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Wednesday, March 31, 2010

Courts - "Lawyers Must Advise Clients on Deportation, Supreme Court Rules"

Tony Mauro has this report in The National Law Journal, His story begins:

In a decision that one justice called "a major upheaval in Sixth Amendment law," the Supreme Court ruled Wednesday that lawyers have a constitutional obligation to advise clients of the collateral immigration consequences of a guilty plea in a criminal case.

The ruling came in Padilla v. Kentucky, which was eagerly awaited by bar leaders who have focused attention on the professional obligation of lawyers to alert clients about the growing array of consequences that flow from pleading or being found guilty. We wrote about the issue here last fall.

Justice John Paul Stevens, who wrote for the 7-2 majority, cited "the weight of prevailing professional norms" in finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel, especially when the immigration law is "succinct, clear. and explicit."

In the case before the Court Jose Padilla, a legal permanent resident from Honduras (unrelated to the Jose Padilla involved in past terrorism rulings) pleaded guilty to drug distribution charges in Kentucky after his lawyer advised him not to worry about deportation because he had lived in the U.S. for 40 years. The erroneous advise exposed him to near-certain deportation, and he claimed ineffective assistance of counsel.

Remember the balloon boy? This CNN story from Nov. 12, 2009 is headed "Dad in 'balloon boy' case turns himself in." Some quotes:
The Heenes' attorneys said prosecutors have agreed to a sentence of probation with the possibility of up to 90 days in jail for Richard Heene and up to 60 days in jail for his wife.

The threat of deportation for Mayumi Heene was a factor in the plea deal negotiation, the attorney's statement said.

"Mayumi Heene is a citizen of Japan. As such, any felony conviction or certain misdemeanors would result in her deportation, even though her husband and children are Americans," the statement said.

"It is supremely ironic that law enforcement has expressed such grave concern over the welfare of the children, but it was ultimately the threat of taking the children's mother from the family and deporting her to Japan which fueled this deal."

Tiffany U. Vivo's immigration blog ("Helping Families Navigate Through Immigration & Family Law Issues") had an entry on Nov. 27, 2009 headed "Balloon Boy’s Mother & Immigration Law" that concluded:
Criminal defense attorneys often fail to consider or properly weigh the impact a criminal conviction can have on an immigrant’s immigration status. The extent to which a criminal attorney should consider the impact of a client’s immigration status is currently before the United States Supreme Court. On February 23, 2009, the Supreme Court granted certiorari in Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008), cert. granted, 2009 U.S. LEXIS 1453 (U.S. Feb. 23, 2009) (No. 08-651). The issue in the case is whether criminal defense counsel must inform a client of the immigration consequences of a plea and if not, whether counsel’s gross misadvice about the consequences is a ground for setting aside a plea. Specifically, the Court will address:

1. Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the Immigration & Nationality Act, is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and

2. Assuming immigration consequences are “collateral”, whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

The Kentucky Supreme Court’s position on whether the petitioner should be allowed to seek post-conviction relief represents the minority view. The majority of state and federal courts that have ruled on the issue have held that misadvice can be ineffective assistance of counsel, even in jurisdictions where there is no affirmative duty to advise defendants of the immigration consequences of a plea.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Courts in general

Courts - Reporting on "Cancer Patients Challenge the Patenting of a Gene"

Updating yesterday's ILB entry, Ashby Jones of the WSJ Law Blog has an entry today compiling some of the reports.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Courts in general

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

In Watkins v. Kasper (ND Ind., Judge Springmann), a 16-page opinion, Judge Tinder writes:

In this civil rights case under 42 U.S.C. § 1983, we consider the scope of prisoners’ First Amendment rights to complain about prison conditions. Charles Watkins, an inmate at Indiana’s Miami Correctional Facility (“MCF”), brought a § 1983 action against Dr. Barbara Kasper, a librarian for the MCF’s law library, alleging that Kasper retaliated against him for exercising his First Amendment right to criticize library policies. The case went to a trial before a jury, who heard the following evidence. * * *

[ILB - What follows are details of a dispute between the librarian and the prisoner, centering on the fact that "Kasper disapproved of the law clerks’ practice of helping other inmates prepare their own legal documents."]

The continued friction between Watkins and Kasper apparently didn’t undermine Watkins’s library skills, for Kasper rehired him as a law clerk on March 25, 2004. Still, the controversy between them was just beginning. In February 2005, Watkins brought this § 1983 suit against Kasper (and several other prison officials no longer parties to the case) for retaliating against his exercise of free speech. At trial, Watkins, proceeding pro se, argued that Kasper was angry at him for criticizing library policies and responded with a series of illegitimate disciplinary actions, including filing false work evaluations and conduct reports against Watkins, disposing of his personal legal materials, and denying him access to the library. * * *

It seems that experience as an offender law clerk pays off in the courtroom; Watkins won. The jury found that Kasper retaliated against Watkins’s First Amendment rights and awarded Watkins $150 in compensatory damages and $1000 in punitive damages. Kasper made two post-trial motions for judgment as a matter of law or a new trial under Federal Rule of Civil Procedure 50, which the district court denied. Kasper appeals, arguing that Watkins’s speech during both the February 13 library meeting and February 26 confrontation with Kasper is unprotected as a matter of law, such that this speech cannot support Watkins’s First Amendment retaliation claim. * * *

We conclude that the confrontational, disorderly manner in which Watkins complained about the treatment of his personal property removed this grievance from First Amendment protection. Watkins did not confine himself to a formal, written grievance or a courteous, oral conversation with Kasper about the placement of his legal materials. Instead, he confronted Kasper faceto- face in the library, presumably within earshot of other prisoners, using a loud voice and active hand gestures, prompting Kasper to file a conduct report for intimidation. See id. (observing that the prisoner went beyond internal grievance procedures to a “public rebuke” of a prison official). The confrontational approach that Watkins used to make his grievance was inconsistent with the legitimate penological interest of prison discipline and order. * * *

It is also important that the MCF’s prison disciplinary board found, and Watkins doesn’t dispute, that Watkins committed the offense of disorderly conduct by confronting Kasper in such a disruptive manner. Watkins cannot rely on an act of speech that he concedes violated legitimate prison rules as the basis for his free speech retaliation claim. * * *

Both acts of speech on which Watkins bases his First Amendment retaliation claim are inconsistent with legitimate penological interests. These speech acts are unprotected as a matter of law and cannot support the jury’s verdict in favor of Watkins. We REVERSE and REMAND with instructions to enter judgment in favor of Kasper. 3-31-

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Franklin Electric Company, Inc. v. Lutheran Hospital of Indiana, et al. , a 24-page opinion, Judge Robb writes:

Lutheran Hospital of Indiana (“Lutheran”) and Bluffton Regional Medical Center (“Bluffton”) filed a declaratory judgment action seeking to determine whether Lori Brown's insurance, Franklin Electric Company, Inc. Medical Plan for Eligible Employees and Early Retirees (“Franklin”), or Robert Kirby's insurance, the City of Fort Wayne Employee Benefit Plan (“City”), was responsible for payment of medical expenses incurred by Lori and Robert's son, Jayden, following his birth on July 12, 2003. Franklin appeals the trial court's grant of summary judgment to the City upon finding Franklin primarily responsible for Jayden's medical expenses from the date of his birth through May 24, 2004, raising two issues: whether the trial court had jurisdiction to entertain this matter and whether the trial court properly interpreted the coordination of benefits provision. Lutheran and Bluffton cross-appeal the trial court's denial of their motion for assessment of attorney's fees against Franklin, raising the issue of whether the trial court abused its discretion in finding Franklin's conduct “substantially justified.” Concluding that the trial court erred in finding Franklin's plan primary, but properly denied the request for attorney's fees, we reverse the entry of summary judgment for the City and remand for entry of summary judgment in favor of Franklin, but affirm the trial court in all other respects. * * *

The trial court erred in applying Rule 3 of the coordination of benefits provision to this situation, as Lori and Robert have never been married nor have they lived together and therefore could not be “separated.” Instead, the trial court should have applied the fallback provision, pursuant to which the City's plan was primary. Accordingly, the trial court erred in granting summary judgment to the City and denying summary judgment to Franklin. As Franklin's position in this litigation was “substantially justified,” the trial court did not abuse its discretion in denying the Hospital's motion for assessment of attorney's fees against Franklin. The trial court's grant of summary judgment for the City is reversed and the cause is remanded for the trial court to enter summary judgment for Franklin. The trial court's judgment is in all other respects affirmed.

In Term. of Parent-Child Rel. of A.K.; A.S. v. IDCS, a 21-page opinion, Judge Mathias writes:
We first address the importance of findings of fact and conclusions of law in termination of parental rights proceedings. The probate court was not statutorily required to enter findings of fact in issuing its judgment involuntarily terminating Mother's and Father's parental rights to A.K. See Ind. Code § 31-35-2-8; Parks v. Delaware County Dep't of Child Servs., 862 N.E.2d 1275, 1278 (Ind. Ct. App. 2007). But where, as here, the rights involved are of constitutional magnitude, our review cannot begin and end with the mere fact that applicable statutes do not require a trial court to support its conclusions with any identifiable rationale. An earlier panel of our court has opined that in light of the serious and permanent nature of termination of parental rights proceedings, a trial court's termination order should include the findings of fact and conclusions of law necessary to support its decision. See Parks, 862 N.E.2d at 1280-81 (stating that termination of parental rights is such a serious matter that appellate courts must be convinced the trial court based its judgment on proper considerations). We believe that a judgment terminating the relationship between a parent and child is impossible to review on appeal if it is nothing more than a mere recitation of the conclusions the governing statute requires the trial court to reach. Indiana's parents and children deserve more, and the basic notions of due process inherent in our system of justice demand more.

Trial courts are required by statute to enter findings of fact and conclusions of law in CHINS proceedings. See Ind. Code § 31-34-19-10 (2008). Likewise, findings of fact and conclusions of law are required in grandparent visitation proceedings. See Ind. Code § 31-17-5-6 (2008); K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 462 (Ind. 2009). Proceedings to terminate parental rights touch interests at least as fundamental as those regarding CHINS and grandparent visitation. We hold today that our trial courts must treat them accordingly, with the constitutional gravity they clearly have, and enter findings of fact that support the entry of the conclusions called for by Indiana statute and the common law. * * *

Clear and convincing evidence supports the trial court's judgment terminating Mother's and Father's parental rights to A.K. Affirmed.

In Tyrus D. Coleman v. State of Indiana , a 13-page, 2-1 opinion, Judge Kirsch writes for the majority:
Tyrus D. Coleman (“Coleman”) was convicted of attempted murder, a Class A felony, after a jury trial. He appeals, raising several issues, of which we find the following dispositive: whether the doctrines of double jeopardy and collateral estoppel barred Coleman's retrial for attempted murder. We reverse. * * *

“Collateral estoppel, or in modern usage, issue preclusion, 'means simply that when an ultimate issue of fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit'" In criminal trials, collateral estoppel is an integral part of the protection against double jeopardy guaranteed by the Fifth and Fourteenth Amendments. It is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy. "'The traditional bar of jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime.'" Thus, collateral estoppel requires that when the State has received an adverse decision of a critical issue of fact in a trial, that adverse decision prevents later re-litigation of the same issue in a later prosecution. [ILB - citations omitted] * * *

[T]he doctrine of issue preclusion barred the State from re-litigating the issue of whether Coleman's actions against Dye constituted attempted murder. The trial court should not have denied Coleman's motion to dismiss. Reversed.

MAY, J., concurs.
DARDEN, J., dissents with separate opinion. [that begins, at p. 10] I would respectfully dissent from the majority.

The facts, as recounted by the majority, arguably could support their conclusion that the jury could not have reasonably disbelieved that Coleman's use of deadly force was necessary. On the other hand, however, I believe that the totality of the evidence and circumstances surrounding this case support the reasonable conclusion that the jury just could not reach a unanimous verdict as to whether Coleman was justified in using deadly force against Dye at the time of the incident. As a result, I believe the majority's conclusion impermissibly impinges upon the jury's role as the trier of fact.

In Clarian Health Partners v. Natalie Wagler , an 18-page opinion, Judge Brown concludes:
In summary, we conclude that Clarian presented sufficient evidence to meet its burden by designating the opinion of the medical review panel including Dr. Cefali's opinion that Clarian's conduct was not a factor of the resultant damages, which shifted to Wagler the burden of demonstrating the existence of a genuine issue as to causation. The opinion of the majority of the medical review panel and Nurse Little's affidavit was not evidence which tends to support Wagler's allegation that there was a causative nexus between Clarian's conduct and Wagler's injuries. Accordingly, we conclude that the trial court erred by denying Clarian's motion for summary judgment.
In Raymond Boone v. Tammy Boone , a 19-page, 2-1 opinion, Judge Friedlander writes for the majority:
Raymond Boone (Father) appeals from the decree dissolving his marriage to Tammy Boone (Mother), presenting the following restated issue for review: Did the trial court abuse its discretion in ordering Father to pay child support retroactive to a date preceding the filing of the petition for dissolution? * * *

In the final analysis, we decline to do what our Legislature has not seen fit to authorize, i.e., permit a court to enter a child support order retroactive to a time before the request therefore was submitted, and indeed before the parties were legally separated or had petitioned for divorce. Therefore, we reverse that portion of the dissolution order and remand with instructions to modify the order of support consistent with the principles set out in this opinion. Judgment reversed and remanded.

BRADFORD, J., concurs.
NAJAM, J., dissents with a separate opinion. [that begins, at p. 12] I respectfully dissent. Indiana law does not prohibit trial courts from entering retroactive initial child support orders. As the majority acknowledges, a parent has a common law duty to support his child. That duty begins when a child is born, not when a petition for dissolution of marriage is filed.

NFP civil opinions today (3):

David A. Garmon, Sr., et al. v. Bishop Donsero Reynolds (NFP)

Term. of Parent-Child Rel. of S.H.; B.H. and C.H. v. IDCS (NFP)

E.T. v. Review Board (NFP)

NFP criminal opinions today (6):

Lamarr R. Thornton v. State of Indiana (NFP)

Jesse Allen Mansfield v. State of Indiana (NFP)

Raymond F. Smalls v. State of Indiana (NFP)

Rafael Basilio v. State of Indiana (NFP)

Timothy Michael v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Ind. App.Ct. Decisions

Law - Digest of International Law

This is published by the U.S. Department of State and is available online.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to General Law Related

Courts - "Fundraising for states' high-court races"

Indiana's appellate judges are appointed and subject to a yes/no retention ballot question every 10 years. But in many states, high court judges are elected.

20 states held high-court elections this year, according to this USA Today story by Fredreka Schouten that looks at money and judicial elections. It begins:

WASHINGTON — A growing number of states are rewriting their rules on selecting judges to curb the influence of special interests on judicial contests.

Thirty-nine states elect at least some of their judges, and judicial candidates for high courts raised $206.4 million for campaigns from 2000 through 2009, according to Justice at Stake, a non-partisan coalition that promotes impartial courts. That's up from $83.3 million the previous decade.

Outside interests spent another $39.3 million on TV ads in judicial elections in the past 10 years, the group's data show.

"It makes it look like justice is for sale," said Ciara Torres-Spelliscy of The Brennan Center for Justice, which has pushed for changes in judicial elections.

West Virginia last week became the fourth state to adopt public financing for judicial elections when Gov. Joe Manchin, a Democrat, signed a law establishing a public funding program. It will go into effect in 2012 for two state Supreme Court elections.

Wisconsin created a public financing system for state Supreme Court races in December.

Here is the Justice at Stake website.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Courts in general

Ind. Gov't. - "Brizzi spokesman quits after DUI arrest"

From the brief story today in the Indianapolis Star:

Brizzi's office would not divulge his salary.
Strange, this salary data is public information.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Indiana Government

Ind. Decisions - "Appeal backfires on convicted rapist"

The Court of Appeals decision yesterday in Jeffrey E. Akard v. State of Indiana is the talk of the defense bar, according to this excellent story today by Sophia Voravang of the Lafayette Journal Courier (see ILB summary here):

A former Purdue University student already sentenced to 93 years in prison for brutally raping a homeless woman deserves a tougher penalty for his "unspeakable violent acts," the Indiana Court of Appeals has ruled.

Jeffrey A. Akard, 35, of Peru, Ind., was found guilty in January 2009 of 10 felonies related to the Sept. 9, 2006, assault. He appealed the convictions and subsequent sentence by Tippecanoe Superior Court 2 Judge Thomas Busch.

Among the issues raised by Akard was whether the 93-year sentence was appropriate -- asking that it instead be reduced to 40 years.

The Indiana Court of Appeals disagreed. In an unprecedented and unanimous decision issued Tuesday, the panel of three judges ruled that Akard's sentence be increased to 118 years because of the crimes' heinous nature.

"It's my understanding that it's the first time ever in the state of Indiana where a defendant's sentence was revised upward," said Tippecanoe County Deputy Prosecutor Laura Zeman, who handled Akard's case.

"This is extremely significant."

The ruling could ultimately effect how defense attorneys file appeals, according to Joel Schumm, a clinical professor of law at Indiana University School of Law -- Indianapolis. * * *

Tuesday's 17-page appellate court ruling references a 2009 opinion by Indiana Supreme Court Justice Theodore Boehm in which Boehm wrote that the state's higher courts have authority to revise a sentence upward.

But "we have never exercised it and do not expect to exercise it in the future except in the most unusual case."

The appellate court determined that Akard's was one of those cases.

"The violence and sinister mentality associated with an individual raping an adult is serious and disturbing," appellate Judge Mark L. Bailey wrote. "However, when these acts are premeditated, motivated and purposely carried out to satisfy an even more diabolical interest, the rape of an adult is indescribably more heinous.

"Based on Akard's character and the nature of the offenses, we conclude that this is a most unusual case that warrants the extreme rarity of this court invoking its authority to revise a sentence upward."

According to Schumm, the IU professor, the appellate court can only revise a sentence upward if a defendant challenges his or her sentence on appeal -- which is often.

"It will be interesting to see what defense lawyers do, as far as challenging sentences," he said. "Most people think of an appeal as a decrease in a sentence."

A spokeswoman for the Indiana Court of Appeals could not confirm whether the decision was unprecedented.

But Schumm said many in the legal field took note of Justice Boehm's 2009 opinion.

"Everyone had been waiting to see what would happen," he said. "Everyone has been talking this case (Akard's) today."

The 2009 Supreme Court decision referenced is McCullough v. State. See the Feb. 10, 2009 ILB summary of McCullough here - and be sure to note the last portion of the entry.

Posted by Marcia Oddi on Wednesday, March 31, 2010
Posted to Ind. App.Ct. Decisions

Tuesday, March 30, 2010

Courts - We are the electric company and we are here to help you

The Courthouse News Service has a story today by Jamie Ross headed "'Smart Meters' Soak Customers, Class Claims." Some quotes:

(CN) - Texas' biggest electric company installed defective "smart meters" that drove residential customers' bills to nearly $2,000 a month, according to a class action in Dallas County Court. The class claims Oncor Electric Delivery Co. is "laughing all the way to the bank."

