claims with respect to issues (2) and (3), and, as to issue (1), it reversed and remanded with instructions to enter a conviction for the offense as a class B felony and to resentence the defendant accordingly and thus did not address issue (4). Gallagher v. State, 906 N.E.2d 272, 277 (Ind. Ct. App. 2009). We granted transfer to consider issue (1) and now summarily affirm the Court of Appeals as to issues (2) and (3). Addressing issues (1) and (4) below, we affirm the defendant's conviction and sentence. * * *

1. Statutory Defenses
The defendant contends that he raised, and the State failed to adequately rebut, two statutory defenses. Seeking to reduce his conviction from a class A felony to a class B felony, he argues that the State failed to rebut: (a) that he was within 1,000 feet of school property only "briefly" at a time when no children were present; and (b) that his presence within the proscribed zone resulted from the request or suggestion of law enforcement. * * *

The evidence established that the defendant was present within 1,000 feet of the school and that he was located in the proscribed zone for as little as thirteen minutes and thirty seconds. During that period of time, however, the defendant was principally engaged in conduct related to unlawful drug activities clearly visible to anyone present, and thus his thirteen and one half mi-nutes in the proscribed zone does not qualify as "briefly." We conclude that the evidence was sufficient to rebut the defendant's claim to the statutory defense that he was only "briefly" in the proscribed zone. * * *

[Re (b)] The defense acknowledges that the evidence on this point was uncertain, impliedly conceding the existence of evidence supporting the jury's rejection of his claim to the defense. We decline to find that the State's rebuttal was insufficient.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Study committee to address ‘sexting’; "Wallace" language added to bill

The Fort Wayne Journal Gazette reports today:

The issue of young people sending sexually explicit photos of themselves and others via text message or other technology will be referred to a summer study committee. That language was added to Senate Bill 224 in a House committee Monday morning.

Language also was added setting up a process in which sex offenders can file to have their names taken off the sex offender registry under a recent Indiana Supreme Court decision against ex post facto punishment.

That means offenders can’t be punished further by having their name added to the registry if that wasn’t in the law when they committed the offense.

The legislation now heads to the full House for consideration.

Some may consider that the proposed new "Wallace" language would make a bad situation worse. The amendment would be made to IC 11-8-8-22, Currently, that section applies to a sex offender required to register under IC 11-8-8, even though:
(b) * * * due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
(1) would not be required to register under this chapter; or
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
Subsection (c) of the current law says that such a person may petition the court to remove the person's designation as an offender, and (d)(2) the court may give notice to the prosecutor and set the matter for hearing. The current law continues:
(e) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3) If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
The court has the discretion to deny a petition under this section, even if the court makes the findings under this subsection.

(f) The petitioner has the burden of proof in a hearing under this section.

(g) If the court grants a petition under this section, the court shall notify:

(1) the victim of the offense, if applicable;
(2) the department of correction; and
(3) the local law enforcement authority of the county in which the petitioner resides.
The new proposed language in SB 224 begins on p. 3 (SECTION 2) of the bill as it came out of House committee yesterday. Some might say that the only useful language in this proposed change would be the new subsection (j) on p. 5, which would read:
(j) An offender may base a petition filed under this section on a claim that the application or registration requirements constitute ex post facto punishment.
Otherwise, the new language would, in a new subsection (d), limit the court in which the petition could be filed, and in (e) require the judge to give multiple notices, and prohibit the hearing being set until at least 60 days after the various notices have been given. In addition "If the court fails to issue a notice as required by this subsection, an order granting relief to the petitioner may be rescinded." See also subsections (k) and (l) on p. 5.

Furthermore, the new language would not take effect until July 1, 2010. What happens until then? And what of individuals whose names already have been removed pursuant to the Supreme Court's decision in Wallace, either by court order, or by sheriffs' actions? What of pending actions?

Here is a list of ILB "Wallace" entries.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Law

Ind. Courts - "Huntington Circuit Judge Mark A. McIntosh, 76, dies"

Rebecca S. Green reports in the Fort Wayne Journal Gazette in a story that begins:

Longtime Huntington Circuit Judge Mark A. McIntosh died Saturday at a Fort Wayne hospital.

The 76-year-old lawyer served more than 20 years on the Huntington bench, presiding over some of the more infamous cases in northeast Indiana – the 1989 murder of car collector Eldon Anson by high school junior Jarrod Wall; the 1995 arson set by then-14-year-old Donna Ratliff that killed her mother and sister; and the death in 2000 of 3-year-old MicKenzie Brown at the hands of her father and stepmother.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Indiana Courts

Ind. Law - "Senate approves gun-at-work bill"

From today's Fort Wayne Journal Gazette:

Legislation allowing employees to have guns in their locked vehicles while at work passed the Senate 41-9 Monday.

House Bill 1065 now heads back to the House, where the chamber can agree to changes in the bill or send the bill to a conference committee for further negotiation.

The bill is a result of employers in the state and around the nation prohibiting employees from having firearms anywhere on their property – even in their cars. Advocates say the bill is needed so that Hoosiers can protect themselves going to and from work.

Opponents say a person’s right to carry a firearm shouldn’t overrule a business’s right to control its property.

The only area lawmaker who cast a “no” vote against the measure was Sen. Tom Wyss, R-Fort Wayne.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Indiana Law

Ind. Courts - "Former custodian pleads guilty to urinating on chair"

The initial ILB entry, from July 23, 2009, begins:

Per Jeremy Mull, Clark County's chief deputy prosecutor: "The case is highly unusual."

He continued: “I have never encountered a case similar to this one,” he said. “It is very much out of the ordinary to have someone urinating on someone else's chair.”

In a story today, Matt Thacker of the Jeffersonville News & Tribune reports in a story that begins:
A former Clark County Government Building custodian pleaded guilty Monday to urinating on a court clerk’s chair, but he will avoid jail time.

Stephen L. Thompson, 59, was arrested in July after video surveillance cameras caught him in the act July 15.

A Clark County Circuit Court employee had reported discovering a “wet substance” on her chair five times in a nine-week period. After the fourth incident, Jeff-Clark Building Authority Director Mark Vangilder purchased and installed a hidden security camera in the court office that was programmed to record after regular working hours.

Thompson pleaded guilty in Clark County Superior Court No. 1 to class D felony attempted battery by bodily waste.

Judge Vicki Carmichael sentenced Thompson to one year of supervised probation and ordered a psychological evaluation. The sentencing range for a class D felony is six months to three years.

Because a court clerk is considered a correctional officer, the charge was a felony as opposed to a misdemeanor.

Both sides agreed that Thompson’s lack of any criminal history should be considered a mitigating factor in sentencing.

Posted by Marcia Oddi on Tuesday, February 23, 2010
Posted to Indiana Courts

Monday, February 22, 2010

Ind. Decisions - Transfer list for week ending February 19, 2010

Here is the Clerk's transfer list for the week ending February 19, 2010. It is 4 pages long.

No transfers were granted last week.

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the Jan. 22, 2010 list.

Six 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, February 22, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - What East Chicago case is being settled here?

On Feb. 19th Andy Grimm of the Gary Post-Tribune reported in this story:

EAST CHICAGO -- The city has ended a long-running dispute with East Chicago Second Century, agreeing to stop payments of casino revenue to the for-profit development group and split up to $10 million in the Second Century accounts between the city and the foundation.

The city released a statement Thursday announcing an agreement that would end a court battle that began in 2005. That was the year Mayor George Pabey took office and pledged to break the deal his predecessor, Robert A. Pastrick, brokered with political allies who formed Second Century's board.

The foundation took in 0.75 percent of the gross revenues from the city's casino boat, a deal that paid Second Century more than $1 million a year since 1997, when Showboat Casino first docked at the East Chicago marina. Because the foundation is a private, for-profit entity, there has been no public accounting of how the casino money was spent.

Under terms of the settlement, Second Century will no longer receive a share of the casino money, and the city will get 54 percent of the funds remaining in an escrow account holding money paid to the foundation since the start of the lawsuit. The city will use the money to fund existing economic development projects sponsored by the cash-strapped city, Pabey said in a statement that urged the City Council to ratify the deal at its regular meeting Monday.

"We have fought long and hard for the opportunity for the city to control its financial destiny," the statement reads. "This settlement is an important step in securing all future economic development payments for the city and providing a stable revenue base upon which we can support our future growth."

Indiana Attorney General Greg Zoeller had joined the lawsuit to press to open Second Century's books. He said he was not involved in settlement talks and intends to continue working to make the foundation's financial records public.

Attorney General Zoeller issued a press release stating in part:
"I continue to oppose any agreement that would allow additional funds to be given to Second Century, which has steadfastly refused any disclosure of how $16 million that was meant to benefit the people of East Chicago," said Zoeller, who said he has not seen a copy of the agreement.

"While I have not been involved in any settlement negotiations between Mayor Pabey and Second Century, I oppose any result that would allow additional funds be given to Second Century, which has steadfastly refused any public review of how it spent more than $16 million it received over 10 years that had been meant for economic development to benefit the people of East Chicago," Zoeller said.

"From the State's point of view, the major focus is not about revenue: It's about prying open the books of the for-profit entity and providing an accounting. The public needs to know how that stream of casino revenue was spent and to whom Second Century's grants were dispensed," Zoeller said. "Forward-looking disclosure is not enough; there must be disclosure going back to the founding of Second Century, created by the Pastrick organization during the period that is subject of our RICO investigation," Zoeller said.

This afternoon Jon Seidel of the Post Tribune writes:
Indiana Attorney General Greg Zoeller said he will personally ask the East Chicago City Council to vote against a court settlement with Second Century Inc. at its meeting tonight.

Zoeller said he hasn't yet seen a copy of the agreement, despite multiple requests for it, but he opposes any settlement that doesn't require Second Century to disclose how it has used $16 million in revenue it received from East Chicago's casino.

"I'd be shocked if that's in the agreement," Zoeller said.

The settlement would end a court battle started in 2005 over a deal that directed 0.75 percent, or more than $1 million, of the annual gross revenues of the city's casino boat to Second Century.

Under the reported terms of the settlement, Second Century will no longer get a share of the casino money, and the city will get 54 percent of funds remaining in an escrow account set up at the start of the lawsuit.

The East Chicago City Council is scheduled to ratify the settlement during its meeting at 6 p.m. * * *

Language in a casino bill moving through the General Assembly would require all agencies receiving casino money, such as Second Century, to fully disclose how they have used those funds.

On June 30, 2009, the Supreme Court issued a ruling in East Chicago v. East Chicago Second Century, Inc., concluding "As detailed above, the trial court is affirmed on some points and reversed on others. We remand so that there can be further proceedings on the merits."

For discussion of the ruling, see this ILB entry from the following day, July 1, 2009.

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to Indiana Decisions

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

For publication opinions today (1):

In A.S. and M.S. v. LaPorte Regional Health System, Inc., et al. , a 12-page opinion, Judge Bradford writes:

As of February 1, 2002, A.S., an employee of LaPorte Hospital (“the Hospital”) had worked in a phlebotomy laboratory in the Heritage Place building in LaPorte for approximately one year. The laboratory was located in Suite 308 of Heritage Place, a suite known as the “Specialty Center.” As it happened, the laboratory was located in space the Hospital, which owned Heritage Place, had leased to LRPN. LRPN, however, did not occupy, possess, or control the laboratory space in which A.S. worked. Moreover, no employees of LRPN worked in the laboratory or had any right to control it in any respect. The Hospital provided all necessary materials and safety equipment to A.S. and her fellow employees.

On February 1, 2002, A.S. was working in the laboratory, drew the blood of an AIDS patient, and sealed the blood into a test tube. After centrifuging the sample, A.S. opened the test tube over a sink. As A.S. did so, some of the blood splashed into her right eye. A.S. was later found to be HIV-positive.

On October 17, 2002, A.S. and her husband M.S. filed a negligence suit against, inter alia, LRPN, contending that it “owned, operated, managed, maintained or controlled” Heritage Place on February 1, 2002, and that it “undertook the duty to establish a proper policy and procedure for universal precautions and personal protection from exposure to infectious agents at Heritage Place and to assure that personal [sic] handling potentially infectious materials were provided with necessary personal protective equipment and supplies.” A.S. alleged that she had contracted AIDS, and M.S. alleged loss of consortium, due to LRPN's negligence.

On January 15, 2009, LRPN filed a summary judgment motion, contending that it owed no duty of care to A.S. On April 30, 2009, A.S. and M.S. filed a response to LRPN's motion, contending that LRPN owed a duty to A.S. stemming from federal and state regulations, the lease agreement between the Hospital and LRPN, and LRPN's in-concert actions with the Hospital. On August 12, 2009, following a hearing, the trial court entered summary judgment in favor of LRPN. * * *

In summary, we conclude as a matter of law that Appellants failed to establish that LRPN had a duty of care to A.S. Consequently, the trial court properly entered summary judgment in favor of LRPN.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of L.S., E.S., and M.W.; A.W. v. IDCS (NFP)

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

NFP criminal opinions today (1):

Paul Kinnaman v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Courthouse in Gary to be renamed for Indiana Supreme Court Justice Robert D. Rucker"

An AP story this mornng reports:

The Lake County Superior Courthouse in Gary will be renamed in honor of Indiana Supreme Court Justice Robert D. Rucker, a Gary native.

Lake County Commissioner Roosevelt Allen says the switch was a way to recognize Rucker's "distinguished, exemplary career" and his status as a role model for black men.

Rucker grew up in Gary and is a Vietnam veteran. He is a 1974 graduate of Indiana University and a 1976 graduate of the Valparaiso University School of Law.

A former deputy prosecutor for Lake County, Rucker was appointed to the Court of Appeals in 1991 by Gov. Evan Bayh. He was appointed to the state Supreme Court in 1999 by Gov. Frank O'Bannon.

Rucker says he is "deeply touched" by the honor.

Commissioners approved the change Feb. 17.

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to Indiana Courts

Ind. Gov't. - "Promises with a Price: Public Sector Retirement Benefits"; Indiana impacts

"Promises with a Price: Public Sector Retirement Benefits" is the title to a new 73-page study released by the PEW Center on the States. (Here is the one-page overview.)

This story form the Feb. 18, 2010 Christian Science Monitor, reported by Tracey D. Samuelson , is headed "Top eight states with worst pension woes." According to the report, problems arise because of:

states’ own policy choices and lack of discipline, including:

– failing to make annual payments for pension systems at the levels recommended by their own actuaries;

– expanding benefits and offering cost-of-living increases without fully considering their long-term price tag or determining how to pay for them;

– providing retiree healthcare without adequately funding it.

Many retirement investment funds have further taken a hit during the recent recession, but Susan Urahn, the managing director of the Pew Center on the States, notes in the report that “many states shortchanged their pension plans in both good times and bad, and only a handful have set aside any meaningful funding for retiree health care and other non-pension benefits.”

So which states received the worst grades for their pension performance?

In eight states – Connecticut, Illinois, Kansas, Kentucky, Massachusetts, Oklahoma, Rhode Island, and West Virginia – more than one-third of the total pension liability was unfunded. Two additional states – Illinois and Kansas – had less than 60 percent of the necessary assets on hand.

Re Indiana, the report says:
Indiana's management of its long-term pension liability is cause for serious concern and the state needs to improve how it handles its retiree health care and other benefit obligations. It has funded only 70 percent of its total pension bill—well below the 80 percent benchmark that the U.S. Government Accountability Office says is preferred by experts—and the total unfunded pension liability is $10.5 billion. The Indiana State Teachers’ Retirement Fund is responsible for much of the state’s funding shortfall, covering only 48 percent of its $18.75 billion obligation. Although Indiana has very limited long-term retiree health care and other benefit liabilities, with a $442.3 million bill coming due, it—like 19 other states—has failed to sock away any money to cover these costs.
A chart on p. 25 of the report lists Indiana as 9th out of 10 leading states in funding the annual required payments. But the year is 2006.

Page 67 of the report is interesting. Funding retiree health care is one of the main issues in many of the states:

Until recently, Indiana and Nebraska were the only two states that offer no benefits for retirees over age 65 (although both do have some provisions for retirees who are not yet eligible for Medicare). Oregon also eliminated its coverage for Medicare eligible retirees who were hired on or after August 29, 2003, according to the GAO. Eight additional states—Idaho, Iowa, Kansas, Minnesota, Mississippi, Montana, South Dakota and Wyoming—pay no premiums for retirees, but do allow all eligible retirees to sign on to the state plan. This type of benefit provides an “implicit subsidy,” which comes from allowing retirees to participate in the same pool as younger and generally healthier state employees. Because retirees are much older than the average participant in state plans, they are more expensive to cover, bringing up the average costs of the entire plan. In Wyoming, for example, although the retirees pay for benefits themselves, the inclusion of these older men and women in the insured pool increases the costs to the state by some $72 million over a 30-year period. * * *

In Kansas, Indiana, Minnesota, Mississippi and Nebraska—five of the seven states where actuarial valuations were unavailable—the unfunded actuarial liabilities are likely small.

Also, from p. 44:
The data used for this report include information from 45 states. The data for 43 states are based on actuarial computations produced by the states themselves. As of mid-October 2007, the remaining seven states had not finished producing actuarial valuations. Five of those—Indiana, Kansas, Minnesota, Mississippi and Nebraska—are likely to show relatively small liabilities because they are among the 10 states where retirees pay their own health insurance premiums. In these states, the governments’ cost is limited to an “implicit subsidy,” which comes from allowing retirees to participate in the same insurance pool as younger and generally healthier state employees.
Here are some interesting earlier stories from the ILB on the actuarial requirement, including:Other than the program providing retirement health care benefits to members of the General Assembly, their families, and staffers (benefits which were available both before and after attaining age 65 Medicare eligibility), retirement health care benefits were not provided to any other state employees until 2007. Then, as Niki Kelly reported in the Fort Wayne Journal Gazette in 2007:
The governor also signed Senate Bill 501, a companion bill that establishes a retirement medical benefits account for state employees of all three branches of government as well as elected and appointed officers.

Legislators previously had authorized a special state-supported retirement health plan for only themselves. But it became a sensitive political issue, and they officially repealed it in the pay raise bill.

As a result, though, the General Assembly decided to set up a similar plan for all retiring state employees or elected officials who have served at least 10 years. * * *

Senate President Pro Tem David Long, R-Fort Wayne, said although legislators would be eligible “this is really more for state employees” to bridge the gap between retirement and Medicare coverage.

That is just part of this May 31, 2009 ILB entry.

Follow that with this Sept. 27, 2009 ILB entry about the costs of the Indiana program compounding. And recall the language quoted above from the PEW Report:

Although Indiana has very limited long-term retiree health care and other benefit liabilities, with a $442.3 million bill coming due, it—like 19 other states—has failed to sock away any money to cover these costs.

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to Indiana Government | Legislative Benefits

Law - "Wine shipping laws vary by state, are contradictory, unfair"

Howard W. Hewitt, Crawfordsville, writes in a long special to the Terre HauteTribune-Star that begins:

CRAWFORDSVILLE — If you love hazelnuts the best Oregon and Washington state producers would be happy to ship you some.

Whether it’s fruit from Florida, books from Amazon, or outdoor clothing from L.L. Bean — those companies will be happy to ship to your front step.

But if you want wine, just start banging your head against the wall now. Wine shipping laws vary from state to state, are contradictory, and unfair.

And one of the dirty secrets is the amount of money state legislators pocket from those wanting to keep the system in place.

Most states are governed by three-tier systems. Nearly all wine is sold producer to wholesaler to retailer. In other words, wholesalers have complete say over what product you can buy off the retail shelf, not to mention the additional mark-up in price.

The ILB has had a long list of entries on the topic of wine shipping.

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to General Law Related

Law - "Starting Monday [today] legal handgun owners may now carry at National Lakeshore"

From the Feb. 19th Chesterton Tribune:

A change in federal law, to take effect on Monday, Feb. 22, will now allow firearms in many national parks.

According to a statement released on Thursday by the National Park Service (NPS), people who can legally possess firearms under federal and state law may now possess those firearms in the national parks in that state.

The new law (Sec. 512 of P.L. 111-24) was passed by Congress and signed last May by the President.

Prior to Feb. 22, firearms have generally been prohibited in national parks—except in some Alaska parks and those parks which allow hunting.

State and local firearms laws vary. Visitors who would like to bring a firearm with them to a national park need to understand and comply with the applicable laws. More than 30 national parks are located in more than one state, so visitors need to know where they are in those parks and which state’s law applies.

“For nearly 100 years, the mission of the National Park Service has been to protect and preserve the parks and to help all visitors enjoy them,” NPS Director Jon Jarvis said. “We will administer this law as we do all others—fairly and consistently.”

Federal law continues to prohibit the possession of firearms in designated “federal facilities” in national parks, for example, visitor centers, offices, or maintenance buildings. These places are posted with “firearms prohibited” signs at public entrances. The new law also does not change prohibitions on the use of firearms in national parks and does not change hunting regulations.

Park websites have been updated to include links to state firearms laws to help visitors understand the law and plan accordingly.

Sec. 512 of P.L. 111-24, an amendment to the Credit Card Accountability, Responsibility, and Disclosure Act of 2009, also directs the U.S. Fish and Wildlife Service to follow state and local firearms laws in national wildlife refuges.

Posted by Marcia Oddi on Monday, February 22, 2010
Posted to General Law Related

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

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

From Sunday, Feb. 21, 2010:

From Saturday, Feb. 20, 2010: From late Friday, Feb. 19, 2010:

Posted by Marcia Oddi on Monday, February 22, 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 2/22/10):

Thursday, February 25th

Next week's oral arguments before the Supreme Court (week of 3/1/10):

Next Thursday, March 4th

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 2/22/10):

Thursday, February 25th

Next week's oral arguments before the Court of Appeals (week of 3/1/10):

Next Tuesday, March 2nd

Next Wednesday, March 3rd

Next Thursday, March 4th

Next Friday, March 5th

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, February 22, 2010
Posted to Upcoming Oral Arguments

Sunday, February 21, 2010

Ind. Courts - "LaPorte County judge orders jail time for repeat DUI offender "

Supplementing this ILB entry from Dec. 11, 2009, about a different defendant before Judge Alevizos, a story today by Stan Maddux in the NWI Times reports:

LaPorte Circuit Court Judge Tom Alevizos dished out what he felt was deserved for the man who racked up five drunken driving arrests in one year.

Daniel Jacobs was handed a 90-day LaPorte County Jail sentence Wednesday, along with 275 days of home detention for operating while intoxicated.

In October, the judge -- feeling actual jail time was in order -- rejected a deal reached by the defense and prosecution that called for six months on work release.

In February 2009, Jacobs slid into a tree at county roads 725 West and 300 North along an ice-covered stretch of road.

It was the last in a string of five OWI arrests within 12 months, including two in Porter and Lake counties.

And, before that, he had two OWI convictions.

His attorney, William Herrbach told the court Jacobs recently completed a period of incarceration for the OWI in Porter County.

Jacobs is also looking at the possibility of another 625 day jail sentence in a case still pending in LaPorte Superior Court 4 in Michigan City.

Posted by Marcia Oddi on Sunday, February 21, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on: "Judges to jurors: Stay off the Web - New instructions mention Facebook, Twitter, MySpace"

Actually, the story quoted in this Feb. 15, 2010 ILB entry confused me because, as I wrote then, "This is the first the ILB has read of these new instructions, although they have been anticipated for some time.

This story by Aaron Organ in the Feb. 20, 2010 Fort Wayne News-Sentinel, headed "Limiting juries in an Internet age: A more Web-savvy update to the no-research rule is being reviewed," indicates to me that the earlier report may have jumped the gun.

From the News-Sentinel's thorough report:

Courthouse officials used to only have to worry about jurors getting outside information from face-to-face conversation and newspapers. In today's world of electronic tweets and status updates, 24-hour news and search engines, however, those officials are beginning to realize the quest for knowledge and yearning to share can play a negative role in judicial proceedings, and are forming steps to quell it before it grows unmanageable.

Allen Superior Court Judge Fran Gull, who pulls double time as chairwoman of the jury committee of the Indiana Judicial Center, said issues have arisen outside state lines with jurors hungry for knowledge doing their own research while on breaks from trial – a breach of the general admonishment read to jurors by judges beforehand. When those jurors return, quenched with information not provided during the trial, well, that's how mistrials occur, costing taxpayers money, the attorneys time and their own dollars – and basically wasting the time of all involved.

“There's been an awful lot of cases where mistrials have been declared based on jurors conducting research and looking at things outside of court that they're not supposed to be looking at,” Gull said. “Back in the day when I was trying lawsuits, there wasn't an Internet, and the general admonishment to the jury at the conclusion of proceedings and at recess was adequate. Well, that's not the case anymore.”

Currently, Gull and other court judges will read an admonishment that instructs jurors not to talk with anyone about the case, and not to read about the case in a newspaper or watch any reports on television.

“Those were the only mediums we had to worry about,” Gull said. “Then came the Internet and Googling.”

Now, jurors can leave court for a break or for the evening, type a defendant's name into a search engine like Google, and up pops any number of results concerning the defendant's criminal history – history those trying the case want suppressed for a fair trial.

What's more, that juror could then access a social networking site like Twitter or Facebook and spread the word.

In some counties, and in other states, this issue can occur not just outside the courthouse, but inside its doors, for those courthouses that allow electronic devices. Allen County is safe in that regard, because it passed a ruling years ago that bans all electronic devices from the courthouse, but that does not extend beyond its walls.

The techie-juror issue – which technically could be prosecuted as a contempt of court felony – has now brought judicial changes.

Roughly two years ago, Gull said judges from around the state, sensing a growing concern for the sanctity of a jury, began elaborating on their general admonishments to include the banning of Internet research. Eventually, the issue became so widespread that those judges gathered and brought the issue before the Indiana Judicial Center's jury committee, asking for a standardized instruction or broader and standard admonition.

The committee came up with an admonition, and subsequently referred it to the Indiana Judges Association, where, on Jan. 15, Gull presented to the board of directors a request to approve it. The board did, and the revised, standardized and expanded admonition is currently en route to the rules committee for review and approval.

The new admonition will include rules saying, essentially, that until a juror's service is complete, the use of computers, laptops, phones or electronic communication is prohibited, be it in attendance at trial, or during breaks or deliberations.

Gull hopes it first gets passed, but then that the new method ushers in protections.

“We don't want to go through a month of trial and have to blast it out of the water because a juror did some Internet research,” said Gull. “It used to be enough to tell them not to read the paper or watch the news. Now, because we have gotten to be such a ‘I demand access to everything and I want to know everything about everything'-type of society, we need to be specifically instructing jurors not to talk to anybody and don't post information, text or e-mail. Don't get on Internet chat rooms, blogs or social Web sites and discuss this case.”

But what's the big deal, anyhow? Gull said she's asked that same question quite a bit by jurors. It's a matter of limiting the information jurors receive to what comes from inside the courtroom.

“Jurors ask ‘why not' all the time,” Gull said. “You may find out this person (on trial) has 15 major felony convictions. Would that have made a difference to you in your deliberations? Of course.”

Posted by Marcia Oddi on Sunday, February 21, 2010
Posted to Indiana Courts

Ind. Law - "Second chances lit the path to lawyer's success"

The Indianapolis Star's occasional Sunday column, "My Big Break," today features Indianapolis attorney Jimmie McMillian. Some quotes:

Angela Espada, dean of admissions at the IU School of Law-Indianapolis, asked me if I were to be admitted would I promise not to embarrass her, and I swore I would make her proud of that decision.

While in law school, my most significant professional big break came in 2001 when Indiana Supreme Court Justice Frank Sullivan Jr. allowed me to be his law clerk. The prestige of being a law clerk for Justice Sullivan opened several doors for me. He helped me to develop as an attorney in the Indianapolis community, but our close personal relationship is what impacted me the most; he will always be a second father to me.

My next big break came when Barnes & Thornburg hired me as a litigation associate and paired me with the firm's general counsel, Kenneth Inskeep, as my partner mentor. He invested countless hours guiding me through the intense and difficult process of becoming a partner at the firm. His sincere passion for assisting me with my career development was pivotal to my success.

Posted by Marcia Oddi on Sunday, February 21, 2010
Posted to Indiana Law

Ind. Courts - "Released on bond: A flawed system?"

Matt Thacker, in a long story in the Feb. 20, 2010 Jeffersonville News & Tribune, reports in part:

Clark County Circuit Court Judge Dan Moore said that every defendant has the right to post bond, except in murder cases. Under Indiana Code when setting bond, judges are to consider a defendant’s flight risk and the safety of the public.

In recent years, court cash bonds have become more popular and are now used frequently in Clark County. Under that system, a defendant pays a 10 percent deposit of the amount of bail. Critics argue that the court cash bonds are misleading since defendants are never held accountable for the full amount of the bond.

Tony Widgery, president of the Indiana Surety Bail Agents Association, says that some counties require anyone posting bond to sign papers that holds them liable for the full amount of the bond. Clark County does not.

“As with a car loan or anything else, collecting a judgment can be like squeezing blood out of a turnip,” said Deborah Neal, staff counsel for the Indiana Public Defender Commission.

Widgery said the only county that he knows of that has attempted to go after the remaining 90 percent is Marion County.

“Marion County failed due to insolvent signers and defendants,” Widgery said. “Because there are no requirements or qualifications to sign on a bond, it is not a true bail bond.”

Wigdery points to the Indiana Constitution which states, “Offenses, other than murder or treason, shall be bailable by sufficient sureties.”

Since the 10 percent deposit does not require sufficient sureties, he argues, “I feel it is unconstitutional. In addition, because there is no one held accountable, there is no incentive for the defendant to go to court.”

Bail bondsmen have mostly gone out of business in counties that use court cash since bondsmen usually charge a 10 percent fee even if a defendant appears at all hearings. Bondsmen must pay a late surrender fee if the defendant fails to show up in court for a hearing. If the defendant has not returned after one year, the late surrender fee is 80 percent of the full amount of the bond.

Neal said there are many benefits to cash bonds, including that it allows counties to collect certain fees. Neal said a study from 2008, in which 31 percent of Indiana counties responded, showed that 47 percent of the $5.3 million collected from cash bonds that year went to the county.

Clark County charges a $164 fee for court costs whenever a defendant is convicted.

A 2007 report from the Bureau of Justice Statistics studied felony defendants released from jail prior to trial from 1990 through 2004 in the 75 largest counties in the nation. It found that 30 percent of defendants released on an unsecured bond, or cash bond, failed to appear in court. About 18 percent of those who posted a surety bond failed to appear, while only 14 percent of those who posted a property bond failed to appear.

About 10 percent of those who posted an unsecured bond remained a fugitive after one year, while three percent of those released on surety bond was still wanted after a year.

“It’s been my experience that the court cash system of bonds allows people to be free without being liable for the entire amount of the bond. I would welcome change in which someone would be held liable for the full amount of the bond rather than the 10 percent,” Clark County Chief Deputy Prosecutor Jeremy Mull said.

Moore said it would be worth reviewing the practice of setting court cash bonds instead of full cash bonds.

“We’re in a transition. The court cash bonds have been an outgrowth of the old bail bonds system,” Moore said.

In recent months, the Clark County Sheriff’s Department has traveled to New York, Florida, Ohio and Illinois to pick up defendants who are wanted on warrants and arrested in another state.

The gas charges and overtime hours for the two officers who are required to make the trip are paid for by county taxpayers, according to Sheriff Danny Rodden.

Under the system of surety bonds, bondsmen would make the decision whether to transport fugitives or pay the late surrender fee.

Superior Court No. 3 Judge Joe Weber said failure to appear is not a major problem in Clark County.

“It’s usually a short term thing. A good portion of the people that don’t show up, it’s because they are being held in another county,” he said.

County Clerk Barbara Bratcher Haas said a 10 percent deposit has never been forfeited in Clark County since she was elected. Judges and prosecutors say it would require a motion by the prosecutor and then a hearing. The money collected would go to a state education fund, Mull said.

Mull added that the prosecutor’s office does not have time or resources to go through the paperwork and process required to forfeit a bond. * * *

Indiana State Police troopers and attorneys who work in multiple counties say that Clark County judges set some of the lowest bonds in the region.

A bond schedule allows a defendant to post bail without going before a judge. In Clark County, an in-state resident can post $7,500 for release on a class C felony drug charge or crime against property, $5,000 on a class D felony, $1,000 for a class A misdemeanor, $750 for a class B misdemeanor or $500 for a class C misdemeanor. Anyone charged with a higher felony must go before a judge.

In Floyd and Scott counties, anyone charged with any felony must go before a judge. Washington County’s bond schedule is less for some offenses, but unlike Clark County, they do not allow out-of-state residents to post bond before seeing a judge. Washington County also does not allow any court cash bonds.

“Bonds are not high enough to get (defendants) to reappear. We routinely ask for higher bonds,” Prosecutor Steve Stewart said. “It’s not just an issue of them reappearing for trial but them posing a risk to the community.” * * *

Judges say that bond should never be used as punishment and that their job is to remain fair and impartial.

“I’m sure you could find counties with higher bonds,” Judge Weber said. “I don’t necessarily want to be the county with the highest bond. I’ve seen courts set what I think are abusive bonds. I’d rather be the county with appropriate bonds.”

For another take, see this Oct. 25, 2009 ILB entry, quoting a story by Dan McFeely of the Indianapolis Star, headed "Bondsmen bailing out of the business: Recession, Marion County judges' new policy erode pool of customers."

Posted by Marcia Oddi on Sunday, February 21, 2010
Posted to Indiana Courts

Ind. Courts - "St. Joseph County judge wants money to make costly repairs at the Juvenile Justice Center, but county commissioners say they can't just hand it over"

So reports Kristin Bien of South Bend WSBT-TV, in a story that continues:

Judge Peter Nemeth wants about $67,000. He said commissioners just have to sign the purchase request. But they say it is not that easy.

There is snow on the ground now, but in a couple of months, maintenance director Noel Bauwens will have to fire up the JJC's air conditioners.

"It is getting to the point where I can't get them started in the morning," Bauwens said. "One of these days they are just going to fail."

And if they do, the entire JJC would be shut down because without temperature control in the building it would be uninhabitable.

That is why Nemeth in August asked the commissioners for money to overhaul the building's air conditioning chillers.

The commissioners turned him down, but the County Council voted to override that decision. Now the commissioners have to decide whether or not to sign the purchase request for the money.

"I believe that their refusal to do that is a violation of the constitution and the laws of the state," Nemeth said.

Commissioners said they haven't refused to sign the purchase request. They say it is still under consideration. But, they can't sign it yet because of legal issues.

"I don't think we are blocking it," said county Commissioner Dave Thomas.

Thomas said the $67,500 Nemeth is asking for would come from the probation user fee fund.

Commissioners are still awaiting a decision on an earlier Indiana Supreme Court mandate. Commissioners said they don't know if user fees can legally be spent for this overhaul.

"Whether they need to be repaired I don't know, but right now as far as coming from the user fee account that is in question," Thomas said.

Nemeth said if the request isn't signed he will have to take legal action.

He also said if the repairs aren't done and the chillers break down, it could cost as much as $150,000 to replace them.

If the repairs are done now, Nemeth said, it would not cost the taxpayer a dime because the money would come from user fees. But if the county has to pay to replace them it will lead to substantial costs for taxpayers.

"I can't imagine why they would want to risk the additional cost to taxpayers. Not only the increased cost if the thing fails, but also, if I have to take legal actions to force them to do their duty. That will involve attorney fees which is more taxpayer dollars," said Nemeth.

"If there is any money being spent, they are taxpayer dollars," said Thomas. "Whether those come from fuel taxes, property taxes, income taxes or user fees, those are tax payer dollars."

Posted by Marcia Oddi on Sunday, February 21, 2010
Posted to Indiana Courts

Saturday, February 20, 2010

Environment - "Plenty of Spilled Milk to Cry Over for Dairymen Lured to U.S."

A lengthy story by Lauren Etter of the Wall Street Journal, dated Feb. 16, 2010, has fascinating background about the Dutch owners and operators of many large Indiana dairy CAFOs. A few quotes:

WAUSEON, Ohio—From a strip mall in this town of 7,200, Willy van Bakel built a multimillion-dollar business bringing fellow Dutch dairy farmers to America. They're "dreamers" like himself, he says.

Mr. van Bakel's company, Vreba-Hoff Dairy Development, signed up 70 Dutch immigrants over the past decade for a package deal designed to help them start dairy farms here. Typically, Mr. van Bakel helped clients sell their farms in the Netherlands and used the proceeds as seed money to finance bigger dairies with more cows in America.

He often helped arrange for immigration papers, obtained government permits and helped with incidentals like enrolling children in school. He pitched his countrymen with ads in Dutch trade magazines featuring cows in front of the Stars and Stripes saying, "Life Is Great in America!"

Today, the dream has soured. About a dozen of his clients have filed for bankruptcy protection or are being foreclosed on by banks. Sixteen farms sit idle because construction was halted for lack of financing. Mr. van Bakel says his lender reneged on an agreement to provide funding. Some of these farmers have been waiting for five years or more and still have no farm, despite having given Mr. van Bakel millions of dollars from the sale of their old farms. * * *

Dairy farms in the Netherlands are relatively small: Most have no more than a hundred cows. Regulations limit how much milk each farm can produce. * * *

In 1998, he established Vreba-Hoff Dairy Development and later set up an office in Wauseon. Visiting Dutch farmers toured Mr. van Bakel's farm and were chauffeured around to potential dairy sites. They ate steaks at Applebee's and drank whiskey at a Wauseon bar.

With most clients, Vreba-Hoff used farmers' own money—usually several million dollars from the sale of their Netherlands farms—to secure land and permits and start construction. For farmers who lacked capital to complete a dairy on their own, Mr. van Bakel lined up financing from banks or private investors. Generally, the company made money by charging fees for the various services and taking a cut of the final cost of new dairies, which could run more than $10 million.

Posted by Marcia Oddi on Saturday, February 20, 2010
Posted to Environment

Ind. Decisions - "Landfill decision overturned"

The Court of Appeals decision Feb. 18, 2010 in the case of IDEM v. NJK Farms, Inc. (see ILB summary here) is the subject of a story today by Curt Slyder in the Lafayette Journal Courier that begins:

KINGMAN — Score one for the foes of what some have dubbed the proposed “Fountain Mountain.”