Named plaintiffs Robert and Jennifer Cordts say their monthly electric bills of $400 to $700 were driven above $1,800 after their smart meter was installed.

Smart meters deliver more information to the utility company than standard meters, and can adjust billing for time of day or season, allegedly so consumers pay less during times of low demand and more when demand is high.

But the Cordts say that when they questioned Oncor about their exorbitant bills, the company asked them "about Christmas lights and the temperature at which they maintain their thermostat." Then they got another bill for more than $1,800.

"The Cordts have now received three months of bills totaling just under $5,000," the complaint states. "The part of this story that is more absurd than the objectively egregious amount of the billing is Oncor's explanation - geez, it's sure been pretty cold lately."

The complaint adds: "Instead of looking the Texas consumer in the eye and providing a truthful explanation for exorbitant overbilling, Oncor is giving everyone the run-around. Consumers are tired of being told that a 200 percent overnight increase in their electric bill following installation of a 'smart' meter is due to an 'unusually cold winter' or a change in their energy consumption choices."

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Courts in general

Environment - "Diffuser a fix for Grand Cal discharges?"

With a diffuser, the same amount of pollution goes into the water, but it is diffused or diluted as it is emitted.

Gitte Laasby of the Gary Post-Tribune has a lengthy story today on a pending water permit amendment. Some quotes:

IDEM has accepted the company's request to maintain the same pollution levels in the new permit if the company dilutes it with a diffuser. The Post-Tribune obtained a copy of the permit through a public information request. The permit is up for public comment until April 8. IDEM is not planning a public hearing, but may hold one if requested, according to a public notice.

The Post-Tribune asked IDEM how it could allow a company in 2006 to discharge sulfates in a concentration that's toxic to water critters. IDEM was not able to respond to that, and several other questions, within a day and a half.

Scott Pruitt, a biologist with the U.S. Fish and Wildlife Service in Bloomington, said he was not familiar with the Grace Davison permit but that the critters are often used in toxicity tests as a way to assess water quality.

"Those standards are set by EPA with the help of the state. They look at dilution factor also. As soon as it hits the river, it's not going to be the same (concentration) obviously," he said. "I think your question is, are the standards adequate to protect water quality. There are times when we have questioned that also."

The Grand Calumet River is considered impaired for several reasons, including not having the range or amount of fish that can be expected in similar areas. Researchers found fathead minnows in the river in 1988.

Grace Davison has proposed to maintain the same permit limits for sulfate, but speed up the velocity of the 520,000 gallons of wastewater it discharges per day. The pollution would be diluted by reducing the opening of the existing discharge pipe from 24 to 6 inches. It extends 10 feet into the Grand Calumet and will be tilted upward from the river bottom. Water would flow at less than a foot per second. The mixing zone of water and pollution would extend 10 feet from the edge of the river and ensure that wastewater meets water quality standards at the edge of the zone.

"The proposed new outfall configuration will increase mixing, resulting in a more dilute exposure to the organisms in the river and eliminating the sulfate toxicity," the company wrote in its permit application.

Indiana law allows companies to use a diffuser under certain conditions. Two of them are that it is not likely to jeopardize endangered or threatened species, and that the mixing zone does not extend to drinking water intakes. The nearest intake is in Lake Michigan, and the pollution would be diluted enough going through the Indiana Harbor and Ship Canal that it would not have an impact, the company said.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Environment

Law - Who is in charge of determining a state's legal position? A governor or an attorney general?

Is the attorney general of a state and his or her office a part of the executive branch, representing the state at the behest of his client, the head of the executive, the governor?

Or is the attorney governor of a state independent of the three branches of governor, making legal, and hence policy decisions, on her own -- decisions such as when to appeal a case, when to challenge a law, when to file or join an amicus brief with the SCOTUS?

Does it matter if the attorney general is separately elected, as opposed to appointed by the governor. Does it matter if his office is created by statutes, or by the constitution of the state?

This question is made real by the current debate over the filing of challenges to the constitutionality of the new health care law. Here are some snippits from recent stories:

And this story from Kevin Sack of the NY Times, dated 3/27/10, gives an excellent overview of all the current disputes. A quote:
Attorneys general are charged with representing the governor and executive branch agencies, but also may initiate and intervene in litigation in the interest of the citizenry. It is not uncommon, given that governors and attorneys general are elected independently and can be from opposing parties, that they clash over questions of authority.

In Michigan, Gov. Jennifer M. Granholm, a Democrat who cannot run again this year because of term limits, wrote a blistering letter last week to Attorney General Mike Cox, a Republican who announced on his Web site that “Michigan has joined” the health care lawsuit.

Ms. Granholm, a former attorney general, chastised Mr. Cox for “speaking for the State of Michigan” and told him his stand was “directly contrary to the position of this administration.”

She questioned whether he had the constitutional authority to supersede her own. And she directed him, as her lawyer, to assist in the defense of the case, asking his office in essence to work against itself. Mr. Cox, who is running in a competitive primary to succeed Ms. Granholm, said he was obligated to do so.

“I’m perfectly willing to let her exercise her option of being wrong and being represented while she does so,” Mr. Cox said. “The reality is that the federal court recognizes the attorney general as the voice of the state in federal litigation.”

As a point of interest, Indiana's attorney general position is statutory, not constitutional. There have been times when the governor and elected attorney general of Indiana were of different parties. And the office has not always been elective -- under earlier statutes, the attorney general was appointed by the Indiana governor.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to General Law Related

Ind. Courts - "No match on genetic test in case of Gary man who claims innocence"

A very long story today in the NWI Times, reported by Sarah Tompkins, looks at forensic evidence in a 1992 case. A quote:

These are some of the recent questions surrounding the case of Willie T. Donald, 41, who was convicted of murder and armed robbery in 1992. The results come as Donald tries to get a new trial, based largely on a victim eyewitness saying she identified the wrong man in the police lineup, and a prosecutor's notes highlighting her doubts that were not made known during the trial.

In cases in which wrongfully convicted prisoners have been proven innocent and released, the cities that investigated the crime have at times had to pay multimillion-dollar settlements, according to reports by the New York-based Innocence Project. It is a national organization of which many independent groups, such as Northwestern University's Medill Innocence Project, are affiliated. The Medill group has been working on the Donald case for more than two years.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Indiana Courts

Court - "High court mulls speech rights and more"

Joan Biskupic of USA Today takes a comprehensive look at free-speech cases this term. Worth reading.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Courts in general

Law - "A Lawyer Rejoins a Cause That First Gripped Her 70 Years Ago"

Susan Dominus reports today in the NY Times about a 90+ attorney. The story begins:

Ileta Green woke up Monday morning feeling anxious and dizzy, but when she arrived at the Supreme Court building in Brooklyn, she felt the pressure dissipate. There, waiting for her by the foreclosure settlement room on the third floor, was Shirley Adelson Siegel, a small 91-year-old woman in a silk scarf and a brown leather cap. “Hello, dear,” Ms. Siegel said, smiling at Ms. Green. “You’re looking well.”

Ms. Green smiled back at Ms. Siegel, the pro bono lawyer who is representing her as she fights for a modification of the mortgage on her home in Bedford-Stuyvesant, which is in foreclosure. “When I told my sister my lawyer’s age, she said, ‘What?’ ” Ms. Green said. “But I told her, she’s really, really experienced.”

Ms. Siegel had never let on to her client just how experienced she actually is. The only woman in her class at Yale Law School, Ms. Siegel did years of committee work in public housing and civil rights before becoming, in 1959, the head of the civil rights bureau of the New York State Law Department (“Woman Lawyer Becomes First Head of New State Civil Rights Unit,” read the headline in The New York Times). Under Mayor John V. Lindsay, she was general counsel of the Housing and Development Administration, and in 1979, Attorney General Robert Abrams appointed her the state’s solicitor general.

For the past two decades, Ms. Siegel hadn’t practiced much law, focusing instead on teaching and traveling. She picked it up again in earnest in 2008, through a foreclosure project at the City Bar Justice Center. The news of so many losing their homes was pressing enough that Ms. Siegel found a compelling reason to return to the cause that first captured her intellect as an undergraduate at Barnard in the late 1930s. “My interest was always to work to help people get decent housing they could afford,” Ms. Siegel said. “That’s what inspired the New Deal programs for public housing. And I guess I never got over it, that’s all.”

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to General Law Related

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

For publication opinions today (3):

In Jeffrey E. Akard v. State of Indiana , a 17-page opinion, Judge Bailey writes:

Appellant-Defendant Jeffrey E. Akard appeals his convictions and sentences for three counts of Rape, two as Class A and one as a Class B felony, three counts of Criminal Deviate Conduct, two as Class A and one as a Class B felony, two counts of Criminal Confinement, as Class B felonies, and two counts of Battery, as Class C felonies. We affirm the convictions, revise the sentences and remand with instructions. * * *

On appeal, Akard raises three issues, which we restate as:

I. Whether the trial court erred by admitting into evidence child pornography obtained from Akard’s residence;
II. Whether it was fundamental error to permit testimony referencing Akard’s post-arrest, pre-Miranda silence; and
III. Whether his aggregate sentence of ninety-three years is inappropriate. * * *

[III] Akard requests that we revise his sentences so that all his sentences run concurrently, decreasing his aggregate sentence to forty years. In McCullough v. State, the Indiana Supreme Court held that when a defendant requests review of his sentence under 7(B), “the reviewing court is presented with the issue of whether to affirm, reduce or increase the sentence.” McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009). In his concurring opinion, Justice Boehm agreed and went a step further, stating that “we should forthrightly state that although we have that power [to revise a sentence upwards], we have never exercised it and do not expect to exercise it in the future except in the most unusual case.” Id. at 751, (J. Boehm concurring). [Emphasis added by ILB]

This case is a most unusual case. * * *

Based on Akard’s character and the nature of the offenses, we conclude that this is a most unusual case that warrants the extreme rarity of this Court invoking its authority to revise a defendant’s sentence upward. We revise Akard’s sentence to an aggregate of 118 years imprisonment by ordering Counts I and IV to be served consecutively to the other Counts.

We affirm the convictions, revise the sentences and remand with instructions.

IU Law professor Joel Schumm notes that this is the "first case ever in which an Indiana appellate court has increased a sentence on appeal under its review and revise power. And the Attorney General did not request an increase in the case."

In Julie Correll v. Andrew Correll, a 20-page opinion, Judge Vaidik writes:

Julie C. (“Mother”) and Andrew C. (“Father”) had two children together before divorcing in 2006. The dissolution decree provided that the parties would share joint legal custody of the children with Mother having primary physical custody. In 2008 Father filed a motion to modify physical custody or, in the alternative, parenting time. Mother filed a response along with a cross-petition for modification of legal custody and child support and a request that the trial court find Father in contempt for failing to pay child support. Mother appeals the trial court's order entered following a hearing. We find that: (1) when modifying custody, the change in circumstances required by Indiana Code section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child and (2) when determining whether to modify joint legal custody, a trial court must consider whether there has been a substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15 as well as Indiana Code section 31-17-2-8. Further finding that the trial court here did not abuse its discretion by making a de facto modification to joint physical custody, declining to modify joint legal custody to sole legal custody in Mother, declining to find Father in contempt for failing to pay child support, calculating Father's child support obligation, and declining to award partial or full attorney's fees to Mother, we affirm.

Todd A. Whitehurst v. Attorneys of Aboite, LLC - "Appellant-Defendant, Todd A. Whitehurst (Whitehurst), appeals the trial court’s entry of supplemental judgment in favor of Attorneys of Aboite, LLC (Aboite) for Whitehurst’s breach of a sub-lease agreement. We affirm in part, reverse in part, and remand for further proceedings."

NFP civil opinions today (4):

Rosa Martinez, et al. v. Maria Espinoza (NFP) - "We also cannot ignore Espinoza’s subsequent efforts to locate and personally serve Martinez. Espinoza finally tracked Martinez to the correct church on 34th Street and twice attempted to serve her there, only to find that Martinez was not there at the time. It is important to note that Martinez was represented to be a pastor at the church in question and yet did not respond to two alias summonses and complaints. Under the facts and circumstances presented in the record before us, we conclude that Espinoza did use due diligence in attempting to locate Martinez.

"Martinez has not met her burden of demonstrating the trial court’s lack of personal jurisdiction over her and Mi Familia. The trial court therefore properly denied Martinez’s motion to dismiss. Affirmed."

Wells Fargo as Personal Rep. of the Estate of Brian R. Thornhill v. Dale Bloom, et al. (NFP) - "The trial court properly concluded that Norma's trust document controls and applied the presumption of apportionment. Also, the Appellees' claim against Brian's Estate was not barred on the grounds of claim preclusion. Finally, as to the Appellees' cross-appeal, the trial court correctly calculated the taxes owed by Brian's Estate. For all of these reasons, we conclude that the trial court properly entered summary judgment in favor of the Appellees and correctly calculated all relevant tax liabilities. Affirmed."

Tijuana Tucker v. Motorists Mutual Insurance Co. (NFP) - "This appeals stems from a three-vehicle accident involving appellant Tijuana Tucker, Brittany Spellman, and Deann Burns. Tucker appeals from a verdict in favor of Motorists Mutual Insurance Company (MMIC), a subrogee of its insured, Burns, in Burns's negligence action against Tucker. Affirmed."

Roland Barker, et al v. Jesus the Messiah Church (NFP) - "Based on the foregoing, we conclude that the Church presented sufficient evidence to prove that Gloria knew of dumping that had occurred on the property, and that Gloria made a fraudulent misrepresentation to the Church. Furthermore, the Church presented sufficient evidence that Barker Pool Center, Inc., should be held liable for nuisance as well. Affirmed."

NFP criminal opinions today (4):

Jerry D. Ashley v. State of Indiana (NFP)

Chad Snyder v. State of Indiana (NFP)

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

William Garrett v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "$700 million doesn't buy quality"

The Indianapolis Star has a strong editorial today that begins:

As state officials express worry over Indiana's future regarding Medicaid under the new health-care law, they would be well advised to speed up their departure from the immediate past.

In one major Medicaid category, nursing home reimbursements, the state and the industry have been on the plus side since 2003 and have failed so far to put the windfall to proper use.
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In fact, the $700 million in federal assistance passed along to nursing homes by the state in that period coincides with worsening care, shrinkage of the proportion of budgets that go to staffing, and fattening of the bottom line.

The appalling details were laid out Sunday in the latest Star Watch report on a major sector of the Indiana economy, entrusted with the fate of 40,000 vulnerable Hoosiers and ranked among the nation's poorest in service to them.

Here is Sunday's very long investigative story, by Heather Gillers, Tim Evans, Mark Alesia and Mark Nichols, titled "$700M -- no strings attached -- didn't help nursing homes: Investigation shows care has declined in state despite additional funding." Here is the beginning:
Indiana nursing homes have received nearly $700 million in payments from the state since 2003 in a program the industry pitched as a way to improve the quality of care.

But the money was handed out to the industry with no requirements to use it to improve care -- or any financial incentive to do so.

The Indianapolis Star's continuing investigation into the state's troubled nursing homes shows that during the time the industry has been receiving the payout, many nursing homes padded their bottom lines while care of the state's most vulnerable declined.

The Star found:

Overall violations have increased. In 2003, Indiana was 15th best in the nation in the average number of violations per facility. In 2009, it was eighth worst.

Serious violations are more prevalent. In 2003, Indiana was 17th worst in the nation in the percentage of facilities with at least one violation in the most serious categories: "actual harm" and "immediate jeopardy." Indiana was last in 2007 and was sixth-worst in 2009.

State documents reveal that from July 2003 to December 2007 -- the only period for which the state has made such data public -- nursing home cash balances jumped 29 percent and owners' equity ballooned by 31 percent.

The amount of time nursing home staff spends with patients is critical in improving quality, yet the percentage of nursing home budgets dedicated to staffing fell from 2003 to 2009. Indiana is now 51st -- behind every state and the District of Columbia -- in the hours nursing aides spend with patients, and 42nd in the amount of time registered nurses spend with patients.

Faith Laird was a nursing home industry official who helped pitch the program to state officials and lawmakers. She said the program was intended to improve care but also was popular with state lawmakers because it would bring in hundreds of millions of federal dollars for the industry and other state Medicaid programs.

Today, Laird is the director of the state's Division of Aging, a branch of the Family and Social Services Administration, which is responsible for administering the program. She is disappointed it has not led to better care -- and she has a pretty good idea why.

"There were no strings attached," Laird said of the program, which was tucked into the 2003 budget bill with little public debate. "That was probably a mistake from the beginning."

The plan was signed into law by then-Gov. Frank O'Bannon in May 2003 and renewed four times under Gov. Mitch Daniels.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Indiana Government

Ind. Decisions - 7th Circuit today decides case re attorney-client privilege and the work-product doctrine

This case is out of Illinois and deals with the attorney-client privilege and the work-product doctrine, as well as the scope of the collaterial-order doctrine. It is Sandra T.E., et al. v. South Berwyn School District 100 and Sidley Austin LLP, a 20-page opinion by Judge Sykes. The case was decided Feb. 25, 2009, the day after the oral argument, with a notation that an opinion would follow, as it does now, over one year later. Judge Sykes' opinion begins:

An elementary-school music teacher in the South Berwyn School District 100 was charged with sexually molesting numerous students over a period of several years during his tenure in the district. Some of the victims brought this civil lawsuit against the District and a school principal who allegedly knew about the abuse long before the charges were filed but did not take appropriate responsive action. Reacting to the criminal charges and the filing of the civil suit, the School Board hired attorneys from Sidley Austin LLP to conduct an internal investigation and provide legal advice to the Board. As part of this investigation, Sidley attorneys interviewed many current and some former school-district employees and third-party witnesses. These interviews were not recorded. Instead, the attorneys took handwritten notes and later drafted memoranda summarizing the interviews. Sidley delivered its findings and legal advice to the School Board in an oral report and a written executive summary, but has not represented the defendants in this litigation.

During discovery the plaintiffs issued a subpoena for the documents in Sidley’s possession relating to its District 100 investigation. Relying on the attorney-client privilege and the work-product doctrine, Sidley declined to produce its notes and internal memoranda relating to the employee and witness interviews and other legal memoranda prepared in connection with the investigation. On the plaintiffs’ show-cause motion, the district court concluded that Sidley had been hired to provide investigative services, not legal services, and ordered the firm to produce the documents. Sidley appealed.

Immediately following oral argument, we issued an expedited order reversing the district court and holding that the law firm’s documents were protected by the attorney-client privilege and the work-product doctrine. This opinion explains the rationale behind that summary order and also addresses an intervening development regarding the scope of the collateral-order doctrine, which supplied our jurisdiction to immediately review the district court’s order.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - More on: "Illinois offers option to keep driving records clean for speeders"

Updating this March 21, 2010 ILB entry, the same Chicago Tribune reporters, Joe Mahr and Gerry Smith, write today:

Most speeding tickets in the Chicago area don't go on driving records — thanks to court supervision, a type of probation that helps speeders avoid license suspensions and higher insurance rates.