The Indiana Court of appeals has overturned a decision by a Marion County court, that the Indiana Department of Environmental Management, or IDEM, broke a settlement agreement with the developer of a long-proposed landfill near Kingman.

In its ruling earlier this week, the appeals court said the Marion County court did not have the proper jurisdiction to make the decision, noting the decision should instead be made by the Office of Environmental Adjudication.

Opponents of a long-proposed 16.5 million-cubic-yard landfill and recycling facility near Kingman are pleased but not complacent.

per of the proposed Greenview Recycling and Disposal Facility, is vowing to keep up the fight, which has been in and out of courts over the last few years.

“We disagree with (the decision) for a whole host of reasons,” said Donn Wray, an attorney for NJK. “We expect this to go to the state supreme court.”

NJK first submitted an application for the landfill in November 1991. After years of wrangling, IDEM deemed it complete on Feb. 12, 2008.

But a change in Indiana law that was passed during the General Assembly’s 2008 session required that new applications include county ordinance approval for the facility.

In June of that year, IDEM’s Office of Land Quality requested that NJK withdraw its present application for a landfill and submit a new one within 30 days. According to IDEM, the developer failed to respond to questions from IDEM over issues that included the new law.

NJK then filed a civil lawsuit in Marion County against IDEM, alleging that the state agency breached a prior settlement agreement between them. The Marion County court eventually ruled in favor of NJK.

IDEM then appealed the ruling.

Since IDEM’s actions were state agency actions “the AOPA (Indiana Administrative Orders and Procedures Act) provides the exclusive means to review IDEM’s actions and the trial court did not have subject matter jurisdiction to consider NJK’s arguments,” the Court of Appeals wrote in its decision.

Posted by Marcia Oddi on Saturday, February 20, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Seventh weekly installment of the Legislative Update for the 2010 legislative session; plus ILB review

The Legislative Update blog, publishing weekly during the legislative session by the Indiana Judicial Center, has posted this seventh weekly update.

ILB Review: The upcoming week has a few committee meetings considering bills in the House on Monday, Feb. 22nd, including a hearing in Family, Children and Human Affairs on grandparent visitation (SB 59).

The House Judiciary Committee is hearing a number of bills of interest:

Under the accelerated schedule recently announced for this session, second reading ends in the House on Wednesday, Feb. 23rd, and third on Thursday, Feb. 24th.
* Here is a quote from the above-linked 7th Weekly Legislative Update: "Mr. Johnson also noted the need for uniform procedures to deal with claims that imposing sex offender registration requirements on certain offenders violated the Indiana Constitution’s ex post facto clause under the Wallace v. State opinion. He stated that he was working on an amendment to the bill to establish procedures on venue, parties, and pleadings for offenders raising Wallace-based challenges to their registration obligations. The Committee held the bill until next Monday to consider amendments for Wallace procedures."

Posted by Marcia Oddi on Saturday, February 20, 2010
Posted to Indiana Courts

Ind. Courts - "Clark County Council likely to address probation move Tuesday"

Supplementing this entry from Feb. 19, 2010 by Braden Lammers reports in the Jeffersonville News & Tribune, Lammers reports today in a story that begins:

Another move to consolidate services and cut operational costs may be on the horizon for the Clark County courts.

In addition to pursuing the possibility of consolidating the courts into a single unified Circuit Court, Judge Dan Moore is urging the county to pursue consolidation of the county’s probation offices.

As it stands there are five separate probation offices — one being the juvenile probation office, which has to remain separate as defined by state law — and each department has its own department chief.

The move to a consolidated probation would hope to have a similar impact as the goals established for the court consolidation.

By pushing the offices together, multiple cases by one offender could be managed more easily, communication between departments would be streamlined, flexibility would increase among the staff and funding would be more easily managed from a single source, Moore said.

The effort also would save costs for the sheriff’s department. Officers would save time and money by only having to bring a prisoner to one office instead of taking the offender to multiple probation departments multiple times.

“It makes sense,” Moore said.

Because the county is pursuing the option to consolidate its court services, Moore believes it should look at probation at the same time.

“The timing is right,” he said. “It’s very compatible.”

Timing also may be influenced — beyond the discussions of unifying the court — by legislation originally proposed in January 2009 to consolidate probation departments throughout the state.

Senate Bill 428, introduced by Sen. Phil Boots, R-Crawfordsville, “consolidates multiple probation departments in counties having more than one probation department into one probation department under the supervision of a joint probation committee consisting of all judges having the authority to impose probation.”

According to the Indiana General Assembly Web site, the bill is in committee in the House.

The move to consolidate probation offices has been made by a number of counties throughout Indiana.

Only 19 counties — out of 92 Indiana counties — including Clark, remain with nonconsolidated probation departments.

Actually, SB 428 from 2009 is not likely to move, as the 2009 session is long over. Moreover, it was introduced by Senator Boots on Jan. 12, 2009, was assigned to the Judiciary Committee, and never even had a hearing.

Posted by Marcia Oddi on Saturday, February 20, 2010
Posted to Indiana Courts

Friday, February 19, 2010

Ind. Gov't. - Governor names Carolene Mays to IURC

Here is Governor Daniels' Feb. 18, 2010 press release. Ms. Mays' appointment will be effective March 8, which is a little over two weeks away. Per the release:

She is currently the publisher and president of the Indianapolis Recorder Newspaper and the Indiana Minority Business Magazine, and serves on the board of directors for the Indianapolis Chamber of Commerce, the Marion County Capitol Improvement Board and Peyton Manning's PeyBack Foundation among others.
That leaves a lot to wrap-up in a short period of time, as the Utility Regulatory Commission statute, IC 8-1-1-2 specifies at subsection (e):
(e) The members of the commission shall be appointed for a term of four (4) years, except when a member is appointed to fill a vacancy, in which case such appointment shall be for such unexpired term only. All members of said commission shall serve as such until their successors are duly appointed and qualified, and while so serving shall devote full time to the duties of the commission and shall not be actively engaged in any other occupation, profession, or business that constitutes a conflict of interest or otherwise interferes with carrying out their duties as commissioners.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Indiana Government

Environment - Attorney General Zoeller files friend-of-the-court brief in the Asian carp dispute

Updating this ILB entry from yesterday, Attorney General Zoeller has just filed a friend-of-the-court brief in the Asian carp dispute, Some quotes from his statement:

Indiana Attorney General Greg Zoeller filed a friend-of-the-court brief in the Asian carp dispute, urging the United States Supreme Court to appoint a special master to oversee the case and devise a comprehensive remedy to stop the voracious fish from spreading into Lake Michigan and damaging the Great Lakes ecosystem.

"Today Indiana asked the United States Supreme Court to appoint a special master to hear evidence and devise a solution to balance the critical economic impacts against the ecological risks of Asian carp, and not to leave these important state interests solely to be decided by the federal government in Washington," Zoeller said. "Everyone agrees that if Asian carp reach Lake Michigan, they could have a very damaging impact on the Great Lakes ecosystem and the sport fishing industry. It's very important that Indiana be heard before the U.S. Supreme Court."

In disputes between states where the U.S. Supreme Court has original jurisdiction, the Court can assign an attorney called a special master to conduct what amounts to a trial-court proceeding. A special master can issue subpoenas, summon witnesses, hear evidence and make a ruling. Then the Supreme Court would review the ruling, rather than conducting the trial itself or having the parties go through the U.S. District Court and U.S. Court of Appeals first. The brief also urges the Supreme Court to consider appointing someone to monitor technical implementation of the Court's orders.

Zoeller today filed an amicus brief with the Supreme Court in Michigan's lawsuit against the State of Illinois and the U.S. Army Corps of Engineers. "The brief I filed today sides with Michigan and against the federal government in urging the United States Supreme Court to reopen the original case so that each of the states' interests can be resolved," said Zoeller, who as Attorney General represents Indiana's legal interest in court.

Zoeller's brief agrees with the ultimate goal of Michigan: to keep Asian carp out of the Great Lakes. But Zoeller does not endorse Michigan's proposal to close the locks linking Illinois waterways to Lake Michigan, since that might not keep out the carp. Nor does the brief endorse the recently-announced federal government strategy to study a closure long-term while trying other carp-barrier measures; deferring to the federal government won't stop the carp either, the brief says. "When federal solutions do not protect a state's interests, the states as sovereigns must take or propose measures to protect themselves," it says.

Zoeller argues the Supreme Court should exercise its original jurisdiction in state-vs.-state disputes, and appoint a special master to hear evidence quickly but methodically and make a recommendation on the proper remedy to abate the nuisance. * * *

In December, Michigan filed suit to require Illinois and the Corps of Engineers to take steps to prevent the invasive Asian carp from migrating from Illinois waterways into Lake Michigan. The U.S. Supreme Court previously denied Michigan's request for a preliminary injunction, but the underlying issue - Michigan's request for a court order for closure of the locks - is still alive. Because Michigan is asking the nation's highest court to reopen a century-old case to which Indiana was not a party, filing an amicus brief was Indiana's best option. Today was the deadline to file the brief on the merits of accepting jurisdiction over the case.

Zoeller noted Indiana is doubly impacted. Indiana's 40 miles of southern Lake Michigan shoreline is the first part of the lake to thaw in the spring and the spawning location for trout, yellow perch and salmon that could be decimated by an Asian carp invasion. Sport fishing on Lake Michigan is a $4.9 million industry in Indiana, the brief says. * * *

"It's important that Indiana be heard by the Supreme Court in this case. Our state's economic interests in steel and shipping are at risk, as are our environmental interests. To balance those, the Supreme Court should act quickly but circumspectly in order to avoid the ecological disaster that has followed the Asian carp at each step along their trip toward the Great Lakes," the Attorney General added.

Here is a link to the 26-page brief. It concludes:
The situation here is exceedingly complex and important, not only to the Great Lakes States but to the Nation. If Asian carp invade the Great Lakes,the damage will be catastrophic and perhaps irreparable—or at the very least reparable only at a cost hundreds of times greater than effective prevention. The Court should accept jurisdiction over the matter and force action, before it is too late.
Here is a list of other ILB entries on the Asian Carp threat.

[More at 4:58 PM] The South Bend Tribune has posted an editorial headed "Great Lakes' future rests on these decisions." Some notable quotes

Years from now, residents of communities near Lake Michigan will look back on the great Asian carp debate of 2010.

They'll recall environmental authorities and officials of most Great Lakes states urgently seeking closure of the locks of the Chicago Shipping Canal.

They'll remember that Illinois argued against it, saying the closure would be too costly to shippers, who would have to use overland transport methods between the Mississippi River and Chicago.

They'll also remember that advocates for lock closure warned that damage from the carp, if they got into Lake Michigan, could be far greater than any state or local economic cost — that the fish might well decimate the Great Lakes' $7 billion fishing industry.

In the future, 2010 also will be remembered as the year that Indiana's attorney general sided with the AGs in other Great Lakes states by urging closure of the locks — while the Indiana governor aligned himself with Illinois shipping interests.

What else will people remember about this 2010 dispute? That the parties argued, filed lawsuits and fiddled with half-measures — while the Supreme Court dithered? And that the carp kept on coming?

That is our fear. The fish, which can grow as big as a German shepherd and consume 40 percent of their body weight every day, could forever interrupt the food chain that supports other lake species.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Environment

Ind. Decisions - 7th Circuit interprets Indiana statute in bankruptcy case; Noteworthy discussion of legislative digests [Updated]

In Miller v. LaSalle National Bank (ND Ind., Judge Lee), a 17-page opinion, Judge Cudahy writes:

This is an appeal involving a puzzle of statutory interpretation. The issue comes to us from an adversary proceeding in bankruptcy court between Linda Miller (Trustee) and LaSalle Bank National Association (LaSalle). The bankruptcy court held that an improperly recorded mortgage was avoidable under Indiana law as amended in 2007 because it did not impart constructive knowledge to a bona fide purchaser, here the Trustee. The bankruptcy court held that the 2007 Amendment applied only to mortgages recorded after the Amendment’s effective date of July 1, 2007. The district court reversed, and the Trustee appeals. Because we interpret the statute to apply to all mortgages regardless when recorded, we affirm the district court. * * *

In Indiana, as elsewhere, a recorded, “properly acknowledged” mortgage imparts constructive notice of its existence to subsequent bona fide purchasers (BFPs). * * * Prior to the 2007 Amendment, a mortgage that was not entitled to be recorded because of a technical defect in the acknowledgment did not provide such notice. * * *

In 2007, the Indiana General Assembly amended its recording statute, IND. CODE § 32-21-4-1, to allow recorded mortgages with certain technical defects to provide constructive notice as if the mortgages were properly recorded and acknowledged. The district courts that have interpreted the statute in this case, and both parties in the present appeal, note that the legislature passed the 2007 Amendment in an apparent attempt to overrule In re Stubbs. In 2008, the Assembly again amended the statute and made it clear that the statute applied to all mortgages, regardless when recorded (2008 Amendment). The parties dispute whether, before the 2008 Amendment came into force, the 2007 Amendment applied to purchasers of properties encumbered by certain technically deficient mortgages recorded prior to July 1, 2007. * * *

We recently discussed several factors that aid in determining whether an amendment is clarifying rather than substantive * * *

In sum, the 2007 Amendment is ambiguous, thus, considering the above-discussed indicia of legislative intent including, most importantly, the 2008 Amendment that quickly clarified that the provision applied to all mortgages, the legislature likely intended the 2007 Amendment to apply to all mortgages, whenever filed. And we note that this result was reached by other district courts reviewing bankruptcy court decisions. See Nat’l City Mortgage Co. v. Yoon, No. 2:09-cv-134, 2009 WL 2951122 (N.D. Ind. Sept. 10, 2009); Boston v. The Huntington Nat’l Bank, No. 1:09-cv-0679-DFH-JMS, 2009 WL 2563473 (S.D. Ind. Aug. 17, 2009). For the foregoing reasons, therefore, the district court here is AFFIRMED.

Noteworthy discussion of Indiana legislative digests. Dicta in this opinion is certainly worth noting. First, there is footnote #6 on p. 14:
Although it is unclear what weight a court should give the Indiana legislature’s comments in the synopsis attached to a bill, an Indiana appeals court has recently relied on a bill’s synopsis to establish that the bill was enacted in response to a review by the sentencing policy study committee, see Collins v. State, 911 N.E.2d 700, 709 (Ind. Ct. App. 2009), suggesting that a synopsis is entitled to some weight in the court’s analysis of a statute’s proper interpretation.
On pp. 15-16 of the 7th Circuit opinion, the Court continues in this discussion of bill digests:
Although the foregoing disposes of the case, we pause before the parties’ other arguments regarding legislative intent before concluding. Thus, the Trustee urges that the legislation’s synopsis indicated that the General Assembly only intended the Amendment to apply to certain, but not all, recorded mortgages. It reads the modifier “certain” as classifying types of mortgages based on when they were filed, pre- or post-July 2007. The synopsis is again ambiguous. In contrast to the Trustee’s interpretation, it seems equally, if not more plausible, that the Assembly used the word “certain” to differentiate amongst the technical defects the mortgages suffered— differentiating those specified in the statutes listed in subsection (c) from other possible defects. In addition, the synopsis of the 2008 Amendment notes that the Amendment: “[s]pecifies that a provision in current law, which states that a recorded mortgage not meeting certain statutory requirements constitutes constructive notice, applies regardless of when the mortgage was recorded.” Consequently, the same legislature, 10 months later, omitted the word “certain” when it described its understanding of the law after the 2007 Amendment. While the pronouncements of a subsequent legislative body on a prior statute are not binding, they are “respectfully considered” when interpreting an unclear statute. See Indiana State Police Dept. v. Turner, 577 N.E.2d 598, 602 (Ind. Ct. App. 1991). The synopses of the two statutes are too ambiguous to provide any assistance in interpreting the statute as it stood in the second half of 2007.
Interesting. The "synopsis", or "digest" of a bill in Indiana may be used to interpret the legislature's meaning? Bill digests are written by legislative staffers. They are not part of the enrolled act.

And what of the Court of Appeals opinion cited today by the 7th Circuit, "suggesting that a synopsis is entitled to some weight in the court’s analysis of a statute’s proper interpretation"? The case is Collins v. State (Aug. 21, 2009). See p. 708-709, where Judge Bradford writes:

Here, we conclude that Indiana Code section 35-38-2-1.8 is remedial in that it was intended to clarify that probation can be altered at any time, even in the absence of a probation violation. * * *

In November of 2004, the Indiana Sentencing Policy Study Committee adopted and issued a proposal for "[t]he modification of the statute to permit a Court to hold a new probation hearing and modify a probationer's conditions of probation at any time during the probationary period." Final Report of the Sentencing Policy Study Committee 17 (2004). The Committee also included a draft statute that was later enacted unaltered as Indiana Code section 35-38-2-1.8. Id. at App. 5. In 2005, the 114th General Assembly passed Senate Enrolled Act 101, which contained section 35-38-2-1.8, and it is clear that the bill was the product of the Study Committee's proposals. See Ind. P.L. 14-2005 § 1; Digest of Senate Bill 101 (March 18, 2005) (available at http://www.state.in.us/legislative/bills/2005/PDF/ES/ES0101.1.pdf). In view of this history, the legislature's evident purpose in enacting section 35-38-2-1.8 was to supersede the holding in Jones, and we now give effect to that purpose.

[Updated at 4:10 PM] I just took the time to look at the Digest cited above. The digest referenced is that of the Engrossed Senate Bill -- that means the bill as it passed second reading. As can be seen in the cover page of the 2005 bill linked, which page includes both the Digest and the history to date, this version of the bill had passed second reading in the Senate, been ordered Engrossed, passed third reading in the Senate, and moved on to the House, where it had been reported out of committee. But the version of the bill linked to has not yet passed second reading in the House. One may not automatically presume that the version linked is identical to the Enrolled Act, SEA 101 (2005), which became PL 14-2005. Notice also that there is no Digest attached to SEA 101, as it is not part of the law.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In James Dorsett v. State of Indiana, a 12-page, 2-1 opinion, Judge Najam writes:

James Dorsett appeals from his conviction for operating a vehicle while intoxicated, as a Class A misdemeanor, following a bench trial.1 Dorsett raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We reverse and remand with instructions. * * *

Nonetheless, while the State did present sufficient evidence that Dorsett operated his vehicle while intoxicated, to convict Dorsett of a Class A misdemeanor the State was also required to show that Dorsett's operation of that vehicle “endanger[ed] a person.” I.C. § 9-30-5-2(b). The element of endangerment can be established by evidence showing that the defendant's condition or operating manner could have endangered any person, including the public, the police, or the defendant. Staley v. State, 895 N.E.2d 1245, 1249 (Ind. Ct. App. 2008) (citing Blinn v. State, 677 N.E.2d 51, 54 (Ind. Ct. App. 1997)), trans. denied. Endangerment does not require that a person other than the defendant be in the path of the defendant's vehicle or in the same area to obtain a conviction. Id. at 1251 (citing State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct. App. 1988)). * * *

Thus, we hold, following Outlaw, that the State was required to submit proof of “endangerment” that went beyond mere intoxication in order for the defendant to be convicted of operating while intoxicated, as a Class A misdemeanor. Here, Dorsett was found intoxicated inside of his parked vehicle, and no evidence other than his intoxication suggests that Dorsett was operating his motor vehicle in a manner that endangered himself or any other person. Hence, the State failed to present sufficient evidence that Dorsett operated his vehicle while intoxicated in a manner that endangered a person, and we must reverse his conviction for the Class A misdemeanor. * * *

FRIEDLANDER, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [That begins, at p. 10] While I agree that the State is required to present evidence beyond mere intoxication in order to prove endangerment, I conclude that the State has done so here. As such, I respectfully dissent from the majority's reversal of Dorsett's Class A misdemeanor operating a vehicle while intoxicated conviction.

In State of Indiana v. Maurice Combs, a 12-page opinion, Judge Najam writes:
The State appeals the trial court’s order that the Indiana State Police (“State Police”) pay the towing and storage fees due and owing to McClead’s Towing and Storage (“McClead’s”) for seven vehicles owned by Maurice Combs. The State raises a single issue for our review, which we restate as whether the State has made a prima facie showing that the court’s judgment is clearly erroneous. We affirm. * * *

In sum, we hold that the State may not use this appeal from the trial court’s order on Combs’ contempt request to collaterally attack the December 9 Order. We also hold that the State and State Police were represented in the civil action by the Madison County Prosecutor pursuant to Indiana Code Section 34-24-1-3, and that service on the Madison County Prosecutor’s office was service on the State and the State Police in the civil action. Finally, we hold that the State’s attempt to challenge the language of the plea agreement in the criminal action has no bearing on the State and the State Police’s July 14 Stipulation or subsequent filings in the civil action.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of S.H.; J.P. v. IDCS (NFP)

NFP criminal opinions today (4):

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

Joshua Craig Reeves v. State of Indiana (NFP)

Richard H. Edwards v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Clark Commissioners OK legal help center for courthouse"

Braden Lammers reports in the Jeffersonville News & Tribune:

Judicial matters were the predominant theme at the Clark County Commissioners meeting Thursday.

Clark County Circuit Court Judge Daniel Moore was on hand to promote a new program for people of moderate income to get legal direction.

The program will be the Clark Legal Self-Help Center and it would use local attorneys, second and third-year law students from the University of Louisville’s Brandeis School of Law with help from Indiana Legal Service offices to direct those with a need where to go.

“I think this service will take the fear out of seeking legal advice,” said Jeffrey Caldwell, who has been helping to develop the program.

The next step for many could include finding an attorney, where to find legal information or answering basic legal questions.

“This would be directed to those folks who would not normally be able to afford legal services,” Moore said.

However, Moore added that no formal legal advice or attorney-client relationship would be formed during the help session.

But apparent to those proposing the program Thursday, there is a definite need.

“There is an incredible need ... [the program] will make many more lawyers available to Clark County, low-income residents to help them to face these problems,” said Mark Robinson, attorney with Indiana Legal Services Inc.

Beyond answering initial questions or getting legal direction the program will help to ease the burden on other government offices often forced to take time to help people with legal questions.

“This is an effort to kind of streamline that to direct them [to the self-help center] instead of to my counter,” said Clark County Clerk Barbara Bratcher-Haas. * * *

The commissioners unanimously approved — Commissioner Mike Moore was not at Thursday’s meeting — the consent to the operation of the Clark Legal Self-Help Center.

Plans are to launch the program by mid-April.

Judge Moore also notified the commissioners he had created a probate administrator position for the Circuit Court.

Under Indiana Code the Circuit Court Judge is allowed to create such a position.

The probate administrator would be responsible for maintaining cases including estate, trust, guardianship and adoption cases among others.

“There are also a number of other duties this person is going to perform, because it’s a need in Clark County,” Moore said.

Moore said the need is essential due to the financial crisis hitting the county and the 30 percent cut mandated by the Clark County Council. The position was added as a result of the required cuts and staff members eliminated.

The administrator will be paid a salary of $35,700.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Indiana Courts

Environment - Superfund used to justify $28,000 bill to fight fire at couple's home

6News Indy had this story last evening:

NEW CASTLE, Ind. -- An Indiana lawmaker has pledged to investigate how a New Castle family could be charged nearly $28,000 to fight a fire that destroyed their home.

Emergency Services Billing Corporation, based in Brownsburg, sent Brian and Darline Fairchild an itemized bill including charges for water and refilling firefighters' oxygen tanks after last year's fire, 6News' Joanna Massee reported, after the Cadiz/Harrison Township Volunteer Fire Department battled the blaze.

"I said 'Oh my God, they've got to be kidding," Darline Fairchild said.

Company owner Robert Blackford said federal environmental law allows him to bill unlimited fees for the departments' services, and that Indiana law permits departments to set fees themselves.

But Rep. Dan Burton said he thought the law -- The Comprehensive Environmental Response, Compensation and Liability Act introduced in 1980 -- was supposed be used for major environmental cleanups. * * *

Blackford said nothing will stop him from charging the fees. He is currently suing insurance companies that have refused to pay in federal court.

State Fire Marshal James Greeson said his office recommends limited charges, but said there are no consequences if departments choose to charge more.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Environment | Indiana Government

Ind. Courts - Masters hearings for suspended LaPorte County judge to be held in Supreme Court courtroom [Updated]

The LaPorte Herald-Argus is reporting:

LA PORTE — Suspended La Porte Superior Court 3 Judge Jennifer Evans-Koethe is set to face three judicial misconduct charges against her at two hearings in April.

The Indiana Supreme Court has appointed three masters (judges) to hear the case April 12 and April 19 in the Indiana Supreme Court courtroom in Indianapolis, said Supreme Court public information officer Kathryn Dolan. The hearings are open to the public.

The Indiana Commission on Judicial Qualifications filed its judicial misconduct charges against Evans-Koethe in December, following an investigation into an incident in which she was wounded by gunfire in her La Porte home Dec. 22, 2008. It happened during a disagreement with her husband, Stephan, a week before she was sworn in as judge.

The commission accused Evans-Koethe 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, she 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.

Evans-Koethe was suspended with pay from the judgeship last May after she was indicted on a charge of attempted obstruction of justice in connection to the investigation. She was acquitted on that charge last month in Lake County Court.

This updates a Jan. 14th ILB entry. Here is a list of earlier entries.

According to Ms. Dolan of the Supreme Court, "The masters decide location. They may have selected Indy for central location and/or sometimes they consult the parties. The Grant Hawkins hearing was in Indy for example even though masters were from across state."

[Updated] Kevin Smith, Clerk of the Appellate Courts, responds: "I found out about the hearing dates through communication with the presiding master's bailiff, who contacted me to let me know they desired to use the Supreme Court's courtroom for the hearing. And the latter is not unusual at all -- we tell the masters at the beginning of every case that the Courtroom is available for their use if it is not already scheduled for something else on the day on which they desire to use it. In some cases they end up using the courtroom, and in others they decide to hold the hearing elsewhere."

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Indiana Courts

Ind. Gov't. - Ohio federal court throws out Ohio reolving door law intended to limit legislators and staff

A federal district court in Ohio, part of the 6th Circuit, on Feb. 17th, permanently enjoined enforcement of an Ohio "revolving door" statute that provided in relevant part:

(4) For a period of one year after the conclusion of employment or service as a member or employee of the general assembly, no former member or employee of the general assembly shall represent, or act in a representative capacity for, any person on any matter before the general assembly, any committee of the general assembly, or the controlling board. . . . As used in division (A)(4) of this section “person” does not include any state agency or political subdivision of the state.
That is from page 4 of the 16-page opinion in the case of Brinkman v. Budish, which is available here, thanks to the blog, Ballot Access News.

The Wheeling W.Va. Intelligencer has this editorial today:

Ohio's "revolving door" law has been overturned by a federal court judge, who was absolutely, positively correct in his ruling. The law as it stands is blatantly unconstitutional.

That said, state legislators should rework the measure and, with the judge's valid concerns in mind, replace it.

"Revolving door" laws are intended to prevent public officials from retiring, then immediately taking lucrative lobbying jobs with companies or organizations they once regulated. The need for such rules is clear. They prevent legislators from promoting bills that benefit special interests, then being rewarded with private sector jobs once they leave government. Ohio's statute requires that former lawmakers and legislative staff members wait at least a year before becoming lobbyists. Unfortunately, the measure prohibits even unpaid lobbying.

Former state Rep. Tom Brinkman Jr. of Cincinnati filed a lawsuit over the limit, because he wanted to become an unpaid lobbyist for the Coalition Opposed to Additional Spending and Taxes. The court upheld him, pointing out that the current ban on unpaid lobbying infringes upon First Amendment guarantees of freedom of speech.

The concern is a valid one - but so is the worry that some in government may trade influence for the prospect of lobbyist paychecks in the future. Ohio lawmakers should approve a new "revolving door" bill, this one limited to former government officials and paid lobbying jobs.

Jim Siegel had this report yesterday in the Columbus Post-Dispatch. An AP story today, to which Niki Kelly of the Fort Wayne Journal Gazette contributed re the Indiana implications, reports:
“We’ll take our chances,” said Senate President Pro Tem David Long, R-Fort Wayne. “It’s important for a period of time to pass. To me, it eliminates any perception of conflict of interest.”

House Bill 1001, which contains the provision, is set for a final vote in the Senate next week before lawmakers from both chambers would have to work out differences on the bill.

In the current (Feb. 19 printing) version of the bill, SECTION 24 (see p. 33 of the PDF, or p. 29 of the printing) sets out the new one-year lobbying restriction on former legislators:
Sec. 7. (a) An individual who is a member of the general assembly after December 31, 2011, may not be:
(1) registered as a lobbyist under this article; or
(2) employed as a legislative liaison;
during the period described in subsection (b).
(b) The period referred to in subsection (a):
(1) begins on the day the individual ceases to be a member of the general assembly; and
(2) ends three hundred sixty-five (365) days after the date the individual ceases to be a member of the general assembly.
The revised definition of "lobbyist" is found at SECTION 13 (see p. 10 of PDF, or p. 6 of the printing).

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Indiana Government | Indiana Law | Legislative Benefits

Environment - "Lock closure costs exaggerated"

John Flesher of the AP reported yesterday in a story carried by the Washington Post that begins:

TRAVERSE CITY, Mich. -- Government officials and Illinois businesses are overstating the economic pain that would result from closing Chicago-area shipping locks to block the Asian carp's path to the Great Lakes, two transportation specialists said Thursday.

Costs of transporting and handling cargo on Chicago waterways would rise by about $70 million a year if two locks were shut as Michigan and neighboring states want, said Wayne State University business professor John Taylor and James Roach, a transportation consultant.

That's a tiny fraction of the city's $521 billion economy and much less damage than the $7 billion fishing industry could suffer from a carp invasion, Taylor and Roach said in a telephone conference. They were hired by the Michigan attorney general's office to conduct the study and said they'd been paid less than $50,000.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Environmental Issues

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

Updating this Jan. 26, 2010 ILB entry, which includes a link to Judge Barker's ruling, WTHR.com is reporting:

Indianapolis - The Indiana Department of Child Services is appealing a federal judge's order blocking the agency from cutting state subsidies to foster and adoptive parents and residential treatment centers that help provide for children.

Agency spokeswoman Ann Houseworth says the agency filed a notice of appeal Thursday with the federal appeals court in Chicago.

District Judge Sarah Evans Barker in Indianapolis last month imposed an injunction stopping the proposed cuts at the request of a group of foster and adoptive parents and residential centers represented in part by the American Civil Liberties Union of Indiana.

The cuts were ordered in December in response to the state's shortfall in tax revenues.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Law - More on: (2) Procedure for resolving 'Wallace' issues discussed

Updating this ILB entry from Feb. 17, 2010, which reported that at Feb. 16th's House Judiciary Committee meeting, there was discussion that SB 224 would be amended by the committee at its meeting on Monday, Feb. 22nd "to create a procedure for people on the state's sex offender registry to be removed if the law doesn't require them to be listed," and that this change was urged by Steve Johnson, executive director of the Indiana Prosecuting Attorney's Council, the ILB has learned that what appears to be contemplated is a formal court order in each case, which apparently would preclude sheriffs from purging their lists of offenders who clearly meet the Wallace criteria.

Whether or not this amendment will address remedies for individuals erroneously required to register post-Wallace, despite the Supreme Court's decision, is unknown. Also essential is reconciling and harmonizing the various lists and providing clear and accurate information about the registration requirements on the IDOC and Sheriffs' sites. For more, see the end of this Feb. 10, 2010 ILB entry.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Indiana Law

Courts - "Families Say Schools Snoop in Their Homes With District-Issued Laptops & Webcams"

From Courthouse News, a Feb. 18th story by Jeff Schreiber thast begins:

PHILADELPHIA (CN) - A federal class action claims a suburban school district has been spying on students and families through the "indiscriminant use of and ability to remotely activate the webcams incorporated into each laptop issued to students," without the knowledge or consent of students or parents.

The named plaintiffs say they learned that Big Brother was in their home when an assistant principal told their son that the school district knew he "was engaged in improper behavior in his home, and cited as evidence a photograph from the webcam embedded in minor plaintiff's personal laptop issued by the school district."

The families say the Lower Merion School District issued Webcam-equipped personal laptop computers to each of its approximately 1,800 high school students: in Harriton High School in Rosemont, and Lower Merion High School in Ardmore. The schools issued the computers as part of a "one-to-one" laptop computer initiative lauded by Superintendent Christopher McGinley as an effort that "enhances opportunities for ongoing collaboration, and ensures that all students have 24/7 access to school based resources and the ability to seamlessly work on projects and research at school and at home."

But the parents and students say that, without their knowledge, the access went both ways.

Here, also via Courthouse News, is the 17-page complaint.

From Shannon P. Duffy of The Legal Intelligencer, a story today that begins:

It may sound like a Hollywood pitch for a summer movie aimed at teens, but it's taken directly from the pages of a federal lawsuit filed in Philadelphia that spins a tale of high school teachers secretly installing cameras in hundreds of students' homes to spy on them.

The class action suit, Robbins v. Lower Merion School District, alleges that 1,800 students were provided with laptop computers equipped with webcams which -- unbeknown to the students or their parents -- could be activated at any time by teachers and school administrators to spy on the students and their families in their homes.

Posted by Marcia Oddi on Friday, February 19, 2010
Posted to Courts in general

Thursday, February 18, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Indiana Department of Environmental Management v. NJK Farms, Inc., a 21-page opinion, the Court reverses on the basis that NJK had not exhausted its administrative remedies. Judge Barnes writes:

In this interlocutory appeal, the Indiana Department of Environmental Management (“IDEM”) appeals the trial court's order finding it in breach of a settlement agreement with NJK Farms, Inc., (“NJK”). We reverse and remand.

IDEM raises four issues, but we find one issue dispositive: whether the trial court had subject matter jurisdiction. Consequently, we do not address the remaining issues raised in the appeal. * * *

We conclude that, under Raybestos, IDEM's entry into the Settlement Agreement and IDEM's actions following the Settlement Agreement regarding NJK's permit application were “agency actions” to which the AOPA applies. See I.C. §§ 4-21.5-5-1; 4-21.5-2-5. As such, the AOPA provides the exclusive means to review IDEM's actions, and the trial court did not have subject matter jurisdiction to consider NJK's arguments. Further, damages for the alleged breach of the Settlement Agreement under Indiana Code Section 34-13-1-1 are not allowed. As noted in Raybestos, money damages are not authorized under the AOPA. Raybestos, 897 N.E.2d at 475 (citing I.C. § 4-21.5-5-15).

We conclude that the trial court did not have subject matter jurisdiction to consider NJK's allegations that IDEM breached the Settlement Agreement. Rather, under Raybestos, those claims are subject to the AOPA and NJK must exhaust its administrative remedies as required by the AOPA. Moreover, NJK's request for damages is not cognizable under the AOPA. We reverse and remand for proceedings consistent with this opinion.

Tyrone T. Perry v. State of Indiana - "In light of Perry’s escalating criminal acts; his apparent complete disregard for the safety and property of others as evidenced by his involvement in multiple robberies and the fact that he shot both of his Indiana victims, one of whom subsequently died; and his serious criminal actions in Michigan, we cannot say that the trial court’s order that Perry’s aggregate ten-year sentence be served consecutive to his term of imprisonment previously imposed in Michigan is inappropriate."

Keith A. Parks v. State of Indiana - "Parks was not prejudiced by the trial court's replaying of witness testimony, and the State presented sufficient evidence to prove Parks was an habitual offender. Therefore, we affirm his convictions and sentence enhancement."

In Jeffrey Tharp v. State of Indiana , a 10-page opinion, Judge May writes:

Jeffrey Tharp appeals his conviction of invasion of privacy. Because the State did not prove Tharp knew he was subject to an active order of protection, we reverse his conviction. Although the point is now moot, we also note the trial court erred by delegating to the probation department its authority to set terms and conditions of Tharp’s probation.
NFP civil opinions today (1):

Term. of Parent-Child Rel. of Jo.D. and Ja.D.; Je.D. v. IDCS (NFP)

NFP criminal opinions today (8):

Torray C. Stitts v. State of Indiana (NFP)

Marvin Smith v. State of Indiana (NFP)

Sterling Saunders v. State of Indiana (NFP)

Kemper Harris v. State of Indiana (NFP)

Thomas Arnold v. State of Indiana (NFP)

David James Newton v. State of Indiana (NFP)

Ronald Thomas, Jr. v. State of Indiana (NFP)

Gary A. Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Surrogate not necessarily legal mother"

The Court of Appeals opinion yesterday in Paternity of R.; T.G. and V.G. v. State of Indiana (summarized here by the ILB, 5th case) is the subject of a story today by Ken Kosby, of the NWI Times:

A husband and wife who had their embryo implanted into a surrogate, who then gave birth to their child, moved one step closer to getting the wife named the legal mother rather than the surrogate.

The Indiana Court of Appeals on Wednesday reversed a Porter Circuit Court decision that denied the husband and wife's petition to establish maternity on behalf of the wife, who they say is the biological mother even though a different woman gave birth. The woman who carried the child, the wife's sister, supports the wife's petition to be named mother.

The appeals court, in reversing the Porter County court's decision, ordered the Porter County court to conduct an evidentiary hearing.

"Assuming that (the wife) is shown by clear and convincing evidence to be the biological mother of (the baby), (the court should) grant all other relief just and proper under the circumstances," the appeals court wrote.

The baby, who was born in February 2009, was established as the husband's child. But in May 2009, the Porter County court denied the petition to establish the wife as mother.

"The court finds that Indiana law does not permit a non birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother," wrote the Porter County court.

The husband and wife, in summarizing their brief to the appeals court, contested that opinion.

"Indiana law expressly permits a man to establish that he is the father of a child. It has no corresponding mechanism to allow a woman to show that she is the child's mother," stated the summary.

"To hold that the absence of the ability to statutorily establish maternity means that it cannot be done is to deny equal protection under the law to women in general, and biological mothers in particular, who, because of nature's cruelty, are deprived of the ability to conceive and carry a child."