An analysis of secretary of state data showed that 57 percent of Chicagoland drivers found guilty of speeding last year received supervision, which kept their driving records clean. Outside Cook County and the five collar counties, 39 percent of drivers on average got the deal.

The practice last year kept more than 160,000 Chicago-area speeding tickets off the state system that records drivers' histories.

The data reinforce a Tribune analysis published last week, which found that since 2006, area courts routinely have given supervision to speeders cited by state police for going 100 mph or faster. The probation has been granted regularly to drivers weaving at those speeds, even many who were drunk at 100 mph and beyond. The new data, however, focuses on 2009 tickets, and on all police agencies, not just state police.

Supervisions have been popular in area courts for the last three decades as a way for speeders to admit they did wrong but avoid any mention of it on their driving records. That way, insurance companies don't see the ticket. The secretary of state's office also can't use the ticket as a reason to suspend a license. * * *

The insurance industry and traffic safety advocates have complained about how much Illinois courts grant supervision, saying it emboldens bad drivers to keep driving dangerously. In the last decade, reforms have led to centralized reporting of supervisions and a limit of two a year.

Area judges say supervisions are a useful tool to prod speeders into behaving. They can be ordered to attend traffic school, pay a higher fine and, more rarely, do community service.

There are no hard-and-fast rules on when it's given, said DuPage County Associate Judge Thomas Riggs, who heads the traffic division. The division granted court supervision to 57 percent of guilty speeders.

"Every case has to be decided on its own facts," he said, adding, "It's more of a privilege than a right."

DuPage tied with Cook County for the area's third-highest supervision rate in 2009, above Kane (49 percent) and Will (54 percent) and below McHenry (60 percent).Leading the pack was Lake County, which gave supervision to 61 percent of speeders found guilty. * * *

Illinois isn't alone in keeping tickets off driving records. At last count, 39 states had some type of program like court supervision, but nobody tracks the most generous. A 2004 study by the Insurance Institute for Highway Safety studied jurisdictions in three states — Indiana, Florida and Maryland — and found that none granted the special probation to more than half of speeders found guilty, as is done in metro Chicago.

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Courts in general

Courts - Even more on "Cancer Patients Challenge the Patenting of a Gene"

Updating earlier ILB entries, GenomeWeb Daily News reports: "Federal Court Rules that Myriad's BRCA Patents are Invalid; Deems 'Isolated DNA' Unpatentable."

This is big. Currently, Myriad holds the patents on this test for hereditary breast cancer, and the last I checked, the test was $3,000 and frequently not covered by insurance. Some quotes from the story:

NEW YORK (GenomeWeb News) — A US District Court today sided with the American Civil Liberties Union and other plaintiffs in an ongoing anti-gene-patenting lawsuit by declaring Myriad Genetics' BRCA gene patents invalid.

The suit, filed last May by the ACLU and the Public Patent Foundation on behalf of several scientific organizations and women's health groups, charged that the BRCA gene patents held by the University of Utah Research Foundation and exclusively licensed to Myriad "stifle research that could lead to cures and limit women's options regarding their medical care."

The suit, while focused on Myriad's patents, essentially challenged the constitutionality of patenting all genetic sequences on First Amendment grounds.

The ACLU said in a statement today that the ruling "marks the first time a court has found patents on genes unlawful and calls into question the validity of patents now held on approximately 2,000 human genes."

In the ruling, Judge Robert Sweet noted that the case hinged on the fact that the patents protect "isolated DNA," which is "premised on the view that DNA should be treated no differently from any other chemical compound and that its purification from the body, using well-known techniques, renders it patentable by transforming it into something distinctly different in character."

However, Sweet noted that because "DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature … [its] existence in an 'isolated' form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes."

Therefore, he concluded, "the patents at issue directed to 'isolated DNA' containing sequences found in nature are deemed unpatentable subject matter."

The Wall Street Journal reports, in a story today by Nathan Koppel and Shirley Wang:
In a court ruling likely to be followed closely by the medical industry, a federal judge in Manhattan on Monday struck down some of a company's patents on two genes linked to breast and ovarian cancers.

The decision, which addresses questions about whether human genes should be subject to patent protection, could have ramifications for diagnostics and biotechnology companies that have relied heavily on gene-related patents to help them build their businesses. Many companies are trying to build revenue around exclusive licenses.

As much as 20% of the human genome, some scientists estimate, is subject to patents. But critics say that creates monopolies that block alternative tests and research that might yield better, and cheaper, care.

The ruling by U.S. District Judge Robert Sweet follows a lawsuit filed last year by the American Civil Liberties Union and the Public Patent Foundation against Myriad Genetics Inc. and the University of Utah Research Foundation. Myriad and the research foundation hold patents covering the BRCA1 and BRCA2 genes, which have been linked to hereditary cancers.

The ACLU, on behalf of cancer patients and women's health groups, claimed that Myriad's patents had blocked patients from getting the highest-quality testing for genetic breast cancer. * * *

Many geneticists say the BRCA1 and 2 patents were particularly important because the genes are powerful markers for diagnosis of breast cancer risk.

The best coverage I've seen is here, at the blog Singularity Hub. The reports by Aaron Saenz begins:
In what is sure to become a landmark case for genomics, a US District Court Judge in New York (Robert Sweet) has ruled that patents on human genes held by Myriad Genetics are invalid. These patents, on the BRCA1 and BRCA2 genes, were issued more than a decade ago and gave Myriad exclusive rights to examine those sections of DNA. Mutations in BRCA 1 and 2 carry important links to breast and ovarian cancer, and Myriad’s BRAC Analysis (Be Ready Against Cancer) genetic screening is used to provide patients with a better understanding of their risk for the diseases. The court decision effectively eliminates Myriad’s rights to solely market tests on the BRCA genes, which may lower costs (previously up to $3000) for those interested in the tests . The American Civil Liberties Union (ACLU) lead the attack against the Myriad patents which it shares equally with the University of Utah Research Foundation. This case has wide ranging implications for the entire genomics community. 20% of human genes are patented, often along with the process of identifying the genes, and these patents are now drawn into question. It is almost certain that this ruling will be appealed and eventually reach the US Supreme Court. It may take years before a final decision is made, but for now it seems like the human genome may no longer be up for grabs as intellectual property. Thank goodness.
The story inclues a link to the 156-page opinion.

[More] The NY Times has this story by John Schwartz and Andrew Pollack. A quote:

Myriad Genetics, the company that holds the patents with the University of Utah Research Foundation, asked the court to dismiss the case, claiming that the work of isolating the DNA from the body transforms it and makes it patentable. Such patents, it said, have been granted for decades; the Supreme Court upheld patents on living organisms in 1980. In fact, many in the patent field had predicted the courts would throw out the suit.

Judge Sweet, however, ruled that the patents were “improperly granted” because they involved a “law of nature.” He said that many critics of gene patents considered the idea that isolating a gene made it patentable “a ‘lawyer’s trick’ that circumvents the prohibition on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result.”

The case could have far-reaching implications. About 20 percent of human genes have been patented, and multibillion-dollar industries have been built atop the intellectual property rights that the patents grant. * * *

Myriad sells a test costing more than $3,000 that looks for mutations in the two genes to determine if a woman is at a high risk of getting breast cancer and ovarian cancer. Plaintiffs in the case had said Myriad’s monopoly on the test, conferred by the gene patents, kept prices high and prevented women from getting a confirmatory test from another laboratory. * * *

One of the individual plaintiffs in the suit, Genae Girard, who has breast cancer and has been tested for ovarian cancer, applauded the decision as “a big turning point for all women in the country that may have breast cancer that runs in their family.” Chris Hansen, an A.C.L.U. staff lawyer, said: “The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.”

And from the WSJ Law Blog, "Court Shoots Down Patents on Two Human Gene Sequences."

Posted by Marcia Oddi on Tuesday, March 30, 2010
Posted to Courts in general

Monday, March 29, 2010

Courts - More on: Anonymous commenter turns out to be judge's daughter

Or maybe not. "More than 80 anonymous online comments originated from the personal Internet address of Cuyahoga County Common Pleas Judge Shirley Strickland Saffold." is the heading to another story, dated March 26, 2010 from the Cleveland Plain Dealer's James F. McCarty. The earlier ILB entry is here.

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Courts in general

Courts - Challenging the new health care law

Indiana AG Zoeller has issued a press release today announcing that he will join with some other states in a legal challenge to the recently-passed law. Some quotes:

Indiana is joining an action originally filed last week by 13 other states in U.S. District Court for the Northern District of Florida. The complaint will be amended in light of the U.S. Senate on Thursday passing the House changes that accompanied the underlying health-restructuring bill the U.S. House passed March 21.

"There has been a great deal of public debate regarding this new federal program. While I personally share the grave concerns that have been expressed regarding this law, I believe it is in the best interests of all -- even those who have supported the new law -- to raise the constitutional questions to the United States Supreme Court," Zoeller said. "When the federal government imposes unprecedented legal obligations of this magnitude on state government, it is my obligation as Attorney General to join and participate in challenging the constitutionality of the bill." * * *

"There are advantages to joining in with other states in raising the constitutional issues arising from the new claim of federal authority over individuals and states. Our goal by joining is ultimately to bring the constitutional questions to the United States Supreme Court for review," Zoeller said.

The Indiana Attorney General's Office has notified the Florida Attorney General's Office that Indiana seeks to join the complaint as one of the multi-state plaintiffs. An amended complaint that both challenges the modified federal legislation and adds Indiana will be filed in U.S. District Court in the near future. With 14 states now sharing in the effort -- plus a separate challenge brought by Virginia -- Zoeller believes legal costs to Indiana can be significantly reduced.

Also today the AG of Ohio, Richard Cordray., explained why he wouldn't sue over health care.

The NY Times has gathered together the opinions of a number of legal experts under the heading "Is the Health Care Law Unconstitutional?"

Dahlia Lithwick writes in Newsweek under the heading "Lawyers vs. Health Reform: Why the court challenges will fail."

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Courts in general

Environment - More on "Voices aired on Rockport gasification plant "

Updaitng this ILB entry from Dec. 4, 2009, and this one from Feb. 9, 2010, the Evansville Courier & Press had this editorial Sunday, March 28th, 2010 on coal gasification.

[More from 3/31/10] See this letter today in the C&P.

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Environment

Law - "In New York, Breaking a Law on Roommates"

Recall this ILB entry from Oct. 4, 2008 headed "Two cases before COA involving West Lafayette's application of city occupancy ordinances"?

The cases dealt with "the issue of local ordinances in Indiana limiting the number of unrelated people who may live together. This issue is often raised in college towns, and our Supreme Court has issued a ruling on it (Dvorak v. City of Bloomington - 9/23/2003)," as well as the duty of the city to make available to its citizens the legal requirements they are expected to follow.

Today, the NY Times has a long story headed "In New York, Breaking a Law on Roommates" which takes a much lighter view of these legal restrictions. Some quotes:

And in New York, home to some of the nation’s highest rents and more than eight million people, many of them single, it is illegal for more than three unrelated people to live in an apartment or a house.

The law, for decades part of the city’s Housing Maintenance Code, is little known, widely broken and infrequently enforced. Three citations have been issued since July, according to the Department of Housing Preservation and Development.

When the law is enforced, it is usually because of a complaint from a neighbor or because inspectors spotted a violation while responding to a maintenance problem. The violation is rarely written up unless it is accompanied by a host of others. Rarer still are the tenants who call up the city to turn in their landlord.

The lax enforcement might not be a bad thing, since a sizable number of the city’s denizens, especially its penny-pinched younger residents, have found living with more than two others a financial necessity. According to the Census Bureau’s 2008 American Community Survey, nearly 15,000 dwellings in the city housed three or more roommates who were unrelated to the head of the household. Experts say that number is almost certainly underreported.

“To pack unrelated people in an apartment? I don’t think it’s wrong,” said Mr. Moua, who moved to the city from Minnesota in 2005. “It’s part of New York City culture.”

Mr. Moua, who played Spider, a bandana-clad villain in “Gran Torino,” never thought twice about moving into the immaculately renovated four-bedroom apartment in Hamilton Heights that half a dozen people call home. The place is lined with track lighting and has two bathrooms. His room costs $850 a month.

At first, four people lived in the apartment, but then a roommate’s girlfriend moved in, along with a friend of Mr. Moua’s, who sleeps on a couch in his room.

One of the roommates, David Everett, who is 21 and pays $750 a month, said the law made no sense. “Everything is overpriced,” Mr. Everett said. “To find an apartment that is good housing with few roommates is not going to happen.”

Other cities have similar laws, often spottily enforced. In New Orleans, it is illegal for more than four unrelated adults to live together, though the city’s safety and permits director said that only about five violations were issued a year. In Boston, a 2008 law passed in response to complaints about overcrowding and garbage says that no more than four college undergraduates may live together. Amherst, Mass., which has a sizable college population, also draws the line at four people.

In New York, student dormitories and group homes are exempt from the law. But illegal arrangements can be found across the five boroughs, and they cross lines of age, class, race and dress. They include young actors and ponytailed post-graduates; rising and falling junior investment bankers; immigrants, legal and illegal; and trend-obsessed residents in Brooklyn neighborhoods.

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to General Law Related

Ind. Gov't. - More on: Ind. Gov't. - Indy Star posts latest database of state employee salaries

Updating this ILB entry from March 23, 2010, which revealed that House Speaker Pat Bauer earned $63,023 last year as a part-time legislator, Dorothy Schineider of the Lafayette Journal Courier has a story today headed "Lawmakers made more, and can explain why." Some quotes:

In 2009 -- a year when salary freezes seemed to be common than not -- it's notable that state lawmakers from the Lafayette area received as much as $15,898 in additional pay, according to a new database of state pay.

That single year's increase in pay was more than the annual salaries of legislators in Mississippi, Nebraska, New Hampshire, South Carolina and Texas, according to data from the Council of State Governments.

But there are several factors that played into the 2009 paychecks for Indiana's part-time legislators, which were among those reported in the past week in a state pay database compiled by The Indianapolis Star.

A bill passed in 2007 granted lawmakers the first base pay increase since 1985.

That pay hike took effect in 2009, boosting base pay for legislators from $11,600 to $22,616. In addition to the base pay, those in the General Assembly receive a per diem and other expenses. * * *

While 2009 was a scheduled "long session," giving lawmakers time to work through the budget process, lawmakers wound up back in a special session in June to resolve their differences.

The special session costs were not available from Indiana House staff last week.

But on the Senate side, lawmakers were paid more than $32,000 in per diem for the extra June days.

For background, see this March 04, 2007 ILB entry headed "Senate passes a non-transparent and convoluted pay raise bill."

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Indiana Government | Legislative Benefits

Ind. Gov't. - More on "Trustee spend $20,000 to defend $758 decision"

Updating this ILB entry from March 25, 2010, see this editorial today in the Indianapolis Star, headed "Costly result of an outdated system," that begins:

Washington Township Trustee Frank Short's decision to spend $20,000 to save $758.27 is another curious chapter in the sad story of government inefficiency in Indiana.

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Microvote General Corporation v. Indiana Election Commission , a 29-page opinion, Judge Riley writes:

Appellant-Petitioner, MicroVote General Corporation (MicroVote), appeals the trial court's Order denying MicroVote's Petition for Judicial Review and Petition for Stay of Enforcement of the final agency order issued by the Appellee-Respondent, the Indiana Election Commission (IEC). The IEC's final order prohibits MicroVote from marketing, leasing or selling voting systems in Indiana for eighteen months, with additional reporting requirements for three and one-half years thereafter. We affirm.

Issues. MicroVote raises three issues on appeal, which we restate as follows:
(1) Whether the trial court erred in affirming the IEC's final order on res judicata grounds in light of a previous determination by the Indiana Secretary of State during an administrative hearing;
(2) Whether the trial court erred in affirming the IEC's final order on collateral estoppel grounds; and
(3) Whether the trial court erred in determining that the IEC's final order, which imposed penalties and conditions, did not exceed its statutory authority. * * *

[1] Based on the totality of the evidence before us, we agree with the trial court that MicroVote failed to satisfy the privity requirement of res judicata. While the OSS and the IED both have duties related to Indiana's elections, their respective duties are significantly different. Statutorily, the OSS cannot order the sanctions provided for in I.C. § 3-11-7.5-28 and the IEC could not order the penalties provided for in I.C. § 3-11-17-3. In other words, as the OSS's and IED's responsibilities are different, their ultimate interests in pursuing these responsibilities are necessarily distinct: whereas the OSS is focused on civil penalties, only the IED and IEC can impose a revocation of a previous issued license for an electronic voting system. As a result, we conclude that res judicata did not bar the proceedings before the IEC. * * *

[2] We find no error in the application of offensive collateral estoppel in the proceedings before the IEC. The record reflects that MicroVote had a full and fair opportunity to litigate the issue of its violations and now allowing MicroVote to relitigate of this issue would be unfair under the circumstances. Therefore, we affirm the trial court. * * *

[3] [W]e conclude that the discretionary nature of Indiana's election law statute combined with the AOPA, empowers the IEC to sanction a vendor for violating I.C. § 3-11-7.5-28 without de-certifying the vendor's voting equipment. The IEC has the discretion to impose a complete executed penalty or stay part of the penalty and impose additional reporting requirements during this stayed period.

Conclusion. Based on the foregoing, we conclude that the trial court properly affirmed the IEC's Final Order and the IEC's imposed penalties and conditions. Affirmed.

NFP civil opinions today (4):

Shaun L. Steele v. Michael Books, et al. (NFP) - "Steele has not demonstrated that he was entitled to immediate release. The trial court did not err in denying Steele’s petition for a writ of habeas corpus."

Charles Thacker v. Fairmont Homes, Inc. (NFP) - "Thus, as Commander’s parent corporation, Fairmont is a joint employer of Thacker, making the WCA Thacker’s exclusive remedy for his employment-related injuries. The trial court properly dismissed the complaint for lack of subject matter jurisdiction."

Hilda Tsai v. Alfredo R. Pamintuan (NFP) - "In sum, the record herein contains evidence to support the trial court's findings; and we, therefore, cannot say that the findings are clearly erroneous. Given the parents' tense relationship and inability to communicate; the long distance involved in the proposed relocation; and the trial court's observation that Mother's prior conduct of interfering with Father's exercise of parenting time was indicative of potential future problems to come, we cannot say that the trial court's finding that the proposed relocation was not in the best interest of the children was clearly erroneous as such was supported by the evidence in the record. See D.B., 913 N.E.2d at 1274. Nor can we say, after our review of the record, that the trial court's judgment denying Mother's proposed relocation is clearly erroneous and leaves us with a firm conviction that a mistake has been made."