The appeals court wrote that reproductive technologies now exist that were not contemplated when the state Legislature originally provided for the establishment of legal parentage.

"Now, however, reproductive technologies have advanced to provide for gestational surrogacy, where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth. The state of Indiana asserts that equitable relief may be afforded in these particular circumstances," the appeals court wrote.

"We are aware of no reason why the public interest in correctly identifying a child's biological mother should be less compelling than correctly identifying a child's biological father."

See this ILB entry for background, including the appellate briefs.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - East Chicago attorney ordered to refund legal fee"

Lonnie M. Randolph v. Larry Hunter (NFP), decided yesterday by the Court of Appeals, is the subject of a story today by Dan Carden of the NWI Times:

INDIANAPOLIS | A former East Chicago city judge, now a state senator and lawyer in private practice, has been ordered by the Indiana Court of Appeals to refund $3,500 in legal fees to a convicted cocaine dealer.

State Sen. Lonnie Randolph, D-East Chicago, was hired by Larry Hunter in 2007 to try to win a reduction in Hunter's 20-year prison sentence for dealing cocaine near a family housing complex. Hunter was convicted in 2003.

In 2008, Randolph filed a request for post-conviction relief on Hunter's behalf. However, Hunter had previously prevailed on an earlier post-conviction relief petition and cannot file a second without permission from the Indiana Supreme Court. Hunter had told Randolph of his first post-conviction relief petition, according to court records.

Randolph's actions frustrated Hunter, who told Randolph in a letter he needed his prison term shortened so he could visit his ill mother.

In a letter written to Hunter and excerpted by the appeals court in its 3-0 decision, Randolph told Hunter, "I am working my butt off for you in trying to get you a hearing date.

"Do not try to intimidate me again. I do not like it and will not stand for it," Randolph wrote. "If you or your friends in jail know more than me about helping you, then let them handle your case."

Shortly thereafter, Hunter fired Randolph.

Hunter then asked a Lake County court to order Randolph to return a $3,500 legal fee, because Randolph never completed the legal work on his behalf. The court ordered the money be returned.

Randolph asked the Indiana Court of Appeals to overturn that decision. The appeals court, without even receiving a filing from Hunter, nevertheless upheld the order that Randolph return the money.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "Strange end to Illiana hearing"

Dan Carden of the NWI Times has a story this morning that begins:

INDIANAPOLIS | State Rep. Terri Austin, D-Anderson, abruptly ended an Illiana Expressway hearing and ran out of the House chamber Wednesday when two representatives asked to vote on the proposal.

After more than 90 minutes of hearing positive testimony from Northwest Indiana labor unions, businesses and regional organizations describing the jobs and economic development that would come with an Illiana Expressway, state Rep. Bill Davis, R-Portland, moved for an immediate committee vote. State Rep. Thomas Saunders, R-Lewisville, quickly seconded the motion.

Rather than calling the roll, Austin, chairwoman of the House Roads and Transportation Committee, instead declared the committee was in recess, and she fled the House chamber for the office suite of House Speaker Patrick Bauer, D-South Bend.

"I thought it was appropriate to see if the committee wanted to vote it out," Davis said. "There really wasn't much opposition to a pretty good piece of legislation."

Returning to the House chamber about 10 minutes later, Austin said she didn't want to take a vote Wednesday because the committee already had scheduled public hearings for today in Crown Point and Monday in Indianapolis.

"By taking the vote on the bill today (Wednesday), we essentially would not allow anybody to give meaningful testimony so that we might take their testimony into consideration if we do an amendment," Austin said.

Austin previously has said she wants to change Senate Bill 382 to put in place new rules that would govern all future public-private partnerships in Indiana. Austin told The Times she's been working with the National Conference of State Legislatures and a foreign trade group to develop rules that could be used in every state and internationally.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Indiana Law

About the ILB - Some kind words for the ILB

An attorney reader writes about the ILB's coverage of the impact of the Supreme Court's decision in Wallace v. State:

I am SO glad you have been keeping up with this on the blog; I would be completely in the dark about this if I did not read about it on your blog. I meet so many attorneys who don't read the blog, and I look at them like they are crazy...

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to About the Indiana Law Blog

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

Updating this ILB entry from Dec. 30, 2009, which quoted an AG Zoeller press release from that date, today the AP is reporting:

Indiana's attorney general is preparing to file a legal brief supporting Michigan's lawsuit aimed at keeping the Asian carp out of the Great Lakes.

Attorney General Greg Zoeller's office says he'll file a friend-of-the-court brief with the U.S. Supreme Court on Friday supporting at least in part Michigan's lawsuit.

Michigan wants the Supreme Court to order the closure of the Chicago shipping locks to keep Asian carp out of Lake Michigan because the fish could devastate the Great Lakes fishing industry.

Five other Great Lakes states support Michigan's suit. Although Zoeller's brief will also support the suit, his office hasn't said how the brief would stand on the lock closure issue.

Indiana Gov. Mitch Daniels has opposed closing the locks.

From the Dec. 30th press release:
Indiana Attorney General Greg Zoeller said today he will file a friend-of-the-court brief supporting Michigan’s effort to keep Asian carp from invading Lake Michigan through Illinois waterways.

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

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

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

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Environment

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

Updating this ILB entry from Feb. 16th about SB 399's potential impact on counties other than Marion, the blog Ogden on Politics reports today on Wednesday's committee hearing, in an entry today headed "Traffic Court Bill Clears Another Hurdle."

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Indiana Courts

Ind. Gov't. - "Senator Riecken's FSSA oversight bill still has chance"

So reports Eric Bradner today in the Evansville Courier & Press, in a story that begins:

INDIANAPOLIS — State Rep. Gail Riecken's efforts to enhance legislative oversight of how effectively Indiana's human services agency administers public assistance are not dead yet.

The Evansville Democrat's proposal was added, at her behest, to a bill that won the approval of the House Public Health Committee on Wednesday.

On party lines, it was added by majority Democrats into Senate Bill 295, legislation dealing with a host of issues related to the Indiana Family and Social Services Administration.

Riecken's proposal calls for an eight-member panel made up of four Democrats and four Republicans to look into the state's efforts to process applications and provide benefits such as Medicaid, food stamps and Temporary Assistance for Needy Families.

Under the bill, the FSSA would monitor topics such as its timeliness and accuracy in determining who's eligible for benefits, and would then present those data to the eight-member legislative panel in an electronic format once a year. That report would be posted online, as well.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Indiana Government

Ind. Law - The League of Women Voters turns 90

An editorial today in the Gary Post-Tribune:

The League of Women Voters is a venerable organization that also has managed to stay relevant. Founded by suffragette Carrie Chapman Catt in 1920, about six months before the passage of the 19th Amendment gave women the right to vote, the league marks its 90th birthday this week.

While the league began as an attempt to guide women in exercising their new-found responsibilities as voters, it has evolved its interests and advocacy to include the whole community.

The league is nonpartisan and does not endorse political candidates, yet it does support or oppose political issues, and it serves as a public watchdog, encouraging political transparency.

Today, the league tackles issues such as health care, climate change, election and campaign finance reform, education and other social causes.

Just recently, the league challenged an Indiana law requiring citizens to show a government-issued photo ID before voting. The league argued the law violated the Indiana Constitution by imposing a new requirement only on some voters. The Indiana Supreme Court announced earlier this month it would hear an appeal of a 2009 lower court ruling that overturned the voter ID law because it required those who vote in person to verify their identities but not those who vote by mail.

The league also joined a coalition of environmental groups in examining the ramifications of an air permit for an expansion at BP's Whiting refinery. Nationally, the league was a strong supporter of the 1990 Clean Air Act.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Indiana Law

Court - Kentucky courthouse spending spree hits bottom line

Indiana generally tries to preserve its existing courthouses. But, in Kentucky, according to this editorial in the Lexington Herald-Leader:

When it comes to building courthouses, Kentucky is the state that just can't say no.

As a result of those easy ways, as the Herald-Leader's Linda Blackford recently reported, legislators and judicial officials are more preoccupied with balancing budgets than the scales of justice.

It's a sad story of collective self-indulgence. Kentucky's current fiscal crisis can be chalked up to many factors but one — amply demonstrated in the courthouse disaster — is garnering political favor by scattering building projects around the state with the idea that the bill will come due later.

Here's the back story: Former Kentucky Supreme Court Chief Justice Joseph E. Lambert embarked on a campaign to replace county courthouses in all of Kentucky's 120 counties. It's kind of a build-now-pay-later deal with the bonds for the new buildings only coming due when they are close to being complete and occupied. That can make it easy to approve projects (no impact in this fiscal year) and hard to pay for them.

This year, it's particularly hard to pay for them as the governor and legislature struggle to fill a gaping hole in the state budget. * * *

Chief Justice Joseph Minton, who inherited this mess from his successor, has tried to put the brakes to the runaway building. In the last budget cycle, the Administrative Office of the Courts, which Minton directs, recommended only one new courthouse — for Carlisle County where the previous one had burned.

Legislators, though, added four more in Allen, Bracken, Lawrence and Morgan counties. The economic and judicial logic may have been blurry but the political logic was crystal clear: "If people from around the state are going to get one, my folks deserve one, too," said Rep. Mike Denham, D-Maysville, who represents Bracken County.

So the debt grows and where it ends no one knows.

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Courts in general

Ind. Decisions - "Supreme Court ruling on county case could establish precedent"

The Jan. 28, 2010 Supreme Court decision in the case of Bules v. Marshall County (see ILB summary here) is the subject of a Feb. 17th story by Rusty Nixon in the Marshall County Pilot Press:

PLYMOUTH — A lawsuit involving Marshall County may soon be used as a precedent in future cases of accident lawsuits.

The Indiana Supreme Court ruled in favor of the county in an appeal of the case of Robert Bules. Bules was driving a tractor trailer in Jan. of 2005 on the Plymouth-Goshen Trail just north of King Road. At the time the county was experiencing flooding and the Highway Department had placed high water signs near the spot where Bules lost control of his rig.

The situation was made more tricky by the fact that temperatures had dropped drastically and the water had begun to freeze. Bules attempted to stop but the rig started to jack knife and the truck rolled on its side after hitting the water.

Bules, his son, and a passenger in the truck were injured. He filed a tort claim saying the county failed to properly warn the public of the danger by placing the signs too close to the water for motorists to actually come to a stop.

“These kinds of cases aren’t all that unusual and many of these cases are solved out of court,” said Jim Clevenger, Marshall County Attorney. “Our insurance company actually settled with the owner of the truck, but they couldn’t come to terms with Mr. Bules so we went to court.”

The Marshall County Superior court originally ruled in favor of the county on the basis of immunity being granted to government entities for liability of losses incurred by inclement weather conditions. That decision was overturned by the Indiana Court of Appeals. That ruling was then overturned by the Supreme Court of Indiana stating that the Tort Claims Act provides the immunity to government entities and that that immunity lasts “…during the period of reasonable response to a weather condition…” and “…that period lasts at least until the weather condition has stabilized.”

“It basically says that government agencies aren’t held liable for weather conditions without having had a reasonable amount of time to do something about it,” said Clevenger.

The ruling could have a precedent-setting effect on any future cases that are filed against governments for liability in accidents due to weather. Clevenger said the main importance is that the court ruling changes the length of time that a county has to avoid liability.

“It absolutely could be used as a precedent in many other cases,” said Clevenger. “It has already helped us settle another case where a car was struck in an intersection after it had been salted but further bad weather had made it necessary to salt again. There is no doubt this case could be a big help to counties all over the state in similar cases.”

Posted by Marcia Oddi on Thursday, February 18, 2010
Posted to Ind. Sup.Ct. Decisions

Wednesday, February 17, 2010

Ind. Decisions - Disarray compounds in the post-Wallace world

The ILB has two entries today that referenced the Supreme Court's April 2009 decision in Wallace v. State denying ex post facto application of sex offender registration requirements to Mr. Wallace. The question, of course, is what is the impact of Wallace on other similarly situated individuals?

In this Jan. 26, 2010 entry the ILB looked at some post-Wallace suits that have been filed, including the case of John R. Farmer v. IDOC, where Farmer moved for a declaration that subjecting him to the requirements of Indiana's Sex Offender Registration Act when he committed his offenses prior to the time the Registration Act applied to his offenses is unconstitutional as violating the ex post facto provision of the Indiana Constitution. (This Feb. 4 ILB entry gives additional information, pointing out that the filings of the Attorney General in the case indiciate that the State was now taking the position that Wallace changed the law, but that still meant every offender had to individually obtain a court order from a local judge in order to be removed from the list.)

Another case cited in the entry is Does I-III v. Indiana Department of Correction, et al., where the ACLU succeeded in having its case granted class action certification. Details are found in this Jan. 9, 2010 ILB entry.

This afternoon the ILB has received some additional documents relevant to the cases referenced above. The links are to the documents.

If I understand this correctly, the Attorney General is now saying no one anywhere in the State can any longer bring an action to get off the list on the basis of the Wallace decision, because the class action challenge in Does is pending. Hence the heading to this ILB entry: "Disarray compounds in the post-Wallace world."

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - More on: "Florida high school student files complaint after suspension for creating Facebook page critical of teacher"

Updating this ILB entry from December 10, 2008, Hannah Sampson of the AP is reporting today under the headline "Judge Rules Student's Facebook Rants About Teacher Are Protected Speech." Some quotes:

A student who set up a Facebook page to complain about her teacher -- and was later suspended -- had every right to do so under the First Amendment, a federal magistrate has ruled.

The ruling not only allows Katherine "Katie" Evans' suit against the principal to move forward, it could set a precedent in cases involving speech and social networking on the Internet, experts say.

The courts are in the early stages of exploring the limits of free speech within social networking, said Howard Simon, the executive director of the Florida ACLU, which filed the suit on Evans' behalf.

"It's one of the main things that we wanted to establish in this case, that the First Amendment has a life in the social networking technology as it applies to the Internet and other forms of communication," Simon said.

In 2007, Evans, then a senior at Pembroke Pines Charter High School, created a Facebook page where she vented about "the worst teacher I've ever met." * * *

[A]fter Principal Peter Bayer found out about it, he bumped Evan from her Advanced Placement classes, putting her in classes with less prestige, and suspended her for three days.

In late 2008, Evans filed suit against the principal, asking that the suspension be ruled unconstitutional and reversed, that the documents be removed from her file at the school and that she receive reimbursement for attorney fees.

Evans, an honors student, was concerned that the suspension would tarnish her academic record and hurt her chances in graduate school and her career.

Bayer tried to get the case dismissed and asked for immunity against paying damages.

In a ruling on Friday, Magistrate Judge Barry Garber declined Bayer's request to toss the case and said the principal could be forced to pay up if Evans, now 19 and a journalism student at the University of Florida, is victorious.

"Evans' speech falls under the wide umbrella of protected speech," Garber wrote. "It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior."

The judge also noted that the principal suspended Evans two months after she had taken the page down.

"In short, the potential spark of disruption had sputtered out, and all that remained was the opportunity to punish," Garber wrote. * * *

Matthew D. Bavaro, who filed the suit with the American Civil Liberties Union on Evans' behalf, said the case helps clarify when schools can punish students for speech that doesn't take place at school.

"These days, things are done on the Internet. Socialization is done on the Internet," he said. "So the law needs to adapt and we need precedent on how courts are going to apply First Amendment principles for off-campus speech."

He said he believes the ruling "seems like a pretty strong signal" of where the case will go.

While the suit is far from resolved, legal experts say it is an important case.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS , a 12-page opinion, the issue is the trial court’s denial of the motion to appoint appellate counsel to appeal the termination of Mother’s parental relationship with I.B. This opinion affirms the denial. Judge Darden writes:

Appellant counsel’s extremely brief argument is that because the Indiana statute provides for appointment of counsel “in proceedings to terminate the parent-child relationship,” citing to Indiana Code section 31-32-4-3, and “one’s right to parent one’s children” has “Constitutional implications,” it is reasonable that the parent’s “right to counsel should extend to appellate review of” the judgment terminating that relationship. Other than to suggest that our standard of review is that applied when interpreting a statute, the brief provides no further citation to authority or development a cogent argument in support of the proposition presented. Accordingly, we are not persuaded. * * *

As our Supreme Court held, before the statute was amended to read as provided above, “the decision to appoint counsel for an indigent litigant in a civil case turns on the court’s assessment of the nature of the case, the genuineness of the issues, and any other factors that bear on the wisdom of mandating public funds for that purpose.” Sholes v. Sholes, 760 N.E.2d 156, 159 (Ind. 2001). To prevail on an argument that the trial court should have assigned counsel pursuant to the current statute, the “burden is on the party seeking to proceed as an indigent person to demonstrate that he meets the statutory requirements for the appointment of counsel.” Maust v. Estate of Bair ex rel. Bair, 859 N.E.2d 779, 785 (Ind. Ct. App. 2007) (citing Sholes, 760 N.E.2d at 160). Clearly Mother, who as the trial court noted has not even “requested” the appointment of counsel to appeal the termination order, has not carried her burden.

Anthony J. Harris v. Teasha J. Harris - "For the foregoing reasons, we reverse the trial court's order denying Husband's motion to correct errors on the basis that Husband failed to properly preserve his claim that the court lacked personal jurisdiction, affirm the trial court's decree of dissolution as to the court's order dissolving the marriage of the parties and changing the status of the parties from married to unmarried, reverse the trial court's decree as to those portions adjudicating the incidences of marriage as set forth herein, and reverse the trial court's decree as to its award of custody of the parties' minor child to Wife and remand with instructions to comply with the provisions of the Servicemembers Civil Relief Act in the child custody proceedings and to make a decision on jurisdiction in accordance with the requirements of Indiana's Uniform Child Custody Jurisdiction and Enforcement Act."

In Rita D. Terry, et al. v. Norris Stephens, R.N. , a 15-page opinion, Chief Judge Baker writes:

The appellants argue that the children of a parent who provides love, care, and affection, but no financial or non-financial support, should be considered dependent children pursuant to the Wrongful Death Act. Here, a father was mentally ill to the extent that he could not support himself or anyone else. He had essentially no contact with his children in the last six years of his life. After he died, his estate filed a wrongful death claim that the trial court dismissed on summary judgment. Although we do not intend to minimize the intangible value of a parent's love and affection, the Wrongful Death Act is based on pecuniary value—and pecuniary loss. Here, the father never did, and never would, be able to support his children; thus, there was no pecuniary loss. Summary judgment was properly entered in the defendant's favor.
In Involuntary Commitment of J.W.B. , a 6-page opinion, Judge Bailey writes:
The Indiana Family and Social Services Administration (“State”) challenges a single sentence of the trial court’s order for the continued civil commitment of J.W.B. The State argues that it, rather than the trial court, has authority to control whether a civilly committed person is transferred within a facility. Concluding that the General Assembly has placed this authority with the Executive Branch, rather than the Judicial Branch, we reverse and remand. * * *

It is clear from the plain language of Chapters 11, 12, and 15 [ILB - of IC 12-26] that the superintendent of a facility controls whether to transfer an individual, where to transfer the individual, and whether to discharge an individual. The trial court can require the superintendent to provide certain notices, consider disputes regarding the superintendent’s decision, and, upon submission of a superintendent’s review, decide whether to continue or terminate the commitment. Thus, the authority to decide where an individual should receive treatment and the responsibility for that decision rest with the superintendent of the facility. The trial court therefore exceeded its statutory authority in issuing the appealed order.

Paternity of R.; T.G. and V.G. v. State of Indiana is the "Infant R" case, where the trial court denied a petition to establish paternity and maternity in T.G. and V.G 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." (For more background, see this ILB entry from Jan. 28th.) In today's 6-page opinion, Judge Bailey writes:
A sole issue is presented for review: whether the trial court erroneously denied the petition, which sought to establish V.G., as opposed to D.R., as the legal mother of Baby R. * * *

[N]o legislation enacted in this State specifically provides procedurally for the establishment of maternity; it is presumed that a woman who gives birth to a child is the child’s biological mother. * * *

Nonetheless, we are confronted with reproductive technologies not contemplated when our Legislature initially sought to provide for the establishment of legal parentage for biological parents. Now, however, reproductive technologies have advanced to provide for gestational surrogacy where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth. The State of Indiana asserts that equitable relief may be afforded in these particular circumstances.

Alternatively, T.G., V.G., and D.R. assert that Indiana’s paternity statutes may be construed so as to apply equally to T.G. and V.G., to facilitate the establishment of Baby R.’s biological parentage. While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today. Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes. Nevertheless, the public policy embodied therein, together with the unique factual circumstances presented, suggest that equity should provide an avenue for relief in this case. * * *

We are aware of no reason why the public interest in correctly identifying a child’s biological mother should be less compelling than correctly identifying a child’s biological father. * * * In these narrow circumstances, we find that the paternity statutes provide a procedural template to challenge the putative relationship between the infant and D.R.

Procedure aside, this presumptive relationship will stand unless V.G. establishes that she is, in fact, the biological mother of Baby R. She must do so by clear and convincing evidence. Cf. Vanderbilt v. Vanderbilt, 679 N.E.2d 909, 911 (Ind. Ct. App. 1997) (finding that a presumption of paternity of a child born in a marriage may be rebutted by direct, clear, and convincing evidence that the husband was excluded as the child’s father based upon blood test results), trans. denied. Clearly, this would involve more than simply an affidavit or a stipulation between the affected parties.

We reverse and remand with instructions for the trial court to conduct an evidentiary hearing and, assuming that V.G. is shown by clear and convincing evidence to be the biological mother of Baby R., grant all other relief just and proper under the circumstances.

NFP civil opinions today (4):

Lonnie M. Randolph v. Larry Hunter (NFP)

Term. of Parent-Child Rel. of W.N., et al.; S.N. and N.N. v. IDCS (NFP)

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

K.C. v. Review Board (NFP)

NFP criminal opinions today (15):

Samuel R. Via, III v. State of Indiana (NFP)

Kyle Smith v. State of Indiana (NFP)

Brian Gavin v. State of Indiana (NFP)

David Burks-Bey v. State of Indiana (NFP)

Jerrod Ford v. State of Indiana (NFP)

Bruce A. Waldon v. State of Indiana (NFP)

Frank Greene v. State of Indiana (NFP)

Michael K. Richwine v. State of Indiana (NFP)

Sean Swindell v. State of Indiana (NFP)

Andrew B. Watson v. State of Indiana (NFP)

Larry P. Raymer v. State of Indiana (NFP)

Harold Sells v. State of Indiana (NFP)

James Kunkle v. State of Indiana (NFP)

Floyd Marsh v. State of Indiana (NFP)

Silvestre Calderon v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Supreme Court issues writ re Clark Circuit Judge Daniel E. Moore

Updating this ILB entry from Dec. 12, 2009, about a 4-1 Dec. 7th Permanent Writ of Mandamus and Prohibition issued by the Sure me Court on Dec. 7, 2009, today the Court has issued State of Indiana ex rel. Crain Heating Air Conditioning & Refrigeration, Inc. v. The Clark Circuit Court, the Hon. Daniel E. Moore, et al.. From the 9-page Per Curiam opinion:

The Relator in this original action is Crain Heating Air Conditioning & Refrigeration, Inc. (“Crain”). The named Respondents are the Clark Circuit Court; the Honorable Daniel E. Moore, the judge of that court; and Barbara Bratcher-Hass, the clerk of that court. On December 7, 2009, this Court granted the Relator a permanent writ of mandamus and prohibition requiring the clerk to withdraw the case pending below from the trial court due to the court‟s failure to rule timely on a motion for preliminary injunction and to transmit it to this Court for appointment of a special judge. The writ also required Judge Moore to vacate the order he issued after Crain filed its praecipe for withdrawal.

The writ noted that this Court had under advisement whether to issue an opinion explaining its reasons for granting the writ. This opinion states those reasons and clarifies the procedure that may be used to withdraw a case from a court that fails to rule promptly after hearing a motion related to a preliminary injunction.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on: (1) 'Sexting' bill headed for study; (2) Procedure for resolving 'Wallace' issues discussed

Supplementing this ILB just-posted entry, two items:

Sexting. A reader wrote last evening:

I was interested in your entry on Tuesday that mentioned the proposed sexting legislation, particularly the South Bend Tribune article that referenced Steve Johnson's observation that it is "clear some policy issues had not been thought through."

Last year, Judge Riley issued an opinion that touched on a related issue (with a dissent from Judge Vaidik). Judge Riley (with Judge Darden concurring) held that the "dissemination of matter harmful to minors" statute is unconstitutionally vague as applied to 16 and 17 year olds, in part because it is legal for adults to have sexual intercourse with 16 and 17 year olds in Indiana. The case is Herbert Salter v. State, and the opinion was issued on May 20, 2009. The opinion, particularly the full paragraph on p. 19, addresses concerns similar to those of Steve Johnson.

The ILB for some reason did not summarize Salter at the time (or any other case decided that day), but certainly should have!

Wallace. A brief story today in the Gary Post Tribune reports:

Lake Superior Court Judge Thomas Stefaniak Jr., ordered a Gary man released from jail and a felony count of failure to register as a sex or violent offender dismissed after determining the law was being applied retroactively.

Kevin Terrell Swafford, 34, spent three months in the Lake County Jail on the charge filed Nov. 16.

Defense attorney Alex Woloshansky filed a motion to dismiss the case. Melissa Iglesias-Inayat, the Lake County Sex and Violent Offender coordinator, said the crime of sexual battery, for which Swafford was required to register as a sex offender for 10 years, changed to a lifetime registration in 2007.

Swafford's 10-year registration ended in December 2005, but when he was released after serving time for battery, he was informed he had to register with the Lake County police.

He did register in January and June 2009, but when he was pulled over in November, it was learned he wasn't living at the address he'd provided.

Woloshansky pointed to a recent Indiana Supreme Court decision that prohibits the sex offender law from going into effect retroactively.

Richard P. Wallace v. State was decided last April, 2009.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Indiana Law

Ind. Law - (1) 'Sexting' bill headed for study; (2) Procedure for resolving 'Wallace' issues discussed [Updated]

Jon Seidel of the Gary Post-Tribune has very interesting coverage of yesterday's House Judiciary Committee meeting:

Sexting. First, the House committee discussion of SB 224 (for background, see this Jan. 30, 2010 ILB entry on SB 224, headed "Student sexting in Indiana, are felonies the answer?"). Seidel reports in today's story:

INDIANAPOLIS -- Lawmakers plan to research the issue of teen "sexting" this summer before they pass a bill making it a delinquent act for minors.

The announcement was made in a meeting of the House Judiciary Committee Tuesday. Led by Rep. Linda Lawson, D-Hammond, the committee is expected to amend a Senate sexting bill next week.

Once that happens, Lawson said, the only remaining provision that will deal with sexting will be one that allows high schools to talk about the issue in health classes.

The rest of the original sexting language, Lawson said, created too many unintended consequences.

"There were so many problems, and we couldn't get it straightened out," Lawson said.

"Sexting" generally refers to the sending of sexual content by text message. As currently written, the Senate bill would have made it a delinquent act for minors to send photos or videos of themselves engaged in sexual conduct to other minors.

Steve Johnson, executive director of the Indiana Prosecuting Attorney's Council, said the bill could provide legal cover to sexual predators.

He also pointed out that 16-year-olds can consent to having sex in Indiana. Meanwhile, the Senate bill would have required juvenile courts to get involved if anyone younger than 18 was caught sexting.

"Why should you even have to go to juvenile court if you can have sex?" Johnson said. "What's wrong with sending a nude picture? So, I mean, there are serious policy issues."

Sen. Karen Tallian, D-Portage, raised the same issue before the bill passed the Senate. Supporters of the bill argued a photograph creates a permanent record and is therefore more problematic.

Wallace. The ILB has had a number of entries about last year's Supreme Court decision in Wallace v. State, including this one from Feb. 10th headed "Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray" - What might be done?" Seidel reports in today's story:
Next week's amendment, meanwhile, is expected to create a procedure for people on the state's sex offender registry to be removed if the law doesn't require them to be listed.

Johnson said there has been confusion about who belongs on the registry ever since the Indiana Supreme Court ruled last year that a convicted child molester needed to be removed from it because he committed his crime before the registry existed.

"We really needed a process to address these issues," Johnson said.

Lawson said the amendments are being made with the agreement of Sen. Jim Merritt Jr., R-Indianapolis, the bill's author.

I can say with confidence that many readers of the ILB would be interested in reviewing this proposed language on "a Wallace procedure" as soon as possible.

[Updated at 11:30 AM] The ILB has learned an amendment was offered "but the committee realized it didn't say what was intended and didn't take a vote. They said they will vote Monday on the new language."

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Law

Ind. Decisions - "5-Year-Old At Center Of Adoption Court Battle: Biological Mother Fights To Regain Custody"

The Supreme Court's April 24, 2009 decision in the case of Term. of Parent-Child Rel. of G.Y.; R.Y. v. IDCS (see ILB summary here) was the subject of this Feb. 16, 2010 story on Indianapolis 6News. The story begins:

INDIANAPOLIS -- A 5-year-old boy is at the center of a court battle between his biological mother and the woman who has raised him.

Roxanne Yorn, 30, had her parental rights involuntarily terminated after she was convicted of dealing cocaine and sentenced to eight years in prison, 6News' Derrik Thomas reported.

Her son George, who was then 19 months old, was adopted by Marian Stowe, 43, and her husband, who said they believed the adoption was final.

But last year, the Indiana Supreme Court overturned the termination of Yorn's parental rights, ruling that "we do not find the likelihood of the mother re-offending to be a sufficiently strong reason that termination of parental rights is in the child's best interests."

Now Yorn and Stowe are facing off in court, each seeking full custody of the boy.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Environment - Still more on "Indiana county's fertilizer ban rejected"

Updating this ILB entry from Feb. 14, 2010, Austin Considine has this story dated Feb. 16th in NUVO ("Indy's alternative voice"). Some quotes:

Most of Indiana isn’t exactly known for its abundance of lakes – at least not like a few of its neighbors to the north and northwest.

But Steuben County is. Take a moment to stop by the Steuben County municipal web site. If the “Land of 101 Lakes” banner floating atop each page doesn’t say it all, the “about us” link makes it pretty clear what Steuben County is all about. * * *

So it came as something of a surprise a few weeks ago when Indiana state chemist Robert Waltz squashed Steuben County’s attempts to restrict the use of phosphorous fertilizers within its own borders. Numerous studies attribute rises in freshwater algae content to phosphorous run-off, and county commissioners had tried – understandably – to enact restrictions on phosphorus use back in 2007. Such authority, they discovered, rested solely with the governor-appointed Indiana State Chemist and Seed Commissioner.

State law allows counties and municipalities to request a waiver from the state chemist to set their own terms regarding commercial fertilizers. Steuben’s elected officials followed protocol, in hopes of protecting one of their county's biggest economic, cultural and ecological assets. Fast forward three years of red tape later, and Waltz has finally rejected the waiver request, citing failure to demonstrate “that special or unique circumstances existed within (its) respective jurisdiction.”

Must not have heard about that "101 lakes" thing.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Environmental Issues

Environment - More on: Rules proposed again to regulate outdoor wood-fired boilers

Updating this Jan. 7, 2010 ILB entry (which is worth another look), Gitte Laasby of the Gary Post-Tribune has a long story today on the issue and on IDEM's long-delayed* proposed rules, 2nd Notice comments on which are due by Monday, Feb. 22nd.
*First Notice was published by IDEM on Dec. 1, 2005.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Environment

Ind. Law - Evansville C&P editorial on legislative reform

Here are some quotes from the detail-specific editorial:

On ethics reform, the Indiana House of Representatives appears headed for commendable action. However, on redistricting, the House has shown no inclination to prevent gerrymandering. And that's just not good enough.

If ethics reform passes, which appears quite possible, the legislation would alter the relationship between lawmakers and special interests. * * *

[E]thics reform, promoted by 26 Indiana newspapers, appears headed for approval.

[Re redistricting,] One bill, Senate Bill 80, would help guide those who redraw legislative and congressional districts by requiring that they maintain preestablished boundaries and communities of common interest.

Even so, as we have argued in the past, this legislation fails the credibility test by not banning voter data from being used in drawing districts. What that loophole allows is the creation of districts stacked in favor on incumbents — in other words, gerrymandering.

That practice, used in the past in redistricting, is the reason that incumbents are often unopposed. Potential opponents see the way precincts are constructed, and realize they have no hope of winning.

The other measure, Senate Bill 136, would create a study committee to develop a redistricting strategy for Indiana, to be followed up with a constitutional amendment to put the plan into law.

Of course, this would do no good for Indiana before 2021, if ever.

That's because the next redistricting comes around in 2011, following this year's census. The steps proposed in Senate Bill 136 would have no impact before the 2020 census.

It would be better if the legislature passed a bill this year, one that would allow an independent commission to redraw district lines following the 2010 census. Then, its maps could be presented to the legislature in the form of a recommendation.

For that to happen, it would probably require that Senate Bill 136 be amended.

But the greater concern right now is whether the two bills will receive fair consideration in the House. At last check, the bill was trapped in the House Rules Committee.

It should be clear to anyone in elective office that voters are weary of elected officials insulating themselves from the voters via such practices as gerrymandering.

There is no excuse for Indiana not to end the shameful practice of gerrymandering before this session ends a month from now.

Posted by Marcia Oddi on Wednesday, February 17, 2010
Posted to Indiana Law

Tuesday, February 16, 2010

Ind. Law - Additional updates on proposed legislation

Golf Carts. HB 1078, which would remedy a problem with last year's legislation -- see this Jan. 22, 2010 ILB entry for details -- was not scheduled to be heard in today's final meeting of the Senate Homeland Security, Transportation & Veterans Affairs Committee.

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Indiana Law

Ind. Law - Updates on some proposed legislation

Elections. "Two plans to ease voting stumble" is the headline to this Feb. 16th story by Niki Kelly of thew Fort Wayne Journal Gazette. Some quotes:

Two major election proposals – no-fault absentee voting by mail and allowing counties to use vote centers – have hit roadblocks.

The Democratic-controlled House passed House Bill 1106, which contained language opening up mail-in absentee voting to all Hoosiers regardless of reason. But that bill was stripped in the Senate Elections Committee on Monday morning.

Sen. Connie Lawson, R-Danville – the sponsor of the legislation – said her caucus hasn’t had enough time to review the concept of no-fault absentee voting.

Last year, the Senate approved a pilot program in a few counties but that bill was later vetoed by Gov. Mitch Daniels, she said. The Senate will vote on whether to override that veto in a few weeks.

Meanwhile, the Republican-controlled Senate passed Senate Bill 241, which included giving all counties the option of moving to a vote center model. If approved, voters could cast their ballots at any one of a small number of vote centers in the county.

Currently, only three counties – Tippecanoe, Wayne and Cass – are allowed to use vote centers under a pilot program.

“I don’t know why we can’t reach agreement on vote centers,” Lawson said.

The Indiana Fiscal Policy Institute recently released a report showing how much money individual counties could save, and Lawson had hoped this analysis would spur progress. Allen County, for instance, could cut its Election Day expenses by more than half, saving more than $100,000, the study said. [See this 1/31/10 ILB entry for the report.]

But Rep. Kreg Battles, D-Vincennes – chairman of the House Elections Committee – is not hearing the vote center bill because he thinks more information is needed.

Sexting. "Sexting legislation kicked to Indiana study panel" is the headline to this story posted this afternoon by the South Bend Tribune. A quote:
Indiana Prosecuting Attorneys Council director Steve Johnson said that teens of legal age can have sex but the bill would make it a crime for them to exchange nude photos in certain cases. He says it was clear some policy issues had not been thought through.
For background, see this Jan. 30, 2010 ILB entry on SB 224, headed "Student sexting in Indiana, are felonies the answer?"

Grandparent Visitation. SB 59, re Grandparent and great-grandparent visitation, was on the agenda today of the House Family, Children and Human Affairs committee. For background, see this Jan. 31, 2010 ILB entry headed "Grandparents testify in Indy to establish visitation rights."

Court Costs. Earlier today the ILB posted an entry about Senate Bill 399, is scheduled to be heard in the House Courts and Criminal Code committee tomorrow, Feb. 17th, headed "Senate bill intended to crack down on Marion County's traffic court." Another pending bill, HB 1154, would impose an additional $35 court fee ("infraction judgment") for each traffic violation in Marion County (that is at least $35). Here is the writeup from the Indiana Judicial Center's Feb. 12th Legislative Update Blog:

The Senate Appropriations Committee heard HB 1154 concerning Marion County magistrates sponsored by Sen. Schneider, Sen. Taylor and Sen. Breaux. The bill proposes to convert the 24 Marion County commissioners to magistrates utilizing a $35 traffic infraction fee to fund these positions. Sen. Schneider and Rep. Pryor presented the bill. Marion County judges Timothy Oakes and Heather Welch provided background information on the bill and responded to questions from Committee members. Sen. Kenley voiced concerns that the bill proposal will require state funding in the future and suggested that Marion County be permitted to keep the $35 traffic infraction fees to support Marion County court costs. The bill was held for a week to permit additional review of this proposal.
HB 1154 is on the Senate Appropriations Committee for Feb. 18, with the notation "no public testimony."

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

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

Mariea L. Best v. Russell C. Best (NFP) - "We affirm the trial court‟s refusal to order a custody evaluation during the course of the current modification proceedings, and also affirm its decision to grant Father sole legal custody of M.B. We reverse its decision to modify physical custody of M.B., and remand for the physical custody arrangement reflected in the April 2007 agreement to be reinstated as to M.B. We also reverse the trial court‟s finding that Mother is in contempt, but otherwise affirm its reducing the previously-ordered attorney fees to judgment."

NFP criminal opinions today (1):

William Baxter v. State of Indiana (NFP) - "Regardless, we believe it would be prudent to remand this case for the trial court to enter a correct abstract of judgment. Baxter asserts that Marion County trial courts do not issue any judgment of conviction or sentencing order separate from the abstract of judgment. Indeed, we see no such documents in the record before us, only the trial court‟s oral entry of judgment at the beginning of the sentencing hearing. In any event, it is not too much to ask that abstracts of judgment accurately reflect a defendant's conviction(s), so as to avoid any potential for confusion in the future regarding the defendant‟s criminal history.