Twyla Teller Ostrowski v. Accusil, Inc. (NFP) - "We certainly cannot say that the evidence is undisputed and leads inescapably to a contrary conclusion, and therefore, we must affirm the Board’s dismissal of Ostrowski’s claim and denial of her motion to submit additional evidence."

NFP criminal opinions today (5):

Michael Adams v. State of Indiana (NFP)

Michael Wallace v. State of Indiana (NFP)

Juan Gonzalez v. State of Indiana (NFP)

Jermail D. Warren v. State of Indiana (NFP)

Patricia Fisher-Lacy v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax court posts two opinions dated March 26th

In Washington Township Assessor, et al. v. Trimas Fasterners, Inc., a 12-page opinion, Judge Fisher writes:

Sue Ann Stinson, in her official capacity as the Washington Township Assessor, Clinton County, and Dana Myers, in her official capacity as the Secretary of the Clinton County Property Tax Assessment Board of Appeals (collectively, the Assessor) challenge the final determination of the Indiana Board of Tax Review (Indiana Board) valuing the real property of Trimas Fasteners, Inc. (Trimas) for the 2002 assessment. The issue for the Court to decide is whether the Indiana Board's final determination was improper. * * *

The valuation of property is the formulation of an opinion; it is not an exact science. When there are competing opinions as to how a property should be valued, the Indiana Board must determine which opinion is more probative. That determination is, essentially, the result of how effectively each party has persuaded the Indiana Board that its value opinion is more credible and reliable than that of the other. Here, the Indiana Board found that Trimas's appraisal was more persuasive than the appraisals offered by the Assessor. Based on its review of evidence in the administrative record, the Court does not disagree. Consequently, the Indiana Board's final determination is AFFIRMED.

In Meijer Stores Limited Partnership v. Betty Smith, Wayne Township Assessor, et al., a 10-page opinion, Judge Fisher writes:
On August 16, 2006, the Indiana Board of Tax Review (Indiana Board) issued a final determination valuing the real property of Meijer Stores Limited Partnership (Meijer) for the 2002, 2003, and 2005 tax years (the years at issue). Meijer now challenges that final determination. * * *

In its appeal to this Court, Meijer asserts that the Indiana Board erred in rejecting its obsolescence analysis and its sales comparison analysis, as there was no evidence in the record that indicated that the analyses were unreliable. (See, e.g., Pet’r Br. at 15-19; Oral Argument Tr. at 10, 38-39.) In contrast, Wayne County asserts that the Indiana Board’s final determination is proper, as the Board simply fulfilled its statutory duties: it evaluated Meijer’s evidence and properly determined that several parts of the appraisal were entitled to no weight. (See, e.g., Resp’ts Br. at 7-17; Oral Argument Tr. at 28-30, 36-37 (footnote added).) * * *

This Court has previously stated that one of the most effective methods for a taxpayer to rebut the presumption of correctness afforded to an assessment made pursuant to Indiana’s assessing guidelines is through the presentation of a market value-in-use appraisal, completed in conformance with USPAP. See, e.g., Lakes of Four Seasons Prop. Owners’ Ass’n v. Dep’t of Local Gov’t Fin., 875 N.E.2d 833, 837 n.7 (Ind. Tax Ct. 2007), review denied. Meijer presented such an appraisal. Accordingly, Wayne County needed to present some other market-based evidence that impeached Meijer’s appraisal and supported its own assessment. Wayne County presented no such evidence. Consequently, Meijer established that the actual market value-in-use of its property for the years at issue was $6,300,000.

For the above stated reasons, the final determination of the Indiana Board is REVERSED. The matter is REMANDED to the Indiana Board so that it may instruct the appropriate assessing officials to assess the subject property consistent with this opinion.

Posted by Marcia Oddi on Monday, March 29, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending March 26, 2010

Here is the Clerk's transfer list for the week ending March 26, 2010. It is one page long.

No transfers were granted the week ending March 26, 2010.

__________

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.

Over 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, March 29, 2010
Posted to Indiana Transfer Lists

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

The answer to "What did you miss from the ILB during the weekend? is: It was a pretty slow weekend.

From Sunday, March 28, 2010:

From Saturday, March 27, 2010: From late Friday, March 26, 2010:

Posted by Marcia Oddi on Monday, March 29, 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 3/29/10):

Thursday, April 1st

Next week's oral arguments before the Supreme Court (week of 4/5/10):

Next Wednesday, April 7th


This week's oral arguments before the Court of Appeals (week of 3/29/10):

Monday, March 29th

Thursday, April 1st

Next week's oral arguments before the Court of Appeals (week of 4/5/10):

Next Wednesday, April 7th

Next Thursday, April 8th

Next Friday, April 9th

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, March 29, 2010
Posted to Upcoming Oral Arguments

Sunday, March 28, 2010

Ind. Courts - More on "Anderson attorney faces child porn charges"

Updating this ILB entry from March 11, 2010, Christina M/ Wright reports today in the Anderson Herald Bulletin:

ANDERSON — The Indiana commission that investigates misconduct by attorneys cannot confirm or deny whether it was investigating an Anderson lawyer who was arrested on child pornography charges, but said it was “aware of Mr. Hasler’s arrest.”

“The reason for that (not commenting on any investigations) is that a lot of complaints against lawyers that we get have no merit,” said Seth Pruden, interim executive secretary of the Indiana Supreme Court Disciplinary Commission. “All I can say is, we’re aware of Mr. Hasler’s arrest.”

Federal agents arrested Hasler, 50, on March 9, after the lawyer allegedly sent child pornography to an undercover agent. Authorities allegedly found files later on his work computer. Hasler faces two counts of distributing child pornography and one count of possessing child pornography.

He is being held at a Community Corrections Center in Indianapolis until trial.

Pruden said the commission would only comment on any investigation into Hasler if one resulted in a “verified complaint for disciplinary action.” * * *

According to the documents, a forensic examiner “found numerous images and videos of child pornography stored in folders” on Hasler’s office external drive.

As for now, Hasler’s law license in valid; however, he has been remanded to the Community Corrections Center in Indianapolis until his trial.

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

Ind. Gov't - State reclassifying special-needs foster children as children without special needs, to save money

Charles D. Wilson and Carly Everson of the AP have the report today. Some quotes from the long story:

INDIANAPOLIS — Indiana is trying to shift hundreds of foster children with medical, emotional or behavioral problems into cheaper care for children without special needs, a move that cuts payments to families who care for the state's most challenged children.

The change would give foster families less money to pay for therapy, food and clothing and other costs. And some fear that fewer families could volunteer for the job in the future because they'd have to cover the bills themselves.

Foster parents who provide homes for special-needs children are paid up to $100 a day. Under the state's new plan, many would receive $25 or less. * * *

The changes, made quietly without public attention, come as officials are attempting to cut $56 million from the cost of providing for the more than 10,000 children who are in the state's care because they could not remain with their families. The Department of Child Services announced plans in late 2009 to cut payments to those who provide homes for the children by 10 percent. Overall, the cuts would reduce the state's costs by about 8 percent by June 2011. * * *

Children who have special needs include pregnant teenagers, victims of sexual abuse, infants born to drug-addicted moms, those with severe medical problems or with behavioral problems that lead them to act violently.

According to placement agencies, a 1-year-old boy born with cocaine and marijuana in his system and behavioral problems was placed in traditional care at one facility. Two siblings who had been sexually abused by relatives, including an 11-year-old girl who vandalized her foster home and threatened her foster mother, also were reclassified.

The state wouldn't say how many children have been reclassified. But one placement agency official said almost half his special-needs children were downgraded; another official said all the children at some agencies were affected. * * *

A federal judge has temporarily blocked the cuts and reclassifications after foster parents and private agencies filed suit. The state is appealing the order.

Citing the litigation, DCS spokeswoman Anne Houseworth declined to comment on the cost-cutting measures. But she said the state's goal is to provide children the care they need while paying less when appropriate.

Posted by Marcia Oddi on Sunday, March 28, 2010
Posted to Indiana Government

Saturday, March 27, 2010

Law - Obama makes nine recess appointments, but not Dawn Johnsen

Here is the story by David Ingram of the Blog of Legal Times, which includes biographical material on all nine appointees. From the story:

President Barack Obama is using his recess appointment power to install 15 stalled nominees, including labor lawyer Craig Becker and Georgetown University law professor Chai Feldblum.

The recess appointment power, used regularly in the administrations of George W. Bush and Bill Clinton, side-steps several difficult confirmation battles and allows the 15 nominees to serve through the end of 2011. Becker, picked for the National Labor Relations Board, and Feldblum, for the Equal Employment Opportunity Commission, have faced especially heated opposition.

Also among the 15 nominees are Jacqueline Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, for chair of the EEOC; Winston & Strawn partner Eric Hirschhorn for under secretary of commerce for export administration; Seyfarth Shaw of counsel Victoria Lipnic for the EEOC; P. David Lopez, an EEOC supervisory trial attorney, for EEOC general counsel; Buffalo, N.Y., labor lawyer Mark Pearce for the NLRB; and former Mayer Brown partner Michael Punke for deputy trade representative.

Not included in the list are several nominees for the U.S. Department of Justice, including Dawn Johnsen, a law professor at Indiana University at Bloomington, for the Office of Legal Counsel.

In a news release Saturday, Obama said he could not allow "partisan politics to stand in the way of the basic functioning of government.

Another Hoosier, Jill Long Thompson, was appointed to the Farm Credit Administration Board

Posted by Marcia Oddi on Saturday, March 27, 2010
Posted to General Law Related

Environment - Portending the future of the Great Lakes? [Updated]

"Asian carp spreading through Tenn. waters" is the headline of a story today by Anne Paine of The Tennessean. Some quotes from the long story:

NASHVILLE, Tenn. -- They're nicknamed the "silver bullet" and have broken boaters' noses, jaws and ribs.

That hasn't happened here, but Asian carp that can weigh up to 50 pounds and jump into the air when disturbed have shown up in the Cumberland River as far upstream as Cheatham Dam in Ashland City, according to the Tennessee Wildlife Resources Agency.

Aside from endangering boaters and water skiers, the bug-eyed, silver-colored fish have anglers alarmed because they can multiply quickly and threaten the food that bass, crappie, paddlefish and the state's other native species depend on. If the fish can't be controlled they could jeopardize the state's $1.3 billion sports and commercial fishing industries.

"Every year they just get thicker and thicker," said Thomas Peach, a commercial catfish fisherman in Camden, Tenn. "Each year they get further up the river.

"We're worried about what's going to happen to our fish - all fish. Not just commercial fish."

In the Illinois River, the invasive fish erupt around motorboats like popcorn in a hot pan. Efforts to keep them out of the Great Lakes where they could wipe out the fisheries include spending millions of dollars on electrical barriers, with many other projects proposed. * * *

One of Peach's colleagues has hauled in as much as 5,000 pounds of silver carp in a day from the northern portion of Kentucky Lake. The lake, which runs from Kentucky to Pickwick Dam south of Savannah, Tenn., is part of the Tennessee River.

"What we don't know is if they're going to spawn in Kentucky Lake," said Bill Reeves, chief of TWRA's fisheries division.

"It's one thing to deal with migrants coming through locks. It's another thing if they get to Pickwick. If the numbers are there and the flow is there that creates the optimum conditions for spawning, they'll fill the lake up."

The silver carp were brought to this country from China, mainly to clean up the algae and detritus in catfish ponds and sewage lagoons.

But massive flooding on the Mississippi River since the early 1990s sent water across ponds, allowing the carp to escape into the major waterway.

The Mississippi has the flow, large size and other qualities needed to trigger the fish's reproduction cycle. They've proliferated, particularly in tributaries like the Illinois River where treated sewage wastewater and fertilizers with phosphorous and nitrogen that wash off crop fields create algae blooms and provide the food they seek.

[Updated 3/28/10] "Great Lakes DNRs need to unite" is the heading to a story today in the Detroit Free Press by outdoors writer Eric Sharp.

Posted by Marcia Oddi on Saturday, March 27, 2010
Posted to Environment

Courts - More on "Kentucky Appeals court upholds $6.1 million strip-search verdict against McDonald's"

Updating this ILB entry from Nov. 21, 2009, Andrew Wolfson reported yesterday in the Louisville Courier Journal, under the headline "McDonald's and strip-search victim settle lawsuit" - the story begins:

With both sides unwilling to take their chances on an appeal, McDonald’s and strip-search victim Louise Ogborn have settled the lawsuit in which a jury awarded her $6.1 million.

The company Friday withdrew a petition in which it was asking the Kentucky Supreme Court to hear the case.

The Kentucky Court of Appeals in November upheld the award, which included $5 million in punitive damages, saying the company was “fully aware” of hoax calls to its restaurants, yet its management made “a conscious decision not to train or warn employees or managers about the calls.”

McDonald’s and Ogborn’s co-counsel, Ann Oldfather, declined to disclose the amount of the settlement, although Oldfather noted that the Court of Appeals ruling was a “resounding victory” for Ogborn.

Danya Proud, a spokeswoman for McDonald’s USA, said, “We are pleased that this matter has been matter has been resolved to the parties' satisfaction.” She added, “As always, we remain vigilant in our efforts to protect our employees and provide them with a safe and respectful workplace.”

As part of the settlement, the two sides agreed to the withdrawal of the punitive damage judgment.

Trial lawyer Gary Weiss, who wasn’t involved in the case, said that was probably done because punitive damages are taxable. The move would allow McDonald’s to pay Ogborn more than the $1.1 million awarded by the jury in compensatory damages without Ogborn having to pay taxes on the settlement.

Posted by Marcia Oddi on Saturday, March 27, 2010
Posted to Courts in general

Ind. Courts - Even more on: Wisconsin's diploma privilege under attack

The ILB has had several entries on Wisconsin's "diploma privilege" and a legal challenge to it. This entry from April 11, 2009 is the more comprehensive and includes this quote from Judge Posner:

Wisconsin allows graduates of the two law schools in the state to be admitted to the practice of law without having to take the Wisconsin bar exam. The plaintiff, a graduate of an out-of-state law school, brought this suit against the members of the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, charging a violation of the commerce clause of Article I of the Constitution and seeking injunctive relief.
But on March 24, 2010 Bruce Vielmetti reported in the Milwaukee Journal Sentinel in a story that begins:
For now, the diploma privilege remains exclusive to graduates of Wisconsin's law schools and no others.

The privilege, unique in the nation, allows graduates of the state's two law schools to join the state bar without taking the exam required of new graduates from all other law schools.

While he was a law student in Oklahoma, Waukesha lawyer Christopher Wiesmueller filed what became a federal class-action lawsuit that raised a commerce clause argument against the practice. It named the Wisconsin Supreme Court and the Board of Bar Examiners as defendants.

The case was dismissed twice, and Wiesmueller twice won appeals before the U.S. 7th Circuit Court of Appeals, gaining some national legal media attention.

But late last year, U.S. District Judge Barbara Crabb decertified the class, meaning Wiesmueller was left representing only his wife, also a graduate of an out-of-state law school.

Last week, the couple agreed to drop the lawsuit in exchange for $7,500. Not only can the Wiesmuellers never again challenge the bar admission policies, they can't assist, be part of or support anyone else's challenge, under terms of the settlement.

Also:
Christopher Wiesmueller, who opened his own office in November, said that after 3 1/2 years, he was tiring of the case, and that he would soon need a new plaintiff because his wife is scheduled to take the Wisconsin bar exam in July.

He hasn't changed his mind about the issue, though.

"It's still out there. If someone else wants to take this up, more power to them," he said Wednesday.

See also Ashby Jones' entry yesterday in the WSJ Law Blog.

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

Friday, March 26, 2010

Courts - New DC gun laws tested under Heller standard [Updated again]

In Heller v. DC, in 2008, the SCOTUS reinterpreted the 2nd amendment and invalidated DC gun laws. Now the District has tried again, and, as Lyle Denniston reports this afternoon in SCOTUSblog, has met with success at the district court level. Here is a brief quote from the entry:

Courts around the country have differed on what level of review should apply to gun regulation, and that issue thus is a likely one for future Supreme Court analysis. The Justices did not lay down a standard in 2008, other than to say it would take more than simple “reasonable” justification to satisfy the Second Amendment.
Another issue, whether Heller applies to the states, or only to the District of Columbia and other federal entities, is pending this term before the SCOTUS.

[Updated 3/27/10] "Federal judge upholds D.C. gun regulations; appeal expected" is the headline of a story today in the Washington Post, reported by Maria Glod. Some quotes:

A federal judge on Friday upheld the gun laws that the District of Columbia passed to comply with the landmark 2008 Supreme Court ruling that struck down the city's decades-old ban on handgun possession.

U.S. District Judge Ricardo M. Urbina found that the new regulations were crafted to make the streets safer and aren't so restrictive that they violate the Second Amendment guarantee of a person's right to own a gun for self-defense.

"It is beyond dispute that public safety is an important -- indeed, a compelling -- governmental interest," Urbina wrote.

The judge ruled that the District's handgun registration process, which requires owners to submit fingerprints and allow police to perform ballistics tests, is constitutional. He also upheld a city ban on most semiautomatic pistols. * * *

In June 2008, the U.S. Supreme Court knocked down the District's long-standing ban on handgun possession. The court concluded that the Second Amendment grants individuals the right to possess guns for self-defense but said governments may impose reasonable restrictions. * * *

In the 30-page opinion, Urbina said that the regulations aren't unduly burdensome and that the city provided "ample evidence of the ways" the registration requirements are intended to promote public safety. He noted, for instance, that authorities said the required ballistics tests will help them link bullets and shell casings found at crime scenes to the weapons used to fire them.

[Updated again 3/29/10]An article today by Tony Mauro of The National Law Journal concludes:
D.C. Attorney General Peter Nickles offered this written statement in reaction to the ruling: "I am gratified that the Court repeatedly recognized the reasonable and conscientious efforts that the Council and the Mayor made to strike the proper balance between addressing the legitimate rights of firearm owners, and taking every reasonable action to assure the safety of the District's residents and visitors."

Heller's lawyer Stephen Halbrook said on Friday that the decision was disappointing, and "I'd be surprised if we don't appeal." Halbrook, a Virginia lawyer and Second Amendment scholar, commented that even though Urbina said he was using an intermediate level of scrutiny in appraising the D.C. law, he was in fact overly deferential toward the city. "He repeated uncritically whatever the [D.C. Council] committee report said." Halbrook also said the ultimate fate of the D.C. ordinance may depend in part on what the Supreme Court says about how fundamental the right to bear arms is in the pending case of McDonald v. City of Chicago.

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

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Maxitrol Company v. Lupke Rice Insurance Agency, an 8-page opinion, Sr. Judge Sharpnack writes:

Maxitrol Company (Maxitrol) appeals the trial court’s judgment in favor of Lupke Rice Insurance Company, Inc. (Lupke Rice) following a bench trial. We reverse. * * *

A principal has the right to presume that his agent has followed instructions and has not exceeded his authority. Crumpacker v. Jeffrey, 115 N.E. 62, 67, 63 Ind. App. 621 (1917). Whenever a principal is sought to be held liable on the ground of ratification, either express or implied, it must be shown that the principal ratified upon full knowledge of all material facts, or that he was willfully ignorant, or purposely refrained from seeking information. Id.