"There is sufficient evidence to support Baxter's conviction for rape as a Class A felony. We remand for the trial court to issue a corrected abstract of judgment that accurately reflects the judgments of conviction it entered against Baxter."

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Ind. App.Ct. Decisions

Environment - "Asian-Carp Threat Stirs Rethink of Century-Old Feat "

Douglas Belkin of the WS Journal has an informative story today on the engineering history that has led to the Asian Carp threat to the Great Lakes. Some quotes:

CHICAGO—More than a century ago, this city reversed the flow of its eponymous river, connecting the Great Lakes with the Gulf of Mexico and defining itself as the can-do capital of the American heartland.

Today, that engineering feat is coming under growing scrutiny, as scientists and politicians intensify their battle against a voracious flying fish that has been traveling up the Mississippi for 20 years. Amid signs that Asian carp have breached the last defensive barrier, calls are mounting for a massive do-over.

"We know these barriers aren't working," said Joel Brammeier, president of the Alliance for the Great Lakes and the lead author of a 2008 report that laid out how this project might look. "An ecological separation is the only permanent solution." * * *
[T]he unintended consequence of the project, along with the completion of the St. Lawrence Seaway in 1959, was that this new water superhighway became a conveyor for invasive species traveling between the Great Lakes and the Gulf of Mexico. A series of critters, including Zebra mussels and round goby, have spread to waterways across the country, causing billions of dollars in damage to local ecosystems.

But none have caught the public's attention like the recent invasion of Asian carp. The fish were imported to clean the muck from fish farms in the Deep South in 1970s. In the early 1990s, they escaped into the Mississippi River during a flood and have been migrating north through Midwest rivers since.

Asian carp have few natural predators and can grow up to four feet long and weigh 100 pounds. They reproduce several times a year and out-compete native fish for food. To make matters worse, they blindly leap up to eight feet out of the water at the whining sound of high-speed propellers, injuring boaters.

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Environment

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

Updating this ILB entry from Jan. 25, 2010, and the prior stories it links to, plus this ILB update from Feb. 3rd, Judge David Chidester, Porter Superior Court 4, writes to point out that the so-called "Indy traffic court bill" would apply statewide, and to predict its consequences.

The bill, Senate Bill 399, is scheduled to be heard in the House Courts and Criminal Code committee tomorrow, Feb. 17th.

Here are some quotes from Judge Chidester's guest opinion letter, which is set to be published in the NWI Times:

The people of Porter County need to know about a piece of legislation now making its way to the House after being passed by the Indiana Senate on January 28th.

Senate Bill 399 eliminates traffic fines for those defendants who pay their ticket by mail or at the Clerk’s window, before their scheduled court date and sets the penalty as court costs only (currently $114.50). If a defendant contests the ticket, and loses at trial, the maximum fine is $50.50 based upon their previous good driving record. The fine increases for repeat offenders with multiple prior convictions.

Who benefits by these limits and handcuffs on the traffic court judiciary? First and foremost, extremely poor drivers and traffic violators including speeders, those who drive around school buses, those who run through red lights, stop signs and those disorderly types who abuse and mistreat police officers doing their duty during a traffic stop. As long as they pay their ticket prior to their court appearance, their fine is $0 and court costs only ($114.50). No longer do they learn the valuable lesson that driving dangerously literally costs a lot of money. More importantly, no longer do they hear from the judge to slow down or correct their behavior.

Why would our local state senators, who unanimously voted for Senate Bill 399, and the Indiana State Senate, encroach upon the judiciary’s authority to set fines and costs on a case-by-case basis? Because one Marion County jurist is seen as out of control by legislators stationed in Indianapolis, because apparently the local traffic judge imposes a fine of $500 plus court costs for all traffic offenders, including anyone proceeding to trial and losing. * * *

There are many ways to deal with an out of control judge, through disciplinary means and most important, the ballot box. To my knowledge, no person in Indianapolis has seen fit to file a disciplinary grievance against the Judge just for exercising their right to trial. But to tell Porter County traffic judges that a high school speeder should not pay a fine greater than $50 and costs and have their license suspended for traveling 115 mph on Route 30 at 11 pm with multiple passengers is just wrong.

Senate Bill 399 is an encroachment upon the separation of powers between the legislative and judicial branch of government and wrong for reasons of traffic safety.

In Indiana, all monies collected for fines and costs on traffic and other cases revert to the State General Fund. In 2008, 775,000 persons paid fines and costs producing millions of dollars for schools, roads and the operation of state government. Senate Bill 399 would cut that figure by 75%.

Please be clear on this point: Judges have little or no interest in collecting high fines as a revenue generating device. We neither know or care where the funds go. High fines serve the deterrent purpose of making faulty drivers obey the traffic rules. But, in this economy, can our legislators justify the need to spank a harsh Indianapolis judge by decreasing 75% of collected court costs for traffic offenders, many of whom are from out of state?

This is a bad piece of legislation. I ask that you contact your legislators and tell them Senate Bill 399 is a bad idea for all of us.

Here is a copy of Judge Chidester's letter.

[Updated 2/17/10] Here is the guest commentary by Judge Chidester, as published in today's NWI Times, under the heading "Oppose legislation to hamstring judges."

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Indiana Courts

Ind. Law - More on "Child support plan irks casinos"

Updating yesterday's ILB entry on SB 163, Julie Crothers reports today in the Indianapolis Star in a story that begins:

Several members of a House panel wavered Monday before approving a bill that would force Indiana casinos to sift through a database of deadbeat parents and refuse to pay out if someone owed back child support.

However, the bill ultimately received unanimous approval by the House's Public Policy Committee with a 10-0 vote.

Three amendments to Senate Bill 163 clarified collection priorities, made arrangements for parents on active military duty and gave casinos a chance to be rewarded for their efforts.

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Indiana Law

Environment - "A Growing Source of Clean Energy, Wind Farms Are Blowing Ill Will Among Some Neighbors"

From the February 2010 ABA Journal, a lengthy story by Kristin Choo that includes the following:

“They told us that the noise at 900 feet would be no louder than the hum of a refrigerator,” says Hal Graham. But he says the reality has been far different. “We can’t sleep. We can’t watch TV. This has been a disaster for us and our neighbors.”

Wind power is one of the current darlings of the movement to find alternative energy sources, and in 2008 the United States surpassed Germany as the world’s leading producer of electricity generated by wind. “With the right government policies, this cost-effective source of energy could provide at least 20 percent of the nation’s electricity by 2030, create thousands of jobs, and revitalize farms and rural communities—without consuming any natural resource or emitting any pollution or greenhouse gases,” says the American Wind Energy Association on its website.

But an increasingly vocal minority says there is another, more sinister, side to wind power. They acknowledge that, from a distance, the towering sentinels seem to spin lightly and noiselessly in the wind. But closer up, they insist, turbines emit stomach-jarring whooshes and rumbles, and an impossible-to-ignore rhythmic hum that disrupts sleep and causes headaches, nausea and fatigue in some people.

Another problem is shadow flicker, caused when the spinning blades chop up sunlight, creating a swooping pattern of shadows that some people say makes them woozy and sick. * * *

The growing contentiousness over the health effects of wind turbines already has resulted in some sharp legal fights —with more sure to come—over where turbines should be located and how they should be regulated. And because wind power can be harnessed most efficiently in wide-open spaces—the largest wind farms contain hundreds of turbines—the task of sorting out these issues has fallen primarily on local government bodies representing communities such as Cohocton.

According to a U.S. Chamber of Commerce webpage titled “Project No Project,” which tracks energy projects that have been stalled or killed, more than 70 wind farm proposals around the country are bogged down by moratoriums, restrictive ordinances, environmental challenges and lawsuits filed by community groups.

Although the states and even the federal government are inexorably being drawn into the issue, for now it is local government taking the lead to craft ordinances and zoning regulations that try to answer questions like these: When it comes to placing wind turbines near residences, how close is too close? And how loud is too loud?

Under the 10th Amendment to the U.S. Constitution, land use generally is regulated at the local level through the police power of towns, cities and counties to protect the health, safety and general welfare of their residents, says Glenn M. Stoddard, an attorney in Eau Claire, Wis., who has helped local governments in his state develop wind ordinances.

Generally, a local government can’t just ban an industry outright, Stoddard says. “There’s a zoning doctrine that basically prohibits what we call ‘exclusionary zoning’ in which a local government simply discriminates against a certain type of land use,” he says. There must be a rational reason for restricting an industry that is related to the health, safety or general welfare of the populace.

This is a tricky standard when it comes to regulating noise.

The article includes a link to the Wind Power Law Blog.

Here is a long list of earlier ILB entries on wind turbines.

Posted by Marcia Oddi on Tuesday, February 16, 2010
Posted to Environment

Monday, February 15, 2010

Law - "Legislation templates make proposing bills easy"

Erik Schelzig of the AP has a long article on model legislation. Some quotes:

NASHVILLE, Tenn. -- For state legislators across the country, sponsoring bills can be as easy as filling in the blanks.

Groups from both ends of the political spectrum offer lawmakers model legislation requiring a minimal amount of tailoring from state to state. The nonpartisan Council of State Governments even issues an annual volume of "Suggested State Legislation" that this year includes templates for 54 bills.

Want to ban schools from collecting students' facial recognition data without a parent's permission? See page 35. Make it harder for spyware to secretly collect information from computers? Page 50. Make it a crime to travel within or between states to engage in child sex? Flip to page 78, plug in local information and put it to a vote.

While such templates have been around for years, lawmakers and lobbyists say technology has fanned the model bills from state to state faster than ever. Instead of scanning or even retyping sample bills, lawmakers can work with electronic versions of the legislation. * * *

The model legislation often intersects with the legislative goals of advocacy groups. For example, the Council on State Governments' guide includes a measure based on a 2008 Florida law that says employers can't prohibit workers from storing guns in cars parked in company lots. The guns-in-cars measure has been endorsed by the National Rifle Association, and similar laws have been enacted Arizona, Louisiana and Utah. * * *

Nathan Newman, executive director of the liberal, New York-based Progressive States Network, criticized the American Legislative Exchange Council for being too cozy with the business interests that sponsors its events and for crafting model legislation with lawmakers behind closed doors.

Newman said his group tries to be transparent when it comes up with recommended legislation, "not as a top-down business community working in a back room (and) then try to force it down on a bunch of states."

Tennessee Republican Rep. Curry Todd, an officer with the Washington-based American Legislative Exchange Council, said the close relationship with business interests creates balanced legislation.

"It's not one side versus the other side," he said. "If the private sector doesn't agree, you don't do it. If the public sector doesn't agree, you don't do it."

The Illinois General Assembly staff goes one step further and puts out its own publication. From the introduction:
The Legislative Research Unit is pleased to make available our periodic list of selected research reports. The list includes almost 50 reports on topics in 9 categories, reflecting the variety and complexity of issues considered in the General Assembly. They are included in this collection with the permission of the person who requested them. * * *

For the first time, we are also including a section on suggested legislation taken from a publication of the Council of State Governments, Suggested State Legislation. The draft legislation listed in Suggested State Legislation are vetted by a CSG committee of state legislators, legislative staff, and other state government officials to ensure that they have national or regional significance, take an innovative and practical approach to an issue, and are logically structured and clearly worded. Although we only include 9 highlights here that we feel would be of particular interest, the full publication covers 60 possible legislative ideas.

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

J.C. v. Review Board (NFP) - "[T]he Review Board did not err by affirming the ALJ’s determination that Clark was ineligible to receive unemployment insurance benefits because she had been discharged for just cause, and we affirm the decision of the Review Board."

Term. of Parent-Child Rel. of A.N., et al.; R.N. & A.W. v. IDCS (NFP) - "There is sufficient evidence supporting the trial court’s findings, and we find this evidence sufficient to support the trial court’s conclusions that there is a reasonable probability that the conditions that led to the children’s removal will not be remedied and that termination is in the children’s best interests. The judgment of the trial court is affirmed."

NFP criminal opinions today (8):

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

Rufino Castenada-Nova v. State of Indiana (NFP)

Brandon Mason v. State of Indiana (NFP)

Chirstopher F. Nelson v. State of Indiana (NFP)

Antonio Williams v. State of Indiana (NFP)

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

Gildardo Perez-Jose v. State of Indiana (NFP)

Obadyah Ben-Yisrayl f/k/a Christopher Peterson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Evan Bayh will not seek reelection

Details of announcement to follow.

Here from 6News at 10:48:

INDIANAPOLIS -- Sen. Evan Bayh will announce Monday that he will not seek re-election, sources say.

Bayh scheduled a Monday afternoon news conference to announce the decision, CNN and the Washington Post reported.

Bayh had been under scrutiny in recent weeks, and Republicans felt that they could pick up his Senate seat.

Here, from Politico.

Here, from Hotline On Call.

Here, from Evansville C&P.

The announcement will be at 2 p.m. at IUPUI.

[More] Mary Beth Schneider of the Indianapolis Star has the first coverage quoting Bayh and his reasons.

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Indiana Government

Ind. Law - "Lawmakers brace for 11th-hour crush"

Jon Seidel of the Gary Post Tribune has a good overview today of "where we are" at this point of the 2010 legislative session.

Here is Eric Bradner's "Legislative Notebook" from today's Evansville Courier & Press.

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Indiana Law

Ind. Law - "Child support plan irks casinos"; "Problem gambling group hears former lawyer’s addiction story"

Two law and gambling stories today.

Julie Crothers reports in the Indianapolis Star:

A bill that would force casinos to screen jackpot winners for parents who owe child support faces a key hurdle in the Statehouse today.

Senate Bill 163 will get a hearing in the House Public Policy Committee. If it becomes law, it could help recoup some of the $2 billion in child support owed here and boost Indiana's lagging record of collecting it.

"Businesses like banks have to read off the (delinquent debtor) information; so do insurance companies and the lottery commission," said Sen. Richard Bray, R-Martinsville, the bill's sponsor.

"Why shouldn't casinos have to do the same thing?"

The Indiana Casino Association is fighting the measure. It says checking names adds red tape and wastes time at the payout desk. Some argue that the casino industry, which is privately run, shouldn't be forced to comply with the mandate. * * *

Bray's bill would require casinos to run the name of anyone winning more than $1,200 from a slot machine against the state's database of deadbeat parents and refuse to pay up if he or she was in arrears.

Bray said pilot projects in other states show that catching debtors at the counter can increase child support collections significantly. He said Colorado collected more than $600,000 in gambling winnings in the first year after a 2008 law took effect there.

The bill also would require children involved in custody cases to be covered by health insurance, a decision federal law leaves up to individual states.

Note that the bill covers quite a number of child support matters; see the digest here. Niki Kelly of the Fort Wayne Journal Gazette had details in this Feb. 11th story.

Grace Schneider of the Louisville Courier Journal had a story Feb. 12, 2010 headed "Problem gambling group hears former lawyer's addiction story." A quote:

A study last year commissioned by the council estimated that Kentucky has 9,000 full-fledged compulsive gamblers, as well as 50,000 problem gamblers and another 190,000 people who are risk of becoming addicted.

In Indiana, where 11 casinos and two horse tracks with video-slot machines operate, the numbers are even higher because of the state’s larger population, according to the Indiana Council on Problem Gambling.

[Michael J.] Burke, 64, is the author of “Never Enough: One Lawyer’s True Story of How He Gambled His Career Away.” The American Bar Association published the book in 2008 and has supported Burke’s efforts to share his story. Burke now works part-time as gambling counselor at Brighton Hospital, the Detroit-area facility where spent a month in 1978 to treat his alcoholism.

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Indiana Law

Ind. Courts - "Judges to jurors: Stay off the Web - New instructions mention Facebook, Twitter, MySpace"

James D. Wolf Jr. of the Gary Post Tribune reports today:

Juries have always been told to avoid trial information from newspapers, television or radio.

Now? Stay off Facebook and Twitter and don't use the Internet to "investigate" the case.

In October, the Indiana Judges Association issued updated instructions for juries that specifically mention Facebook, MySpace and Twitter.

Because trials are public, it's not a matter of information leaking out and effecting a trial's fairness.

"There is a national concern over jurors taking it upon themselves to investigate a case," based on articles in legal profession magazines, said Judge John Pera of Lake County Superior Court Civil Division 6.

Pera is chairman of the judges association and oversaw the instructions' development.

Besides the Internet, jurors are exposed to shows like "Criminal Minds" and "CSI."

People are inclined to investigate and talk about the information, Pera said. But posting information online exposes jurors to outside opinions.

Pera has seen a juror in another court dismissed for investigating Miranda rights online.

If they look up information, "they become advocates," Pera said.

So jurors are told to make decisions on the evidence, not to go near a crime scene and not to discuss the case except in the jury room with everyone present.

Pera said Porter County Circuit Judge Mary Harper was helpful in drafting instructions.

"She provided us with information she uses for jury trials that were really right on," he said.

She said that it's keeping up with times, a matter of thinking about what jurors might or could do.

"Some jurors in some jurisdictions were putting information about cases on their social network sites," Harper said. "Some cases cost thousands of dollars, so I decided to add the line."

The new instructions are suggestions that judges might modify.

Judge Roger Bradford of Porter Superior Court 1 sees them as an extension of disregarding anything outside the trial, and he plans to use an abbreviated version at his next trial.

Judge William Alexa of Porter County Superior Court 2 and Judge Diane Ross Boswell of Lake County Superior Court Criminal Division 3 use general instructions.

"I think I cover it when I say don't use the Internet for anything," Alexa said. It's an extension of "do not investigate this on your own."

The Lake County criminal judges have not discussed the matter in their meetings yet, Boswell said.

"I'm assuming (jurors) know when they're on the Internet or Facebook, they're communicating with people," she said.

"I'm always open to change my position," she said.court trends.

This is the first the ILB has read of these new instructions, although they have been anticipated for some time. See, for instance, the following ILB entries:

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Indiana Courts

Environment - "Indiana Lawmakers support biomass plants' foes: Prospects unclear for legislation that would stop construction"

The ILB's most recent entry on the proposed biomass wood-burning power plants in southern Indiana was Feb. 9th, near the end of the entry, quoting from a story headed "State extends comment time on biomass plants."

Today, a report by Grace Schneider in the Louisville Courier Journal begins:

Opponents of proposed wood-burning power plants in Scott and Crawford counties in Southern Indiana have picked up support in the General Assembly this winter, although nothing that's been proposed has the potential to stop construction of the generating stations near Scottsburg and Milltown.

And it's unclear whether any legislation aimed at the projects will emerge before the session ends March 12.

A bill authored by Democratic state Sen. Richard Young of Milltown aimed at regulating emissions from trucks that would serve the so-called “biomass” power plants failed to get out of the Energy and Environmental Affairs Committee, where it never received a hearing. Still, Young and other lawmakers interviewed last week wouldn't rule out the possibility of getting amendments to environmental and energy-related bills that could place more controls on the biomass industry.

“We're going to try to get something out of this session. We're working on it,” said Young, who declined to provide specifics. “We want these plants to be as clean as possible.”

During the past year, Liberty Green Renewables LLC of Harrison County has proposed building two $100million power plants, one near the intersection of Ind. 66 and Ind. 64 outside Milltown and another south of Scottsburg's city limits on U.S. 31. The partnership has applied to the Indiana Department of Environmental Management for air-quality permits for both sites. The department recently held public meetings in the two counties to answer questions about draft versions of the state permits.

Acting on numerous requests from the public, the agency also extended the deadline to submit comments on the permits to Feb. 24. Regulators, however, have stressed that the department's role is to approve permits as long as the projects comply with all state and federal laws and regulations — and that Liberty Green's proposals appear to meet those guidelines.

Young said he's frustrated that both facilities will qualify for federal “green energy” tax credits even though they'll emit carbon dioxide and other pollutants.

“There's very little pollution controls on this type of technology,” he said. “Looking at legislation, if they (the plants) are built, they need to have the best technology.” But what is proposed by Liberty Green, he said, “shouldn't be built anywhere in the state of Indiana or anywhere in the country.”

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Environment

Ind. Courts - Sixth weekly installment of the Legislative Update for the 2010 legislative session

The Legislative Update blog, publishing weekly during the legislative session by the Indiana Judicial Center, has posted this sixth weekly update.

It shows that only a few bills passed out of second house committee last week. (This upcoming week is the last week for bills to pass out of second house committee.)

Posted by Marcia Oddi on Monday, February 15, 2010
Posted to Indiana Courts

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

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

From Sunday, Feb. 14, 2010:

From Saturday, Feb. 13, 2010:

Posted by Marcia Oddi on Monday, February 15, 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 2/15/10):

Next week's oral arguments before the Supreme Court (week of 2/22/10):

Next Thursday, February 25th

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 2/15/10):

Wednesday, February 17th

Next week's oral arguments before the Court of Appeals (week of 2/22/10):

Next Thursday, February 25th

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, February 15, 2010
Posted to Upcoming Oral Arguments

Sunday, February 14, 2010

Courts - Kentucky Court of Appeals bans arbitration in divorce cases.

Indiana has a Family Law Arbitration Act, IC 34-57-5, passed in 2005.

Kentucky apparently does not have a similar, specific act. According to Diana L. Skaggs, a Louisville attorney and a fellow of the American Academy of Matrimonial Lawyers, quoted here in the Kentucky Law Reader:

The Kentucky Arbitration Act does not have a comprehensive list of all causes that may be arbitrated. It does have, however, a list of issues that may not be arbitrated and domestic relations disputes are not on that list. Thus, the legislature did not exclude domestic matters from arbitratable matters.
In the case of Campbell v. Campbell, published Feb. 5, 2010, a Kentucky Court of Appeals panel held that family law disputes are not arbitratable in Kentucky.

The Louisville Courier Journal published this column by Ms.Skaggs in its Feb. 12th issue. Some quotes:

Distressed that arbitration is not a viable alternative to spouses who cannot afford to pay an arbitrator and holding that the approval of the arbitration process by a family court constitutes an improper delegation of its constitutional responsibility, the Kentucky Court of Appeals recently barred arbitration in divorce cases.

Until then, family law arbitration had been available in Kentucky as a voluntary, alternative-resolution process for divorcing spouses wishing to employ a private individual as their neutral decision-maker to determine how their assets should be valued and divided. Spouses opt in to the arbitration process for many reasons. Some have a complex valuation matter best resolved by someone with the specialized expertise of a particular arbitrator; some want a quicker resolution process than the court system can provide; some desire a less formal process than the traditional adjudicatory one; some hope to reduce the trauma and anxiety of marital litigation; and some hope to resolve sensitive matters in a private forum.

Controversy should not accompany the availability of arbitration, a process that allows husbands and wives to resolve disputes which will have significant, long-term and possibly deleterious effects on their lives by choosing the person to resolve those disputes.

In the most worrisome aspect of the decision, the court concluded that arbitration creates a class system where affluent individuals can pay for a private judge while persons of lesser means must have their case heard by elected judges, in perhaps a less speedy manner.

Ms. Skaggs' column is also posted here, in her law blog, Kentucky Divorce Law.

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to Courts in general

Ind. Courts - "LaPorte tourism agency suing Blue Chip Casino"

Stan Maddux reported in the Feb. 13, 2010 South Bend Tribune:

Tourism officials help bring people to Blue Chip and, in turn, rake in additional taxes paid by the Michigan City casino.

The casino, though, has stopped paying a portion of the innkeeper's tax, leading the LaPorte County Convention & Visitors Bureau to bite the major hand that feeds it.

"We love Blue Chip and what they do for the community. We have a good relationship, but it's business. We think they should pay like everyone else," said Mike Bergerson, an attorney for the bureau.

The visitors bureau has filed a lawsuit asking LaPorte Circuit Court Judge Tom Alevizos to order Blue Chip to pay the $300,000 it owes from 2007, 2008 and 2009.

Under state law, Bergerson said, hotels are subject to an innkeeper's tax of 5 percent on each room. That money is forwarded to agencies involved in promoting tourism, he said.

Las Vegas-based Boyd Gaming, Blue Chip's parent company, is requesting a refund because a percentage of its hotel rooms are complimentary and without a price on which to assess a tax.

The request for a refund and not having to pay the tax on complimentary rooms in the future is based on a 2007 decision by the Indiana Court of Appeals in favor of Horseshoe Casino. The Hammond riverboat sought a refund of more than $600,000 in sales taxes it had paid on giveaway items like cars and meals.

"We think we have a legal precedent on our side in this case," said David Strow, a spokesman for Boyd Gaming.

Strow said Blue Chip has nearly 500 rooms at its two hotels and has paid the tax from the very beginning. He would not disclose what percentage of the hotel rooms at the casino are complimentary.

In his legal argument, Bergerson said the major difference is in the language governing both taxes.

He said the sales tax is assessed on merchants who sell something. The innkeeper's tax is for rooms rented or furnished, and a room, although free, is furnished and subject to the tax, Bergerson said.

"Our opinion is the legislature clearly understood the hotels would be discounting or comping rooms and that the tax should be paid," Bergerson said.

In Horseshoe Hammond v. Ind. Dept. of Revenue, decided May 1, 2007, Judge Fisher wrote: "The sole issue for the Court to decide is whether Horseshoe’s provision of complimentary merchandise and meals to some of its casino patrons during the year at issue was subject to Indiana’s sales or use tax."

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to Indiana Courts

Law - "Proposed Changes to Psychiatric Manual Stir Lawsuit Fears"

Tresa Baldas of The National Law Journal reported on Feb. 12, 2010:

Employment lawyers are shaking their heads over this one: The American Psychiatric Association wants binge eating and excess gambling to be considered psychiatric disorders. The group has proposed that the problems be listed in the manual that's used nationwide to diagnose and treat mental disorders.

The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders won't be published until 2013. The draft of the document, which was released Feb. 10, will be displayed for public comment until April 20 at www.dsm5.org.

Lawyers have plenty to say about the proposed disorders, which, some argue, could open up the door for yet more disability suits in the workplace.

"Binge eating? Come on. How are you going to be able to determine if someone is a binge eater or not?" said Steve Miller of the Chicago office of Atlanta's Fisher & Phillips, who represents companies in a wide range of employment litigation, including disability lawsuits.

Miller said declaring binge eating and gambling to be disorders will widen the pool of employees who can claim they're disabled, seek accommodations and potentially file a complaint under the Americans with Disabilities Act if the accommodation is not provided.

Even without the pending reclassification, ILB readers will recall Indiana's lap-band surgery ruling and the compulsive gambling case pending before the Indiana Supreme Court.

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to General Law Related

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

Updating this ILB entry from Jan. 28, 2010, and this entry headed "Senate OKs bill on gun permit secrets" from Feb. 2, 2010, here is a quote from the Jan. 28th Indianapolis Star editorial:

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.

As for déjà vu, a reader has written to remind me of another, earlier ILB entry. It is from Dec. 9, 2006 and quoted a story from the NWI Times, headed "Visiting Statehouse? Keep the heat at home: Weapons restriction to start next year, but not for legislators, judges." The story began:
INDIANAPOLIS | The right to bear arms soon will stop at the Capitol steps, but not for those who make the laws.

The state is getting ready to purchase metal detectors and x-ray baggage scanners that will be installed at Statehouse entrances in Indianapolis early next year. And new rules, which drew no opposition at a public hearing Friday, will prohibit visitors from bringing knives, stun guns and firearms into the Capitol, adjoining Government Center offices and nearby parking garages.

But the new policy won't apply to police officers, judges or members of the General Assembly who hold licenses to carry concealed weapons * * *

Three years ago, a Fort Wayne newspaper reported that 25 of the Indiana's 150 state legislators held concealed weapons permits.

If this year's HB 1068 or SB 195 pass, making gun permit ownership secret, there will be no more watchdog surveys like that.of the Star or the Fort Wayne newspaper.

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to Indiana Law

Ind. Gov't. - "Former treasurer's theft case dropped: Court rules 712 pieces of evidence inadmissible; civil case pending"

That is the headline to this story today in the Evansville Courier & Press, reported by Lydia X. McCoy. Some quotes from the long story:

EVANSVILLE — The Indiana Court of Appeals has ruled in favor of Elaine Newton, the former Warrick County deputy treasurer who was charged with not depositing public funds and theft of more than $40,000 from the treasurer's office, putting an end to the nearly five-year-old criminal case.

In an order released this month from the court, an appeal to allow more than 700 pieces of evidence was denied. That caused the case to be dismissed because of a lack of evidence. * * *

Newton still has a civil case pending against her regarding the criminal charges, which was filed in October 2007 in Warrick County by the state attorney general.

There is no COA order posted online in this case. The following information is available from the Appellate Docket:

9/15/09 "NOTICE OF APPEAL FILED" AS 09/18/09
(6) BY MAIL 1-28-10 LH 1-28-10
2/05/10 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to Ind. App.Ct. Decisions | Indiana Government

Environment - More on "Indiana county's fertilizer ban rejected"

Updating this ILB entry, from Feb. 10, 2010, is this editorial today, headed "Appointee overrules lake law," in the Fort Wayne Journal Gazette:

Lakes are vital recreational and economic assets in Steuben County, and county officials are wise enough to recognize the need to protect them. Too bad the state chemist decided to halt a plan adopted by elected county leaders to preserve the water quality in the county’s 101 lakes.

In 2007, the Steuben County commissioners adopted an ordinance to restrict phosphorus lawn fertilizers. Too much phosphorus in lakes leads to algae blooms – green sludge that discolors the water, makes swimming unpleasant and clogs boat motors. Algae overgrowth also depletes oxygen in the water, killing fish.

“Fertilizer overload is a real problem for our lakes,” said Rae Schnapp, water policy director for the Hoosier Environmental Council.

Steuben County’s lake communities spend a lot of money fighting algae. Those communities depend heavily on the estimated $130 million of revenue lake visitors generate annually.

Steuben’s fertilizer ordinance was the first of its kind in the state and provided exemptions for farmers and property owners with new lawns that require phosphorous to take root.

While the Indiana Department of Environmental Management is responsible for protecting water quality, the Office of the Indiana State Chemist regulates the storage and use of fertilizers. And last year, legislators passed a law expanding the state chemist authority over fertilizer to include manure, further expanding the state chemist’s responsibility to regulate substances posing environmental threats.

After Steuben County adopted the ordinance, the state chemist’s office asked the county to seek a waiver to implement the fertilizer restrictions, then developed a waiver-request process. “And did a really poor job of public notice in my opinion,” Schnapp said.

On Jan. 25, the state chemist, Robert Waltz (appointed by Gov. Mitch Daniels), rejected the waiver request from Steuben County, effectively overturning the county’s ordinance.

The state chemist said he ruled against the fertilizer restrictions because he felt the county failed to show the restrictions would improve water quality and the ordinance would be too difficult to enforce.

Schnapp is understandably concerned that the Purdue University-based state chemist may have a conflict of interest. “What they (the office of state chemist) are objecting to is anything that would reduce phosphorus fertilizer sales is what it comes down to. Because the state chemist is too closely aligned with the fertilizer sales industry,” Schnapp said.

“Water quality is not in the purview of the state chemist,” she said. “I think counties should be empowered to protect water quality.”

Indeed, IDEM encourages and even helps fund the development of watershed management plans that include plans to reduce phosphorus fertilizer use and runoff.

“Counties have done a lot to try and protect water quality, but this really puts up barriers to those efforts,” Schnapp said. “The state chemist is basically telling them the only tool in their toolbox to protect water quality is education.”

Here are the documents in the case, including the Jan. 25, 2010 Final Determination by the State Chemist (pp. 1-5), and Stueben County's Ordinance #765 (pp. 8-10).

Notice that the Office of Indiana State Chemist & Seed Commissioner
is located at 175 S. University Street, West Lafayette, Indiana 47907-2063, that the OSC website is located on a Purdue server, and that the website is copyrighted. (Copyrighted by whom isn't clear; the ILB has sent an inquiry.)

Posted by Marcia Oddi on Sunday, February 14, 2010
Posted to Environment

Saturday, February 13, 2010

Ind. Decisions - "Lawsuit against Tippecanoe County sheriff to proceed"

Olson v. Brown, a 7th Circuit opinion issued Feb. 4, 2010 (see ILB summary here) , is the subject of a story today in the Lafayette Journal Courier, reported by Sophia Voravong, and headed "Lawsuit against sheriff to proceed." Some quotes:

A former Tippecanoe County Jail inmate who claimed staff repeatedly violated his civil rights can proceed with a lawsuit against Sheriff Tracy Brown, a federal appeals court has ruled.

The complaint, filed by Jeffrey M. Olson, was dismissed in June by U.S. District Court Judge Allen Sharp after Olson was transferred to the Indiana Department of Correction.

Sharp's ruling was reversed Feb. 4 by the U.S. Seventh Circuit Court of Appeals. That's partly because Olson, 40, had sought class certification -- meaning other inmates could join the complaint -- before the lawsuit was dismissed.

" ... (I)n this case the constant existence of a class of persons suffering the deprivation is certain," Circuit Judge Joel Flaum wrote.

"The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in this case."

Olson's attorney is Gavin Rose with the American Civil Liberties Union of Indiana.

When the lawsuit was filed in January 2009, Olson was serving a 10-year prison sentence for fraud on a financial institution and being a habitual offender at the Tippecanoe County Jail.

He was transferred from the jail to a Department of Correction facility about two weeks later.

The lawsuit outlined several complaints, including allegations that Olson's legal work for an unrelated civil lawsuit in U.S. District Court in Kentucky was taken and placed in storage.

Olson also alleged improper handling of and delayed response to complaints under the jail's grievance policy. The policy allows inmates to submit complaints without needing legal action. Jail staff has 15 days to respond to a grievance.

Rose said Olson will be allowed to stay on the lawsuit.

"It was important for us to continue pursuing this because Mr. Olson brought it to our attention that other inmates had identical issues," Rose said. " ... Opening of legal mail outside the presence of inmates is a violation of the First Amendment.

"It's important for us to continue with this lawsuit, if it is true."

Lafayette attorney Doug Masson is representing Brown, the Tippecanoe County sheriff. He said he is considering whether to petition the U.S. Supreme Court to hear the case.

If that is denied, the issue will go back to U.S. District Court.

"There are two things that are pending: their motion to have the class certified, which is up to the District Court, and the motion to dismiss, which Judge Sharp ruled moot," Masson said.

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Conviction tossed in 1989 rape case, new trial granted"

Updating this Oct. 17, 2009 ILB entry about Brian E. Mast v. State of Indiana, a 2-1, 3-opinion decision issued by the COA October 13, 2009, Rebecca S. Green of the Fort Wayne Journal Gazette has a story today headed "Mental tests ordered for suspect in brutal 1989 rape." Some quotes:

Having had his 1989 guilty plea overturned by the Indiana Court of Appeals, an accused rapist was back in Allen Superior Court on Friday to hear how the case against him will proceed.

For now it will be on hold until court-ordered competency evaluations are conducted and a judge has a chance to review the reports.

The issue of competency is largely what caused the appellate court to overturn Brian E. Mast’s guilty plea.

Mast, 43, was charged in January 1989 with rape, criminal deviate conduct, battery and burglary. Seven months later, Mast pleaded guilty, admitting to breaking into an apartment, beating and raping a woman, then stabbing her in the chest with a knife. He was 22.

Allen Superior Court Judge Philip Thieme sentenced Mast to 30 years in prison.

But throughout the case, questions were raised about Mast’s competency and mental health, and the judge allowed the plea and the sentencing to occur before all the reports concerning Mast’s mental state were received and reviewed.

After Mast’s attorney raised issues of his client’s mental health, filing a defense of mental disease or defect, the trial court judge appointed two experts to examine him.

According to the appellate court ruling, one of the reports may have never been seen by the trial court judge and the other report was sent to the wrong judge six days after the guilty plea hearing.

The reports were split in their assessment of whether Mast could help with his own defense. Had Mast’s attorney waited for the reports and requested a competency hearing, Mast may have been sent to a mental institution rather than entering a guilty plea, according to the ruling.

On Friday, the issue of Mast’s competency was again center stage.

Allen Superior Court Magistrate Robert Schmoll granted a request by Mast’s state-appointed public defender Cynthia Carter to have Mast examined. He scheduled a hearing for late April to discuss the examiners’ reports.

According to Carter’s motion, Mast has been diagnosed with schizophrenia, bipolar disorder, major depressive disorder and post-traumatic stress disorder.

Carter also asked Schmoll to appoint a guardian for Mast. Mast’s parents are dead, his grandparents died when he was 3, and his immediate family members have told Carter they do not intend to help him in any way, according to court documents.

Schmoll took her request under advisement.

The case is scheduled to be tried in front of Allen Superior Court Judge Ken Scheibenberger.

As Friday’s hearing continued, Mast interjected a request to represent himself and asked for the appointment of a different judge and that the case be tried in a different county.

Mast is also seeking the removal of his name from the Indiana sex-offender registry because he was charged before the registry requirements were applicable to him.

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Appeals court sides with Valpo over sewage in residence"

The Feb. 12th decision in the case of Kevin Walsh, et al. v. City of Valparaiso, Indiana (NFP) (see ILB summary here, 3rd opinion) is the subject of a story today in the Gary Post Tribune, reported by James D. Wolf.:

Valparaiso is not responsible for damage caused by sewage backing into a Valparaiso Street home during 2001, according to the Fifth District Indiana Court of Appeals.

In a memorandum decision released Friday, the court ruled that previous courts were correct in deciding for the city in a suit filed by the Walsh family.

The family lived in the house that once stood at 1109 Valparaiso St. and sued the city after sewage came up through their toilets and drains in July and August 2001.

The sewage flooded the home, accumulating in the basement and rear of the home and damaging personal property, including automobile business inventory of William Walsh.

The court stated that Valparaiso has "discretionary immunity" from the suit because city officials did not fail to follow established procedures.

"Valparaiso had not remedied the Walshes' sewer line because it was engaged in a broader, policy-oriented approach to fix the city's numerous and pervasive sewage problems," the memorandum states.

"Valparaiso was exercising a discretionary function when it adopted its sewage plans and delayed renovation of the sewage system servicing the Walsh property."