Here, however, Maxitrol did not have full knowledge of all material facts. Specifically, Maxitrol did not know that Lupke Rice was paying RSA the annual premium adjustments. Maxitrol did not learn of these payments until May 2005, more than one year after Lupke made the last of these payments. Under these circumstances, the trial court erred in concluding that Maxitrol ratified Lupke Rice’s payment to RSA.

NFP civil opinions today (1):

H.T. v. Review Board (NFP) - "H.T., acting pro-se, appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) denying his application for unemployment benefits. He challenges the Board’s determination that he was discharged for just cause. We affirm."

NFP criminal opinions today (4):

Schanese Jones v. State of Indiana (NFP)

Daisy Pope v. State of Indiana (NFP)

James Miller v. State of Indiana (NFP)

Marlon Donel Reese v. State of Indiana (NFP)

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

Environment - "Is Tippecanoe County next for wind farms?"

Max Showalter reports today in the Lafayette Journal Courier:

As wind turbines pile up next door in Benton and White counties, three alternative energy companies are taking a long look at portions of Tippecanoe County for wind farm developments.

Invenergy Wind LLC, based in Chicago, is the closest to starting the application process, which could lead to a project in southwestern Tippecanoe County and portions of neighboring Fountain and Montgomery counties.

"We've continued to look at those areas. We have some land in Tippecanoe County pulled together to support such a project," said Bryan Schueler. He is a Purdue University graduate and Invenergy vice president for development for wind energy projects in the north central portion of the United States.

"We would hope to start moving this summer with an application to the county. We're hopeful there will be a reasonable ordinance to allow wind to move forward. We believe there is a fairly attractive wind resource in that part of Indiana." * * *

Landowners are paid a fee for every turbine that's erected on their property. Power lines that run the electricity to a substation also generate money for the properties involved.

The Tippecanoe County commissioners on April 5 will consider some amendments to the county's wind ordinance.

If approved, the changes would require developers to sign an economic development agreement with the county. A separate decommissioning statement also would be required, in case the project fails.

A flat fee of $2,500, plus $200 per turbine, would be charged for the large wind farms, along with an annual operating fee of half that cost --$1,250, plus $100 per tower.

County building inspectors would review the projects yearly to ensure that noise and other aspects of the wind turbines are still in compliance. * * *

"We're trying to develop wind projects that would benefit Indiana public schools. We're different than the large developers," said Tony Kuykendall, business development manager with Performance Services. "We find ways to integrate schools in the project.

"There's great wind resources in portions of Tippecanoe County. We're looking at smaller sizes of land. We'd like to identify two or three locations and begin wind resource analysis in the first half of the year -- sampling wind and collecting wind data."

Performance Services wind farms could be one-sixth to one-tenth the size of the existing, large developments in Benton and White counties.

Under the company's plan, income from the sale of electricity would benefit local schools, or they could power classrooms and other school buildings through wind energy and save on the cost of electricity.

One potential problem for Performance Services is an O'Hare Airport communications tower that is located in northwestern Tippecanoe County that requires a two-mile buffer.

"That's just unfortunate. The communications tower is definitely a concern for us," said Kuykendall. "The smaller area got smaller very quickly."

Posted by Marcia Oddi on Friday, March 26, 2010
Posted to Environment

ind. Courts - "Judge rejects part of Simon will suit"

Updating this list of earlier ILB entries, Dana Hunsinger's story today in the Indianapolis Star begins:

Part of Deborah Simon's lawsuit challenging the estate plan of her late billionaire father and shopping-mall mogul Melvin Simon has been dismissed.

Hamilton Superior Judge William J. Hughes dismissed her claim of fraud, ruling that she failed to provide enough specifics in the allegations against her stepmother, Bren Simon.

However, the judge gave Deborah Simon a chance to refile the fraud claim and let stand her original allegations that her father's will was changed under duress and undue influence.

"The complaints fail to allege affirmative misrepresentations that can support a claim of actual fraud," Hughes wrote in a ruling issued March 19.

Posted by Marcia Oddi on Friday, March 26, 2010
Posted to Ind. Trial Ct. Decisions

Courts - Anonymous commenter turns out to be judge's daughter

Following on this ILB entry March 22nd headed "Courts in a quandary over cheap shots by anonymous bloggers," and its examination of the issue of whether or not publishers should reveal the names of anonymous commenters, here is an amazing story from the Cleveland Plain Dealer, reported today by Henry J. Gomez, Jr. Some quotes from the lengthy story:

Until this week, "lawmiss" was known only as one of thousands who, often known only by nicknames, share views on news blogs and stories reported at cleveland.com.

But after investigating a comment directed at the relative of a Plain Dealer reporter, editors learned that lawmiss had the same e-mail address as Cuyahoga County Common Pleas Judge Shirley Strickland Saffold. A closer look revealed that the user had offered opinions on three of Saffold's cases, including the capital murder trial of accused serial killer Anthony Sowell.

When confronted with the newspaper's findings Wednesday, the judge denied responsibility for the posts. Her daughter, Sydney Saffold, came forward later to accept responsibility for posting "quite a few, more than five" of more than 80 lawmiss comments.

Goldberg, who has written about the pros and cons of anonymous comments, said the issues raised by lawmiss' comments outweigh any breach of trust that comes from exposing the poster.

Goldberg noted that comments made were not about "trifling" matters. The posts related directly to two death-penalty cases involving Saffold as judge -- Sowell's and the 2008 murder trial of former Cleveland firefighter Terrance Hough Jr. -- as well as a recent vehicular homicide case.

"You can argue we should not have uncovered lawmiss' identity," Goldberg said in an interview, "and maybe we shouldn't have. But once we did, I don't know how you can pretend you don't know that information. How can you put that genie back in the bottle?

"What if it ever came to light that someone using the e-mail of a sitting judge made comments on a public Web site about cases she was hearing, and we did not disclose it? These are capital crimes and life-and-death issues for these defendants. I think not to disclose this would be a violation of our mission and damaging to our credibility as a news organization."

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

Ind. Courts - "Sent Truckin'! Court Shifts Celadon General Counsel's Career Into 'Neutral'"

Updating this ILB entry from March 24th, Sue Reisinger of Corporate Counsel reports about the Indiana Supreme Court's ruling March 12, 2010 in the case of State ex rel. Ind. Sup. Ct. Disc. Comm'n v. Core. Some quotes:

The Indiana Supreme Court has ordered the general counsel of Indianapolis-based Celadon Group, Inc. to stop practicing law in Indiana, where he is not a licensed attorney.

The court ruled March 12 that Kenneth Core, who used the title vice president of risk management and general counsel at the trucking company, "is not and never has been licensed to practice law in Indiana." Under a settlement reached with the state disciplinary committee, Core admitted to liability for the unauthorized practice of law.

Core did not immediately return messages for comment. But Paul Will, Celadon's chief financial officer, told an Indianapolis newspaper that Core's mistake was a "misunderstanding," and that he would take the steps to become licensed in Indiana.

Will also said that an individual who had a dispute with the company ratted out Core and filed the state bar complaint. Core's superiors at Celadon were aware that he was not licensed in Indiana, the court said.

The court order states that Core was formerly licensed in Iowa where he practiced law between 1975 and 1993. In 1993 his Iowa law license was suspended for failure to pay Iowa's annual license fee and/or for failure to comply with Iowa's continuing legal education requirements, and wasn't renewed.

The court said Core could still work but he cannot suggest he is a licensed attorney, and he cannot provide legal advice or legal services to any person or entity "unless and until such time as he obtains a license to practice law in Indiana."

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

Courts - "After victory, conservatives mount new challenges to campaign finance limits"

Indiana attorney James Bopp is the focus of this story today in the Washington Post, reported by Tomoeh Murakami Tse, that begins:

In a small office overlooking Indiana's Highway 40, James Bopp Jr. is preparing a nationwide assault on campaign finance regulations.

For decades, Bopp, the vice chairman of the Republican National Committee, has fought restrictions on political spending, seeing them as an affront to free speech, and he was the force behind a recent Supreme Court ruling freeing corporations and unions to spend as much as they want on political ads.

Far from resting on his laurels, Bopp has expanded his staff of lawyers and spent the eight weeks following the high-profile decision arguing to judges across the country that various other regulations governing local and federal elections are unconstitutional. His team is also keeping a close eye on efforts by states, Congress and shareholder groups to counter the Supreme Court decision, criticized by President Obama as a move that would "open the floodgates for special interests."

"Citizens United is going to have a very substantial impact," said Bopp, referring to the case decided by the nation's high court. "Obviously, we're encouraged that we're on the road back to restoring the First Amendment application to campaign finance."

Using a team of 15 lawyers, Bopp is determined to continue chipping away at established campaign finance law; he has 27 cases pending in various courts.

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

Law - Revamping of Student Loans is Final

Updating this ILB entry from March 24th, David M. Herszenhorn and Tamar Levin report in the NY Times in a story that begins:

Ending one of the fiercest lobbying fights in Washington, the Senate voted Thursday to force private commercial banks out of the federal student loan business, cutting off billions in risk-free profits in a sweeping restructuring of financial-aid programs that was included in — if overshadowed by — the health care package. The House [concurred] later Thursday.

For 45 years, commercial banks like Sallie Mae and Nelnet have made loans under the bank-based loan program, receiving guaranteed federal subsidies to loan money to students, with the government assuming nearly all the risk.

Democrats have long denounced the program as a form of corporate welfare that fattened the bottom line for banks at the expense of students and taxpayers.

“There is no service that is being provided by the banks any more,” said Representative George Miller, Democrat of California and chairman of the education and labor committee. “The lenders ran out of services to provide to justify their costs.”

The legislation substitutes an expanded direct-lending program by the government for the bank-based program, directing $36 billion over 10 years to Pell grants, which are aimed at students from low-income families.

Overall, the Congressional Budget Office said, the new lending approach will save taxpayers approximately $61 billion over 10 years. Roughly $40 billion of the savings will be redirected to higher-education. In addition, education programs will get an additional $10 billion from the health-care reform package.

But allies of the student-loan industry attacked the overhaul as a government takeover of the federal student loan business.

Posted by Marcia Oddi on Friday, March 26, 2010
Posted to General Law Related

Ind. Law - Governor signs final 6 bills March 25th

Governor Daniels signed the six remaining bills yesterday. No bills were vetoed this year. See the bill list here.

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

Thursday, March 25, 2010

Ind. Courts - More on: "Superior Court to survey Warrick Co. residents about David Camm"

Updating this ILB entry from Feb. 5, 2010, FOX41.com this afternoon has a copy of the survey, along with this story by Stephan Johnson:

The five-page survey was sent to 200 potential Warrick County, Ind., jurors recently. It asks questions about potential jurors' knowledge of the case. One question say: What do you recall reading or hearing about in the media as to Mr. Camm, the murders of Kim, Jill and Bradley Camm, the trial of Mr. Camm and/or the order for a new trial by the Indiana Supreme Court?

Both defense attorneys and prosecutors helped draft the survey questions. Right now, Warrick County has jurisdiction over the trial. However, that could change if attorneys determine they can't find an impartial jury.

The story also reports that so far 175 of the 200 seurveys have been returned to the court.

Click here to view a copy of the survey.

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

Ind. Decisions - Supreme Court decides one today

In the Matter of the Hon. David A. Moreland, Judge of the Bicknell City Court is a 3-page, per curiam opinion in a judicial disciplinary action. Some quotes:

Respondent has been the elected judge of the Bicknell City Court since January 1, 2008. From the time he assumed office until on or about October 14, 2009, he employed his wife, Cindy Moreland, as Bicknell City Court Clerk. On October 13, 2009, the Knox County Prosecutor filed an Information in Knox Superior Court, case number 42D02-0910-FD-001216, charging Respondent with five counts of Theft as Class D felonies stemming from allegations that Respondent exerted unauthorized control over infraction ticket payments, payments to resolve failures to appear and to restore drivers’ licenses, and funds held in the Bicknell City Court’s bank account. The following day, we suspended Respondent with pay per Indiana Admission and Discipline Rule 25(V)(A), and Respondent has remained under suspension since that date. * * *

Having considered the circumstances of this case and the parties’ proposed disposition of it, we conclude that further prosecution of this matter is unnecessary. Had the Commission proven the alleged misconduct through the continuation of this proceeding, the most severe sanction we likely would have imposed on Respondent would have been removal from office, a permanent ban on serving as a judicial officer, and the costs of this proceeding. Because Respondent has agreed to such terms, continuation of this proceeding would be a waste of limited judicial resources.

Here is a list of earlier ILB entries on Bickell City Court Judge Moreland, a non-attorney. Perhaps most interesting was this November 18, 2009 ILB entry headed "New Bicknell City Judge Michael Edwards named 'Judge of the Day' by national law blog," about the attorney appointed by Gov. Daniels to fill Moreland's seat.

[More] Here is the press release put out by the Court. It begins:

The Indiana Supreme Court has permanently banned Bicknell City Court Judge, David Andrew Moreland, from servings as a judge or in any judicial capacity. Mr. Moreland has resigned as judge of the city court effective immediately.

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

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In Mark Harness, Jr. v. Paul Schmitt and Town of Winona Lake, a 13-page, 2-1 opinion, Judge May writes:

Mark Harness Jr. sued the Town of Winona Lake and one of its police officers, Paul Schmitt, (collectively, “Schmitt”), alleging Schmitt unlawfully assisted in a false eviction. The trial court granted summary judgment for Schmitt, apparently on the ground Schmitt was engaged in law enforcement and did not do anything illegal.[1] We affirm. * * *

[ILB - Ftnote #1, on p. 2, includes: "We decline Schmitt's invitation to find fault with a litigant who does not address on appeal a claim he never made in the trial court against a party who was never named, and we invite Schmitt's counsel to review our rules regarding the appropriate content of an appellee's brief."]

The trial court did not err in finding Schmitt immune from tort liability. * * *

DARDEN, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins, at p. 12] While it may not be improper per se for an armed and uniformed police officer to accompany a private party to the scene of self-help eviction or repossession, such a practice is fraught with the potential for abuse. It creates the false impression that the eviction or repossession is being effected pursuant to court authority although the officer has no way of knowing whether the eviction or repossession is lawful or unlawful. When, as here, a police officer puts his hand on his gun when the eviction is questioned by one who is rightfully upon the property, it heightens that false impression.

In Rieth-Riley Construction Co. Inc. v. Michael Gibson, et al. , a 12-page opinion, Sr. Judge Barteau writes:
At the outset, the parties agree that the two-year statute of limitation applies to Gibson's claim for personal injury. See Ind. Code § 34-11-2-4. The resolution of this case turns on when the two-year limitation began to run, as applied to Gibson's claim against Rieth-Riley. Rieth-Riley maintains that the statute of limitation began running on September 27, 2006, the day of the accident. Gibson claims that the statute of limitation for his cause of action against Rieth-Riley did not begin to run, based upon application of the discovery rule, until March 2009, when he “discovered” that Schroeder was employed by Rieth-Riley at the time the accident occurred. * * *

Based upon the foregoing discussion and authorities, we conclude that the trial court erred when it applied the discovery rule to this action to toll the statute of limitation for Gibson's filing of an amended complaint against Rieth-Riley. Thus, the trial court erred when it denied Rieth-Riley's motion for summary judgment on that basis. Further, Gibson's amended complaint cannot relate back pursuant to Trial Rule 15(C). Reversed and remanded.

In Adonis Holmes v. State of Indiana , a 10-page opinion, Judge Bradford writes:
Appellant/Defendant Adonis Holmes appeals the trial court’s determination that he violated the terms of his home detention. Specifically, Holmes challenges the admissibility and sufficiency of the evidence to support the revocation of his placement on home detention. We affirm. * * *

On appeal, Holmes challenges the admissibility of the urinalysis report admitted during the revocation hearing and by claiming that the evidence was insufficient to establish that he had consumed alcohol in violation of the conditions of his home detention. * * *

Holmes argues that the urinalysis report is unreliable hearsay because neither the toxicologist nor the certifying scientist testified during the home detention revocation hearing. * * *

Further, to the extent that Holmes challenges the admissibility of the urinalysis report on the grounds that it violated his right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), the Indiana Supreme Court has specifically held that Crawford does not apply to probation revocation hearings because they are not criminal trials.

Robert L. Scott v. State of Indiana - "Defendant-Appellant Robert L. Scott appeals his convictions of two counts of Class B felony possession of a firearm by a serious violent felon (Ind. Code § 35-47-4-5(c); one count of Class C felony battery with a deadly weapon (Ind. Code § 35-42-2-1); one count of Class D felony of pointing a firearm (Ind. Code § 35-47-4-3); and one count of Class A misdemeanor resisting law enforcement (Ind. Code 35-44-3-3). We affirm in part and remand in part."

In A.S. v. State of Indiana , a 12-page opinion, Cjief Judge Baker writes:

A juvenile facing charges of delinquency and her mother were given a form apprising them of the rights, but not waiving those rights. They signed the form. They never retained an attorney during the delinquency proceedings. The trial court never inquired into their ostensible decision to proceed pro se, nor did it advise them regarding the perils of self-representation. Indeed, there are no discussions in the record whatsoever regarding the right to an attorney, the advantages of retaining one, or their ability to represent themselves. Under these circumstances, we find that A.S. and her mother did not knowingly and voluntarily waive their right to counsel.

Appellant-respondent A.S. appeals the denial of her request for relief from the trial court's judgment that she was a delinquent child. A.S. argues that the trial court erred by treating her motion as a petition for post-conviction relief and that her motion should have been granted because she did not knowingly and voluntarily waive her right to counsel during the delinquency proceedings. Finding that the record does not establish that A.S. knowingly and voluntarily waived her right to counsel, we reverse. * * *

Given this record, we simply cannot find any evidence establishing that Mother and A.S. knowingly and voluntarily waived the right to counsel. Similarly, there is no evidence that they were advised of that right and the dangers of proceeding pro se and had a subsequent opportunity for a meaningful consultation on the issue. Indeed, nowhere in the record do they actually express a desire to proceed pro se. Under these circumstances, therefore, we find that A.S.'s adjudications are void and, consequently, she is entitled to relief from judgment.

NFP civil opinions today (4):

Terrance R. Huber v. Montgomery County Sheriff (NFP) - "Terrance R. Huber brings this interlocutory appeal from the trial court‟s order that he pay expenses and attorney fees to the Montgomery County Sheriff (“the Sheriff”) as a discovery sanction. Huber contends, among other things, that the trial court erred when it awarded expenses and fees without first holding a hearing on the propriety of those sanctions. We agree and reverse the trial court‟s award of sanctions and remand for a hearing."