The original suit claimed the sewage led to health problems and that for 18 years before that, there had been no sewage problems.

However, original owner Fred Bruncion stated in a letter to the city that the property had flooding since he built the home there in 1953.

The city since purchased the house and demolished it. The land, along with other land in the block north of Evans Street and south of Harrison Boulevard, was used in 2003 and 2004 as a water detention area.

In another Valpo case, readers may recall this Jan. 17, 2010 ILB entry 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." According to the entry, Feb. 18 is when a hearing is scheduled on the city's motion to set aside the default judgment.

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Ind. App.Ct. Decisions

Courts - Another "Kafkaesque" case involving a homeowner and a large bank

"Appeals court sides with Greenfield homeowner" was the heading to this Feb. 9th ILB entry about the case of Elliott v. JP Morgan Chase Bank, a Feb. 3rd decision by the Court of Appeals where, to quote from the opinion:

Chase's records show that the mortgage was paid in full in 2001. Chase, therefore, executed and recorded a satisfaction of mortgage. Notwithstanding the satisfaction of mortgage, Chase's loan servicer—Ocwen Bank—continued to prosecute this action in Chase's name, attempting to force the Elliotts out of their home even though there has never been a trial and the lending bank has declared that the mortgage was paid in full.
A case reported yesterday by Tony Marrero of the Tampa Bay Times is similarly bizarre -- the headline is "Bank of America forecloses on house that couple had paid cash for." The story begins:
SPRING HILL — Charlie and Maria Cardoso are among the millions of Americans who have experienced the misery and embarrassment that come with home foreclosure.

Just one problem: The Massachusetts couple paid for their future retirement home in Spring Hill with cash in 2005, five years before agents for Bank of America seized the house, removed belongings and changed the locks on the doors, according to a lawsuit the couple have filed in federal court.

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Courts in general

Environment - Logansport, Cass County set wind energy fees

Jennifer Tangeman reports in the Pharos-Tribune:

With the prospect of harnessing wind energy moving closer to reality in Cass County, planners have established fees for wind farms and towers.

The Logansport Plan Commission voted Monday to set fees for wind energy equipment to accompany a wind ordinance created last year.

While wind farms are not permitted within the corporation limits, assistant plan director Arin Shaver explained industrial sites can erect large towers or small micro towers.

The cost for large industrial towers is $500 per megawatt, plus a one-time $1,200 permit fee for each tower. Money from permit fees will go to a development fund.

Micro towers will cost $20 per tower and temporary met towers, used to calculate wind energy, will be free.

Shaver said if a met tower is erected permanently for education purposes, there will be a one-time $200 fee.

“It’s possible that schools might want to use a met tower as an educational tool for data collection and math classes,” she said.

Fees for Cass County are basically the same, with the exception that wind farms are allowed. To create a wind farm, Shaver said, the interested person would have to go through a special exception that costs $20,000.

Half of that money, she said, goes toward an Improvement Location Permit.

Deputy ,ayor Linda Klinck emphasized that the public should work in coordination with the planning department when considering wind energy.

“They really need to find out what is set in place,” Klinck said. “They need to talk to the plan department. They are there to help.”

Shaver said the planning department could share wind maps created by the state that show areas with good wind. She also echoed the sentiment that the department is there to help.

“Come in and talk to us and have your location so we can see what it is permitted for,” she said. “We will sit down and talk about the possibilities based off of the ordinance created last year.”

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Environment

Courts - Update on "Three lawsuits may change how NCAA operates"

Updating this ILB entry from July 26, 2009, which quoted a story by Mark Alesia of the Indianapolis Star -- the three suits described in the story were:

UCLA basketball star Ed O'Bannon, who last week [July 2009] filed an antitrust lawsuit contending that the NCAA and its member schools illegally profit from using former players' images in DVDs, TV ads and other commercial pursuits. * * *

O'Bannon's class-action lawsuit, which focuses on the sale of players' images after they leave school, has the potential to inflict large financial damage on the NCAA. Antitrust judgments are automatically tripled.

But it's another pending case that, because of its effect on amateurism rules, "could unravel the way the NCAA operates entirely," said Gary Roberts, dean of the Indiana University School of Law-Indianapolis and an expert in sports law.

In February, an Ohio judge ruled in favor of then-Oklahoma State University pitcher Andy Oliver, striking down an NCAA rule prohibiting players from having agents, as Oliver did in high school. * * *

A jury trial to decide damages in the Oliver case is scheduled for October. * * *

A lawsuit filed in May by former Arizona State and University of Nebraska quarterback Sam Keller takes aim specifically at the use of players' images in the sale of video games.

What are they now?

"N.C.A.A. Fails to Stop Licensing Lawsuit " is the headline to Feb. 8, 2010 NY Times story by Pete Thamel. Some quotes:

A district court judge in San Francisco on Monday denied the N.C.A.A.’s motion for dismissal in a class-action lawsuit headed by the former U.C.L.A. basketball star Ed O’Bannon. The ruling leaves the N.C.A.A.’s licensing contracts open to discovery.

O’Bannon’s lawyers filed the antitrust suit in July, claiming that former athletes should be compensated for the use of their images and likenesses in television advertisements, video games and on apparel. They said Monday’s ruling was an important first step. * * *

The significance of this case appears to transcend financial reward, as its cuts to the core of the N.C.A.A.’s amateurism ideals.

“We think the N.C.A.A. will defend this case saying they are protecting amateurism and trying to prevent excess commercialization,” King said. “That’s their mantra in regard to the big-business aspect. We think their hypocrisy will be fully exposed once their numbers are put in the public eye.”

Michael McCann, a professor at Vermont Law School who specializes in sports law, called Monday’s ruling a “setback” for the N.C.A.A. He said that the case would probably be followed closely by members of Congress who were interested in the N.C.A.A.’s tax-exempt status.

“I think it’s an important case because it gets at the core of the student-athlete mission and the issue that new players have in terms of waving away potential benefits they may enjoy when they’re out of college,” McCann said.

O’Bannon, who led U.C.L.A. to the 1995 national title, brought the lawsuit after he kept seeing his likeness used each year around N.C.A.A. tournament time.

From the AP, a brief note on Feb. 9, 2010:
A federal judge has green-lighted most of a lawsuit by former UCLA basketball star Ed O'Bannon, who alleges the NCAA used the images of student-athletes without permission to sell DVDs, video games and apparel. The judge combined his case with that of former Nebraska quarterback Sam Keller, who filed a similar suit.
See Marlen Garcia's story from USA Today, including a copy of the Feb. 8, 2010 ruling.

As for the third lawsuit, that of Andy Oliver, the NCAA settled it last October, as reported in this ILB entry from Oct. 14, 2009. This Oct. 13, 2009 article by Jordan Kobritz, in The Biz of Baseball, is headlined "Andy Oliver Case Highlights Inflexibility Within NCAA Rules." A few quotes:

The NCAA has been accused of being many things – arrogant, intimidating, oppressive – but stupid isn’t one of them. And they proved it last week when a settlement was announced in the suit brought by Andy Oliver, the former Oklahoma State University pitcher who was punished for violating an NCAA bylaw against having an attorney. * * *

The damage portion of the case, which was separated from the trial on the merits, was scheduled to be heard on October 19, but the NCAA wisely settled the case for $750,000 before the matter was presented to a jury. * * *

The NCAA had vowed to appeal the case, a process that could have taken 3-5 years and cost millions of dollars. By settling the case, the NCAA merely transferred some portion of its projected legal fees to Oliver in exchange for a dismissal of the lawsuit. In effect, the case disappears, which allows the NCAA to act as if there never was a judicial finding against its Bylaws and actions. * * *

The settlement was somewhat surprising, given the NCAA’s avowed objection to settling cases for fear of encouraging future lawsuits. But the NCAA could see the handwriting on the wall, and it didn’t spell “Victory.” For the NCAA, a loss would have constituted a major chip in its heretofore virtually impregnable armor at a time when it is under fire on several fronts for using student-athletes for financial gain. The governing body obviously determined that the potential reward wasn’t worth the risk.

Posted by Marcia Oddi on Saturday, February 13, 2010
Posted to Courts in general

Friday, February 12, 2010

Ind. Decisions - Transfer list for week ending February 12, 2010

Again this week, the word is: "There is not a Transfer List for the week ending 2/12/10."

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Indiana Transfer Lists

Law - Obama rules out recess appointment next week for Dawn Johnsen

From Main Justice:

President Obama signaled last night that he does not intend to make recess appointments next week for three top Justice Department nominees who have languished in the Senate since last year.

In a statement following the confirmation of 27 nominees last night, the president indicated that he didn’t plan to make recess appointments while Congress is gone for the President’s Day recess next week for Dawn Johnsen for the Office of Legal Counsel, Mary L. Smith for the Tax Division and Christopher Schroeder for the Office of Legal Policy. But he didn’t rule out bypassing Senate confirmation in the future for some nominees.

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to General Law Related

Courts - "Bursting Pipes Lead to a Legal Battle "

A long story today in the NY Times, reported by Mary Williams Walsh, includes:

State and local governments across the country may have to replace their water systems because of defective pipes, according to a whistle-blower lawsuit unsealed this week.

The whistle-blower, John Hendrix, accuses his former employer, one of the world’s largest pipe manufacturers, of falsifying test results about the quality of its products. Pipes that should last 50 years are in some cases rupturing in their very first year, according to Mr. Hendrix and some state documents. This can lead to explosions, leaks, fires and other dangers.

Officials of the company, JM Eagle, dispute the allegations and say that the tests were done correctly.

Mr. Hendrix said he uncovered the problem after he was asked to oversee the certification of a new manufacturing process that put the pipes through a prescribed battery of tests. He concluded that JM Eagle had been selling substandard plastic pipe since 1996, and that it had subsequently manipulated test results.* * *

Some states, cities and water districts have already experienced leaking, cracking and exploding pipes made of PVC, or polyvinyl chloride. Many are now joining Mr. Hendrix’s lawsuit, filed in United States District Court for the Central District of California.

Kate Moser of The Recorder also has a story today, headed "Qui Tam Suit Over PVC Pipe Goes Public."

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Courts in general

Environment - "Indiana's governor opposes closing locks to fight Asian carp" [Updated]

From the AP, a brief story that begins:

Indiana's governor is opposing a proposal to close navigational locks and gates in Chicago-area waterways to prevent Asian carp from entering the Great Lakes.

Gov. Mitch Daniels says in a letter to the White House that closing the lock system would be an "extreme action" that would worsen flooding in northwestern Indiana.

[Updated 2/14/10]Mark Guarino reported in the February 13, 2010 Christian Science Monitor:
Indiana is backing Illinois in its refusal to shut down navigational locks of a canal that environmental groups say is an “aquatic superhighway” for Asian carp from the Mississippi River to the Great Lakes, where their presence poses environmental and economic disaster.

In a letter addressed to the White House this week, Indiana Gov. Mitch Daniels says he worries about “the needless expense of increased flood damage” he says will occur if the locks are closed.

The two states are now positioned against their Great Lakes neighbors in the debate about how best to address the possible infestation. At play is the future of the Chicago Sanitary and Ship Canal, a historic waterway that Illinois and Indiana officials say is crucial to the area’s economy but environmentalists say should never have been built in the first place. Environmental groups are asking for an “ecological separation” between the Mississippi River and Lake Michigan, which would require greatly reduced navigational traffic and the operation of the canal’s two navigational locks for only emergency measures such as flooding.

The White House worked to address the issue and to quell concerns that President Obama is favoring the interests of his home state. He met with state governors this week and released an inter-agency document that offers a framework to address the problem both immediately and over time. The document’s release was accompanied by a commitment of $78.5 million, which will be used to conduct research and build additional barriers.

However, in a conference call with reporters Friday, environmental groups said the framework is biased in favor of navigational interests and lacks urgency. They also argue that the Army Corps of Engineers, the leading federal agency in charge of the canal’s future, detailed several possible solutions but has failed to offer an effective plan that brings them together against a timeline.

“The framework never commits to separation, it only commits the Corps to studying it,” says Andy Buchsbaum, regional executive director of the National Wildlife Federation. “The way they’re considering closing the locks is not nearly aggressive enough. They are proposing [opening and closing it] up to 50 percent of the time, but they never consider 75 percent of the time [or more], which would be far more effective.”

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Cassie E. Pfenning v. Joseph E. Lineman, Whitey's 31 Club, Inc., et al. , a 25-page, 2-1 opinion, Judge Darden writes:

Cassie E. Pfenning appeals the trial court's entries of summary judgment in favor of Joseph E. Lineman; Whitey's 31 Club, Inc. (“Whitey's”), an Indiana corporation; Marion Elks Country Club Lodge #195 (the “Elks”), a fraternal organization; and the Estate of Jerry A. Jones (collectively, the “Defendants”). We affirm. * * *

Pfenning asserts that the trial court erred in granting summary judgment to the Defendants. Specifically, she contends that 1) the Defendants owed her a duty; and there exists genuine issues of material fact regarding whether 2) Lineman's conduct was reckless; 3) Jones, Whitey's, and the Elks were negligent in their supervision of her; and 4) the Elks and Whitey's breached a duty of reasonable care owed to her under the theory of premises liability. * * *

Here, Pfenning does not assert that a third party's criminal act caused her injury; that the act was foreseeable; or that there had been similar prior incidents. We therefore find no error in finding that the Elks and Whitey's did not have a duty to protect her from injury due to her being struck by an errant golf ball while she operated a beverage cart.

Finding no issues of material fact and that the Defendants are entitled to summary judgment as a matter of law, we conclude that the trial court properly granted summary judgment in favor of the Defendants. Affirmed.

MAY, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 20] Hmmm. After being abandoned by her grandfather and his sister, in whose care she had been entrusted, a sixteen-year-old girl, without training or experience in golf course safety or etiquette, is injured at a golf outing sponsored by a bar, while she is driving a beverage cart loaded with beer dispensed by one of the bar's employees. Surely, there is a duty here someplace.

Unlike my colleagues, I do not characterize the issues presented by this case to be ones of duty. Rather, I think the duty issues can be easily and quickly resolved, and that this case does not turn upon a determination of duty, but whether the defendants breached the duties that they clearly owed to the plaintiff and whether any such breach was the proximate cause of the plaintiff's injuries. * * *

To me, there may be several levels of participation in a sporting event, and they should not all be treated the same. Although sporting events pose inherent risks, the risks are different for those at different levels of participation. Thus, a batter playing in a baseball game may well be said to have assumed the risk of getting hit with a wild pitch, and a shortstop may assume the risk of being spiked by a runner sliding into second base. A fan watching the game from the stands, however, would not have assumed such risks, but may have assumed the risk of being hit by a foul ball that goes into the stands. Pfenning was not playing golf at the Elks Club when she was injured and should not be said to have assumed the risks inherent to playing golf.

I would reverse the summary judgment in favor of the Elks Club, Whitey's Bar and the Estate of Jerry Jones and remand for further proceedings, and I respectfully dissent from the opinion of my colleagues holding that none of these entities owed a duty of due care to Cassie Pfenning.

NFP civil opinions today (2):

In Babyback's International Inc. v. Coca-Cola Company, et al. (NFP), a 13-page opinion, Judge Vaidik writes:

Approximately twelve years after first filing its complaint and several appeals later, Babyback's International, Inc. now appeals the trial court's entry of summary judgment in favor of Coca-Cola Enterprises, Inc. (“CCE”). Specifically, Babyback's contends that the trial court erred in determining that the measure of damages for the tort of constructive fraud is reliance damages and not the loss of its benefit of its bargain, consequential damages, and lost profits. However, because, in a recent appeal, this Court held, as a matter of law, that Babyback's has failed to establish constructive fraud, this is the law of the case. Since there is no constructive fraud, there can be no damages; therefore, the issue of the appropriate measure of damages is moot. Accordingly, we affirm the trial court.
In Kevin Walsh, et al. v. City of Valparaiso, Indiana (NFP), a 13-page opinion which includes a good rundown of prior COA decisions, Judge Vaidik writes:
The appellants' Valparaiso home was serviced by an antiquated sewage system. Their property experienced flooding and water damage following a sewer backup. The appellants filed this action against the City of Valparaiso alleging negligence in the maintenance, use, and repair of the sewer line serving their house. The trial court entered summary judgment in favor of Valparaiso. We conclude that the City is entitled to discretionary immunity under the Indiana Tort Claims Act. We affirm.

NFP criminal opinions today (3):

William Byers v. State of Indiana (NFP)

Brian L. Riker v. State of Indiana (NFP)

Taylor C. Hay v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on "Judge denies Star motion to unseal search warrants in Durham case"

Updating this ILB entry from Jan. 5, 2010, Jim Mackinnon of the Akron Ohio Beacon Journal has a story today that begins:

YOUNGSTOWN: Four newspapers attempted to make a case Thursday afternoon before a federal magistrate to unseal records that could shed light on why the FBI raided the offices of Fair Finance in Akron and Obsidian Enterprises in Indianapolis in November.

The U.S. attorney's office for Southern Indiana argued that unsealing search warrants and FBI affidavits could damage the federal government's ongoing investigation into Fair Finance. The U.S. attorney's office wants only the federal judge to know its reasons for keeping the documents sealed.

The Akron Beacon Journal, Indianapolis Star, Indianapolis Business Journal and the Wall Street Journal joined in federal courts in Ohio and Indiana seeking to make public the search warrants and related documents used to justify the Nov. 24 FBI raids.

A hearing on the conflict originally scheduled for last week in U.S. District Court in Akron was moved to federal court in Youngstown before Judge George J. Limbert.

A related hearing is scheduled at a date yet to be set in Indianapolis before a different judge. That led Limbert to wonder aloud if the two cases should be consolidated before one judge to avoid the possibility of conflicting decisions.

Assistant U.S. Attorney Joe Vaughn said making public an FBI agent's affidavit and the search warrants could hurt a government investigation into Fair Finance. His arguments included saying there is no First Amendment right to sealed search-warrant documents.

''The affidavits should remain under seal,'' Vaughn said.

The newspapers' attorney, Karen Lefton of Akron-based Brouse McDowell, argued that the documents should be made public. The government also should not be creating additional sealed documents such as FBI affidavits, she said.

The burden of proof is on the government to show that release of the documents would injure the government's investigation, she said.

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Courts in general

Environment - "Feds pass on surest solution to Asian carp"

That is the headline to this story by AP environmental writer John Flesher that begins:

TRAVERSE CITY, Mich. (AP) — With marauding Asian carp on the Great Lakes’ doorstep, the federal government has crafted a $78.5 million battle plan that offers no assurance of thwarting an invasion and doesn’t use the most promising weapon available to fight it off.

The surest way to prevent the huge, hungry carp from gaining a foothold in the lakes and threatening their $7 billion fishing industry is to sever the link between Lake Michigan and the Mississippi River basin, created by engineers in Chicago more than a century ago.

The strategy released by the Obama administration this week agrees only to conduct a long-range study of that idea, which could take years. The government also refuses to shut down two navigational locks on Chicago waterways that could provide an easy pathway for the carp into the lakes, although it promises to consider opening them less often.

Instead, the plan outlines two dozen other steps, from strengthening an electric barrier designed to block the carp’s advance to using nets or poisons to nab fish that make it through. That’s an expensive gamble that may not keep enough carp out of the lakes to prevent an infestation.

“We’re spending close to $80 million just for a short-term deterrent,” said Joel Brammeier, president of the Alliance for the Great Lakes, an environmental group. “We need to stop pushing money toward temporary solutions and get everyone on track toward investing in one that works for good — and that means absolute physical separation.”

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to Environment

Law - More on "Judiciary Panel Holds Over Johnsen Again"

Updating yesterday's ILB entry, Kassie Hunt of Politico has this story today.

Posted by Marcia Oddi on Friday, February 12, 2010
Posted to General Law Related

Thursday, February 11, 2010

Ind. Gov't. - "Indianapolis losing out on $1M in parking fines"

WISHTV 8 reports this evening:

Thousands of parking tickets each year in Indianapolis go unpaid-- a problem that the city has tried to fix for years but hasn't been able to.

It's money that's badly needed at a time when the city is cutting its budget. So why isn't Indianapolis being more aggressive in collecting hundreds of thousands of dollars in parking fines when 68 percent of all citations aren't paid?

The city contracts with Denison, a private company, for five enforcement officers to write parking tickets. Four of them patrol the mile square downtown, another works in Broad Ripple. Each usually writes between 50 and 60 tickets a day.

Under Denison's contract, officers must total a monthly quota of 5,500 tickets, but they usually write more; closer to 8,000 tickets are written each month in Indianapolis. That adds up to two million dollars in fines doled out each year. But in the numbers I-Team 8 dug up, we found the city is lucky to see even a third of the fines ever paid; just $733,000 in 2008. * * *

In December the city began a daily parking citation court pilot program. Those who hadn't paid received a summons; those with the most tickets were called in first. Most didn't show. In fact of the 100 summons that go out every day, only about three percent of the people even bother to show up.

Several times when our cameras were there, not a single person showed up. * * *

"Where is all this money really going to? What good is it actually doing for us as citizens?" asks Matt Stone, a student at IUPUI.

He's part of a class action lawsuit against Marion County's Traffic Court. The Parking Citation court is also named in that suit. A private contractor named T-2 runs the court and sends out the notices. T-2 keeps eight percent of every fine it manages to bring in. The rest goes to the general fund.

For background, see this comprehensive ILB entry from Dec. 8, 2009.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Indiana Government

Law - "Judiciary Panel Holds Over Johnsen Again"

Andrew Ramonas reports at Main Justice:

The Senate Judiciary Committee today again did not act on President Obama’s pick to lead the Justice Department Office of Legal Counsel, according to a panel spokesperson. She was held over from the committee’s meeting last week.

The committee lost its quorum — and its ability to conduct business — before it could vote today on OLC nominee Dawn Johnsen, committee spokesperson Erica Chabot said. The panel will likely consider her nomination again on Feb. 25. The Senate will not be in session next week for the Presidents’ Day holiday. * * *

But the committee did approve DOJ Bureau of Justice Statistics nominee James P. Lynch by voice vote, according to Chabot.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to General Law Related

Law - Above the Law asks: "Did You Go to Law School to Make $15/Hour?"

The entry is apparently so popular it has been hard to log on to read it. Access it when you can. It is certainly worth the effort.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to General Law Related

Ind. Gov't - AG Zoeller hires former AG Carter to arbitrate tobacco deal for State

The Jan. 25, 2010 issue of the weekly newsletter, Indiana Legislative Insight (subscription only, used with permission) contained a front-page story sub-headed "Ex-AG to arbitrate tobacco deal for State." Some quotes:

No other members of the media were around for this month's meeting of the State Ethics Commission at which former Attorney General Steve Carter (R) sought a Formal Advisory Opinion from the panel that would allow him to represent the State of Indiana in arbitration against non-participating tobacco manufacturers (NPMs) under the 1998 Tobacco Master Settlement Agreement (MSA). * * *

Carter received approval from the Ethics Commission for the work on behalf of the Office of the Attorney General to handle the arbitration work before a trio of former federal judges in the complex proceedings that will determine whether each state has diligently enforced MSA provisions against the non-participating tobacco companies. No conflict existed with his previous service.

Other states have hired outside law firms and found the cost of gearing up for arbitration – ramping up to speed with the MSA's 10- year history, forging a relationship with the NAAG five-attorney team overseeing state efforts (and which will present the general case overview before the individual states appear), working with the MSA participating manufacturers, and understanding the nature of the arbitration process – has resulted in "some real sticker shock," Attorney General Greg Zoeller (R) tells us.

General Zoeller explored retaining outside counsel – including former federal judges – before concluding that Carter's MSA history, his work as NAAG's president, and his understanding of the nature of the non-legal policy decision that an AG has to make made him the ideal person to handle the matter for the state (other AGs are reportedly envious of the Carter hire!).

Carter will contract with the State for a retainer of $10,000 per month – the "cheapest [arrangement] I've heard from any of my colleagues," proclaims Zoeller, who also points to the "value-added of eight years of experience" that his predecessor brings to the table, the likes of which other states are having to fund as they bring their outside counsel up to speed. While we understand that expectations are for less than four months worth of work, no one – including the tobacco companies – should assume the State would set an arbitrary, up-front cap on resources devoted to protecting its interests.

Since the arbitration process itself is novel, it's too early to have a complete read on the length of the arrangement, and Carter or another attorney or entity could be involved for a period beyond the initial period contemplated.

Is there a conflict with former AG Carter representing the State? Neither the Ethics Commission in Formal Advisory Opinion 10-I-2 nor the Attorney General believe so. Zoeller tells us that he approached Carter to do the work for the State, and was not solicited by Carter for it. The AG sees the State as benefiting from Carter's experience, knowledge, and lack of the conflicts that he (and his colleagues) found permeating potentially qualified outside law firms. Carter, however, is "not adverse to the state and never has been," says Zoeller. "If he was going to be representing the tobacco companies, I would have shown up at the Ethics Commission" to oppose him, the AG says.

This week's (2-8-10) issue of Indiana Legislative Insight has more, at p. 7, and requires close reading:
You only read here about former Attorney General Steve Carter (R) receiving State Ethics Commission approval to represent the State of Indiana in tobacco Master Settlement Agreement arbitration proceedings. We explained to you the mechanics of the process and why Attorney General Greg Zoeller (R) believed that he was best-qualified to represent the State in the matter, and we also thought that you would find interesting – for future reference – Formal Advisory Opinion No. 10-1-2 finally released by the ethics panel last week that explains the rationale behind permitting the former AG to take on the responsibilities.

The four-page formal ruling frames the issue this way:

Does the particular matter restriction set for[th] in IC 4-2-6-11(c) prohibit former AG Carter from entering into an employment contract with the OAG to work on a national tobacco arbitration proceeding?"
The Commission first finds that since Carter has not been employed by the State for more than 365 days, the one-year "cooling off" period "is no longer applicable to him."

The key, however, is the "particular matter" restriction in the law that would bar "Carter from representing or assisting any person in a 'particular matter' on which he personally and substantially worked on while employed with the state," and "the Commission looks to the definition of the term 'person' to determine whether the OAG qualifies as such. The definition of the term 'person' includes a governmental agency. IC 4-2-6-1(a)(12). The term 'governmental agency' is not defined in IC 4-2-6. Accordingly, it is the interpretation of [the] Commission that the term 'governmental agency' does not include an agency in the executive branch of state government."

The bottom line in the Commission's conclusion: "the term 'person' does not include an agency in the executive branch of state government," which may open up at least a semantic loophole for others to seize upon going forward.

Some observations from the ILB. Here is a quote from p. 4 of the FAO:
The restriction set forth in IC 4-2-6-1 I (c) is separate and applies to a "particular matter." This prohibition generally lasts for the life of the particular matter involved, which could be greater than or less than 365 days. The particular matters subject to this restriction are enumerated in IC 4-2-6-II(a)(I)-(12).

If applicable, the restriction set forth in IC 4-2-6-11 (c) would prohibit former AG Carter from representing or assisting any person in a "particular matter" on which he personally and substantially worked on while employed with the state, even if he was to receive no compensation for the representation or assistance. [Emphasis added]. In this case, former AG Carter would be contracting directly with the State to represent or assist the OAG on the MSA. Accordingly, the Commission looks to the definition of the term "person" to determine whether the OAG qualifies as such.

The definition of the term "person" includes a governmental agency. IC 4-2-6-I(a)(12). The term "governmental agency" is not defined in IC 4-2-6. Accordingly, it is the interpretation of Commission that the term "governmental agency" does not include an agency in the executive branch of state government.

Here is the text of subsection (c) with emphasis added:
(c) A former state officer, employee, or special state appointee may not represent or assist a person in a particular matter involving the state if the former state officer, employee, or special state appointee personally and substantially participated in the matter as a state officer, employee, or special state appointee, even if the former state officer, employee, or special state appointee receives no compensation for the representation or assistance.
The ILB looked back in its archives for similar stories, and found several. "State lawyer won contract from his boss: Ex-deputy attorney general was awarded outside legal work while on Indiana payroll" was ther heading of a March 12, 2005 story in the Indianapolis Star, noted in this ILB entry. According to the story:
State law generally bans former state employees from doing the same work for the agency for one year after leaving government. But agencies can waive that restriction by filing a written explanation with the Ethics Commission stating why the work isn't "adverse to the public interest."
The story does not indicate that the restrictions of subsection (c) were considered. Had they been, would the same interpretation have applied?

The ILB had a number of entries in 2006 on another situation. This lengthy one, from May 7, 2006, is headed "Yet more on: State FSSA exec goes from public to private at twice the price." From a Star story quoted in the entry:

This latest flap involves the agency's former chief financial officer. CFO Richard E. Rhoad quit his $100,000 post earlier this year, but only after he agreed to an outside contract to do the same work for up to $180,000 per year.
Again, the story does not indicate that the restrictions of subsection (c) were considered.

More. Here is the Carter contract.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Indiana Government

Ind. Courts - More on: Indiana federal district court nominees hearings postposed a day

Updating yesterday's entry, tune in right now and watch the questioning.

Only Senator Sessions is present for the Republicans.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to

Environment - "Bankruptcy could lead to smelly mess for state: Union-Go Dairy, which has had manure-lagoon problems, files for relief from creditors" [Updated]

This ILB entry from Feb. 9, 2010 briefly mentioned a story headed "Randolph megadairy files for bankruptcy", from the Richmond Palladium-Item.

Today Seth Slabaugh of the Muncie Star-Press reports in a story that begins:

WINCHESTER -- Factory farm critics are concerned that the state will get stuck with another manure cleanup as a result of Union-Go Dairy's filing for relief from creditors under the U.S. bankruptcy code.

Union-Go, which contains about 1,600 cows, filed the petition one day after a commercial-foreclosure lawsuit accused the dairy of breach of contract. AgStar Financial Services is demanding $6.7 million and a receiver.

And that's not the only legal action facing the dairy. Union-Go is one of several Randolph County concentrated animal feeding operations (CAFOs) being sued by neighbors for allegedly mismanaging millions of gallons of manure and creating harmful odors and highly aggressive flies.

"I am concerned about what will happen at this dairy," said Barbara Cox of Indiana CAFO Watch. "The lagoon has been compromised and I have questions about ground water contamination.

"IDEM (Indiana Department of Environmental Management) should be keeping a very close eye on this facility and not allow what happened with Muncie Sow Unit to occur here."

Last year, IDEM obtained a court order to remove manure from a lagoon at Muncie Sow Unit, a confined hog-feeding operation near Eaton, after its owner was prosecuted for environmental crimes. In May, the state began hauling the manure in tanker trucks to an Indianapolis wastewater treatment facility at a cost of 9 cents a gallon.

But during a weekend in mid-May, millions of gallons of manure from the lagoon were drained -- apparently on purpose and in violation of the law -- into a ditch emptying into Mississinewa River. More than 1,000 fish were killed.

"For five years, our group has asked that financial bonding and assurance be required when a CAFO permit is issued," Cox said. "For five years, the bills that included this bonding (requirement) were either not heard or did not pass in the General Assembly."

For background, see this ILB entry from May 15, 2009, headed "Owners say IDEM should pay for manure cleanup" that began:
Updating a long list of earlier ILB entries, including the May 11th "Who cleans up if a hog farm goes bankrupt?" and the May 12th "Millions of gallons of hog manure spilled: State officials believe the discharge might have been deliberate", where the ILB noted that "it appears things have gone from bad to worse", today comes a story readers may have anticipated.
[Updated 2/14/10] Seth Slabaugh of the Muncie Star-Press reports today on last year's "gigantic spill of hog manure" and IDEM's efforts to recover "the $195,964 it spent removing the manure through a lawsuit against John and Becky Moriarity."

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Environment

Law - "Picture proof with every parking ticket?"

Another Chicago parking ticket story - Fran Spielman of the Chicago Sun-Times reports today:

Motorists who park illegally on Chicago streets would get more than tickets on their windshields, if an influential alderman has her way.

They'd get visual proof -- in the form of a photograph attached to the ticket -- that could be used to challenge the violation.

Ald. Ginger Rugai (19th) proposed the sweeping change at Wednesday's City Council meeting in response to constituents who claim they've been ticketed in error by parking enforcement aides and Chicago Police.

They're reluctant to challenge their violations before administrative hearing judges because they lack proof that a mistake was made.

Only 12 percent of all parking tickets end up being challenged. That's even though 56 percent of all tickets challenged last year ended up being tossed out, according to Administrative Hearings director Scott Bruner.

Rugai's ordinance would require photographs to be attached to every parking ticket. The lack of a photograph would become one of four reasons for automatic dismissal.

"I advise everybody to contest their tickets, but often, when they don't have any visible evidence or proof to contest it, they lose. They say the sign was obscure or they were parked correctly. But, it's just their word against someone who's issued a ticket. If there's a picture, you have proof," Rugai said.

Noting that parking enforcement aides already take pictures roughly 60 percent of the time, she said, "I never would have thought of this if they didn't tell they were doing this as often as they were. If they're doing it over half the time, why not do it every time?"

Two years ago, the Daley administration purchased 140 hand-held devices from Duncan Parking Technologies -- at a cost of $2 million -- that take pictures as well as issue tickets.

But, Revenue Department spokesman Ed Walsh said parking enforcement aides currently use the technology to support tickets issued for parking illegally in a permit parking zone, missing, expired or improperly displayed plates, and invalid or missing city stickers.

Chicago Police officers still issue violations the old-fashioned way -- by using a handwritten ticket book. They're not equipped to take pictures.

This is interesting too:
Also on Wednesday, the City Council approved Mayor Daley's plan to get back in the good graces of motorists still fuming about the parking meter mess by authorizing the Revenue Department to void one parking ticket-a-year-per-vehicle.

But, there's a catch: Tickets will only be nullified if they're issued within five minutes of the expiration time on the pay box receipt.

Revenue Director Bea Reyna-Hickey has acknowledged that parking enforcement aides have always been urged to cut motorists some slack when they race back to their cars a few minutes after the time expires.

But, there has never been an official policy. Now, there is.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Richard Gatewood v. State of Indiana , an 11-page opinion, Judge Vaidik writes:

Richard Gatewood appeals his conviction for Class D felony operating while intoxicated and his status as a habitual substance offender. Specifically, he contends that the evidence is insufficient to prove that he was intoxicated at the time he drove. Although the State presented evidence that Gatewood was intoxicated at 9:00 p.m., when he was found sleeping by his moped, we conclude that it failed to present evidence that he had an impaired condition of thought and action and the loss of normal control of a person’s faculties at the time he drove his moped one hour earlier. We therefore reverse. * * *

Even if we assume that Gatewood drank some alcohol before arriving at the hospital, the State simply presented no evidence that when Gatewood operated his moped around 8:00 p.m., he had an impaired condition of thought and action and the loss of normal control of a person’s faculties. That is, this is not a case where Gatewood was involved in an accident, his driving exhibited signs of impairment, or he committed any traffic infractions. In short, the State failed to prove that Gatewood was intoxicated at the crucial time. Though Gatewood, who recently underwent back surgery and had several medical conditions that affected his walking, stumbled after getting off the moped, his driving did not alarm either Crehan or Branum, who were both outside the hospital when Gatewood pulled up and are trained to deal with intoxicated people, to the point that they took action. As Branum plainly said, “There wasn’t any need to stop him for any reason.” And Officer Kapcynski did not observe Gatewood drive. Moreover, intoxication at the time Gatewood drove cannot reasonably be inferred because Gatewood was unobserved for nearly an hour. In this case, we are not presented with conflicting evidence on the issue of Gatewood’s intoxication at the time he drove; rather, we are presented with no evidence. We therefore reverse Gatewood’s conviction for OWI and his enhancement for being a habitual substance offender. As such, we do not address the State’s cross-appeal.

NFP civil opinions today (2):

Lorie Sheldon v. William Sheldon (NFP) - "We find no error in the trial court's order that denied Mother's motion for modification of the April 6, 2009 order."

KJM v. Connie Townsend (NFP) - "The Trust and Merritt have failed to cite any authority to support the not quite one-page argument section in their appellate brief. A party that fails to comply with Appellate Rule 46(A)(8)(a) waives the issues in question. Flowers v. Flowers, 799 N.E.2d 1183, 1187 (Ind. Ct. App. 2003).

"Waiver notwithstanding, we find no error."

NFP criminal opinions today (3):

Robert Holt v. State of Indiana (NFP)

Delbert Lewis v. State of Indiana (NFP)

Jay Becker v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Ind. App.Ct. Decisions

Courts - Still more on "If Chicago cop caught you with LIDAR, go to court: Judge will dismiss it"

Updating this ILB entry from Nov. 9, 2009, the word from the Chicago Tribune today is: maybe not anymore.

Megan Twohey reports under the headline: "Lidar speeding tickets get Cook County traffic court's approval: Traffic judge accepts appellate ruling that lidar guns are scientifically sound, opening the way for prosecution of such ticket." The story begins:

Cook County Traffic Court in Chicago may stop dismissing speeding tickets issued by laser gun after a judge ruled Wednesday that lidar speed detectors were scientifically admissible in the court.

The court did not conduct its own hearing on the matter as planned. Instead, the judge determined that a recent Illinois Appellate Court ruling upholding the admissibility of lidar detectors would apply in the Cook County case.

"I now have an authoritative court opinion ... lidar is acceptable," Judge Eileen Burke said.

The Cook County state's attorney's office and the defense attorney in the case said the decision resolved a legal issue that had allowed many Chicago motorists nabbed for speeding by a laser gun, instead of radar, to see their tickets thrown out. Over the last year, Traffic Court determined that speeds captured by lidar were not admissible because the devices had not been subjected to a Frye hearing in which they were proved to be scientifically reliable.

The judges had brushed aside the prosecutors' position that such a hearing was unnecessary because lidar devices, which use a light beam instead of radio waves, have been used by police departments across the country with no problems for a long time and because some courts outside Illinois already had found them to be scientifically sound.

So in November, a hearing on the scientific merits of the device finally was approved in a case involving a Chicago man charged with drunken driving and speeding on the Chicago Skyway.