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

John L. Kiley Agency, et al. v. Dan N. Renfro (NFP) - "Because Renfro filed this action against Kiley more than two years after his cause of action accrued, summary judgment in favor of Kiley was proper, and we reverse the trial court’s order denying Kiley’s motion for summary judgment and remand with instructions for the trial court to grant summary judgment to Kiley."

Diane L. Downing v. Bryan A. Downing (NFP) - "Wife has not overcome the strong presumption that the trial court did not abuse its discretion when it ordered an equal division of the marital estate. Affirmed."

NFP criminal opinions today (10):

Darius Randle v. State of Indiana (NFP)

Rick Delks v. State of Indiana (NFP)

Anthony Herbert Lee v. State of Indiana (NFP)

Latoya R. Brown v. State of Indiana (NFP)

Juan Carlos Flores a/k/a Francisco Flores v. State of Indiana (NFP)

James Henley v. State of Indiana (NFP)

Hosey Whitmore v. State of Indiana (NFP)

Preston Williams v. State of Indiana (NFP)

Richard Oliver v. State of Indiana (NFP)

Andre Payne v. State of Indiana (NFP)

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

Environment - "Manure Raises New Stink" says WSJ

Updating this ILB entry from Sept. 15, 2009 which reported "Neighbors have complained about giant bubbles in the lagoon's synthetic liner appearing above the surface of the lagoon," and this one from Oct. 18, 2008, which included this quote:

"These bubbles are now enormous and are likely caused by manure leaking under the liner," according to Carpenter. "The liner is failing, which could lead to ground water contamination."
the WSJ reports today, in a story by Lauren Etter with this sub-head: "Giant Gas Bubbles in Indiana Dairy Farm's Waste Pond Frighten Neighbors." Some quotes:
WINCHESTER, Ind.—Like many of his neighbors, farmer Tony Goltstein has to deal with the aftermath of the dairy bubble.

But besides his mounting financial troubles, Mr. Goltstein also must contend with bubbles the size of small houses that have sprouted from the pool of manure at his Union Go Dairy Farm. Some are 20 feet tall, inflated with the gas released by 21 million gallons of decomposing cow manure.

But he has a plan. It requires a gas mask, a small boat and a Swiss Army knife.

The saga of Mr. Goltstein's bubbles, which are big enough to be seen in satellite photos, began about seven years ago and traces the recent boom and bust of U.S. dairy farmers. * * *

This month, Mr. Goltstein asked state regulators to let him pop the bubbles. He said he and his 19-year-old son would slice them open with a knife from a paddleboat.

Bruce Palin, assistant commissioner for the office of land quality at the state environmental agency, said officials were considering the idea. But, he added, "not knowing how much volume of gas is there and how much pressure is on it, we're concerned with just cutting a hole."

Last year, a hog farmer in Hayfield, Minn., was launched 40 feet into the air in an explosion caused by methane gas from a manure pit on his farm. He sustained burns and singed hair.

Mr. Goltstein's attorney, Glenn D. Bowman, acknowledged that the potential existed for an explosion: "We're aware of that sort of common physics issue," he said.

If and when the bubbles are deflated, state officials said, they will be there to keep watch.

That's little consolation to many of Mr. Goltstein's neighbors.

"If they don't do it right..." Mr. Hutchison said, shaking his head as his voice trailed off.

Mr. Palin, the state official, said, "Obviously you don't want to be smoking a cigarette when you open this thing up."

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Environment

Ind. Decisions - One today from 7th Circuit, re the pollution exclusion

In West Bend Mutual Ins. v. U.S. Fidelity (ND Ind., Judge Miller), a 27-page, 2-1 opinion, Judge Flaum writes:

Plaintiff-appellant West Bend Mutual Insurance Company (“West Bend”) appeals from the grant of summary judgment in favor of appellees, who consist of a group of insurance companies that includes the United States Fidelity and Guaranty Company (“Fidelity”) and Federated Mutual Insurance Company (“Federated”). West Bend initially sued the defendants for breach of contract because Federated declined to defend a mutual insured in a class action alleging that insured’s gas station contaminated groundwater in a residential neighborhood. The case revolves around whether the pollution exclusion contained in Federated’s policy effectively limited coverage for gasoline spills under Indiana law. The district court found that a clause in Federated’s policy excluded coverage for this type of claim and granted summary judgment in favor of Federated, Fidelity, and other insurers. West Bend now appeals this judgment as it applies to Federated. * * *

For the following reasons, we affirm. * * *

Indiana law governs this case and our task is to interpret the Federated policy accordingly. * * *

Under Indiana law, the insurer’s duty to defend is broader than his contractual obligation to provide coverage, but this duty is not boundless. * * *

Of foremost importance in this case is the holding of the Indiana Supreme Court in American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996): “[i]f a garage policy is intended to exclude coverage for damage caused by the leakage of gasoline, the language of the contract must be explicit.” * * *

We thus conclude that the Pollution Exclusion in the Federated policy was sufficiently explicit to exclude gasoline contamination from coverage. Since the Pollution Exclusion successfully frees appellees from the obligation to defend the Bowens action based on the main CGL policy, we do not reach the question of whether the Continuous Injury Endorsement or Known Loss Exclusion provide parallel paths to the same conclusion. We must still consider, however, whether the district court erred in holding that neither the excess liability coverage nor the products-completed operations hazard coverage contained in the supplemental Federated Umbrella policy provide grounds for the relief that West Bend seeks. * * *

There is no doubt that the Bowens action was predicated on accidental leak of gasoline from MDK’s storage tanks and West Bend never contended that the gas station abandoned its product. Therefore, the Federated Umbrella policy does not provide an independent source of recovery for the appellants. * * *

[At p. 19 of 27] SYKES, Circuit Judge, dissenting. I agree with my colleagues that the pollution exclusion in Federated’s 2001- 2003 CGL policy bars coverage under that policy. I do not agree, however, that the Indiana Supreme Court’s decision in B & R Farm Services, Inc. v. Farm Bureau Mutual Insurance Co., 483 N.E.2d 1076 (Ind. 1985), precludes coverage under Federated’s 2001-2002 umbrella policy. * * *

As I read the record in this case, there is conflicting evidence on the question whether MDK knew the loss at issue in the Bowens action had occurred, was occurring, or was substantially certain to occur before the umbrella policy’s effective date. I would remand for resolution of that question. Accordingly, for all the foregoing reasons, I respectfully dissent.

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Tax Court issues three yesterday

In Indiana Dept. of State Revenue, Inheritance Tax Div. v. Estate of Doris K. Parker, a 14-page opinion, Judge Fisher writes:

I. The necessity of an appraisal under Indiana Code § 6-4.1-4-1. The Department asserts that the probate court's resolution of the appraisal issue must be reversed because the Estate's inheritance tax return does not comport with the requirements of Indiana Code § 6-4.1-4-1. More specifically, the Department maintains that Indiana Code § 6-4.1-4-1, as clarified by 45 IAC 4.1-4-3, required the Estate to obtain an appraisal that was prepared by a licensed appraiser and then file the appraisal with its inheritance tax return. * * *

This statute, by its own terms, does not require the Estate to obtain an appraisal valuing its assets at their fair market value nor does it require the Estate to file such an appraisal with its inheritance tax return.

Nevertheless, the Department explains that in interpreting the statute, it promulgated 45 IAC 4.1-4-3, which requires “a formal appraisal by a licensed appraiser.” The Department argues that its regulation should be afforded “the force of law” because it clarifies the statutory requirements (but neither adds to those requirements nor extends the Department's powers) According to the Department, its regulation simply “ensures [that] the [E]state's statutorily-required submission of fair market values is substantiated.” The Court, however, must disagree.

“This Court has often stated that what a statute does not say is just as important as what it does say.” Haas Publ’g Co. v. Ind. Dep’t of State Revenue, 835 N.E.2d 235, 238 (Ind. Tax Ct. 2005) (citation omitted), review denied. If the legislature had intended for the Estate to substantiate its own opinion as to the fair market value of its assets by attaching an appraisal to its return, it would have stated as much. Instead, the legislature only required the Estate to “indicate” the fair market value of its property as of the “appraisal date prescribed under IC 6-4.1-5-1.5[.]” * * *

Accordingly, the probate court did not err when it held that Indiana Code § 6-4.1-4-1 did not require the Estate to file an appraisal with its inheritance tax return.[1] [ILB - Footnote 1 on p.9, which states, in part "The Department's arguments, however, are not only jaded, but are misplaced as well." is worth reading.] * * *

II. The valuation of the family farm under Indiana Code § 6-4.1-6-12. The Department also asserts that the probate court erred in holding that only the value of the life estates were subject to inheritance tax. According to the Department, the entire fair market value of the family farm, as valued in accordance with Indiana Code § 6-4.1-2-4, was subject to the tax because that was what Doris transferred to her children when she died. The Department is correct. * * *

Conclusion. For the above stated reasons, the probate court's holding as to Issue I (the appraisal issue) is AFFIRMED; the probate court's holding as to Issue II (the valuation issue), however, is REVERSED. The Court therefore REMANDS the case to the probate court for calculation of the proper amount of inheritance tax and interest due from the Estate, consistent with this opinion.

In Indaina Dept. of Revenue v. The Estate of Marjean M. Ogle, a 6-page opinion, Judge Fisher writes:
In a case handed down simultaneously with this one, this Court has held that Indiana Code § 6-4.1-4-1 “by its own terms, does not require [an e]state to obtain an appraisal valuing its assets at their fair market value nor does it require [an e]state to file such an appraisal with its inheritance tax return.” Indiana Dep’t of State Revenue, Inheritance Tax Div. v. Estate of Parker, Cause No. 49T10-0812-TA-72, slip op. at 6 (Ind. Tax Ct. March 24, 2010). Consequently, it was not improper for the probate court to reject the Department’s argument that the Estate’s appraisal was “insufficient” in this case.
Ronald O. Guingrich v. Allen County Assessor (NFP) - "This Court has previously explained that when a taxpayer offers probative evidence, it must be dealt with in some meaningful manner and not ignored. See Canal Square Ltd. P’ship v. State Bd. of Tax Comm’rs, 694 N.E.2d 801, 805 (Ind. Tax Ct. 1998). In this case, the Indiana Board offered no explanation as why it disregarded the majority of Guingrich's evidence. Consequently, the Court cannot say that Indiana Board's final determination is supported by substantial evidence." Reversed.

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Clay County woman wins Medicaid suit against state; More

Arthur Foulkes reports today in the Terre Haute Tribune Star:

A rural Clay County woman has defeated an attempt by the state government to limit home-care services for elderly and disabled people receiving Medicaid.

On March 8, Clay County Superior Court Judge J. Blaine Akers ruled in favor of Edna Chadwell of Carbon, who challenged the state’s recent effort to cap in-home Medicaid benefits.

“I was happy for myself and for the other people in the lawsuit,” Chadwell said Wednesday, sitting in the kitchen of her modest home. “I’d rather die than live in an institution.”

In 2008, the State of Indiana announced it was capping the maximum number of hours Medicaid – under a special waiver program – will cover in-home care for people with serious disabilities.

The cap was set at 40 hours per week for most types of care. Chadwell, who is confined to a wheelchair and can only move her arms with difficulty, was receiving in-home help 70 hours per week.

“It was scary at first” when the state announced the caps, Chadwell said. She requires help getting out of bed each morning and getting into bed each night, she said. She also needs a caregiver to prepare her meals, help her shower and even brush her teeth.

“I’m totally dependent,” Chadwell said. “Anything you can do for yourself, I need help with.”

Rather than accept the cut in her services, Chadwell, who has been diagnosed with cerebral palsy and quadriplegia, challenged the caps in Indiana’s courts. Soon, the American Civil Liberties Union of Indiana took her case, which came to include seven other disabled plaintiffs.

“Most of the … plaintiffs are confined to a wheelchair and all require significant assistance with nearly all of their activities of daily living,” Akers stated in his 39-page decision in the case. The other plaintiffs included people diagnosed with muscular dystrophy, traumatic brain injuries and multiple sclerosis.

The State of Indiana, which argued the waiver program was not required by federal law and, therefore, could be changed, could still appeal the decision, but ACLU attorney Gavin Rose, who argued the case for the plaintiffs, said Akers’ decision was very thorough and would be tough to overturn.

The caps, although in place for several months in 2008 before Akers ruled them suspended until the case was settled, temporarily affected dozens of Hoosiers on Medicaid. But they did not affect Chadwell or the other seven plaintiffs in the case, Rose said.

“The ACLU did a wonderful job … so I didn’t go without anything,” Chadwell said.

Of the approximately 100 Hoosiers affected by the caps, about one-third saw their weekly hours of Medicaid-provided in-home care reduced by fewer than 10 hours per week. Meanwhile, 40 people had their Medicaid-provided in-home services reduced under the caps by more than 31 hours per week, according to court documents.

The approximately 100 people affected by the caps made up fewer than 2 percent of the total number of people taking part in the Medicaid waiver program, the court documents state.

The State of Indiana did not argue that the in-home care caps were designed to save money, but Chadwell and Rose both believe that was the state’s main consideration. However, the “average costs for in-home services under Indiana’s Medicaid waiver program has been less than the comparable cost in a nursing home,” according to a report by Severns Associates, an Indianapolis law firm specializing in health care-related law. * * *

The victory in the case, officially Chadwell v. Indiana Family and Social Services Administration, is an important one, the ACLU’s Rose said. This will allow many disabled Hoosiers to remain in their homes close to friends and family “and not be pushed into a corner of some nursing home.”

Here is a copy of Clay County Superior Court Judge J. Blaine Akers' 39-page opinion.

More: Gavin Rose tells the ILB that the ACLU of Indiana also as a companion case (captioned B.N. v. Murphy) pending in the Northern District:

The legal claims in both are substantially identical—the difference is that Chadwell dealt with “attendant care services” and B.N. deals with “respite services” (which were also recently capped). The B.N. case is fully briefed on summary judgment and ripe for decision.
Here is a copy of the (amended) complaint in B.N. v. Murphy.

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Ind. Trial Ct. Decisions

Courts - "Kentucky High court rules on open records"

Reminiscent of the Indiana Court of Appeals decision in Knightstown Banner, LLC v. Town of Knightstown, et al. (see ILB entry here, from Dec. 13, 2005), the Kentucky Supreme Court has ruled, per an AP story from March 18, 2010:

FRANKFORT, KY (AP) - The Kentucky Supreme Court has reversed a lower court's ruling that kept confidential the terms of a settlement between a woman and two school districts.

The Central Kentucky News-Journal in Campbellsville had sought access to the settlement under the state's Open Records Act. The settlement was between the Campbellsville Independent School District, the Taylor County Board of Education and Katherine Moss.

Moss had alleged she was sexually harassed while working at Campbellsville High School and later alleged she was wrongfully refused employment at Taylor County High School.

The high court ruled Thursday that settlement should be considered public record, "regardless of their confidentiality provisions." The ruling reversed an order by the state Court of Appeals, which kept the settlement sealed.

From the Reporters Committee for Freedom of the Press website, a story dated March 22nd:
The Kentucky Supreme Court ruled in favor of a local newspaper last week when it ordered a trial court to unseal a settlement agreement between a Kentucky school board and a teacher who sued after she was not hired.

The Central Kentucky News-Journal asked for the agreement under the state's public-records law, but both a trial court and an appellate court refused to unseal the documents, citing privacy exemptions.

"We think it quite clear that the settlement agreements are presumably public records subject to disclosure, regardless of their confidentiality provisions," the state high court's opinion read.

The court said proceeds from the settlement agreement were paid by the taxpayer-funded Kentucky School Board Insurance Trust and resolved claims against "the school districts, and its agents in their official (as well as personal) capacities, thus negating any notion that the agreements concerned purely personal matters."

The site also links to the opinion.

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

Ind. Decisions - "Supreme Court rules no additional criminal behavior needed for a search of person on probation"

The Supreme Court's decision yesterday in the case of State of Indiana v. Allan M. Schlechty (see ILB summary here) is the subject of a story today by Dan Carden of the NWI Times. Some quotes:

A probation officer or police officer may search the home, car or body of a person on probation so long as the search is reasonable, the Indiana Supreme Court ruled Wednesday.

In overturning a decision out of Jay County, the state's high court said that when a person signs his or her probation agreement, that person is consenting to be searched regardless of whether the person is suspected of additional criminal behavior.

Allan M. Schlechty, 22, was convicted of burglary in 2005 and sentenced to two years in prison and six years probation. As a condition of his probation, he agreed to "reasonable warrantless searches" of his person and property.

In June 2008, Schlechty was suspected of following and attempting to lure a 13-year-old girl into his car while she was on her way to school. Schlechty's probation officer and two police officers conducted a warrantless search of his car and found marijuana. He was charged with misdemeanor possession of marijuana.

However, the Jay County court and the Indiana Court of Appeals both said the marijuana was the product of an illegal search conducted as part of an investigation into the alleged stalking and could not be used against Schlechty.

The Indiana Supreme Court disagreed, ruling 5-0 that, as a probationer, Schlechty was not entitled to the same constitutional protection from searches as noncriminals.

Specifically, the court found that so long as any search of a probationer is conducted reasonably -- such as, not tearing apart his or her home in the middle of the night -- police do not have to suspect additional criminal activity to justify the search.

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

Ind. Gov't. - "Trustee spend $20,000 to defend $758 decision"

Here are some quotes from a story today in the Indianapolis Star, reported by Heather Gillers:

Washington Township has spent about $20,000 fighting a local woman's poor-relief application for $758.27 to pay her rent and water bills.

The yearlong dispute is back in Marion Circuit Court today where there might finally be a resolution to a case that seems almost certain to become fodder in the ongoing statewide debate over whether Indiana's 1,008 township governments are effective stewards of taxpayer dollars.

Washington Township Trustee Frank Short said he chose to devote so much time and money to the lawsuit because the verdict might have bearing on future cases.

"If there was a ruling in the case one way or the other and it affected the way we handed out emergency assistance dollars going forward," Short said, "that might be worth it." * * *

The decision to fight that suit was generally left up to Short, though the township council approved an additional appropriation after the township's total 2009 legal costs exceeded what had been allocated.

Indiana code empowers the trustee to appoint an attorney. Short used the money allocated by the board to pay the law firm the township works with, Ice Miller LLP.

When a poor relief applicant brought a similar case against Lawrence Township last year, Trustee Russell Brown took a different route. He hired a lawyer for a flat $1,000 to represent the township before the judge, who ultimately ruled in favor of the poor relief applicant.

If the only option was to pay an attorney on an hourly basis in order to appeal, Brown said, "it might have changed my opinion about whether it was worth the cost of doing it or not."

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Indiana Government

Law - "Don't forget to multiply those per minute charges by 60 and let everyone at your firm know that accessing a brief will cost you $3,300.00 an hour"

That is a quote in this entry headed "Shock and Awe-Inspiring: All Your WestlawNext Pricing Questions Answered in a Simple Two-Page Handout," via the Law Librarian Blog.

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

Environment - EPA Releases Public Database on Risk Assessments

From a March 24, 2010 EPA press release:

WASHINGTON - Today, EPA is releasing the Health and Environmental Research Online (HERO) database, a milestone in transparency. HERO provides access to the scientific studies used in making key regulatory decisions, including EPA’s periodic review of the National Ambient Air Quality Standards (NAAQS) for six major pollutants. It is part of the open government directive to conduct business with transparency, participation, and collaboration.

"The HERO database strengthens our science and our transparency -- two pillars of our work at EPA. Giving the public easy access to the same information EPA uses will help open the lines of communication, increase knowledge and understanding, and open the doors of EPA," said EPA Administrator Lisa P. Jackson. "Americans have a right to know the background of decisions that affect their lives and livelihoods. We're taking a big step forward in opening government to the people."

The publically accessible HERO database provides an easy way to review the scientific literature behind EPA science assessments, which are used to support agency decision-making. The database includes more than 300,000 scientific articles including the authors, titles, dates, and abstracts. In addition, through a simple keyword search, anyone can see information from the articles that were used to develop specific risk assessments.

HERO includes peer-reviewed literature used by EPA to develop its Integrated Science Assessments (ISA) that feed into the NAAQS review. It also includes references and data from the Integrated Risk Information System (IRIS), a database that supports critical agency policymaking for chemical regulation.

More information on HERO database: http://www.epa.gov/hero

More information on IRIS: http://www.epa.gov/iris

Posted by Marcia Oddi on Thursday, March 25, 2010
Posted to Environment

Ind. Law - "New traffic court law fixes excessive fines"

Yesterday Governor Daniels signed SEA 399, which now will go into effect July 1, 2009. Jon Murray reports today in the Indianapolis Star:

A law going into effect July 1 cracks down on excessive fines in traffic courts across the state. Gov. Mitch Daniels signed the bill Wednesday.

The bill, which sailed through the House and Senate, took direct aim at Marion Superior Court Judge Bill Young. In just more than a year overseeing traffic court, Young built a reputation for slamming motorists who insisted on a trial and lost, issuing double or more than triple the standard $150 in fines and costs.

Senate Enrolled Act 399 sets a series of maximum fines within the $500 limit under state law for moving violations that are Class C infractions.

That includes speeding -- except in school or construction zones -- and violations at stop signs and stoplights.

The law now will take into account the person's history of losing attempts to contest tickets and will restrict higher fines based on several scenarios:

  • $35.50: Admit to violation on or before court date, or contest the violation in court and lose (with no previous moving violations contested unsuccessfully in the same county within five years).

  • $250.50: Contest the violation in court and lose (with one previous losing attempt).

  • $500: Contest the violation in court and lose (with two or more previous losing attempts).

All of these fines get added to $114.50 in court costs and fees charged by each county for Class C infractions.

The changes won't affect the reason judges side with ticketing officers most of the time.

"The standard of proof is the same," Young said. "It's whether it's more likely than not that you committed the infraction."

For background, start with this ILB entry from Feb. 16, 2010.

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

Ind. Law - This month's Doxpop Docket has items of interest

The March issue of the Doxpop Docket (Doxpop is one of the ILB's supporters) has several items of interest, including a free service, now available for several counties, that notifies property owners when documents associated with their name or property are filed at the courthouse.

Another:

Our second-most-often-requested service is one that provides remote electronic access to case documents (filings, pleadings, motions, orders, judgments, and decrees). Doxpop, with the support of the clerks and judges of 25 counties, is working hard to eliminate the need to travel to the courthouse to obtain public, non-confidential documents. Doxpop has addressed the technical challenges and awaits regulatory approval from the Division of State Court Administration under Administrative Rule 9 to provide this service.

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

Wednesday, March 24, 2010

Ind. Law - Governor signs 11 bills today

Governor Daniels has signed eleven more bills today. Six bills remain; the last day for the Governor's action is tomorrow, March 25, 2010. See the list here.

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

Ind. Decisions - Two recent orders of the Supreme Court

On March 10, 2010 the Supreme Court granted transfer to a NFP COA opinion from April 30, 2009, Michael Francis v. Lawrence T. Newman (NFP). In an Order (these are likely to slip through the cracks) issued the same day, and now available here, it is clear that the Supreme Court both granted transfer and remanded to the trial court, concluding that "Francis was entitled to a hearing to test the reasonableness of the attorney fee and expense request tendered by Newman."

In an Order issued March 12, 2010, State ex rel. Ind. Sup. Ct. Disc. Comm'n v. Core, the Court accepted a settlement agreement and permanent injunction whereby Kenneth L. Core was enjoined from holding himself out as "Counsel" unless and until he obtained a license to practice law in Indiana. Core had been listed as "General Counsel" at Celadon Trucking Services in Indianapolis.

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

Law - More on: A double whammy for the student loan industry?

Updating this ILB entry from March 23rd, Jim Kuhnhenn writes today in USA Today in a story headed "Health care bill would save billions on student loans" that begins:

WASHINGTON — Banks and other private lenders are about to lose a $70 billion-a-year student loan business, part of a massive overhaul of college assistance programs that received an unexpected boost from President Barack Obama's health care success.

The bill would see $61 billion in savings over 10 years from the switch from private loans to direct government lending. It would pay for Pell Grants and provide more than $4 billion to community colleges and historically black colleges. It also would direct about $19 billion to reducing the deficit and offsetting expenses in the health care legislation.

In addition, beginning in 2014, college graduates would be allowed to devote no more than 10% of their monthly income to repay their student loans. The current cap is 15%.

Still, the legislation is not as generous as the bill the House passed last year.

It proposes no increases in Pell Grants over the next two years and a modest increase over the five years that follow. The maximum Pell Grant, which a House-passed bill last year would have raised to $6,900 over 10 years, will now only increase to $5,900. The current maximum grant for the coming school year is $5,500.

Industry lobbyists have watched helplessly as Democrats and the Obama administration appear to be on the verge of shifting student lending from private banks to the federal government.

Under the measure, private banks would no longer get fees from the government for acting as middlemen in loans to low- and middle-income students. With the savings, the government would increase Pell Grants to needy students and make it easier for workers burdened by student loans to pay them back.

The bill would mean the loss of billions of dollars in business to student lending giant Sallie Mae and large financial institutions such as Citigroup, JPMorgan Chase and Bank of America.

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

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In Associated Builders & Contractors, Indiana Chapter, Inc., et al. v. Lori A. Torres (NFP), a 7-page opinion, Judge Robb writes:

ABC sought a declaratory judgment that the agreed wage scale format violates the Act and represents an improperly promulgated rule. ABC alleges it is “an association of Indiana-based building trades contractors,” whose members “bid[] on Indiana public works projects,” which are subject to the Act. Appellants’ App. at 7. ABC argues the alleged illegality of the agreed wage scale format creates uncertainty for its members in setting wages for public works projects and forces contractors “to do the impossible – comply with the … Act while at the same time comply with the [DOL’s] policy that runs completely afoul to the … Act.” Appellants’ Brief at 15. * * *

We also note although the DOL issued the agreed wage scale format and explanatory letter in the summer of 2006, ABC did not attempt to challenge the alleged rule until January 15, 2009, when it sent its first letter to the DOL, and April 23, 2009, when it filed its complaint.[3] * * *

ABC lacks standing to seek a declaratory judgment that the agreed wage scale format violates the Common Construction Wage Act and is an unpromulgated rule. Therefore, the trial court properly dismissed ABC’s complaint.
____________
[3] Based upon these dates, even if ABC was successful in surviving dismissal of its action, it has likely waived its challenge to the alleged rule because Indiana Code section 4-22-2-45 requires a claim that asserts a rule is invalid on procedural grounds must be brought within two years after the date the rule becomes effective, unless the rule is alleged to have caused substantial harm to the due process rights of an individual.

ILB comment. The footnote is interesting. IC 4-22-2-45 is part of the chapter on the procedures that must be followed in the adoption of administrative rules by agencies in the administrative branch of state government. Here is what it says:
Sec. 45. A:
(1) claim; or
(2) defense;
that asserts that a rule is invalid on procedural grounds may not be asserted if the claim or defense is based on rulemaking procedures that were followed or should have been followed by a board described in IC 13-14-9-1 or the department in adopting a rule under this chapter unless the claim or defense that asserts the procedural defect is filed not more than two (2) years after the date the rule becomes effective. However, a claim may be filed or a defense raised at any time for an alleged procedural defect that is alleged to have caused substantial harm to the due process rights of an individual.
As added by P.L.34-1993, SEC.6. Amended by P.L.1-1996, SEC.33.
So does this mean that failure to follow each of the proper procedural steps required for a rulemaking under IC 4-22-2 may not be challenged after two years has passed? Or does it mean, as this opinion seems to indicate, that any requirement that has the force and effect of law that a state agency decides to impose on the public may not be challenged after two years has passed, because of this provision in the rulemaking statute, although the agency may have operated totally outside the requirements of the statute?

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

NFP criminal opinions today (5):

Lee Alan Murphy v. State of Indiana (NFP)

Jamar Lamont Lewis v. State of Indiana (NFP)

Anthony Parish v. State of Indiana (NFP)

Jonathon Gibson v. State of Indiana (NFP)

Joshua Williams v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court reverses fourth amendment decision

In State of Indiana v. Allan M. Schlechty, a 10-page, 5-0 opinion, Justice Rucker writes:

We conclude that a warrantless search of a probationer‟s property that is conducted reasonably, supported by a probation search term and reasonable suspicion of criminal activity, complies with the dictates of the Fourth Amendment. * * *

As an additional condition of probation, Schlechty [had] agreed to submit to “reasonable warrantless searches” of his person and/or property by his probation officer in conjunction with other law enforcement officers * * *

Both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution require in general that searches should be conducted pursuant to a warrant supported by probable cause. And both this jurisdiction and the federal courts have recognized various exceptions to the warrant requirement. But this Court has consistently held, “[n]otwithstanding the textual similarity of Article I, § 11 of the Indiana Constitution to that of the federal Fourth Amendment, Section 11 is interpreted separately and independently from Fourth Amendment jurisprudence.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008) (citing Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001)). In this case neither party tells us whether it is advancing a federal or state constitutional claim. However, because both sides rely heavily on Griffin, we address the facts here under federal Fourth Amendment jurisprudence only and express no opinion on whether the result would be the same under Article I, § 11 of the Indiana Constitution. * * *

The warrantless search of Schlechty‟s car was supported both by reasonable suspicion to believe that Schlechty engaged in criminal activity and a search condition contained in his terms of probation. Also, the search itself was not conducted unreasonably. We therefore conclude that the search comported with the dictates of the Fourth Amendment. The trial court thus erred in suppressing the evidence seized thereby. The judgment of the trial court is reversed and this cause is remanded.

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

Ind. Decisions - 7th Circuit decides issue of first impression re the meaning of the word “defendant” in §1453(b)

In First Bank v. DJL Properties (SD Ill.), a 5-page opinion, Chief Judge Easterbrook writes:

We grant First Bank’s petition for leave to appeal, see §1453(c)(1), because the cases present an issue not yet resolved in this circuit.

Chapter 89 of the Judicial Code, 28 U.S.C. §§ 1441–53, authorizes removal of certain cases by “defendants.” Almost 70 years ago, the Supreme Court concluded that a litigant who files suit in state court is a “plaintiff” and cannot remove the case, even if the defendant files a counterclaim and the original plaintiff then wears two hats, one as plaintiff and one as defendant—and even if the counterclaim is distinct from the original claim and could have been a separate piece of litigation. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). That rule may be as old as 1867. See West v. Aurora, 73 U.S. 139, 142 (1867). It remains the law for removal in general, and two circuits have held that it applies to removal under the Class Action Fairness Act in particular. Palisades Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008); Progressive West Insurance Co. v. Preciado, 479 F.3d 1014, 1018 (9th Cir. 2007). Judge Gilbert held that Shamrock Oil, Palisades Collections, and Progressive West Insurance prevent First Bank from removing; Judge Reagan agreed; so do we. We conclude that Palisades Collections and Progressive West Insurance were rightly decided.

Section 1453(b) says that a “class action” (a defined term) may be removed “in accordance with section 1446” whether or not “any defendant” is a citizen of the state in which the suit is pending, and “without the consent of all defendants”. (Otherwise every defendant must sign the notice of removal. Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245 (1900).) The 2005 Act thus refers us to §1446, which specifies where and when “defendants” file notices of removal. Section 1441, which creates the right of removal for cases that could have been filed initially in federal court, also says that “defendants” may remove a suit.

First Bank contends that the word “defendant” in §1453(b) includes a counterclaim defendant even though the word “defendant” in §1441 and §1446 does not. That would make hash of Chapter 89, because §1453(b) refers to §1446; unless the word “defendant” means the same thing in both sections, the removal provisions are incoherent. More than that: the word “defendant” has an established meaning in legal practice, and it is vital to maintain consistent usage in order to ensure that Members of Congress (and those who advise them) know what proposed language will do, and people can understand the meaning of statutes. * * *

The word “defendant” in §1453(b) means what the word “defendant” means elsewhere in Chapter 89—and, as Shamrock Oil held, that word does not include a plaintiff who becomes a defendant on a counterclaim. AFFIRMED

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

Courts - 7th Circuit Judge could be Supreme Court contender

Again, as Judge Diane Wood was a strong contender for the opening last year.

Today Joan Biskupic reports in USA TODAY:

WASHINGTON — She was introduced Tuesday as a woman who could be the next Supreme Court justice "if the stars align" and liberals prevail.

Then in a wide-ranging yet restrained talk hosted by the left-leaning American Constitution Society, Appeals Court Judge Diane Wood, whom President Obama interviewed for last year's Supreme Court opening, shared her experiences with law.

In response to a question, Wood recalled the 1990s, when she was one of two women on the 11-member, Chicago-based U.S. Court of Appeals for the 7th Circuit. She said some lawyers had "a little trouble" with their being on the bench, and she referred to an attorney in a pregnancy-bias case who minimized pregnancy. "After all," she recalled him saying, after the baby is delivered, a woman returns to "her usual slim self."

Wood said she admonished the lawyer that she, the mother of three, probably knew more about pregnancy than he did and told him, "There's a little more to it than that."

Wood, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano would be top contenders for a Supreme Court vacancy, based on their backgrounds and the fact that Obama interviewed them before choosing Sonia Sotomayor last year for his first Supreme Court opening. * * *

Runners-up often lead the short list for a new vacancy, as seen in the practices of both Democratic and Republican White Houses.

Only two of the nine justices are women, so the White House might continue to focus on female candidates.

Posted by Marcia Oddi on Wednesday, March 24, 2010
Posted to Courts in general

Law - More on: An incredible resource coming Wednesday via C-SPAN

Updating this ILB entry from March 15th, which did mention that the C-Span archive is located in West Lafayette, Eric Weddle of the Lafayette Journal Courier reports today:

The archives of the Purdue Research Park-based C-SPAN Archive are now online. So far, 160,000 hours that span 23 years of history are available for free viewing.

Robert X. Browning, C-SPAN Archive director and an associate professor of political science at Purdue, said the site is a political candy store that promotes the democratic process.

"Some people are looking for the 'gotcha moments,' and I guess that is another way it expands the C-SPAN vision in that it makes people accountable," Browning said. "When C-SPAN put the Congress on television, it meant they were in the public eye. So now, each speech, every debate is not only seen the first time but can be seen and researched multiple times. There is no deniability anymore that you didn't say it -- because it is right there in the video."

The C-SPAN Video Library Web site makes Presidents Bill Clinton's "I did not have sex ..." remarks or Ronald Reagan's farewell address accessible in seconds.

The Cable-Satellite Public Affairs Network, or C-SPAN, was founded in 1979 by Brian Lamb, a Purdue alumnus and Lafayette native. * * *

The archive was established in 1987 on the Purdue campus and later moved to the Purdue Research Park in West Lafayette. C-SPAN operates the facility independently of the university.

Moving to a Web-based archive has been in the works for more than two years, Browning said. People can still purchase DVDs of the broadcasts.

"It wasn't feasible to research it all or buy it all," Browning said. "This makes it immediate and more accessible to anyone."

The new Web site lets anyone access video through searching by speaker names, titles, sponsors, committees, categories and other keywords.

A search for Sen. Evan Bayh, D-Indiana, and "health care" brings up every occurrence, including an almost 10-hour, Dec. 11 session about spending. Through indexing, a user can simply click on a timeline of speakers to hear Bayh's comments on the floor.

Sessions also contain transcripts from the Congressional Record.

There is a lag time between the live broadcast and when it is available to view on the Web.

"It is like a DVR or TiVo concept, you can watch about 10 minutes behind," Browning said. * * *

The archive's next task will be digitizing fragile tapes that remain from the early 1980 to 1987 years. The 10,000 hours were recorded on now-outdated formats. Browning said used film machines will be refurbished for the transferring. The process is expected to take more than a year.

Offering downloading of current material is also being worked out. And this summer additional file indexing is planned for events including the hearings on the Iran-Contra affair, so particular speeches can be easily found.

Some ILB thoughts:

1. The next to last paragraph above indicates how the medium relied upon in the best-planned archives can quickly become obsolete. Here the contents on old, now brittle videotapes must be digitized and transferred to a new medium before they are lost. And the first step is to find and locate machines capable of playing the old tapes.

2. I'm looking forward to watching some of the old SCOTUS confirmation hearings, particularly the Bork hearing.

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

Tuesday, March 23, 2010

Law - "Kentucky lawmakers ask for gun ban in Capitol"; what about Indiana?

Via the Lexington Herald-Leader:

FRANKFORT, Ky. -- Some lawmakers are pressing for a ban on people carrying guns into the state Capitol.

Democratic state Rep. Jim Wayne of Louisville raised the issue Tuesday, a day after a man wore a holstered gun into the House chamber and watched the floor debates.

Wayne and a House colleague called for House Speaker Greg Stumbo and the Legislative Research Commission to bar guns, saying "people who are mentally fragile can take desperate actions."

Stumbo said it is a serious issue, and that House Democrats would discuss what should be done about it in a caucus meeting on Wednesday.

The Daniels administration passed rules in 2007 re the "regulation of Deadly Weapons and Devices" in the "state government center campus." There are found at 25 IAC 8.

The rule at 25 IAC 8-3-1 provides that no person in possession of a deadly weapon shall be permitted into or permitted to remain in the Indiana government center campus. This includes state garages and parking areas, per 25 IAC 8-2-1(4).

The rule, at 25 IASC 8-3-3(2) and (3), specifically exempts "Members of the Indiana general assembly who hold an unlimited license to carry a handgun" and "Members of the Indiana judiciary."

ILB observation: This Indiana rule may be impacted by the "guns at work" bill, HEA 1065,

Posted by Marcia Oddi on Tuesday, March 23, 2010
Posted to General Law Related | Indiana Government | Indiana Law

Environment - More on: Superfund used to justify $28,000 bill to fight fire at couple's home [Updated]

Updating this ILB entry from Feb. 19, 2010, 6News Indy, which broke the story, had an update this evening:

LAFAYETTE, Ind. -- A federal court ruling could keep a company from charging fees some consider outrageous for fire services and car accidents.