But the hearing, scheduled for Wednesday, did not take place. Instead Burke said a Jan. 15 ruling out of the 2nd District Appellate Court of Illinois was sufficient.

The Appellate Court upheld a DuPage County court ruling that found lidar speed detection scientifically sound and cited similar court rulings out of Maryland, Hawaii, Idaho and Washington.

"In our view, these decisions are ample authority that the use of lidar to measure the speed of moving vehicles is based on generally accepted scientific principles," the Appellate Court said in its decision.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Courts in general

Ind. Law - Pending bill "would allow Indiana residents to legally bet on horse races over the Internet"

From a Fort Wayne Journal Gazette editorial today:

Hoosiers and their elected representatives should pay closer attention to a bill moving through the General Assembly that would allow Indiana residents to legally bet on horse races over the Internet.

The gambling bill refers to Internet wagering by the innocuous term of “advance deposit wagering.” The bill has been getting more attention in northern Indiana for what it doesn’t do. Language allowing a Gary riverboat to move inland has been taken out. There is no provision for a Fort Wayne referendum on a local casino. * * *

Despite the dearth of debate, the Internet horse-wagering portion of the bill marks a dramatic change in the state’s gambling policy, allowing Hoosiers to avoid the trip to the racetrack or off-track betting parlor and gamble on the ponies from home. Advocates, in the epitome of cynicism and spin, claim the bill would not expand gambling – despite the fact that it would enable adult Hoosiers to legally gamble from home.

The proposed law has strong potential to encourage more Hoosiers to gamble legally. Paradoxically, even though it could well increase horse wagering, the bill would likely reduce revenue at the state’s two horse tracks and five OTBs.

As the bill is written now, bets made over the Internet would not be subject to the state’s pari-mutuel wagering tax. Internet “wagering could potentially exacerbate the decline in taxable wagering handle (total amount bet) and, as a result, pari-mutuel taxes from live and simulcast races at Hoosier Park, Indiana Downs, and the five OTB facilities the racetracks operate,” the Legislative Services Agency wrote in weighing the bill’s financial effects on state government. * * *

Another troubling provision of the bill as it stands would allow existing casinos to “conduct card tournaments or other large gaming events at a facility other than the riverboat. … The facility must be in a hotel or other permanent structure owned or leased by the licensed owner or operating agent within close proximity of the riverboat.” No matter the restrictions, any bill that allows riverboat owners to sponsor gambling in additional locations sure seems like an expansion of gambling.

The gambling bill is likely to face more revisions, and the final version may well be shaped in conference committee in the last days of the General Assembly’s session.

Here is the bill, SB 405. See SECTION 6 (beginning at p. 7 of the 60-page PDF) for "advance deposit wagering." Read the Fiscal Impact Statement for the bill, as it passed the Senate, here.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to General Law Related

Ind. Law - NE Indiana a haven for meth labs [Updated]

An eye-opening story today in the Fort Wayne Journal Gazette, reported by Angela Mapes Turner. A few quotes:

The number of methamphetamine labs seized in Indiana last year was the highest in the state’s history, jumping nearly 25 percent from the year before.

Five northeast Indiana counties ranked in the state’s top 10, bolstering the reputation the area has built over the past decade for being a hotbed of meth addiction. Area law enforcement agencies have theories, but few answers, behind the drug’s rise.

The Indiana State Police uncovered 1,343 meth labs in 2009, the agency said this week. * * *

[Sgt. Michael Toles, north-zone supervisor for the Indiana State Police Meth Suppression Section,] said many of the people who created meth in that area have been caught and are serving lengthy jail terms. But as they re-enter society, many go back to using and producing meth – a trend Toles also sees in northeast Indiana.

Even if a county manages to put its “meth cooks” in jail, it must still help addicts break the habit. Noble County, which has led the state in past years in meth lab seizures, has put more effort into its drug court, Prosecutor Steven Clouse said, with the hope it can make a positive difference.

[Updated 2/12/10] See also this story from the Evansville Courier & Press, headed "Ind. meth activities up sharply for 2009."

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Indiana Law

Ind. Courts - "Under pressure, Clark Council to give courts $620,000"

Ben Zion Hershberg reports today in the Louisville Courier Journal about another threat of judicial mandate in Clark County:

The Clark County Council is expected to allocate $620,000 to the county’s courts at a special meeting later this month to avoid potentially expensive litigation that council president Jack Coffman said the judges have indicated they would file.

“If we don’t, a mandate will end up costing us more,” said Coffman, referring to the type of lawsuit brought by the judges in 2005 when a budget crunch prompted the council to use money collected by the courts from probationers to cover some court operating expenses. The judges generally control probation user fees but didn’t agree to the use sought by the council.

The dispute led to protracted litigation. Ultimately, the council had to pay an estimated $1.1 million in legal fees and disputed appropriations to the county’s four courts.

The county is facing another budget crisis this year, and the council so far hasn’t acted on appropriations requests by the judges for several hundred thousand dollars. On Monday, the council tabled the budget requests from all four courts.

Since then, Coffman said, the judges have made comments to council lawyer Scott Lewis indicating another lawsuit was coming.

David Lewis, no relation to Scott Lewis, confirmed that Superior Court 2 Judge Jerry Jacobi has discussed filing a suit against the council if the financial needs of his court aren’t met. Jacobi requested $203,000 from the county general fund and another $256,000 from other county funds at Monday’s council meeting.

Late last year, the budgets of the courts along with other county government departments were cut 30 percent by the council because of a shortfall.

But on Tuesday, the judges met with council member Chuck Moore, who was negotiating for the council, and reached a preliminary agreement on court funding. The agreement is to be voted on at a special council meeting Feb. 23.

Moore said he talked to all of the judges and reached six of the council’s seven members afterward who said they would support the deal.

It calls for the appropriation of about $70,000 to Circuit Court, $150,000 each to Superior Courts 1 and 3 and about $230,000 to Superior Court 2, including general court costs and probation department expenses. About $22,000 will be appropriated for the two magistrate courts, Moore said.

The money should bring the courts’ budgets for 2010 up to what had been requested for 2009 before being cut by 30 percent, Moore said. He said most of the money will come from the county’s $2.6 million Rainy Day fund.

See earlier story from Nov. 28, 2009 headed "Clark budget cuts threaten public defender's office" and "Supreme Court issues two anticipated mandate decisions today," from Sept. 27, 2007.

Posted by Marcia Oddi on Thursday, February 11, 2010
Posted to Indiana Courts

Wednesday, February 10, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

Marshall Jackson v. Jeffrey A. Wrigley - "Jackson filed a § 1983 civil rights lawsuit seeking a declaration that Indiana’s offender visitation policy is unconstitutional because New Castle and other Indiana prison facilities permanently barred Jackson’s fiancée from entering an Indiana prison facility after she was caught trafficking contraband. Jackson sought to convince the facility to interpret the policy in a manner that allowed his fiancée to visit the facility for a marriage ceremony. * * *

"Because there is a genuine issue of material fact as to whether Jackson exhausted his administrative remedies, we reverse and remand for further proceedings."

NFP civil opinions today (3):

Lawane Chaney v. Clarian Health Partners, Inc. (NFP) - "Ronald Weldy, former counsel for Lawane Chaney, appeals from a trial court order entered in Chaney’s purported class action suit against Clarian Health Partners, Inc., which alleged violations of the Wage Payment Statute. Weldy presents three issues for review, but, as explained below, we address a single issue: whether the trial court abused its discretion when it imposed sanctions against Weldy under Trial Rule 37. We affirm in part and dismiss in part."

Term. of Parent-Child Rel. of N.M., A.M., and R.S.; K.S. v. IDCS (NFP)

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

NFP criminal opinions today (9):

State of Indiana v. Gregory Fuhrman (NFP) - "The State of Indiana appeals from the trial court's order suppressing evidence discovered after police officers, who were investigating a complaint about an underage drinking party, approached a building, knocked on the door, and once the door was opened saw minors in possession of alcohol inside. * * *

"Here, the officers' entry onto the property was for a legitimate reason, the investigation of an underage drinking party. The officers stayed in places where visitors would be expected to go. In the process of knocking on the door of the garage, a person inside opened the door, and from that vantage point the officers were able to see minors in possession of alcohol. We find that the officers' conduct did not violate article 1, section 11. Judgment reversed."

Douglas McClish v. State of Indiana (NFP)

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

Mark A. Amburgy v. State of Indiana (NFP)

Kimberley Hill v. State of Indiana (NFP)

Julie Skinner v. State of Indiana (NFP)

Anthony G. Mason v. State of Indiana (NFP)

Joshua Trentz v. State of Indiana (NFP)

Ovando Boyd v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Ind. App.Ct. Decisions

Ind. Court - "James J. Jordan, a former Delaware County judge and prosecutor, died Monday at age 77"

From the Muncie Star-Press:

Jordan practiced law in Muncie for a half-century, and was elected Delaware County prosecutor in 1974.

In 1998, then-Gov. Frank O'Bannon appointed Jordan judge of Delaware Circuit Court 4 following the death of Judge A.J. Hall. He remained on the bench through 2002.

Here is the obituary.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Indiana Courts

Ind. Courts - Indiana federal district court nominees hearings postposed a day

From the Blog of Legal Times:

Lawmakers have postponed almost all meetings on Capitol Hill today because of the second Washington blizzard in less than a week. The Senate Judiciary Committee was among the last hold-outs, waiting until mid-morning to postpone a confirmation hearing for judicial nominees.

That hearing, though, has not been postponed long. It is now scheduled for 11:30 a.m. Thursday, when much of the District will still be digging out from a fresh layer of snow. Sen. Amy Klobuchar, a Democrat from snowy Minnesota, would chair the hearing.

Six U.S. district court nominees are scheduled to appear: Jon Deguilio for the Northern District of Indiana, Audrey Fleissig for the Eastern District of Missouri, Lucy Koh for the Northern District of California, Jane Magnus-Stinson for the Southern District of Indiana, Gloria Navarro for the District of Nevada, and Tanya Pratt for the Southern District of Indiana.

Official info here.

I had thought Dawn Johnsen's re-nomination had been rescheduled from last week to Feb. 11, but don't see it listed. I did locate this page, that includes her questionaire and testimony from the Feb. 25, 2009 hearing.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Indiana Courts

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

Updating this ILB entry from Dec. 25, 2009, Dustin Grove reports today in the South Bend Tribune, under the headline "Michigan Supreme Court to hear arguments in public defender case." Some quotes:

The Michigan Supreme Court will hear arguments this spring in a case making headlines across the country. The American Civil Liberties Union claims Michigan's public defender system is set up to fail. That, they say, violates an indigent defendant's constitutional right to a fair trial.

“Whatever the prosecution says goes,” said Robin Dahlberg, an ACLU attorney.

The ACLU says Michigan has one of the “worst indigent defense systems in the country.” It says the state provides no oversight and no funding, leaving it up to each individual county. The result, they say, is too many public defenders who are strapped with an overwhelming caseload and a budget much smaller than the prosecutor's.

“They don't have the supervision, their caseloads are too high, they don't have the expert resources,” said Dahlberg.

In a statement last year, the ACLU said when public defenders don't have the necessary resources, their clients are wrongfully convicted, plead guilty when they should not, and spend too much time in jail or prison. So in 2007 it filed a lawsuit against the state.

“We are alleging that the plaintiffs have been deprived of their constitutional rights,” said Dahlberg.

The suit asks the state to step in and fix the problem: to make sure each county provides the funding, policies, and oversight so every defendant gets justice.

In December, the Michigan Supreme Court agreed to hear the case. Proceedings will begin in April.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Courts in general

Ind. Courts - McKinney asserts his DTF duties didn't violate any rules

Douglas Walker reports today in the Muncie Star Press:

MUNCIE -- Delaware County Prosecutor Mark McKinney has formally admitted to many of the allegations included in a complaint filed against him last May by the Indiana Supreme Court's disciplinary commission.

But McKinney and his attorney, Kevin McGoff of Indianapolis, decidedly do not agree with the commission's ultimate conclusion -- that McKinney's dual roles, as attorney for the Muncie-Delaware County Drug Task Force in forfeiture cases and as a prosecutor, violated four rules of professional conduct for attorneys.

McKinney's official response to the complaint was filed with the Supreme Court last week.

The Supreme Court has appointed a Boone County judge, Steven David, to conduct a hearing on the McKinney disciplinary complaint.

After that hearing -- now set for July 6 -- David will recommend whether he believes disciplinary action should be taken against the Delaware County prosecutor. The ultimate decision rests with the Supreme Court.

Most of what are referred to as "allegations" in the complaint against McKinney are simply statements of facts concerning his work, between 2000 and 2007, for the prosecutor's office and as lawyer for the DTF.

McKinney repeatedly noted in his response that as a deputy prosecutor -- prior to his November 2006 election as prosecutor -- he decided what criminal charges were filed against some, but not all, of the drug defendants who also entered into property forfeiture settlements with the DTF.

"(McKinney) only determined what charges to file against those defendants who were charged in the court to which he was assigned," the response noted.

The prosecutor denied any misconduct related to the use of confidential settlement agreements in some forfeiture cases.

He also denied the commission's contention that "there was a significant risk that his representation of the state as prosecutor or deputy prosecuting attorney was materially limited by a personal financial interest in (confidential settlement agreements) or the outcome of the forfeiture actions."

McKinney contends the "asset forfeiture program was developed by (Richard Reed, his predecessor as prosecutor) and was well established before McKinney was hired by the prosecutor's office" in the mid-1990s.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Indiana Courts

Ind. Decisions - Re "Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray" - What might be done?

Updating this ILB entry from Feb. 4, 2010, in conjunction with this one from Jan. 26, 2010, the Fort Wayne Journal Gazette published this editorial on Feb. 8, 2010:

The Indiana and federal constitutions are clear – no ex post facto law shall ever be adopted. Like it or not, there are no exceptions for especially heinous crimes such as child molesting.

Last year, the Indiana Supreme Court ruled 5-0 that requiring someone to register as a sex offender for a crime committed before the sex offender registry requirement was created is an ex post facto law – one that makes an act committed before the law was adopted punishable as a crime.

The Allen County Sheriff’s Department, rightly, began removing from the local registry the names of people who committed sex crimes before the 1994 law was adopted. But the Indiana Department of Correction, which maintained a statewide registry, did not.

The department was taking advice from the attorney general’s office, which apparently took note of language in the court ruling that seemed to suggest it applied only to the convicted offender who filed the appeal.

Now, however, the attorney general’s office is rightly interpreting the ruling as Allen County has – that it applies to all those whose crimes occurred before 1994. The attorney general still is requiring offenders to seek a court order to be removed from the state registry.

As a result, courts are being inundated with requests to be removed – many filed by defendants pro se, without an attorney.

Few Hoosiers want to see the criminal justice system go out of its way to make life better for convicted sex offenders. However, the constitutional prohibition against ex post facto laws serves to protect citizens from a tyrannical government. Constitutions prohibit such laws because a basic premise of the law is that it establishes rules of behavior citizens must follow. Citizens cannot follow rules that are applied retroactively.

The sex offender registry has received some criticism, been enhanced by the legislature and last year was essentially altered by the court.

Such adjustments are not unusual for a far-reaching, relatively new law. More changes will likely occur.

The law that remains still requires people convicted for sex crimes committed since 1994 to register their addresses with authorities, who make that information available to the public. The law and its underlying purposes remain valid and valuable.

What Might be Done? This situation seems to cry out for clarity and guidance. But who to offer it? The Wallace decision came out on April 30, 2009. No legal advisory opinion appears forthcoming from the Attorney General. And the current IDOC and Sheriffs' registry advice is either inadequate (IDOC,) or incorrect (Sheriffs'):

The Sex & Violent Offender Registry "Road to Reentry" page for the Indiana Department of Corrections offers this information:

On April 30, 2009, the Indiana Supreme Court issued decisions in cases involving Richard P. Wallace and Todd Jensen regarding the Indiana Sex and Violent Offender Registration Act. Copies of the cases may be accessed by following the links indicated below. If you believe the cases have an impact on your requirements to register as a sex or violent offender in the State of Indiana, you may raise the matter in a court of appropriate jurisdiction or discuss it with an attorney. The Indiana Department of Correction is not able to provide persons with legal advice as to the impact of the Wallace and Jensen cases.
The Indiana Sheriffs' Sex Offender Registry FAQs offers this advice:
Are people who were convicted of a sex offense before Indiana had a registration law required to register?

Indiana's sex offender registration law initially required people convicted of specific sex offenses after June 30, 1994 and those convicted of certain violent offenses after June 30, 1998 to register with local law enforcement authorities in the communities where they intended to live, work, or study. Effective July 1, 2001, these dates were removed from Indiana's sex offender registration law.

Consequently, offenders who may now be required to register because specific registration dates have been removed from the law may previously have been told that they did not need to register.

What might be done?
  1. Make available an "at a glance" chart or flow sheet showing who may be covered by Wallace. If done right, this could eliminate many needless applications to the court.

  2. Make available a standardized petition.

  3. Involve pro bono law students.

  4. Make available standardized forms for simultaneous court notification to both the state and sheriffs' registries.

  5. Correct the information on the IDOC and Sheriffs' sites.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Ind. Sup.Ct. Decisions

Law - More on: Possible recess appointment for Dawn Johnsen floated

Updating yesterday's ILB entry, Main Justice has a story today by Andrew Ramonas that begins:

President Barack Obama told reporters today that he is considering making recess appointments for nominees who are being held up by Republicans in the Senate.

“I respect the Senate’s role to advise and consent, but for months, qualified, non- controversial nominees for critical positions in government, often positions related to our national security, have been held up despite having overwhelming support,” Obama said in an unexpected appearance before the White House press corps.

He didn’t say which nominees he may put in office without Senate confirmation during Congress’s recess next week for the Presidents Day holiday. Among the nominations that have stalled are Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, Mary L. Smith for the Tax Division and Christopher Schroeder for the Office of Legal Policy. Their nominations languished in the Senate for months last year before they were returned to the White House in December and re-nominated last month. * * *

A recess appointment lasts until the end of a current congressional session. Without Senate confirmation, the appointees must vacate their positions when a session ends. Recess appointments are controversial. President George W. Bush made a handful of recess appointments over the objections of Democrats, including John Bolton in 2005 to be the U.S. representative to the United Nations.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to General Law Related

Environment - "Indiana county's fertilizer ban rejected"

Runoff from farms, golf courses, runways, construction sites, etc. is regulated by the Indiana Department of Environmental Management. This story by the AP's Rick Callahan reports on how Steuben County tried a different route to safeguard its lakes. It begins:

INDIANAPOLIS — Steuben County, which calls itself “the land of 101 lakes,” has lost its bid to ban certain lawn fertilizers blamed for worsening algae blooms that have given some of its bodies of water a greenish cast.

Supporters of the now-nullified ban — the first of its kind in Indiana to target lawn fertilizers containing phosphorous — are disappointed by the Indiana State Chemist Office's Jan. 25 decision against the county.

County commissioners had hoped their ordinance banning the use of such fertilizers would help improve the water quality in the county's natural glacial lakes and their manmade counterparts, said Commissioner Ron Smith.

Each year, the county's lakes generate an estimated $130 million in revenue from part-time residents visiting summer lake homes and boaters, anglers and water enthusiasts, he said.

Smith said the lakes' water quality has improved over the past 20 years as many farmers have taken steps to reduce field runoff into waterways.

“Our lakes are much cleaner, but this ban was another attempt on the part of the county to improve the quality of our waters,” Smith said.

He believes the Indiana State Chemist Office rejected the county's request for a waiver for its ban because approving it would have set a precedent, opening the door for other counties to follow with their own laws.

The county in Indiana's far northeastern corner passed its ordinance in July 2007, with exemptions for farmers and new lawns that often need phosphorous, a naturally occurring nutrient.

The commissioners later learned that only the State Chemist Office can regulate the storage and use of fertilizers in Indiana.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Environment

Ind. Law - Indiana adoption laws subject of bill

From the South Bend Tribune, a story by Kevin Allen:

State Sen. Joe Zakas is seeking to improve Indiana's adoption laws with legislation in the General Assembly.

The Granger Republican's bill would bar people from adopting if they have been convicted of certain "attempted" felonies and clarify the state's rules for when and where a man can file a paternity action to contest an adoption.

Senate Bill 140 passed the Senate by a vote of 49-1 last week, and Zakas said it is scheduled for a hearing next Tuesday in the House of Representatives Judiciary Committee.

Zakas said Indiana has "developed a very solid set of adoption laws over the years," but clarifying those laws will help the families and children involved in the process.

"The whole aim is to provide certainty in the adoption process, which ultimately is in the best interest of the child involved," he said.

Indiana already prohibits people convicted of serious violent felonies from adopting children. SB 140 would also bar people convicted of attempting those felonies.

State law also allows a man to challenge an adoption if he is the child's father. SB 140 would provide a clearer, narrower path for men to file those paternity actions.

Zakas said the Indiana Supreme Court last year interpreted current state law to say a man could file a paternity action in a different court than the one handling the adoption proceeding.

"In the court decision, a judge (Justice Theodore Boehm) basically asked the legislature to clarify this issue, and to have all adoption proceedings confined to a single court, which seems like common sense," Zakas said.

SB 140 would also bar men from filing paternity actions as a "next friend" of the child, as if on behalf of the child. State law requires paternity actions to be filed within 30 days of receiving notice of a proceeding, but "next friend" cases can be filed for up to 20 years, which is "huge loophole," Zakas said.

"Adoption should be encouraged, but the process can be challenging," he said. "More certainty should help, so that children benefit the most."

The Supreme Court decision referenced in the story is Adoption of T.B.; W.G. v. D.B. & J.B., from June 26, 2009, where Justice Boehm, in a concurring opinion, writes:
I write separately to observe that these statutes, taken together, seem to provide multiple opportunities for confusion or even intentional obfuscation. * * *

I hope the General Assembly will consider requiring that a putative father wishing to con-test an adoption or declare paternity must file in the court in which an adoption action is pending or otherwise assure consolidation of these two proceedings to reduce the opportunity for delay and confusion, while still preserving all rights of the putative father.

See the ILB summary here.

Posted by Marcia Oddi on Wednesday, February 10, 2010
Posted to Indiana Law

Tuesday, February 09, 2010

Ind. Decisions - Attorney General Zoeller reaches $1.95 million settlement with CVS

From a press release issued today:

INDIANAPOLIS - Indiana Attorney General Greg Zoeller announced that a $1.95 million settlement has been reached in the State of Indiana's complaint that two pharmacists with expired licenses dispensed prescription drugs for several years at CVS Pharmacy Stores.

The case stemmed from an investigation by the Attorney General's Medicaid Fraud Control Unit (MFCU). It alleged that at different times between 1997 and 2007, CVS employed as pharmacists two individuals whose licenses had expired: Morris "Mo" Skirvin at a store in Nashville, Ind., and Edward Certain at a store in Marion, Ind.

According to the investigation, Skirvin's pharmacist license expired in 1990, long before his employer Hook-SupeRx was acquired by CVS, but he did not renew the license and allegedly forged a new one each renewal period.

After MFCU began investigating Skirvin's license, CVS came forward and disclosed that another pharmacist, Certain, also had been practicing without a license. Certain had a valid license at one time but it expired in 2002 and he did not renew it, MFCU found.

Together, Skirvin and Certain filled an estimated 60,778 prescriptions, the investigation alleged, and the Indiana Medicaid program was overbilled for fees to which the unlicensed pharmacists were not entitled.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Indiana Decisions

Ind. Decisions - Transfer list for week ending February 5, 2010

I'm told: "The Court did not issue any transfer orders last week."

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In Roger L. Morris v. State of Indiana , a 9-page opinion, Judge Crone writes:

Roger L. Morris appeals his conviction for class D felony theft and habitual offender finding. We find the dispositive issue to be whether the trial court erred by failing to instruct the jury on conversion as a lesser-included offense of theft. We reverse and remand for retrial. * * *

In our view, Morris’s case is one which illustrates the elusive difference between the crimes of theft and conversion as laid out by our legislature. Here, Morris entered the J.C. Penney store and stuffed clothes into a black plastic garbage bag, thus exerting control over the merchandise. Department and clothing stores generally allow customers to carry merchandise which has not yet been purchased throughout the store as they shop. In fact, customers are expected to move about the store while selecting items to try on in a fitting room or while simply making a decision about whether to make a purchase. Moreover, a customer might place the unpurchased items in a cart or shopping bag provided by the store. These are all examples of exerting authorized control over store property. On the other hand, if someone moves or hides unpurchased items within the confines of a store with no intent or ability to purchase them, then the person exerts unauthorized control over that property. In this case, Morris had no cash, checks, or credit cards on his person and thus no way to purchase any of the clothing in the garbage bag. Clearly, he exerted unauthorized control over those items and does not dispute that fact. * * *

Also, we think that if the criminal conversion and theft statutes are indeed one and the same, then they violate the Proportionality Clause, which is contained in Article 1, Section 16 of the Indiana Constitution. * * *

In sum, if criminal conversion as a class A misdemeanor and theft as a class D felony are indeed two different crimes as outlined by our legislature, then the trial court abused its discretion by failing to instruct the jury as to the lesser-included offense of conversion. If the elements of conversion and theft have no practical difference, then the rule of lenity and/or the proportionality clause of the U.S. Constitution would entitle Morris to have the jury instructed on both crimes. Reversed and remanded for retrial.

RILEY, J., concurs.
VAIDIK, J., concurs in result.

In Cathy A. Crawley v. State of Indiana, a 13-page, 2-1 opinion, Judge Vaidik writes:
Cathy Crawley appeals her conviction for Class C felony operating a motor vehicle after driving privileges are forfeited for life. Although nobody witnessed Crawley operate the motor vehicle, we conclude that the State presented sufficient circumstantial evidence from which the trier of fact could conclude beyond a reasonable doubt that Crawley operated the motor vehicle. We therefore affirm her conviction. * * *

When taken as a whole, the substantial circumstantial evidence supports the trial court’s inference that Crawley operated the car, ultimately driving it into Jones’ pool. Shortly after the accident, Crawley was found alone and seriously impaired at the scene. Multiple times she referred to the motor vehicle as “my car.” She initially lied about who she was with but eventually admitted to being alone, and she attempted to evade contact with the police. We therefore affirm Crawley’s conviction for operating a motor vehicle after driving privileges are forfeited for life. Affirmed.

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 12] I respectfully dissent. The majority makes light of the fact that no eye witness ever placed Crawley in the driver’s seat of the car. Appellate cases dealing with the sufficiency of the evidence to prove operation of a vehicle usually include fact patterns where a witness has found the defendant in the driver’s seat of the vehicle alleged to have been operated. * * *

I believe that the evidence, taken together, creates a probability that Crawley operated the vehicle, but this probability is less than beyond a reasonable doubt. Although we often state that it is not our function to reweigh the evidence, when we compare the evidence presented by the State here to the evidence in Parks, Clark, and Hiegel it is a break from our precedent to affirm Crawley’s conviction.

NFP civil opinions today (6):

Michael J. Brown v. Debra Wyandt (NFP) - "Debra Wyandt, individually and in her capacity as trustee of the Debra Wyandt Revocable Trust (collectively “Wyandt”), brought suit in Hamilton Superior Court against Michael J. Brown, individually and in his capacity as trustee of the Michael J. Brown Revocable Trust (collectively “Brown”). The parties eventually entered into an agreed order (the “Agreed Order”) pending final resolution of the litigation between them. The trial court subsequently granted Wyandt’s request for partial distribution pursuant to the Agreed Order. Brown appeals and argues that the trial court erred in granting Wyandt’s request. We affirm."

A & M Farm Center, Inc. v. AGCO Finance, LLC f/k/a Agricredit Acceptance Co. (NFP) - "We acknowledge that our supreme court has held: “if one of two innocent parties must suffer due to a betrayal of trust – either the principal or the third party – the loss should fall on the party who is most at fault. Because the principal puts the agent in a position of trust, the principal should bear the loss.” [cites omitted] A jury may very well determine that A&M is the most at fault and should suffer the loss here. However, a jury may alternatively determine that, despite the fact that Leek was, no doubt, processing AGCO agreements in his capacity as vice-president and manager of A&M, several key differences exist in the personal transactions he conducted with AGCO, which we highlighted and discussed. Because genuine issues of material fact exist regarding whether Leek had actual, apparent, or inherent authority to enter into the Cable Tech agreements with their full recourse provisions on behalf of A&M, we conclude that the trial court erred by granting summary judgment to AGCO. We reverse and remand."

Elvera D. Nicholson (formerly Defelice) v. Carlee, Inc. d/b/a Leroy's Hot Stuff (NFP) - "While we are sensitive to an employer “playing fast and loose with wage obligations,” St. Vincent Hospital., 766 N.E.2d at 706 (Boehm, J., concurring), that is not what occurred here. Carlee paid Nicholson her final wages as soon as her whereabouts became known. Nicholson has failed to meet her burden to demonstrate that Carlee violated the Wage Payment Statute. Thus, she is not entitled to the penalties outlined by Indiana Code Section 22-2-5-2.4"

Richard and Susan Reger v. City of Auburn Board of Zoning Appeals (NFP) - "Richard and Susan Reger (“the Regers”) sought a writ of certiorari in the DeKalb Superior Court challenging the City of Auburn's decision to issue permits to an adjoining landowner to make improvements to the duplex on the property. The trial court denied and dismissed the writ after concluding, in part, that the Regers had not established that they were an aggrieved party, and therefore, that they lacked standing to appeal the issuance of the permits. We address only the following dispositive issue: whether the Regers lacked standing to challenge the issuance of the permits. We affirm. * * *

"In this case, the Regers failed to present any evidence that would establish that the issuance of the permits to Weinbrenner infringed upon a legal right of the Regers, which resulted in a pecuniary injury. For this reason, we conclude that the trial court properly concluded that the Regers were not aggrieved parties, and therefore, that they lacked standing to challenge the BZA's decision."

Three Little Birds, LLC v. Stone Manor Investment Corp., Linda Beacham and Daniel Hanley (NFP) - "In sum, we conclude that summary judgment is precluded on the claims relating to the scope of the express easement, the existence of an implied easement of necessity, and civil and criminal trespass prior to a determination regarding ownership of the strip of land in question and that the trial court properly granted summary judgment in favor of Stone Manor on Three Little Birds's claim of tortious interference with contract. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings."

Linda K. Cecil v. Rex W. Cecil (NFP) - "Linda K. Cecil (“Linda”) appeals the trial court's order denying her petition to hold her ex-husband, Rex W. Cecil (“Rex”), in contempt and raises the following issue: whether the trial court erred when it concluded that Rex was not in contempt for failing to timely refinance certain real estate in accordance with the court-ordered deadline. We affirm."

NFP criminal opinions today (11):

Toby E. Vautaw v. State of Indiana (NFP)

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

Don Chavis v. State of Indiana (NFP)

William H. Carnahan v. State of Indiana (NFP)

Danny Stewart v. State of Indiana (NFP)

Jeremy Jamison v. State of Indiana (NFP)

Larry R. Bradley v. State of Indiana (NFP)

Walter Hawkins v. State of Indiana (NFP)

Jonathan R. Crane v. State of Indiana (NFP)

Brandon Serna v. State of Indiana (NFP)

Timothy Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Ind. App.Ct. Decisions

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

In Dan Helcher, et al. v. Dearborn County Board of Zoning Appeals (SD Ind., Barker), a 36-page opinion, Judge Rovner writes:

Cincinnati Bell Wireless, LLC (“Bell”) applied for a conditional use permit to construct a wireless communication facility (essentially, a cellphone tower) on property owned by Dan and Merry Helcher in Dearborn County, Indiana. When the local Board of Zoning Appeals (“Zoning Board” or “Board”) denied the application, Bell sued the Board and its members for violating various provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332(c). The district court granted summary judgment in favor of the defendants, and Bell appeals. We affirm. * * *

After the testimony, Zoning Board member Patricia Baker moved to deny the application for a special use permit. By a vote of three to one, the Zoning Board denied the application. At the May 2006 meeting of the Zoning Board, many disputes arose during the process to approve the minutes of the March meeting. Members of the Zoning Board, representatives of Bell and the Helchers, and objecting landowners all suggested numerous revisions to the minutes. Unable to agree on many points, the Board tabled approval of the minutes until the next meeting. In early June 2006, the plaintiffs asked the Board not to approve the revised minutes and also requested that the Board reconsider its decision to deny the permit application. At the June meeting, the Board approved the minutes as revised (“Minutes”) and denied the plaintiffs’ request to reconsider the denial of the permit application.

The next month, Bell and the Helchers filed a complaint against the Board and its individual members, alleging several violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c) (the “Act”). Count I alleged that the Board’s decision was not based on substantial evidence contained in a written record, as required by 47 U.S.C. § 332(c)(7)(B)(iii). Count II asserted that the approved Minutes of the March 14, 2006 Zoning Board meeting did not constitute a sufficient written decision as required by 47 U.S.C. § 332(c)(7)(B)(iii). In Count III, the plaintiffs contended that the Zoning Board’s decision unreasonably discriminated against Bell, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(I). Count IV maintained that the Zoning Board’s decision had the effect of denying the provision of wireless communication services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). Counts V though IX, which are not at issue in this appeal, alleged violations of the Constitution and the civil rights of the applicants.

The district court granted the defendants’ motion for partial summary judgment on the first four counts of the complaint. Helcher v. Dearborn County, 500 F.Supp.2d 1100 (S.D. Ind. 2007). The court rejected the plaintiffs’ claim that the Zoning Board Minutes were an inaccurate recording of what went on during the meeting and that the Minutes were not adequate to meet the Act’s requirement that the decision be “in writing.” The court found that a written decision was adequate so long as it informed the applicant of the local government’s decision denying the application. In this instance, the court found, the meeting Minutes fulfilled this requirement because the Minutes enabled the court to efficiently judge the Board’s findings and conclusions against the record. The court also noted that the Minutes supplied the reasons underlying the Zoning Board’s decision by noting the sections of the Ordinance which the applicants failed to satisfy. The court found that the Minutes allowed for meaningful judicial review of the decision, and that no more was required by the Telecommunications Act. The court also found that the Zoning Board’s decision was supported by substantial evidence, that the denial of the permit did not effectively prohibit the provision of wireless service, and that the Zoning Board did not unreasonably discriminate among wireless service providers. Bell appeals. * * *

We proceed then to the merits of the appeal.


The Act requires that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Bell and the Helchers contend that the Zoning Board’s decision does not comply with the Act’s requirement that the decision must be “in writing.” What is necessary for an adequate writing under the Telecommunications Act is an issue of first impression in our circuit.[3] There are differing views among the circuits as to what constitutes an adequate writing. * * *

We join the First, Sixth and Ninth Circuits, the majority of the courts that have reached this issue. The “in writing” requirement is met so long as the written decision contains a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons. * * *

On the threshold question of whether the Minutes met the “in writing” requirement, we conclude that the Minutes met the standard we set forth above.

[3] Although the Seventh Circuit has yet to rule on the “in writing” requirement, our own Judge Cudahy considered the question when sitting by designation on the Ninth Circuit. See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 721-23 (9th Cir. 2005) (Cudahy, J., writing for the panel). We are greatly aided by his analysis.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Appeals court sides with Greenfield homeowner"

Marilyn Elliott and Michael Elliott v. JP Morgan Chase Bank, et al., a Feb. 3rd decision by the Court of Appeals (see ILB summary here), was the subject of a story yesterday by Jeff Swiatek that appeared in the printed Indianapolis Star, but somehow missed the online version. Here it is:

In what it called a "Kafkaesque" case involving a Greenfield homeowner and the nation's largest bank, the Indiana Court of Appeals has come out in favor of the homeowner.

The court reversed a default judgment by a Hancock County court against the homeowner and ordered that a trial be held before banking giant JPMorgan Chase can carry out a foreclosure and eviction.

"The Kafkaesque character of this litigation is difficult to deny," the appeals court wrote in its 10-page opinion issued last week.

Evidence in the case shows Chase bank was unaware of the 2006 foreclosure against the plaintiffs, Marilyn and Michael Elliott, Greenfield, and in fact had declared the Elliotts' mortgage to be paid off. The servicer of the Chase mortgage on the Elliotts' house, Ocwen Financial Corp. of West Palm Beach, Fla., pursued an eviction even though Chase indicated the Elliotts had paid off the mortgage, and carried out a sheriff's sale of the property.

There's no proof that the Elliotts were ever told of the sheriff's sale before it occurred, the appeals court said.

The Elliotts' attorney, Thomas E.Q. Williams, Greenfield, said the couple found out about the sale only when an Ocwen representative showed up with a moving van to evict them.

Told of the court's ruling this week, Marilyn Elliott "was in tears" of happiness, Williams said. "She's been through so much trying to keep her home," which her father built many years ago, he said.

Williams said Indiana courts have traditionally favored the lender in foreclosure disputes, so "hopefully this opinion will give some homeowners . . . hope that summary procedures to take their home away from them can be challenged. A homeowner has challenged the largest bank in the country, and a court in Indiana has listened to them."

Chase's Cincinnati attorney, Sarah Okrzynski, didn't return a call for comment.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Ind. App.Ct. Decisions

Law - Possible recess appointment for Dawn Johnsen floated

Manu Raju of Politico reports today:

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? * * *

Some are urging Obama to install some of his nominees during the Presidents Day recess the week of Feb. 15. On the top of the list: Craig Becker, Obama’s controversial, labor-backed nominee for the National Labor Relations Board.

Democrats will try to get the 60 votes necessary to break a GOP filibuster on Becker’s nomination Monday. But with the arrival of Sen. Scott Brown (R-Mass.), they’ve got just 59 likely votes, and it’s not clear whether they can persuade a single Republican senator to cross over on the cloture motion. * * *

In addition to Becker, there are a number of controversial appointments whose recess appointments could inflame Republican passions — including Dawn Johnsen, Obama’s nominee to head the Justice Department’s Office of Legal Counsel. Democrats said Obama could be on safer political ground if he uses early recess appointments to install national security nominees, including four to senior positions in the Pentagon.

ILB Note: Part of the Politico story turns on Senator Shelby's blanket hold on all Obama nomintees. That hold was lifted this morning.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to General Law Related

Ind. Law - Ignition interlock bills move to second house

A long ILB entry from Nov. 21, 2009 was headed "More on: "Tippecanoe County superior court judge Michael Morrissey is one of the few Indiana judges who uses ignition interlocks". Access it here.

A story by Kevin Allen of the South Bend Tribune reports:

Habitual traffic violators, including those with histories of drunken driving, would have to submit to stricter monitoring if two bills moving through the General Assembly become law.

Senate Bill 221 would require people with restricted driver’s licenses to submit to sobriety tests when stopped for other traffic violations, wear a device that detects and records their use of alcohol, and install an ignition interlock device on their vehicles.

An ignition interlock requires an alcohol-free breath sample from the driver before the vehicle will start.

"There’s been some confusion as to how far judges and courts can go when they have an individual in this situation. This eliminates any confusion," said Sen. John Broden, D-South Bend, who wrote the bill with Sen. Tom Wyss, R-Fort Wayne.

Senate Bill 247 is another bill that calls on courts to make greater use of ignition interlocks to curb drunken driving.

Under that bill, a person convicted of operating while intoxicated could be prohibited from driving for at least 90 days unless his or her vehicle is equipped with an ignition interlock.

Sen. Joe Zakas, R-Granger, is one of the authors of SB 247. He said the bill is intended to encourage judges to employ a technique that already is available to them.

"We’ve been strengthening and toughening our drunk driving laws for years, but there is always more that needs to be done," Zakas said. "This is part of that effort."

Both SB 221 and SB 247 easily passed the Senate last week and are now being considered in the House Judiciary Committee.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Indiana Law

Environment - Stories on CAFOs, Pines coal ash, Asian Carp, Biomass plants [Updated]

A number of Indiana environmental stories today:

[Updated at 12:30 PM] More on CAFOs. See this letter today in the Fort Wayne Journal Gazette, headed "Lawmakers allowing pollution by CAFOs", that begins:
What follows is a report on the efforts to get some legislation that requires responsible operation of the confined animal feeding operations in Indiana.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Environment

Ind. Law - More on "The government has your baby's DNA "

Updating this ILB entry from Saturday, Feb. 6th, USA Today has a long story today headed "Debate over blood samples from babies." It begins:

WASHINGTON (AP) — A critical safety net for babies — that heelprick of blood taken from every newborn in the U.S. — is facing an ethics attack.

After those tiny blood spots are tested for a list of devastating diseases, some states are storing them for years. Scientists consider the leftover samples a treasure, both to improve newborn screening and to study bigger questions, like which environmental toxins can harm a fetus' developing heart or which genes trigger childhood cancers.

But seldom are parents asked to consent to such research — most probably do not know it occurs — raising privacy concerns that are shaking up one of public health's most successful programs. Texas is poised to throw away blood samples from more than 5 million babies to settle a lawsuit from parents angry at what they call secret DNA warehousing. A judge recently dismissed a similar lawsuit in Minnesota.

Michigan just moved 4 million leftover blood spots into a new "BioTrust for Health," planning a public education campaign about the research potential and how families can opt out.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Indiana Law

Courts - Cheek swabs and the 4th amendment

On Jan. 11, 2010, the Indiana Supreme Court heard oral argument in the case of Arturo Garcia-Torres v. State of Indiana (64S03-0912-CR-550, Porter Co.). Here is the summary from this Jan. 11, 2010 ILB entry:

Garcia-Torres was convicted of rape and burglary in the Porter Superior Court. The Court of Appeals affirmed, holding among other things that taking a cheek swab to obtain a DNA sample requires "reasonable suspicion", obtaining a swab is not subject to the advice-of-counsel requirements in Pirtle v. State, and the trial court properly denied the defense’s motion to suppress evidence. Garcia-Torres v. State, 914 N.E.2d 268 (Ind. Ct. App. Sept. 30, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

[See the ILB summary of the 2-1 COA opinion here. From the dissent: "I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle."]

According to p. 4 of the Indiana Court of Appeals opinion:
On June 13, 2005, Valparaiso police brought Garcia-Torres in for questioning. Valparaiso Police Detective John Ross questioned Garcia-Torres about the attack on S.P., followed by Valparaiso Police Detective Thomas Horn, who questioned Garcia-Torres about the rape of M.S. At the beginning of Detective Horn‘s interview with Garcia-Torres, he requested and received consent to collect a DNA sample via a swab from the inside of Garcia-Torres‘s cheek.
Yesterday evening Prof. Eugene Volokh posted this discussion of the issue, based on California federal decisions. Here is how Volokh's analysis of the decisions begins:
Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

The readers' comments are also interesting.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Courts in general | Indiana Decisions

Environment - "State lawmakers laying plans for coal-gas pipeline"

Updating earlier, and worth reviewing, ILB entries, including "Still more on: Governor signs first bill of 2009 session" from Nov. 25, 2009, and "Voices aired on Rockport gasification plant" from Dec. 4, 2009, Evan Shields has a story today in the Evansville Courier & Press, headed "State lawmakers laying plans for coal-gas pipeline." The bill, SB 115, has passed the Senate.

Posted by Marcia Oddi on Tuesday, February 09, 2010
Posted to Environment

Monday, February 08, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Gatlin Plumbing & Heating, Inc. v. Estate of Robert Yeager , a 16-page, 2-1 opinion, Judge Darden writes:

Gatlin Plumbing & Heating, Inc. (“Gatlin”) appeals the denial of its objection to the trial court's order in the Matter of the Estate of Robert H. Yeager (“the Estate”) that directed the transfer of 63 shares of Gatlin capital stock held by the late Robert H. Yeager (“Robert”). We affirm. * * *

KIRSCH, J., concurs.
MAY, J., dissents with separate opinion. [that begins, at p. 13] The decision by Yeager's heirs not to open an estate, even though the decedent's assets exceeded the $50,000 limit, should not permit them to circumvent the shareholder's agreement to which Yeager was a party. I must therefore respectfully dissent.

Lei Shi v. Cecilia Yi, et al. "Lei Shi appeals the trial court’s grant of a motion to dismiss and a motion for summary judgment filed by Your Title Company, LLC d/b/a Enterprise Title (“Enterprise”). Shi raises three issues, which we revise and restate as whether the trial court erred in granting Enterprise’s motions to dismiss and for summary judgment as the cause of action relates to Enterprise. We affirm."

In A.S. v. T.H. , a 9-page opinion, Judge Darden writes:

A.S. appeals the trial court's order of protection against her pursuant to a petition filed by T. H. We affirm. * * *

We return to the legislature's stated purpose that the Act provide a mechanism for a protective order that promotes the protection and safety of all victims of domestic violence and prevents future domestic violence. See I.C. § 34-26-5-1. The Act authorizes an order of protection that would prohibit the respondent “from harassing, annoying, telephoning, contacting,” or communicating with the petitioner, I.C. § 34-26-5-9(b)(2); to order the “relief necessary to provide for the safety and welfare of a petitioner and each designated family or household member,” and “necessary to bring about a cessation of the violence or the threat of violence,” as well as I.C. § 34-36-5-9(b)(2), (b)(6), and (f). Here, the trial court was presented with facts indicating physical violence by A.S. and a pattern of acts directed at harassing T. H.'s household. The trial court took action as authorized by statute in order to maintain the peace and to prevent the occurrence of any future domestic violence. We find sufficient evidence of probative value and reasonable inferences supports its issuance of the protective order. Tons, 815 N.E.2d at 511.

In Samuel Hampton v. State of Indiana , a 9-page opinion, Judge Brown writes:
Samuel Hampton appeals his conviction for child molesting as a class A felony.1 Hampton raises one issue, which we revise and restate as whether the evidence is sufficient to sustain Hampton's conviction. On cross appeal, the State raises one issue, which we revise and restate as whether the sentence imposed by the trial court is illegal. We affirm.
NFP civil opinions today (2):

Term. of Parent-Child Rel. of N.W.; E.W. & M.W. v. IDCS (NFP) - "Mother next argues that the termination of her parental rights violates the Indiana Constitution’s Article 1 Section 30 prohibition on corruption of blood. Mother’s argument shows a fundamental misunderstanding about the nature and purpose of parental rights termination. The purpose of terminating parental rights is not to punish the parent (and certainly not the child) for the parent’s status, poor choices, or crimes. Rather, its primary, well-established purpose is to protect the child and ensure that the child’s best interests are served. The Article 1 Section 30 prohibition on corruption of blood bears no relation to and does not affect the process of termination of parental rights."

Matter of the Unsupervised Estate of Darwin Schultz; Daryl Schultz v. Judge Robert Hall, et al. (NFP) - "Daryl Schultz (“Schultz”), an heir of the Estate of Darwin Schultz (“the Estate”), filed pro se in Jackson Superior Court a “Verified Petition for Relief from Frauds, Illegalities and Wrongfully Intending Perpetrated In Connection with the Estate of Darwin L. Schultz” against Judge Robert Hall, Ned Tonner, Donald Shelmon, Robert Gabrielse, and Thomas Fritts (collectively “the Respondents”). After concluding that Shultz lacked standing to assert the claims raised in his petition, the court dismissed all claims pending against the Respondents. Schultz pro se appeals the trial court's finding that he lacked standing to raise the claims set forth in his petition. We affirm."

NFP criminal opinions today (4):

Keith McCoy v. State of Indiana (NFP)

Robert Hawkins v. State of Indiana (NFP)

Kevin L. Hampton v. State of Indiana (NFP)

Robert M. Foy, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 08, 2010
Posted to Ind. App.Ct. Decisions

Courts - "A former bank robber, Shon R. Hopwood emerged from more than a decade in federal prison as a skilled Supreme Court practitioner"

Adam Liptak of the NY Times has a pretty amazing story today. Here is a sample:

Mr. Hopwood spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars — an accomplished Supreme Court practitioner.

He prepared his first petition for certiorari — a request that the Supreme Court hear a case — for a fellow inmate on a prison typewriter in 2002. Since Mr. Hopwood was not a lawyer, the only name on the brief was that of the other prisoner, John Fellers.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Mr. Waxman agreed to take the case on without payment. But he had one condition.

“I will represent you,” Mr. Waxman recalled telling Mr. Fellers, “if we can get this guy Shon Hopwood involved.”

Mr. Fellers said sure. “It made me feel good that we had Shon there to quarterback it,” Mr. Fellers said.

The former solicitor general showed the bank robber drafts of his briefs. The two men consulted about how to frame the arguments, discussed strategy and tried to anticipate questions from the justices.

The case was about whether the police had crossed constitutional lines in questioning Mr. Fellers, who had been convicted of a drug conspiracy. Mr. Hopwood said he thought persuading Justice Sandra Day O’Connor would be crucial.

In January 2004, Mr. Waxman called Mr. Hopwood at the federal prison in Pekin, Ill. They had won a 9-to-0 victory. Justice O’Connor wrote the opinion.

Posted by Marcia Oddi on Monday, February 08, 2010
Posted to Courts in general

Environment - Asian carp talks today at White House "may miss bigger lake challenge"

Dan Egan of the Milwaukee Journal-Sentinel had this long and thorough story Sunday that began:

The focus of Monday's White House Asian carp summit is to stop the giant, ecosystem-ravaging fish from slipping in the Great Lakes' back door - the Chicago canal system that links the Great Lakes and the Gulf of Mexico.

But the governors who called for the summit don't just want to talk about carp; they want the Obama administration to tackle the larger issue of invasive species in the Great Lakes, which have become an ecological stew teeming with at least 185 foreign organisms.

And if that discussion is going to occur, it will be impossible for regional and national leaders to ignore what's going on at the lakes' front door - the St. Lawrence Seaway, a manmade navigation corridor between the Great Lakes and the Atlantic Ocean.

That's the invasive species pathway biologists say poses the most trouble for the Great Lakes, even if Chicago canals and Asian carp are grabbing all the attention at the moment.

Oceangoing ships dumping contaminated ballast water are blamed for 57 species invasions since Seaway builders blasted their way into the lakes 51 years ago.

Those species include the quagga mussel that now carpets the bottom of Lake Michigan and has literally turned life in the lake into a shell of what it once was - the population of prey fish, which sustain big fish like salmon, has dropped to less than 10% of what it was before invasive mussels arrived two decades ago.

And despite Obama's 2008 campaign pledge of a "zero tolerance" policy for new Great Lakes invasions and the billions of dollars he plans to spend on the lakes' restoration, the Seaway door to future invasions remains open. The federal government released a report last year that spotlighted 30 species that have yet to colonize the lakes but are medium- to high-risk candidates to do so.

Posted by Marcia Oddi on Monday, February 08, 2010
Posted to Environment

Ind. Gov't. - Reader baffled by AG Zoeller's reported affirmance rate on criminal appeals [Updated]

In this entry from Jan. 29, 2010, the ILB linked to two press releases of Attorney General Greg Zoeller. announcing his first-year accomplishments and future plans. From the AG's list of accomplishments:

3. * * * Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year. Zoeller met with county prosecutors on lower-court cases headed for appeal.
The ILB has received the following note from Joel Schumm, a Clinical Professor of Law at Indiana University School of Law -- Indianapolis, where he directs the Appellate Clinic and litigates several appeals each year.
Third on the Attorney General’s press release of “accomplishments” for 2009 was “Criminal Appeals: Representing the State in the Court of Appeals and Indiana Supreme Court, the Attorney General's Office has a 95.6 percent success rate in getting convictions or sentences affirmed on appeal, sparing crime victims (and taxpayers) the burdens of retrial. That's up from the 94 percent success rate the previous year.”

I find those numbers baffling, at best.

I follow criminal appeals closely, and the Court of Appeals’ annual reports routinely report about an 85-87% affirmance rate in both criminal and Post-Conviction Relief (PCR) appeals. The Indiana Supreme Court does not report similar numbers, but the Court issues only about forty opinions in criminal or PCR cases each year. Here’s how I do the math, relying on the Court of Appeals’ annual reports and a quick count of Indiana Supreme Court opinions:


Court of Appeals
Criminal & PCR: 1467 affirmed (86.3%) / 213 reversed / 20 remanded.

Indiana Supreme Court
Criminal & PCR: 30 affirmed (68.2%)/ 14 reversed

­2008 Combined percentage: 85.8%


Court of Appeals
Criminal & PCR: 1392 affirmed (86.3%)/ 207 reversed / 14 remanded

Indiana Supreme Court
Criminal & PCR: 26 affirmed (66.7%)/ 13 reversed

2009 Combined percentage: 85.8% affirmed

Prof. Schumm's note concludes: "How does the Attorney General come up with percentages nearly ten points higher?"

In response to an inquiry from the ILB, Bryan Corbin, spokesman for the AG, writes:

I am advised that the 95.6 percent figure for calendar-year 2009 includes all state appellate cases (including Indiana Supreme Court, not just Court of Appeals). The synopsis is that the search started with all opinions in criminal cases where the State of Indiana was a party and where Greg Zoeller's name appears as counsel, and then involved locating those with "affirmed" or "reversed" results within those results. (A "win" for the state is a reversal when we are the appellant.)
[Updated at 12:14 PM] Jon Laramore, who leads the appellate group at Baker & Daniels LLP, has sent this note:
It’s possible that the differences in reversal rates stem from how the counting is done. In a fair number of cases, something is reversed or vacated but something else is affirmed. For example, the conviction could be affirmed but the sentence vacated or changed. Or the conviction on one count could be affirmed and on another count reversed. Depending on how these are counted, quite different percentages could be calculated. The attorney general’s language you quote refers to “getting convictions or sentences affirmed” (emphasis added), and that may show something about how the counting was done.

Posted by Marcia Oddi on Monday, February 08, 2010
Posted to Indiana Courts | Indiana Government

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

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

From Sunday, Feb. 7, 2010:

From Saturday, Feb. 6, 2010:

Posted by Marcia Oddi on Monday, February 08, 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 2/8/10):

Next week's oral arguments before the Supreme Court (week of 2/15/10):

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 2/8/10):

Tuesday, February 9th

Thursday, February 11th

Next week's oral arguments before the Court of Appeals (week of 2/15/10):

Next Wednesday, February 17th

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

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

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, February 08, 2010
Posted to Upcoming Oral Arguments

Sunday, February 07, 2010

Courts - "States Weigh Judicial Recusals: Some Judges, Businesses Oppose Restrictions on Cases Involving Campaign Contributors"

The Jan. 26, 2010 WSJ has a story by Nathan Koppel that began:

More states are responding to a longstanding concern that elected judges risk the appearance of bias when they hear cases involving their campaign contributors. But recent examples from Wisconsin and Nevada show that some states are reluctant to force judges to disqualify themselves from cases solely because they have received large contributions.

The U.S. Supreme Court last year prompted states to tackle the issue of potential bias after it held in a case involving Justice Brent Benjamin of West Virginia that judges may need to recuse themselves when parties that have spent substantial sums to help elect the judges appear before them. The court, in a landmark opinion Thursday, eliminated limits on campaign spending by corporations.

About 10 states, including California and Texas, have proposed new judicial-disqualification rules in the wake of last year's Supreme Court ruling. But overhaul efforts have met resistance from judges and businesses who oppose restraints on judges' ability to raise campaign funds and on voters' rights to financially support favored candidates. Critics say an array of people would be less likely to donate to campaigns should these types of laws be put on the books.

"States are looking at recusal more seriously, but most are not yet creating more rigorous recusal practices," says Charles Geyh, a law professor at Indiana University who specializes in judicial-ethics issues.

The story concluded:
Last Thursday's landmark opinion [in Citizens United v. FEC] heightens the need for strict disqualification rules, says J. Adam Skaggs, an attorney with the Brennan Center for Justice at New York University School of Law, which is in favor of the public financing of judicial candidates. The ruling "will only exacerbate the trend of escalating, arms-race spending in judicial elections as corporations, unions and special interests seek to buy control of the bench," he says.

"If you are going to elect judges, you can't cut off their speech rights," counters Bradley Smith, chairman of the Center for Competitive Politics, which opposes campaign-spending limits. "The ability to raise money and get your message out is an element of speech."

Zach Lowe of The American Lawyer wrote Jan. 20, 2010 in an article titled "Sorting Out 'Caperton' in the Midwest." The article begins:
Wisconsin is about to join Michigan as the second state to sort out the thorny issue of recusal and judicial elections in the wake of the U.S. Supreme Court's decision in Caperton v. Massey last year, according to lawyers we spoke to on Tuesday and this piece in the Milwaukee Journal Sentinel.

And the two states are set to take very different strategies.

Indiana's appellate justices and judges are appointed, and are subject to a yes/no retention vote every 10 years. County judges, however, are for the most part, elected. The Indiana Code of Judicial Conduct, Rule 2.11, Disqualification, and Rule 4.4, Campaign Committees, particularly Comment #3, appear to be relevant.

Posted by Marcia Oddi on Sunday, February 07, 2010
Posted to Courts in general

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

Updating this Jan. 28th ILB entry, Grace Schneider of the Louisville Courier Journal attended another public meeting, this one in Scott County, and reported on it in this Feb. 4th story. Her earlier story was headed "Defining 'clean' wood is key for biomass power projects." This one is headed "Biomass plant foes pack Scott meeting: IDEM says permitlikely to be issued." Some quotes:

SCOTTSBURG, Ind. — Opponents of a proposed biomass energy plant in Scott County peppered environmental regulators with questions about the project at a public meeting this week — and sought to rally other residents to join the fight against it.

Critics told the more than 400 people who turned out Wednesday night at Scottsburg High School that the best chance to derail the planned $100million wood-burning power plant was to pressure local political leaders who support the project, rather than expect help from the Indiana Department of Environmental Management.

During a meeting that lasted nearly six hours, representatives of the state agency conceded that despite concerns about the location of the plant on U.S. 31 near a school and other potential impacts on the community, IDEM has a narrowly defined role in examining technical details and ensuring the plans meet all state and federal requirements.

“I have yet to hear anything to suggest this permit could not be issued,” Matt Stuckey, chief of the agency's air permitting division, said at one point. * * *

No one representing Liberty Green Renewables LLC of Harrison County, the partnership seeking to build the plant and a similar facility near Milltown in Crawford County, spoke at the meeting.

It was set up to let residents question IDEM officials about the proposed permit that would outline emission limits and other aspects of the power station.

The facilities would burn wood to generate electricity to sell to utilities across the region.

Proposed permits for both plants would limit Liberty Green to 245 tons of nitrogen oxide emissions and 226 tons of carbon dioxide emissions a year — amounts that are below thresholds to qualify the operations as “major sources” of pollution and necessitate more extensive impact studies and pollution-control devices. * * *

Dennis Murnane drew applause when he asked Stuckey and two other IDEM officials what he might include in written comments to “get you to reject the permit.”

The men replied that it was unlikely his comments would persuade them to do that. * * *

The works board — composed of Mayor Bill Graham, Charles Rose and Ray Zollman — has been criticized by City Council member Terry Amick, who filed a lawsuit Wednesday claiming the board overstepped its authority by optioning city-owned property to Liberty Green without the council's approval.

Stuckey, however, said he doubted the litigation would affect IDEM's decision.

State regulations dictate that the agency deal with the permit regardless of other property or zoning aspects, he said.

Regulators acknowledged, meantime, that they're considering allowing Liberty Green to burn switch grass along with “clean” wood at the plant, pending an analysis of emissions data for switch grass.

Stuckey also said IDEM is reviewing new information submitted by the company about the height of the plant's smokestack.

The Bloomington Alternative has a long story by Linda Greene, dated Feb. 7th, and headed "Citizens fight biomass incinerator in Crawford County."

Posted by Marcia Oddi on Sunday, February 07, 2010
Posted to Environment

Saturday, February 06, 2010

Ind. Law - "The government has your baby's DNA "

That is the supermarket tabloid-type headline to this Feb. 4, 2010 CNN story by Elizabeth Cohen. Here are some quotes:

Newborn babies in the United States are routinely screened for a panel of genetic diseases. Since the testing is mandated by the government, it's often done without the parents' consent, according to Brad Therrell, director of the National Newborn Screening & Genetics Resource Center.

In many states, such as Florida, where Isabel was born, babies' DNA is stored indefinitely, according to the resource center.

Many parents don't realize their baby's DNA is being stored in a government lab, but sometimes when they find out, as the Browns did, they take action. Parents in Texas, and Minnesota have filed lawsuits, and these parents' concerns are sparking a new debate about whether it's appropriate for a baby's genetic blueprint to be in the government's possession.

"We were appalled when we found out," says Brown, who's a registered nurse. "Why do they need to store my baby's DNA indefinitely? Something on there could affect her ability to get a job later on, or get health insurance."

According to the state of Minnesota's Web site, samples are kept so that tests can be repeated, if necessary, and in case the DNA is ever need to help parents identify a missing or deceased child. The samples are also used for medical research. * * *

Genetic testing for newborns started in the 1960s with testing for diseases and conditions that, if undetected, could kill a child or cause severe problems, such as mental retardation. Since then, the screening has helped save countless newborns.

Over the years, many other tests were added to the list. Now, states mandate that newborns be tested for anywhere between 28 and 54 different conditions, and the DNA samples are stored in state labs for anywhere from three months to indefinitely, depending on the state. (To find out how long your baby's DNA is stored, see this state-by-state list.)

According to the 2009 list, Indiana samples are kept for 23 years.

Without more information as to how and why they are kept, it is hard to know whether retention of these samples should be a matter of concern in Indiana. The Indiana law involved is IC 16-41-17, "Prevention and Treatment Programs: Examination of Infants for Phenylketonuria, Hypothyroidism, and Other Disorders."

Posted by Marcia Oddi on Saturday, February 06, 2010
Posted to Indiana Law

Ind. Courts - Bills of interest to the judiciary that have passed one house

The Legislative Update blog, publishing weekly during the legislative session by the Indiana Judicial Center, has posted this Mid-Session Review.

Posted by Marcia Oddi on Saturday, February 06, 2010
Posted to Indiana Courts

Courts - "Michigan appellate panel says state sex offender registration law does not apply to homeless"

See this Feb. 5, 2010 entry from the Sentencing Law and Policy Blog.

Posted by Marcia Oddi on Saturday, February 06, 2010
Posted to Courts in general

Courts - More on "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases"

Updating this ILB entry from Feb. 4, 2010, here is the NYT report on the decision.

Here is the WSJ's opinion of the decision, that begins:

If you're flying to Chicago soon, see if you can count the plaintiffs lawyers on the plane. They'll be wearing the Italian suits. This week the Illinois Supreme Court torpedoed the state's medical malpractice law, condemning state doctors to liability lotto.

Posted by Marcia Oddi on Saturday, February 06, 2010
Posted to Courts in general

Friday, February 05, 2010

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Robert A. Harper v. Lisa J. Harper (NFP) - "Father seizes upon the above-emphasized language in a futile attempt to blame the trial court for his inability to have his visitation privileges reinstated. The record reveals that reinstatement of prison visits with Father -- a convicted murderer with a history of anger control problems; physical violence, emotional abuse, and manipulation; and drug and alcohol addiction -- was determined by A.A.'s child psychologist and GAL not to be in A.A.'s best interests, and specifically, to pose a significant threat to A.A.'s physical safety and emotional well-being. Inasmuch as Father is attempting to blame others for his present inability to visit with A.A., we are not moved and reject his self-serving attempt to shift responsibility to the trial court from his own shoulders where it squarely belongs. We find no error."

NFP criminal opinions today (3):

Rodney Eugene Perry v. State of Indiana (NFP)

Mark Erler v. State of Indiana (NFP)

Kenneth Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Ind. App.Ct. Decisions

Law - Dawn Johnsen vote in Senate Committee "delayed"

As noted here yesterday and here Feb. 1st, the Senate Judiciary Committee was scheduled yesterday to vote on the re-nomination of Dawn Johnsen. However, it was not to be.

The Judiciary Committee "ran out of time", but, as reported here at Firedoglake, in a footnote: "Chairman Leahy is committed to Johnsen’s nomination, and immediately noticed another Committee business meeting for next Thursday, in which Dawn Johnsen is listed as the first order of business."

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to General Law Related

Courts - "Do 3rd Circuit Rulings Over Student Speech on MySpace Pages Contradict?"

An interesting article today by Shannon P. Duffy of The Legal Intelligencer begins:

Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

For lawyers watching the cases, it became clear during oral arguments in December 2008 and June 2009 that the two panels weren't likely to agree. Since federal appellate courts cannot issue conflicting opinions, court watchers predicted that the entire court might be forced to rehear both cases before an en banc court.

Since Layshock was argued six months before Blue Mountain, some lawyers predicted that Layshock would be handed down first and its ruling would bind the panel in Blue Mountain.

But now the court has confounded the prognosticators by handing down a pair of decisions on the same day that reached opposite results.

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Courts in general

Ind. Law - "Senate bill seeks to clarify meth law"

The ILB has been following two issues related to methamphetamine in Indiana.

  1. Policing purchases of over-the-counter cold medicines to make methamphetamine. See, for example, this Jan. 2, 2010 ILB entry.

  2. Cleaning up after meth. See, for example, this ILB entry from Oct. 29, 2009, and this comprehensive one from July 14, 2009, headed "Illnesses Afflict Homes With a Criminal Past - meth contamination."
Kevin Allen of the South Bend Tribune reported yesterday on legislation that would address the first issue, in a story headed "Indiana Senate bill seeks to clarify meth law: Stores would have to inform customers when buying cold medicines." The bill, SB 285, has passed the Senate. A quote:
The bill will not require people to have a prescription to buy medicines containing ephedrine or pseudoephedrine, but retailers will be able to refuse selling those products to people who have already bought their limit for a given period of time.

In the current system, people can buy more than the limit but will be arrested later. That has led to instances where people unknowingly bought an illegal amount of the decongestants and were arrested, even though they had no plans to make methamphetamine.

One high-profile incident involved a Parke County grandmother who was arrested in July, four months after buying a box of Zyrtec-D for her husband and a box of Mucinex-D for her daughter in the same week.

What of the second issue - dealing with the hazardous residue of meth labs? The ILB is not aware of any legislation even introduced this year to address this problem about which so much has been written in state and national publications.

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Indiana Law

Ind. Courts - Mayor (East Chicago) hires former mayor (Gary) for defense

Andy Grimm reports today in the Gary Post Tribune:

Former Gary mayor Scott L. King, who once worked as a federal prosecutor, will join Fredrick Work at the defense table for George Pabey.

It's the second time in little over a year King has counseled a mayor facing criminal charges. He also defended Dozier Allen, who served as Gary mayor for two months after King resigned the post 2006, against public corruption charges last year.

King is one of the region's top criminal defense attorneys, and he also can sympathize with his client. Federal agents for years besieged Gary City Hall while investigating King's one-time campaign manager, Jewell Harris.

King was scornful of the apparently wide-ranging scope of the federal investigation, which included the indictment and subsequent dismissal of charges against his deputy mayor and several other top administration officials.

King split with Harris shortly after the first subpoenas arrived in Gary. Trucking company owner Harris eventually was charged and convicted for double-billing the city for hauling work done for the downtown Gary baseball stadium.

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Indiana Courts

Environment - More on Asian Carp suit; Wood-fired outdoor boilers

Michigan AG: "Close canal to stop carp: DNA data was kept from U.S. Supreme Court," heads this story today in the Detroit Free Press, reported by Tina Lam. It begins:

Michigan Attorney General Mike Cox filed a renewed request for an immediate injunction Thursday with the U.S. Supreme Court, asking the justices to close locks on the Chicago shipping canal leading to Lake Michigan.

Cox's filing said the request for an injunction was based on new information that was not available to the court when it denied an injunction on Jan. 19.

Cox said the new information was an economic study showing the lock closure would not cause serious economic harm and the fact that federal officials knew days before the court's ruling that there was DNA evidence of Asian carp in Lake Michigan, but failed to tell the court.

The U.S. Army Corps of Engineers got the DNA data on Jan. 15, but didn't make it public until hours after the Supreme Court's rejection of the injunction.

"Oppose pollution-emitting outdoor wood-fired boilers" urges this letter published in the Feb. 3, 2010 Fort Wayne Journal Gazette. The letter supplements this ILB entry from Jan. 7, 2010, headed "Rules proposed again to regulate outdoor wood-fired boilers."

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Environment

Ind. Courts - "Superior Court to survey Warrick Co. residents about Camm"

Matt Thacker reported yesterday in the Jeffersonville News & Tribune:

Surveys will be mailed to 200 randomly selected Warrick County residents to determine how much people in the county know about the David Camm case.

Floyd County Prosecutor Keith Henderson has argued that Camm’s third trial should be held in Warrick County, which is the county that has jurisdiction since the second trial was held there.

Camm’s attorneys filed a petition to change venue to Northern Indiana due to media exposure throughout the southern half of the state.

A court clerk said Superior Court No. 2 Judge Robert Aylsworth wants to determine whether a fair jury can be selected in Warrick County. She said the surveys will likely be mailed within the next couple of weeks.

After parties were unable to agree on a venue, the defense and prosecution were asked to submit proposed survey questions, according to the chronological case summary. The court will review the questions and send them to counsel. Seven days will be allowed for further comment before the surveys are mailed.

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to Indiana Courts

Law - "Take the Money and Run:The crazy perversities of civil asset forfeiture"

Supplementing this ILB entry from Feb. 1, 2010, and recalling the many ILB entries on the controversy surrounding the Delaware County prosecutor's use of the process in drug cases, Radley Balko of Slate has a long article dated Feb. 4, 2010, focusing on Indiana. It begins:

Last month, the Supreme Court tossed out the case Alvarez v. Smith, a challenge to a portion of the asset forfeiture in Illinois that allows the government to keep seized property for up to six months before giving its owner a day in court. The Court declined to rule on the case after determining it to be moot—all of the parties had settled with the government by the time the case made it to Washington.

That's too bad, because the Illinois law should be struck down, and also because the country could benefit from a discussion about the continuing injustice of many states' civil asset forfeiture laws.

Civil asset forfeiture, an outgrowith of the drug war, rests on the legal theory that property can be guilty of a crime. Once authorities establish a nexus between a piece of property and criminal activity—most commonly drug cases, but also prostitution, DWI, and white collar crime—the owner must prove his innocence or lose his property, even if he's never charged with an underlying crime. In most jurisdictions, seized cash and the proceeds from the auctioned property go back to the police departments and prosecutors' offices responsible for the seizure. The scheme, which creates unsavory incentives for public officials, became popular because of a 1984 federal bill designed to encourage aggressive enforcement.

After a number of outrageous forfeiture cases made national headlines, Congress reformed federal civil forfeiture law in 2000. But egregious abuses are still common at the state level. The Indiana case of Anthony Smelley illustrates just how perverse forfeiture proceedings can get.

Posted by Marcia Oddi on Friday, February 05, 2010
Posted to General Law Related

Thursday, February 04, 2010

Courts - "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases"

So reports the WSJ Law Blog this afternoon.

Here is the Chicago Tribune coverage by Bruce Japsen, It begins:

The Illinois Supreme Court struck down the state's medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts.

The much-anticipated ruling, which challenged the constitutionality of damage caps for doctors and hospitals, is being watched closely by the health care industry and employers that see caps on damages as a way to tame rising health care costs.

The ruling could figure in the national health care debate of stalled health care legislation. In the U.S. Senate where Republicans have opposed existing health care reform legislation, the GOP has been vocal about the need for tort reform and caps on damages.

State lawmakers in 2005 passed legislation, which was signed into law by then-Gov. Rod Blagojevich, that established caps on noneconomic damages of $500,000 in cases against doctors and $1 million against hospitals. Illinois followed other states, such as California, that capped damages years ago.

But Justices writing said they were not persuaded by arguments used in other states. "That ‘everybody is doing it," is hardly a litmus test for the constitutionality of the statute," Justices writing for the majority opinion said.

Further, Justices said that what the statute allows for amounts to a "legislative remittur." Chief Justice Thomas Fitzgerald delivered the judgment for the seven-member court and was joined in the opinion by Justices Charles Freeman, Thomas Kilbride and Anne Burke. Justice Robert Thomas took no part in the decision, the ruling said.

Here is the 52-page opinion, Lebron v. Gottlieb Memorial Hospital.

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to Courts in general

Ind. Decisions - One Indiana decision today from 7th Circuit

In Olson v. Brown (ND Ind., Sharp), a 14-page opinion, Judge Flaum writes:

A putative class of plaintiffs, represented by Mark Olson, filed a complaint against the Sheriff of Tippecanoe County, Tracy Brown, alleging several First Amendment violations and violations of Indiana law in the Tippecanoe County Jail. Olson filed for class certification at the same time he filed the complaint. Shortly after Olson filed the complaint and motion for class certification, the Indiana Department of Correction transferred him out of Tippecanoe County Jail. Because the transfer took place before class certification, the district court dismissed the suit as moot. Olson appeals the dismissal on the ground that this case is inherently transitory for any possible named plaintiff and therefore falls within the exception to the mootness doctrine announced in Gerstein v. Pugh, 420 U.S. 103 (1975). We find that this case fits within the exception to the mootness doctrine carved out for inherently transitory cases and therefore we reverse the district court’s dismissal.

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Wall Street Journal, N.Y. Times Face Off Over Dawn Johnsen Nomination"

Ryan J. Reilly has a report today in Main Justice, complete with quotes from the dueling editorials, that begins:

Ahead of today’s scheduled Senate Judiciary Committee vote on Dawn Johnsen, President Obama’s nominee to be the Justice Department’s Office of Legal Counsel, opposing editorials ran this morning in the two of the nation’s top newspapers.

The New York Times wrote that Johnsen, who has been awaiting a vote for more than a year, should be confirmed swiftly. The Wall Street Journal, however, said that “at this point it would serve the best interests of all parties to cut Ms. Johnsen loose.”

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to General Law Related

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

For background, start with this ILB entry from Jan. 26, 2010.

Jeff Wiehe of the Fort Wayne Journal Gazette has an important report today on how Wallace is being interpreted. Wiehe also co-authored this story from Jan. 8, 2010. I was going to highlight passages from today's story, but it turns out I would need to highlight nearly every line:

Indiana Attorney General Greg Zoeller has taken an official stance on a state Supreme Court ruling that threw the sex- and violent-offender registry into disarray.

But a spokesman for Zoeller said accuracy problems with the current registry won’t be fixed overnight.

“We don’t have an immediate fix, but we want to clean up the registry,” said Bryan Corbin, spokesman for the attorney general.

At issue is the state Supreme Court’s ruling last year that Richard P. Wallace, convicted of child molesting in 1989, no longer had to register as a sex offender because the crime was committed before the law that created the registry was enacted in 1994.

In the aftermath, some sheriff’s departments – including Allen County’s – took the ruling to mean anyone who committed a crime before the registry existed should come off the list. Those departments began scrubbing names from local registries.

But officials with the Indiana Department of Correction, keepers of the official statewide registry, interpreted it as applying only to Wallace.

Anyone who wants to be removed from the registry must appear before a judge and obtain a court order, according to the department.

As a result, some local registries of sex offenders began to conflict with the statewide registry.

The Attorney General’s Office counseled the Department of Correction to interpret the ruling as applying only to Wallace, a spokesman for the Department of Correction told The Journal Gazette last month.

The situation changed recently with a recent court filing in Hendricks County.

In that filing – part of one man’s lawsuit against the Department of Correction – Deputy Attorney General Scott L. Barnhart wrote that the Wallace ruling does indeed apply to everyone in Indiana who committed a sex crime before 1994.

The Supreme Court’s decision effectively changed Indiana law, Barnhart wrote.

It’s still up to offenders to obtain a court order from a local judge to be removed from the state’s list, according to Corbin.

The Department of Correction will not remove a name without one.

There are about 9,700 people on the state’s sex- and violent-offender registry, with about 2,000 possibly affected by the Supreme Court ruling, according to court records.

The attorney general is reviewing the Supreme Court decision and vows to assist sheriffs and the Department of Correction in dealing with the changes in the law, Corbin said.

Offenders must still obtain the requisite court order to come off the list because of various nuances associated with each case, Corbin said.

“Everything is going to have to be on a case-by-case basis,” Corbin said.

Judges in Allen County have been inundated with such requests. Some offenders have sent in simple handwritten letters explaining their situation and have received a court order without hiring a lawyer or legal counsel.

Unlike the Department of Correction, the Allen County Sheriff’s Department began scrubbing names from its local offender registry shortly after the Wallace decision was issued.

Detective Jeff Shimkus, of the sheriff’s department’s Sex Offender and Registration Notification team, reviewed more than 600 files and took more than 200 names off the list without court orders or requests from sex offenders.

Some sex offenders who shouldn’t be on the list don’t know about the ruling, Shimkus said. His team saw one come in for his regularly scheduled photo only to be told he no longer had to register.

“The problem you have is, from the public’s standpoint, is the accuracy of the registry,” Shimkus said. “The public is supposed to look at the Web site and know that it’s right.”

Some Allen County offenders who have come off the local registry because of the Supreme Court ruling are still on the state registry. Now, though, they are listed on the state registry as “failed to register” because they no longer have to come in to register with the sheriff’s department.

The sheriff’s department sends all registry information from the county to the Department of Correction. Because these offenders are still on the state registry but no longer have to register with the sheriff, it appears they are failing to register.

For the past few months, Shimkus has been bombarded with phone calls from people who claimed to know where these “failed to register” offenders were, and he explains that those offenders are no longer required to be on the list.

More importantly, though, he said the registry as a public safety tool is suffering from the problems with accuracy.

“There’s a ton of dangerous people out there, and this is a tool, not a magic catch-all,” Shimkus said. “Parents still need to be parents.”

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "Is it ethical to have a ghostblogger secretly write your law blog?"

"Ghostbusters of the Blawgosphere Take Aim at 'Ghostblogging'" is the heading of this entry on Legal Blog Watch. The example given is an estate planning blog, where a writer offers:

* * * a steady stream of content for your estate planning blog, created by an experienced writer and estate planning paralegal. Your content can be a mix of syndicated or original posts, with new material appearing on your blog several times a week.
I have seen this here in other law specialties, blogs written in the voice of the lawyer, but in fact totally ghosted by PR professionals.

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

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

James Carr v. State of Indiana (NFP)

Cynthia Aguirre v. Steven C. Paschall (NFP)

Posted by Marcia Oddi on Thursday, February 04, 2010
Posted to Ind. App.Ct. Decisions

Wednesday, February 03, 2010

Ind. Courts - Indy traffic court bill passes Senate, goes to House

So reports Jon Murray of the Indianapolis Star in his blog, Justice Watch. He notes:

Marion County traffic court Judge Bill Young -- whose large fines for some violators are the bill's main target -- has voiced some weighty objections to the bill, but that doesn't appear to have slowed it down.
See more about SB 399 in this ILB entry from Dec. 25, 2009, and its links.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Indiana Courts

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

For publication opinions today (3):

In Phillip Yoder, et al. v. Colonial National Mortgage, et al. , an 8-page opinion, Judge Friedlander writes:

Boyd Gohl appeals from the trial court's denial of his Ind. Trial Rule 60(B)(6) motion to set aside a default judgment entered against him in a foreclosure action instituted by Colonial National Mortgage, a Division of Colonial Savings, F.A. (Colonial). Gohl presents one issue for our review: did the trial court err in finding that he was not entitled to relief pursuant to T.R. 60(B)(6) because he was properly served with notice such that the court had personal jurisdiction over him? We reverse and remand. * * *

After learning that service could not be had on Gohl at the Jeffersonville (Clark County) address, Colonial made no further attempt to locate Gohl, who had lived at the same address in LaGrange County his entire life (except for time spent away at college). Colonial's cursory attempt to locate Gohl does not constitute a diligent search.

Further, as it pertained to effecting service of process by publication as against Gohl, Colonial wholly failed to comply with T.R. 4.13. Having considered all of the circumstances and given our finding that Colonial acted with less than due diligence, we find that service of process by publication as against Gohl was unreasonable. See Goodson v. Carlson, 888 N.E.2d 217 (Ind. Ct. App. 2008). We therefore conclude that the trial court abused its discretion in finding that it had personal jurisdiction over Gohl when it rendered the default judgment against him. Being without personal jurisdiction, the default judgment is void. We reverse and remand with instructions for the trial court to grant Gohl's motion to set aside the default judgment.

In Marilyn Elliott and Michael Elliott v. JPMorgan Chase Bank, et al. , a 10-page opinion, Chief Judge Baker writes:
The Kafkaesque character of this litigation is difficult to deny. Having failed to receive a summons that may have been improperly served upon them, Marilyn and Michael Elliott learned that a default judgment had been entered against them, foreclosing on their home because of a mortgage that was allegedly in default. The home was sold in a sheriff's sale to the lending bank. Feeling confused and suspicious, they turned to the Indiana Attorney General, who directed them to file a complaint with the Comptroller of the Currency. The Comptroller's investigation revealed that Chase Bank, the ostensible plaintiff herein, is entirely unaware of the foreclosure proceeding. Moreover, Chase's records show that the mortgage was paid in full in 2001. Chase, therefore, executed and recorded a satisfaction of mortgage. Notwithstanding the satisfaction of mortgage, Chase's loan servicer—Ocwen Bank—continued to prosecute this action in Chase's name, attempting to force the Elliotts out of their home even though there has never been a trial and the lending bank has declared that the mortgage was paid in full. Finding this situation untenable, we reverse and remand for trial. [Emphasis by ILB]
In Troy Blasko v. State of Indiana, a 5-page opinion, Chief Judge Baker writes:
Appellant-defendant Troy Blasko appeals his conviction for Sexual Misconduct with a Minor, a class B felony. Specifically, Blasko argues that his conviction must be vacated because he was not brought to trial within one year after his arrest for the offense. As a result, Blasko claims that he should have been discharged pursuant to Indiana Criminal Rule 4(C). Concluding that the trial court properly denied Blasko’s motion to dismiss, we affirm. * * *

Unlike the circumstances in Greengrass, there is no evidence that the State refused to extradite Blasko. In fact, the State authorized the extradition and commenced proceedings to transport Blasko back to St. Joseph County in November 2003, following the Florida arrest. There was no refusal or inaction on the State’s part with regard to the extradition, and there is no showing that the State ever canceled the extradition order. Rather, the evidence shows that it was Blasko’s illness that prevented his transport to Indiana for prosecution by November 17, 2003. Blasko knew that he was facing criminal charges in Indiana and did nothing to make himself available for extradition until May 2005, when he was rearrested. Although we acknowledge that Blasko was not at “fault” for his inability to be transported in light of his illness, we decline to attribute such a delay to the State in accordance with Criminal Rule 4(C). Thus, we conclude that the trial court properly denied Blasko’s motion to dismiss.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Keayon K. Scott v. State of Indiana (NFP)

April Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Risner (ND Ind., Miller), a 7-page opinion, Judge Kanne writes:

After Kevin Risner choked and threatened to kill his girlfriend, she called 911. After an officer arrived she told him that Risner was drunk, armed, and hiding in the basement crawl space of their shared home. Police entered the home and arrested Risner without a warrant. Police reentered the home to take the girlfriend’s statement, and eventually removed several guns from the home at her request. The girlfriend never expressly consented to either of the police entries into her home. Nevertheless, the district court denied Risner’s motion to suppress, finding that the girlfriend had impliedly consented to both entries. We affirm.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Floyd County caseload bill moves to House

From a press release:

INDIANAPOLIS –Legislation authored by State Senator Connie Sipes (D-New Albany) that would redistribute the Floyd County Circuit Court’s caseload for better court efficiency was approved by a unanimous vote in the Senate.

Senate Bill 307 provides that in Floyd County, the Circuit Court have exclusive jurisdiction over probate and trust matters. The bill also states that the Floyd Circuit Court and Floyd Superior Court No. 3 have concurrent juvenile jurisdiction.

The bill permits juvenile cases, which comprise 22 percent of the Circuit Court’s workload, to be shared between the two courts.

“This will allow for greater efficiency in the alignment of our courts,” said Sipes.

The bill will now go to the House of Representatives for further consideration.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Indiana Courts

Ind. Courts - "Simon heir aims to oust widow as sole trustee: In filing, daughter asks that bank take control of billionaire's assets" [Updated]

Updating this ILB entry from Jan. 28, 2010, Jeff Swiatek reports today in the Indianapolis Star that begins:

A Hamilton County judge has been asked to oust Bren Simon as sole trustee of her late husband's $1 billion-plus estate.

Deborah Simon filed the request Monday to put a bank in charge of overseeing the trust controlling Melvin Simon's massive holdings.

Deborah Simon's seven-page petition says keeping Bren Simon as trustee "would be detrimental to all beneficiaries" of the estate because of the "distrust and animosity" between them.

Chief beneficiaries of the estate are Deborah Simon, her sister Cynthia Simon Skjodt and brother David Simon, who is chairman and chief executive of Simon Property Group, the Indianapolis shopping mall developer co-founded by Melvin Simon.

Hostility between the trustee and beneficiaries in an estate plan "clearly can be a basis for a court's decision to remove the trustee," the petition says.

It said a national bank or investment bank "would be best suited to manage the trust."

The petition cites Bren Simon's recent request to convert 6.5 million partnership units in the publicly traded Simon Property Group to stock or cash as an example of why a professional trust manager is needed.

"In one precipitous move, Bren Simon tendered for potential sale nearly $500 million in trust assets," said the petition, noting the move "cannot conceivably be viewed as consistent with the duties of a prudent fiduciary to preserve the value of the trust's assets for all beneficiaries."

An attorney in Minneapolis for Bren Simon, Michael V. Ciresi, said she would reply to the request to remove her as trustee in a formal response that likely will be filed in court later this week. Superior Court Judge William J. Hughes probably will hold a hearing in court on the request before making a decision, Ciresi said.

The request comes in a lawsuit by Deborah Simon alone, filed last month against Bren Simon, alleging she imposed on Melvin Simon to sign a new will last year while he was in a "weakened and susceptible state of mind" seven months before his death.

[Updated 2/6/10] From the Indianapolis Star, a brief story that begins:
Noblesville -- Bren Simon has asked a court to reject an appeal by a stepdaughter to remove her as trustee of her late husband's $1 billion-plus estate.

In a nine-page filing in Hamilton Superior Court on Friday, the widow of Melvin Simon said dissension with her stepchildren isn't a good enough reason to replace her as trustee.

"Hostility does not itself justify removal of a trustee, especially here where the trustee was named by her late husband," the response by Simon said.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Indiana Courts

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

Updating this ILB entry from Jan. 31st, the ILB has just this morning obtained a copy of the Roll Call for SJR 13, which I have posted here.

As of this morning, the Roll Call is still not available online.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Indiana Law

Courts - Prop. 8 trial, banned from broadcast, re-enacted

The SCOTUS prohibited a California federal district court from broadcasting the "Prop. 8" trial. See a number of earlier ILB entries here. Here are the details from Jan. 13th, 2010.

The trial continued without cameras, testimony concluded, and closing arguments are expected next month. Meanwhile, Bob Egelko of the San Francisco Chronicle reported yesterday in a story that begins:

The U.S. Supreme Court's camera blackout of the trial over same-sex marriage in California didn't faze two Los Angeles filmmakers, who - with the help of transcripts, bloggers and a corps of professional actors - have launched its re-enactment on YouTube.

"We want all Americans to have a chance to judge for themselves, based on the evidence that was presented," John Ireland said Monday after the first of 12 scheduled "episodes," each covering a day of the trial, made its Internet debut.

The cast includes such Hollywood talents as Tess Harper and Adrienne Barbeau.

Testimony in the trial ended Wednesday in San Francisco before Chief U.S. District Judge Vaughn Walker, who is expected to hear closing arguments next month. At stake is the constitutionality of Proposition 8, the November 2008 initiative that defined marriage as the union of a man and a woman.

The Supreme Court intervened Jan. 11 to block Walker's plan to have the trial telecast to other courthouses and have testimony uploaded to YouTube, both of which would have been unprecedented for a federal case in California. In a 5-4 ruling two days later, the court said the telecast might subject pro-Prop. 8 witnesses to harassment and intimidation.

"We were poised ... getting ready to watch it," when the court ruled, said Ireland's filmmaking colleague, John Ainsworth, who married his partner at San Francisco City Hall before Prop. 8 passed. "It frustrated me. Who were they to say that I can't watch this, especially when it's in a public courtroom?"

With no money to pay anyone, they put out a casting call to the Screen Actors Guild and got an enthusiastic turnout for the more than 40 available roles, Ireland said.

The No on 8 side relayed official trial transcripts, bloggers and a professor in the courtroom described the witnesses and the atmosphere, and David Cruz, a University of Southern California law professor, provided legal guidance.

Although both filmmakers opposed Prop. 8, they took pains to cast attractive performers on both sides, Ireland said. Their goal, he said, was "transparency, not swaying anybody.

Watch the re-enacted trial here.

The WSJ Law Blog
has coverage here, headed "Prop. 8 Trial Caught On Tape (Sort Of)." So does the Law Librarian Blog, in an entry headed "Recreating a Trial Online: We Have the Technology."

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Courts in general

Court - Federal Judicial Conference develops juror instructions re electronic devices

Michael Cooney, an online news editor with Network World, writes today:

If you think you're going to use your spanking new iPhone to entertain yourself next time you're on jury duty, think again. Judges are going to take an even dimmer view of jury member use of Blackberry, iPhone or other electronic devices as a judicial policy-setting group has told district judges they should restrict jurors from using electronic technologies to research or communicate.

The Judicial Conference Committee on Court Administration and Case Management for the United States District Courts said it developed instructions that would be issued by judges, "to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve, the group stated.

Specifically, those instruction spell out that jurors should not you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information either before the trial, during deliberations or after until the judge instructs otherwise.

The instructions state jurors must not use cell phones, e-mail, Blackberry, iPhone, text messaging, or on Twitter, or communicate through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn, and YouTube.

"The Committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices," the group stated.

Here is the official memorandum itself, complete with attachment headed "Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case." The memorandum begins:
At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions that district judges should consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve. The suggested instructions are included as Attachment 1.

The CACM Committee developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. Such use has resulted in mistrials, exclusion of jurors, and imposition of fines. The suggested instructions specifically inform jurors that they are prohibited from using these technologies in the courtroom, in deliberations, or outside the courthouse to communicate about or research cases on which they currently serve.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to Courts in general

Law - Thomson Reuters Buys Super Lawyers

From a news release:

EAGAN, Minn., USA, Feb. 2, 2010 – Thomson Reuters, the world’s leading source of intelligent information for businesses and professionals, announced today that it has acquired Super Lawyers, the leading attorney ratings system for consumers, from Key Professional Media, based in Minneapolis, Minn. Terms of the deal were not disclosed.

Posted by Marcia Oddi on Wednesday, February 03, 2010
Posted to General Law Related

Tuesday, February 02, 2010

Ind. Law - "Senate OKs bill on gun permit secrets"

Mary Beth Schneider of the Indianapolis Star is reporting this afternoon:

Gun permit information would be secret under a bill that passed the Indiana Senate today, 45-5.

Senate Bill 195, authored by Sen. Greg Walker, R-Columbus, now goes to the Indiana House, which earlier passed similar legislation.

The bill was aimed at newspapers, including The Indianapolis Star, which has published a database based on gun permit information. The newspapers have not published the names or addresses of those holding the permits, but instead showed readers the number of permits in a geographic area, including by ZIP code.

The Star used the information to study the gun permit process, finding numerous cases where people with violent backgrounds were given permits to carry a concealed weapon, often over the objections of local police.

For background see this ILB entry from Jan. 28th.

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Indiana Law

Ind. Law - Bill to significantly expand authority of Attorney General up for passage today in the Senate [Updated]

The bill is SB 394 and it is up for first-house passage today, if it has not already passed.

SECTION 2 adds a new article to Indiana Code Title 34 - Civil Law and Procedure.

The NEW article would be IC 34-33.1, and would be headed "Authority of the Attorney General." Here is the proposed Chapter 1, to be added by SB 394:

Chapter 1. Authority of the Attorney General to Intervene in Cases Challenging the Constitutionality of a Statute, Ordinance, or Franchise.

Sec. 1. (a) If the constitutionality of a state statute, ordinance, or franchise affecting the public interest is called into question in an action, suit, or proceeding in any court to which any agency, officer, or employee of the state is not a party, the court shall certify this fact to the attorney general and shall permit the attorney general to intervene on behalf of the state and present:

(1) evidence that relates to the question of constitutionality, if the evidence is otherwise admissible; and
(2) arguments on the question of constitutionality.
(b) If a party to an action bases its claim or defense on:
(1) a statute or executive order administered by a state officer or agency; or
(2) a rule, order, requirement, or agreement issued or made under the statute or executive order;
the attorney general shall be permitted to intervene in the action.

Sec. 2. The state, by the attorney general, may file an amicus curiae brief in any matter pending in any state court without the consent of the parties or leave of the court. The attorney general shall file the amicus curiae brief within the time allowed for the party with whom the state is substantively aligned to file the party's brief or petition. However, for good cause shown, a court may permit the attorney general to file a belated amicus curiae brief. If the court permits the filing of a belated amicus curiae brief, the court shall set a deadline for an opposing party to file a reply brief.

[Emphasis added by ILB]

[Updated 2/3/10] SB 394 passed third-reading in the Senate yesterday by a vote of 50-0 and has been sent to the House, where it will be sponsored by Rep. Linda Lawson.

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

S.W., alleged to be CHINS v. IDCS - "For these reasons, we conclude that DCS presented sufficient evidence to prove by a preponderance of the evidence that S.W.’s physical or mental condition was seriously endangered by her parent’s refusal or neglect to provide necessary supervision.

"Based on the foregoing, we conclude that the trial court did not abuse its discretion when it admitted evidence of S.W.’s drug use at the fact finding hearing and the DCS presented sufficient evidence to prove that S.W. is a CHINS."

NFP civil opinions today (1):

Dale L. Horn v. Lucinda B. Horn (NFP) - "We hereby grant Dale’s petition for rehearing for the sole purpose of clarifying our original memorandum decision issued on November 24, 2009.

"In his petition for rehearing, Dale alludes to a citation on page 14 of our memorandum decision that includes a reference to an amount of “two thousand” instead of two hundred thousand which is allegedly owed by Dale in back taxes. * * *

"With the exception of this clarification, we affirm our memorandum decision in all other respects."

NFP criminal opinions today (4):

Joshua W. Weston v. State of Indiana (NFP)

Marquis A. Foard v. State of Indiana (NFP)

Edward A. Fair v. State of Indiana (NFP)

Todd Zurbuchen v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Ind. App.Ct. Decisions

Not law but interesting - "Why is Peter Orszag so sexy? "

Watch the video. I don't recall anything like this when Mitch Daniels was director of OMB ...

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to General News

Ind. Gov't. - "City could expand gun owners' rights"

Apparently our Indianapolis Parks are so dangerous some city council members believe carrying guns in city parks should be permitted so people can protect themselves. Francesca Jarosz has the story today in the Indianapolis Star:

Recent momentum to strengthen gun owners' rights in Indiana could get more force from a City-County Council proposal that would let residents with gun permits carry firearms in Indianapolis parks.

The measure, introduced Monday by Libertarian Ed Coleman, would amend a long-standing ordinance that bars anyone not authorized by the city's Parks and Recreation Board from carrying guns in city parks. It has drawn criticism from those concerned about gun violence and from the city's Department of Parks and Recreation, which says the restrictions are needed to maintain safety. But it has also garnered some support from members of the council's Republican majority.

The proposal comes as pro-gun initiatives are moving forward in the Indiana General Assembly. The Indiana House voted 76-21 last week for a bill that would let people take their guns to most workplaces, as long as they were kept locked in a vehicle. A similar bill passed the Senate. And another proposed state law would keep information about gun permits from being released to the public. [ILB - see this 1/27/10 entry.]

Coleman's proposed ordinance follows recent changes that will allow people with gun-carry permits to take firearms into state and federal parks.

Until two years ago, guns were banned from state parks, but a rule change made it legal to carry guns in those parks and other land owned by the Indiana Department of Natural Resources. A law passed last year will make it legal to carry guns in national parks starting Feb. 22, but only in states where park systems already allow them.

Coleman said those changes strengthen the case that Indianapolis' parks also should allow guns. * * *

Coleman, however, said his proposal would make parks safer by allowing those who own guns legally to protect themselves.

The ordinance has gotten some traction among members of the council's Republican caucus.

Council President Ryan Vaughn, a Republican, said he agrees there's a need to make the gun laws in parks more level.

"For the sake of consistency, I think there's merit in it," Vaughn said. "You could have citizens who don't know what kind of park they're in."

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Indiana Government

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

Updating this ILB entry from Jan. 27, 2010, Marcia Coyle of The National Law Journal has a long article today headed "High Court Campaign Finance Opinion Roils Dozens of Cases."

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Courts in general

Ind. Decisions - Transfer list for week ending January 29, 2010

Here is the Clerk's transfer list for the week ending January 29, 2010. It is three pages long.

One transfer was granted last week with opinion, in the case of Bules v. Marshall County -- see this Jan. 28 ILB entry for details.

The Voter ID case transfer order, about which I reported on Jan. 25th, is also on the current list.


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 Jan. 22, 2010 list.

Six 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, February 02, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "Charlestown makes city court position full-time"

Branden Lammers reports in the Feb. 1 Jeffersonville New&Tribune:

The Charlestown City Council met briefly Monday evening. * * *

Ordinance 2010-OR-4 allowed for the Charlestown City Court Clerk Kim Rouff to move from part-time to a full-time position. She will receive the same hourly rate, but her hours per week will increase from 32 to 40, said Mayor Bob Hall.

Funding to pay for the increased hours will come out of the city’s general fund, he said.

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to Indiana Courts

Law - Still more on: Free Fastcase access on iPhone

Updating this ILB entry from Jan. 30, Ted Waggoner of Peterson & Waggoner, LLP, Rochester, IN, wrote early yesterday to report:

Loaded the app over the weekend, and played with it some. Not bad, got the several cases and statutes I tested it on. It can save the matter, but not email or print which is a weakness. Better search than the Indiana Code LSA page I was using for Indiana statutes.
Late yesterday Ted wrote again, to point out a review on a blog that was new to me -- iPhone J.D. A few quotes from the lengthy review:
Fastcase I will start this review with what probably belongs in my conclusion: Every single lawyer using an iPhone should download the Fastcase app. Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today. This app is that useful. * * *

On the iPhone, however, I don't need something as powerful as the full version of Westlaw or Lexis. My research needs on the iPhone usually consist of pulling a case when I am out of the office and have a citation, doing a quick search for recent cases that contain a word or phrase, or pulling a statute. Last week, for example, I was in trial and there were several times when I wanted to quickly pull a case at issue and read it. I accessed Google Scholar using Safari (which I previously discussed here) and for the most part I got what I needed, but it would have been much easier to use a dedicated legal research app. How I wish that Fastcase for the iPhone had been released last Monday instead of last Friday! I would have made extensive use of this app during my time in the courtroom, and the app is so efficient that I would have been much more productive. I know that I will be using this app a lot in the future when I am in court, a meeting, or otherwise out of the office and need to look at the law. * * *

I presume that Fastcase is offering the iPhone app for free in the hopes that attorneys will enjoy using the iPhone version so much that they will sign up for Fastcase on their computer. That's not a bad strategy. My opinion of Fastcase has gone up quite a bit as I have been using this app over the last few days, and I'm sure that I will find myself giving Fastcase a second look on my computer as a result. If Westlaw or Lexis were to come out with a full featured app, then Fastcase would have some serious competition. Lexis already has an iPhone app, and while it is free, it lacks so many important features that I find the current version of the app just plain frustrating. Also, I suspect that at some point, someone will come out with a good iPhone app front end to Google Scholar, which would also give Fastcase some serious competition. But unless and until we see something good and free from Westlaw, Lexis or Google, Fastcase will clearly be the research app of choice for all attorneys with iPhones. Congratulations to Ed Walters and his team at Fastcase for creating an incredibly useful app that every lawyer should get immediately.

Posted by Marcia Oddi on Tuesday, February 02, 2010
Posted to General Law Related

Monday, February 01, 2010

Ind. Decisions - No transfer list received yet for the week ending Jan. 29

Maybe tomorrow ...

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Indiana Transfer Lists

Environment - "For scofflaws, a public mea culpa: Plea-deal ads admit environmental crimes"

Some quotes from Jonathan Saltzman's story in today's Boston Globe:

The Rockmore Co. has a confession: “Our company has discharged human waste directly into Massachusetts coastal waters.’’

That statement is part of an abject apology that will soon appear in newspaper ads if a federal judge approves a plea deal between the US government and Rockmore, which is accused of illegally dumping waste for years in Salem Harbor and in the Charles River off the Esplanade from its sightseeing cruise ship and its floating restaurant.

The agreement would mark at least the fourth time in recent years that federal prosecutors in Massachusetts have required environmental scofflaws to buy large and costly advertisements atoning for their crimes as part of their sentences.

Many legal scholars say the apologies foster contrition and save the government the high costs of more traditional punishments, such as incarceration.

But some defense lawyers and scholars say the ads represent a throwback to the stocks and pillories of Colonial times and are designed less to educate the public and more to humiliate wrongdoers. * * *

If the plea deal is accepted by US District Judge Joseph L. Tauro on Feb. 8 in Boston, the company would have to pay fines of more than $300,000, spend three years on probation, and run a half-page apology in the Boston Herald and full-page apologies in three newspapers that serve coastal communities.

“We, the Rockmore Company, sincerely apologize for contaminating the coastal waterways of Massachusetts,’’ the ad is supposed to say. “For these actions, we have paid a steep fine and have pleaded guilty to criminal charges. We are sorry.’’

The company’s name is to appear at the bottom of the ad in typeface twice the size of the text’s typeface

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Environment

Ind. Law - Lebanon attorney held on OWI charge

From a brief story in the Lebanon Reporter:

Lebanon — Eileen J. Sims, 59, whose law firm represents the city of Lebanon and the Boone County Commissioners, was arrested on multiple charges Thursday after she crashed into a fire hydrant and left the scene.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Indiana Law

Ind. Decisions - " Court Rejects Cross-State Rules on Car Title Lenders"

The 7th Circuit ruling January 28th in the case of Midwest Title Loans v. David H. Mills, Dir, Ind. Dept. Financial Institutions (see ILB summary here) is the subject of a story today by Annie Youderian of Courthouse News Service:

An Indiana law imposing interest rate caps on out-of-state car title lenders unconstitutionally burdens interstate commerce, the 7th Circuit ruled.

The Chicago-based appellate panel shot down a law that forced an Illinois car title lender to get an Indiana license to make consumer loans. That license made Midwest Title Loans subject to Indiana's regulations on predatory lending, including a ceiling on the annual interest rate that a lender may charge. If the lender doesn't get an Indiana license, the borrower doesn't have to repay the loan and is entitled to a refund of excess interest payments.

Judge Richard Posner noted Indiana's interest in protecting its citizens from predatory lending, but said the Constitution's dormant Commerce Clause bars "extraterritorial regulation." * * *

"To allow Indiana to apply its law against title loans when its residents transact in a different state that has a different law would by arbitrarily to exalt the public policy of one state over that of another."

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Mark Hinkel v. Sataria Distribution & Packaging, Inc. , a contracts/employment law case, Judge Vaidik writes, in a 12-page, 2-1 opinion including a 2-page dissent:

The appellant, Mark Hinkel, was hired to work for the appellee, Sataria Distribution and Packaging, Inc. (“Sataria”). Hinkel was allegedly promised a year’s worth of salary and insurance coverage if he were ever terminated involuntarily, but his written employment contract did not provide for severance pay or post-employment benefits. Hinkel was soon terminated, and he did not receive the severance package he says he was promised. Hinkel sued for breach of contract and/or promissory estoppel. The trial court entered summary judgment in favor of Sataria. We hold that (1) Hinkel’s written employment contract is a completely integrated agreement which precludes consideration of any prior or contemporaneous oral promises, (2) to the extent the severance agreements were made after the execution of the written contract, they were not supported by additional consideration, and (3) Hinkel is unable to sustain his claim of promissory estoppel. We affirm. * * *

RILEY, J., concurs.
CRONE, J., dissents with separate opinion. [that reads in part]I respectfully dissent because I disagree with the majority’s conclusion that Jacobs’s oral promise to Hinkel regarding a severance package is “barred from consideration by the parol evidence rule.” Slip op. at 4. I do so for two reasons.

First, I believe that a genuine issue of material fact exists regarding whether the parties intended for Jacobs’s written job offer to Hinkel to be completely integrated, i.e., a “final and complete expression of all the parties’ agreements[.]” * * *

Second, the terms of the severance package do not vary from or contradict the terms of the written offer, but merely cover that which was not covered in the offer.2 As such, even assuming that the offer is completely integrated, the terms of the severance package would not be barred by the parol evidence rule.

In Erica Bishop v. The Housing Authority of South Bend , a 19-page opinion, Judge Darden writes:
Erica Bishop appeals the trial court's order that granted the Housing Authority of South Bend (“HASB”) prejudgment possession of the apartment unit she had leased from HASB. We affirm.

1. Whether the order must be reversed because the trial court violated Bishop's right to a jury trial on the issue of immediate possession.
2. Whether the trial court committed reversible error when it refused to issue a transportation order for Bishop's son Derek to testify at the hearing on immediate possession.
3. Whether the order of immediate possession must be reversed because HASB failed to follow U.S. Department of Housing and Urban Development (“HUD”) rules in its termination of Bishop' lease.
4. Whether Bishop's lease with HASB was illegal or unconscionable.
5. Whether the termination of Bishop's lease, given the facts presented, violated due process.

In Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. , a 12-page opinion, Judge Darden writes:
Borovilos Restaurant Corporation II (“Borovilos”) appeals the trial court’s order on its complaint against Lutheran University Association, Inc. (“Valparaiso University”) for a preliminary injunction, declaratory judgment, and damages. We affirm.

1. Whether the trial court’s order must be reversed because it fails to acknowledge Borovilos’ legal easement rights.
2. Whether we should remand for a determination of monetary damages.

NFP civil opinions today (1):

James Witt d/b/a Witt Construction v. Nancy A. Thornton (NFP) - "The small claims court did not abuse its discretion in excluding evidence offered by Witt or in not advising Witt that he could cross-examine Thornton. Further, the small claims court’s judgment is not clearly erroneous. Affirmed."

NFP criminal opinions today (3):

Danny Floyd, Jr. v. State of Indiana (NFP)

Coy Brindle v. State of Indiana (NFP)

Jonathon Grieshop v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Ind. App.Ct. Decisions

Law - "Internet experts and estate planners say a cybercrisis is brewing because Internet services, barring court order, forbid accessing or transferring accounts unless someone has the password"

This interesting article by Michael S. Rosenwald appeared in the Jan. 25, 2010 Washington Post. Some quotes:

[At least a dozen businesses] have sprung up to help denizens of the digital world grapple with the thorny issues raised after your physical being leaves behind only its virtual reality. Internet experts and estate planners say a cybercrisis is brewing because popular Internet services have policies that, barring an order from a court, forbid accessing or transferring accounts -- including recovering money -- unless someone has the password.

The legal fog affects not only personal lives -- the photo site Flickr has 40 million members -- but also millions of business accounts on such sites as eBay and PayPal and the virtual community of Second Life, which generated $55 million of real money for users last year. Despite our increasing reliance on cloud computing -- storing all sorts of data online through Web applications -- very few Internet users have begun to think about what happens to all that data should we get hit by a bus.

"We haven't truly seen the breadth of this issue play out yet, but I'm telling you, this is a huge problem," said Chicago lawyer Karin C. Prangley, who has spoken on the topic at conferences. "Ten or 15 years ago, someone could go into your house and find the paper trail if you die. Now the paper trail is online."

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to General Law Related

Courts - "Wealthy Kentucky businessman's heirs fight wife over will"

This long story today in the Louisville Courier Journal, reported by Andrew Wolfson, is but another instance of the children of a wealthy individual vs. the current wife. It begins:

Super salesman Mason C. Rudd made millions of dollars from the heavy-equipment company that bore his name and gave millions away as an equally committed philanthropist.

When he died last July at age 90, after a battle with diabetes, Rudd still had a small fortune in stocks, bonds, cash and real estate, including condominiums in Louisville and Florida and a horse farm off Wolf Pen Branch Road.

But now his daughter and four grandchildren say in court documents that after Rudd was “incapacitated” and on the “verge of death,” his “younger second wife” transferred millions of dollars to herself from his accounts and had him recraft his will to her benefit.

As a result, Rudd's “natural offspring” will get little more than mementos and furniture, according to the will contest they filed Jan. 21 in Jefferson Circuit Court.

According to their lawsuit, Peggy Mudd Rudd, who married Mason Rudd in 1999, when she was 59 and he was 81, stands to collect $3million in “liquid assets” plus $2 million that she took before Rudd's death.

“This lawsuit is not about money or condos or farms,” Rudd's grandson, Mason Miller, a Lexington attorney, said in an interview. “It is about doing what is right, because that is what our grandfather always did with his money. He would expect nothing less of us.”

But Peggy Rudd's lawyer said the family's “vitriolic” complaint will fail, because Rudd was competent when he signed his last will on April 16 and friends will vouch that he was lucid in the months before.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Courts in general

Courts - More on: Oral argument Nov. 3, 2009 before the SCOTUS in RICO case in which many states have an interest

The case is Hemi Group, LLC v. City of New York. As noted in this ILB entry from Nov. 3, 2009, the Indiana Attorney General authored an amicus brief in the case, joined by a number of other states.

According to this SCOTUSBlog entry by Brian Goldman:

The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.
The WSJ had a brief story on Jan. 25, 2010, by Brent Kendall, headed "US High Court Rules Against NY City On Internet Tobacco Suit." Some quotes:
The U.S. Supreme Court ruled Monday that New York City could not use federal racketeering laws to sue out-of-state Internet tobacco retailers that don't file reports on city residents who buy cigarettes online.

The city wants the reports so it can collect cigarette taxes directly from residents who purchased tobacco products online. The retailers are not required to collect the taxes. * * *

But the Supreme Court, in a 5-3 opinion written by Chief Justice John Roberts, ruled that the relationship between Hemi's alleged actions and the city's inability to collect taxes was too indirect to establish racketeering liability against the online retailer.

Roberts said the direct cause of the alleged fraud against the city was not Hemi's conduct, but the refusal of residents to pay their taxes for online cigarette purchases. "The city, therefore, has no RICO claim," Roberts wrote.

Yesterday Michael Kirkland of UPI reported:
Last week, however, the Supreme Court made it harder for state and local governments to collect taxes for online sales using federal racketeering law.

Federal law, of course, bans government at all levels from collecting taxes for Internet access or from imposing Internet-only taxes. Amended in 2007 to extend its provisions to 2014, the Internet Tax Freedom Act does allow a sales tax or use tax for online sales.

Moreover, the federal Jenkins Act says a company selling cigarettes online does not have to pay the taxes, but must provide a state the names and addresses of those ordering the smokes, so a state and a city can then collect taxes. Failure to disclose sales is a misdemeanor, punishable by a fine of up to $1,000, a jail term of up to six months or both.

In last week's case, New York City filed suit under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, against New Mexico's Hemi Group LLC, which sells cigarettes online.

The city said Hemi's failure to file reports about who was buying cigarettes online was fraud, a "predicate act" under RICO that caused the city to lose tens of millions in cigarette taxes. RICO's civil provisions provide for triple damages.

A federal judge dismissed the suit, but the 2nd U.S. Circuit Court of Appeals in New York threw out that ruling and said the city had a valid RICO claim.

The Supreme Court reversed the appeals court, ruling for Hemi. Citing precedent in the majority opinion, Chief Justice John Roberts said there had to be a more direct connection for a RICO injury.

For more, see the SCOTUSLaw Wiki on the case.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to Courts in general

Law - "Asset Forfeiture: 'A License to Steal'”

Updating earlier ILB entries on Alvarez v. Smith, Ilya Somin has this entry today in The Volokh Conspiracy on "the asset forfeiture system, which often allows police to seize property without compensation — even in cases where the owners have not been convicted of any crime." He continues:

In many cases, the authorities hold on to the seized property for months at a time without giving innocent owners any opportunity to contest the seizure whatsoever. If that isn’t deprivation of property without “due process,” it’s hard to see what is. The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out the case on procedural grounds. Hopefully, the issue will make its way back to the Supremes, and they will see fit to give innocent property owners at least some protection for their constitutional rights.

I am not optimistic that the political process will protect these rights on its own. As Radley explains, police departments and prosecutors in many areas have a vested interest in perpetuating these practices. In addition, most of the people whose property is seized in this way are relatively poor and lacking in political influence. There have been a few modest reforms over the years. But for reasons Radley outlines, they have only addressed a small part of the problem.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to General Law Related

Law - Opening: Research Librarian, Frost Brown Todd, Louisville KY Office

Take a look at the qualifications.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to General Law Related

Law - Dawn Johnsen on Senate Judiciary Committee agenda again

At the end of a very long list of items to be considered by the U.S. Senate Judiciary Committee on Thursday, Feb. 4, 2010, starting at 10:00 AM, is:

* * * and the nominations of Edward Milton Chen, to be United States District Judge for the Northern District of California, and Louis B. Butler, Jr., to be United States District Judge for the Western District of Wisconsin, and Christopher H. Schroeder, of North Carolina, Mary L. Smith, of Illinois, and Dawn Elizabeth Johnsen, of Indiana, all to be an Assistant Attorney General, all of the Department of Justice.

Posted by Marcia Oddi on Monday, February 01, 2010
Posted to General Law Related

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. 31, 2010:

From Saturday, Jan. 30, 2010:

Posted by Marcia Oddi on Monday, February 01, 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 2/1/10):

Next week's oral arguments before the Supreme Court (week of 2/8/10):

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 2/1/10):

Tuesday, February 2nd

Next week's oral arguments before the Court of Appeals (week of 2/8/10):

Next Tuesday, February 9th

Next Thursday, February 11th

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, February 01, 2010
Posted to Upcoming Oral Arguments