A federal judge in northern Indiana ruled against Emergency Services Billing Corp. less than a month after a 6News investigation called its practices into question in a different case.

The case in northern Indiana that led to the ruling pertained to car crashes and the company's contention that it and fire departments could recover thousands of dollars for environmental cleanup that it claimed was necessary.

The judge ruled that cars should be considered consumer products in consumer use and that ESB can't charge people involved in crashes federal environmental cleanup fees.

The court ruled that ESB's case has no merit and the company cannot recover response costs under federal law.

ESB claimed that under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, it could get fees to cover the response to environmental hazards.

In February, 6News' Joanna Massee talked to a New Castle family who was sent a bill for nearly $28,000 after a fire at their home.

ESB cited CERCLA in that case, too, claiming the scene of the fire was a hazardous waste site.

6News sought comment from ESB's owner on Monday, but calls were not returned.

Here is an earlier 6News story, from Feb. 20th:
NEW CASTLE, Ind. -- The chief of a volunteer fire department at the center of controversy over a $28,000 bill sent to a family who lost their home to a fire spoke out about the practice Friday, saying collecting fees is vital to the department's survival, but that the family shouldn't have been billed.

Brian and Darline Fairchild received an itemized bill after a fire last year that included charges for water firefighters drank at the scene and refilling firefighters’ oxygen tanks, along with the billing company’s 22 percent fee, 6News’ Joanna Massee reported.

“What we’re trying to do is get money in the department for the community,” said Cadiz/Harrison Volunteer Fire Chief Mark Stults.

Asked if he thought the bill was fair to the Fairchild family, Stults replied, “I don’t think that, at one shot, is necessarily correct.”

Brownsburg-based Emergency Services Billing Corp. works with Cadiz/Harrison and other volunteer and professional fire departments to collect from insurance agencies.

Stults said the company is not collecting from individuals and that the Fairchilds should not have been billed. The family is outraged.

“I mean, your insurance will go up if we have to pay for it, so it is affecting us,” Darline Fairchild said.

“I always thought that volunteer fire department was just that -- volunteer -- and taxes helped pay for that,” Brian Fairchild said.

Stults said money collected will go toward maintaining equipment that is in dire need of repair and upgrade. He admitted the fire did not cost the fire department $28,000 to battle.

“Because of the vehicles, you’re talking about maintenance. You’re talking about maintenance to the gear,” he said. “You’re talking about upkeep on everything.”

Asked why the family should be billed $28,000 if the fire didn’t cost that much to fight, Stultz replied, “That, I really can’t tell you.”

Stults said his department is speaking with Emergency Services Billing about the situation, but said his department will continue to seek payment for the cost of maintaining and replacing old equipment.

“The pancake suppers, the breakfasts that everyone puts out, that’s not enough money to keep the departments open,” he said.

Attorney Robert Blackford, who runs Emergency Services Billing, said federal environmental law allows him to charge unlimited fees for house fires and car crashes.

Rep. Dan Burton said Thursday that he will try to change the law if the practice can’t be stopped any other way.

[Updated 3/24/10] Here is the March 19, 2010, 20-page ruling of federal Judge Rudy Lozano in the case of Emergency Services v. Allstate. The opinion deals with a Westville volunteer fire department, which responded to various motor vehicle accidents and:
which presented the potential of a fire and the release, or potential release, of hazardous materials into the air. Westville provided traffic control, assessed the potential release of hazardous materials into the air, and incurred expenses for responding to the accidents. On behalf of Westville, ESBC prepared invoices for payment of Westville’s removal services and sent them to the insurer * * *

No reason has been provided for why the Court should ignore the EPA’s guidance on this issue, whose interpretation of the consumer products exception also alines with the plain meaning of CERCLA. * * * As initiated by the EPA in 1983, the Court finds that “consumer product in consumer use” refers to its ordinary meaning, which includes the private passenger motor vehicles specifically at issue in this case being used for personal purposes.

Take a look at the website of ESBC ("billing solutions for your budget"). ESBC appears to be located in Lebanon, IN and according to this website (for which the ILB certainly cannot vouch) "Current estimates show this company has an annual revenue of $43,000 and employs a staff of approximately 1." This site shows it located in Brownssburg, IN.

Posted by Marcia Oddi on Tuesday, March 23, 2010
Posted to Environment | Ind Fed D.Ct. Decisions | Indiana Government

Environment - Illinois AG Lisa Madigan "Wins One for ... the Carp?"

From NBC Chicago's "Ward Room," some quotes from an entry by Edward McClelland:

As attorney general, it’s Lisa Madigan’s job is to defend the state of Illinois.

But Monday, she won a case for the state’s most hated fish, the Asian carp. The U.S. Supreme Court shot down a suit to force Illinois to close the locks at the O’Brien Dam and in the Chicago River. Michigan’s attorney general argued that sealing the locks is the only way to prevent the carp from invading the lake, and ruining a $7 billion fishery industry. * * *

The back story here is that the other Great Lakes states have always hated the ship canal. When it was opened, in the 1920s, the canal sucked up so much water that lake levels dropped from Chicago to Mackinaw City, leaving piers and marinas high and dry. Wisconsin sued to put a cork in it. The Supreme Court refused to close the canal, but did order Chicago to stop hogging so much water.

Now, Michigan’s attorney general plans to ask the Supreme Court to reopen the 83-year-old “Chicago Diversion” case. He’ll be joined by Pennsylvania, New York, Ohio, Wisconsin, Minnesota, Indiana and Ontario. That’s a lot of neighbors who don’t like the fact that Chicago’s toilet drain has become a highway for an ugly, ravenous fish. And another job for Attorney General Madigan, who'll again have defend Illinois' unusual -- and much-resented -- relationship with Lake Michigan.

Posted by Marcia Oddi on Tuesday, March 23, 2010
Posted to Environment

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

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Adoption of L.H.; J.V. v. A.H. (NFP)

Term. of Parent-Child Rel. of E.D. and A.D.; D.D. v. IDCS (NFP)

NFP criminal opinions today (7):

Rario Clemons v. State of Indiana (NFP)

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

Kenneth Harrison v. State of Indiana (NFP)

Thurman Jones v. State of Indiana (NFP)

Sylvester Thomas v. State of Indiana (NFP)

Curtis Dance v. State of Indiana (NFP)

George Box v. State of Indiana (NFP)

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

Ind. Gov't. - Indy Star posts latest database of state employee salaries

Access it here. But be aware that it can be misleading. For instance, if you look for the salary of Patrick Bauer, who is Speaker of the House and also an employee of Ivy Tech under "Patrick Bauer", using "all departments and agencies," you get back only:

BAUER, B PATRICK GENERAL ASSEMBLY $63,023
But if you use "Bauer, B. Pat", then you get:
Bauer, B. Pat Ivy Tech Community College - Central Office $118,450
If you look at the "Details" in the Ivy Tech entry, you get two apparently conflicting pieces of information:
Vice Pres External Ptnrshps (FT) - (Salary reduced by the unpaid legislative leave).
Status Annual
Hire Date 8/1/2001
Annual Salary $118,450
* * *
Ivy Tech: Annual salaries reflect combined wages for all duties at a specific campus. Salaries of employees who serve in the general assembly are based on what they would earn annually as full-time workers.
Another entry:
Garton, Robert Ivy Tech Community College - Central Office $122,000

Posted by Marcia Oddi on Tuesday, March 23, 2010
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today, and a case involving Wellpoint

In Estate of Wavie Luster v. Allstate (ND Ind., Miller), a 17-page opinion, Judge Posner writes:

This diversity suit for breach of an insurance contract was dismissed on summary judgment. The suit is governed, so far as the substantive issues are concerned, by Indiana law, and the plaintiff’s appeal presents issues of both contract interpretation and Indiana insurance law.

Mrs. Luster was a widow living alone in her house in Merrillville, Indiana. She had a homeowner’s insurance policy from Allstate. In October 2001, when she was 83, she was injured in a fall and after being released from the hospital moved into an extended-care facility. She executed a power of attorney to her lawyer, Rick Gikas, who is the representative of her estate in this litigation. She never returned home, and died in April 2006, some four and a half years after her fall. Gikas had notified Allstate of his power of attorney and had directed the company to bill the insurance premiums to his law office. No one lived in the house after she left it.

Three months after her death—her house still unoccupied— a fire caused extensive damage. Gikas submitted a claim on behalf of the estate. An investigation indicated that the fire may well have been started by burglars, but the plaintiff denies this and the district judge made no finding.

In the course of the investigation Allstate discovered that the house had been unoccupied for four and a half years before Mrs. Luster’s death, and denied the claim, precipitating this suit. Allstate continued billing Gikas for premiums, however, and he continued paying them until October 2008, more than two years after the fire, when Allstate—which claims not to have known that the policy was still in force until its lawyers read the estate’s summary-judgment brief that month—purported to cancel the policy retroactively to November 2001, and returned the premiums for the subsequent period to the estate. * * *

When one considers the very limited circumstances in which the Indiana legislature has approved cancellation of homeowner policies even when there is notice by the insurer, see Ind. Code § 27-7-12-6, as there was not here, it seems unlikely that the Indiana courts would permit cancellation in a case like ours. * * *

So the plaintiff is entitled to a remand, but it wants more and argues that Allstate waived denial of coverage by continuing to collect premiums for more than two years after learning, when the fire occurred, that the house had long been unoccupied. Eventually, as we know, it did return all the premiums that it had collected since 30 days after Luster had moved out of the house. * * *

Continued acceptance of premiums after cancellation can, as we also said, fool the insured into thinking he’s covered and therefore deflect him from seeking substitute protection. And if as a result of being deceived in this way he fails to obtain substitute coverage and incurs a loss as a result, the company is estopped to deny coverage. Home Ins. Co. v. Strange, 123 N.E. 127, 129 (Ind. App. 1919); Sur v. Glidden-Durkee, 681 F.2d 490, 493-94 (7th Cir. 1982) (Indiana law); see also Hargis v. United Farm Bureau Mutual Ins. Co., 388 N.E.2d 1175, 1179 (Ind. App. 1979); C.A. Enterprises, Inc. v. Employers Commercial Union Ins. Co., 376 N.E.2d 534, 536 (Ind. App. 1978). But since Allstate could not cancel the policy retroactively, it remained in force until October 2008, when Allstate cancelled it prospectively, as the policy permitted it to do. So during that period the Luster estate remained covered by the policy except (because the house continued to be unoccupied) for losses attributable to an increase in hazard by reason of nonoccupancy, or to vandalism. The coverage was not as comprehensive as it would have been had the house not been unoccupied; but that was not Allstate’s fault. * * *

Failure to attend to the distinction between cancellation and a denial of coverage is the Achilles’s heel of the plain tiff’s argument that the continued collection of premiums barred Allstate from denying coverage for the loss caused by the fire. A denial of coverage is governed by estoppel (or its synonym in Indiana, “implied waiver”), and relief from the denial requires proof of prejudice in order to avoid conferring windfalls on insureds. (Besides the cases cited earlier, see Terre Haute First Nat’l Bank v. Pacific Employers Ins. Co., 634 N.E.2d 1336, 1338 (Ind. App. 1993); Allstate Ins. Co. v. Tozer, 392 F.3d 950, 956 (7th Cir. 2004) (Indiana law).) There is no such proof in this case. Cancellation is governed by waiver in its conventional sense of the voluntary relinquishment of a known right.

By accepting premiums for years after learning (or being deemed to have learned, since it was properly notified, even if the notice got lost in Allstate’s bureaucracy) of the change of occupancy that would have entitled it to cancel Mrs. Luster’s policy, Allstate waived its right to cancel, as we said. Each check that Gikas sent and that Allstate cashed after it knew the house was unoccupied was an offer made and accepted to continue the policy in force. The right to cancel is not an exclusion of coverage for particular losses but, as we explained earlier, an option for the insurer to exercise or not as it pleases. Aetna Ins. Co. v. Robinson, 10 N.E.2d 601, 605 (Ind. 1937). The insurer’s continuing to accept premiums after learning that circumstances entitling it to exercise its option have arisen is evidence that he’s decided not to exercise it; and after a reasonable time has elapsed, the right to exercise the option (like any other contract offer) lapses, Farmers’ Conservative Mutual Ins. Co. v. Neddo, supra, No. 09-2483 17 40 N.E.2d at 405; Lititz Mutual Ins. Co. v. Lengacher, supra, 248 F.2d at 854. The problem for the plaintiff is that the district court’s decision was based not on cancellation but on the hazard exclusion. Still, the plaintiff is entitled to a hearing on whether the exclusion applies (and Allstate to a hearing on the applicability of the vandalism exception, should the hazard exclusion be found inapplicable), and therefore the judgment is reversed and the case remanded. REVERSED AND REMANDED.

The Wellpoint decision mentioned in the heading is Wellpoint v. IRS, an appeal from the US Tax Court. Judge Posner authors this opinion also.

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

Law - A double whammy for the student loan industry?

The student loan industry, already subject to reining in via provisions which accompany the health care reform legislation (see ILB entry earlier today), suffered another blow this morning by way of a 9-0 opinion, authored by Justice Thomas, in the case of United Student Aid Fund v. Espinosa, which Lyle Denniston at SCOTUSBlog, wrote on June 15, 2010, concerned "whether an individual who owes on a student loan may wipe out the debt — at least partly — in a bankruptcy without showing that the debt posed an 'undue hardship.'"

This May 13, 2009 ILB entry began:

The ILB has had a number of entries about student loans, including the impact of the 2005 bankruptcy law amendments, which eliminated the possibility of relief in bankruptcy for student loans in nearly all cases. See this June 10, 2007 entry, which quotes Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers: “When a student signs the paper for these loans, they are basically signing an indenture,” Mr. Nassirian said. “We’re indebting these kids for life."

This entry from July 30, 2007 contains quotes including "Many a student comes out of college only to discover that his loan has become a noose around his neck" and this one, quoting Joe Nocera of the NYT, writing about Sallie Mae: * * *

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

Courts - Georgia joins Illinois in striking medical malpractice caps

On Feb. 4, 2010, the ILB had an entry headed "The Illinois Supreme Court on Thursday found unconstitutional a state law capping non-economic damages in medical-malpractice cases."

And, as Alyson M. Palmer reports today in the Fulton County Daily Report in a story that begins:

By a 7-0 vote, the Supreme Court of Georgia on Monday struck down the state's caps on pain and suffering damages in medical malpractice cases.

"The very existence of the caps, in any amount, is violative of the right to trial by jury," Chief Justice Carol W. Hunstein wrote in her opinion for the court.

Here is the opinion.

"A Bad Day for Tort Reform" is the headling to this WSJ Law Blog entry.

Posted by Marcia Oddi on Tuesday, March 23, 2010
Posted to Courts in general

Law - Some useful articles on health reform

"What health-care reform means to Indiana" is a comprehensive article today from John Russell, Daniel Lee and Shari Rudavsky of the Indianapolis Star.

"Praise, caution, concern greet health care measure" from the Gary Post-Tribune today, reported by Mark Taylor.

"Doctors, hospitals, insurers, drugmakers seen benefiting from health care bill"
from Bruce Japsen of the Chicago Tribune.

"'Fix-it' bill: Final fight on health care front," a USA Today story by John Fritze, details what is in the reconciliation bill, awaiting passage in the Senate.

"The other historic reform," an editorial today in the Fort Wayne Journal Gazette, talks about the changes to the student loan program which are included with the health care bill. Read with this March 12th story by Shailagh Murray and Lori Montgomery of the Washington Post that began: "Democratic leaders said Thursday that they were increasingly inclined to release a final health-care bill that could accomplish two of President Obama's top domestic priorities: guaranteeing coverage to 30 million uninsured Americans and vastly expanding federal aid for college students."

"What Are the Chances that the Courts Will Strike Down the Individual Mandate?" is an entry in The Volokh Conspiracy by Prof. Orin Kerr.

"We Just Can’t Get Enough (Of Health Care and the Constitution)"
is an entry by Ashby Jones in the WSJ Law Blog.

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

Monday, March 22, 2010

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

For publication opinions today (2):

In Gregory L. Kennedy v. Town of Gaston , a 12-page decision, Judge Riley writes:

Kennedy’s argument that the Town had failed to exhaust the administrative remedies as contemplated in the Town’s Ordinance 93 and the Unsafe Building Act, enacted in I.C. § 36-7-9 et seq is thus more properly characterized as to whether the trial court had jurisdiction over this particular case. As we stated unequivocally in Packard v. Shoopman, 852 N.E.2d 927, 930 (Ind. 2006), “[j]urisdiction over the particular case is something of a misnomer and refers to failure to meet procedural requirements[.]” Therefore, because Kennedy raised an untimely procedural error, he waived his claim for our review. * * *

With regard to Kennedy’s claim that he did not willfully disobey the trial court’s order, we disagree. The evidence establishes that the trial court denied Kennedy’s motion to correct error on October 7, 2008. On January 22, 2009, the Town filed its Contempt Citation. During the hearing on the Town’s motion, Kennedy admitted that he did not contact utility companies until late January or early February—after the Town’s contempt filing—to receive information on the removal of the property’s utilities. Kennedy also testified that he and his counsel had discussed the need to get a trial court order to the utility companies to disconnect the utilities. He also admitted that he did not have his counsel pursue any other legal remedies from fall 2008 to March 2009, nor did he take any action to quiet title to the property. We agree with the trial court’s finding that instead of appealing the Order or complying with it, Kennedy choose to ignore the Order and hire new attorneys to raise untimely and repetitive issues in an attempt to further delay the inevitable. Based on the evidence before us, we affirm the trial court’s finding of contempt.

Conclusion. Based on the foregoing, we conclude that (1) Kennedy’s claim that the trial court lacked subject matter jurisdiction is untimely and (2) the trial court did not abuse its discretion by finding Kennedy in contempt of court.

In Delmar Caldwell v. State of Indiana , an 8-page opinion, Judge Kirsch writes:
Delmar Caldwell (“Caldwell”) brings this interlocutory appeal of the trial court’s order denying his motion for discharge under Indiana Criminal Rule 4(C). Caldwell raises the following issue, which we restate as: whether the trial court erred by finding that the one-year period in which to bring Caldwell to trial for an offense alleged to have occurred in July of 2007 had not begun to run until he was ordered to appear by summons for his initial hearing on February 13, 2009. We reverse. * * *

The charges against Caldwell were filed on July 10, 2007. Since that was the latter of the two events activating the time period of Criminal Rule 4(C), the State was required to bring Caldwell to trial by July 10, 2008. It did not do so. We conclude, therefore, that the trial court erred by denying Caldwell’s motion for discharge.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of R.W.; N.W. v. IDCS (NFP) - Affirmed.

S.L. v. Review Board (NFP) - Affirmed.

NFP criminal opinions today (3):

Gordon Walker v. State of Indiana (NFP)

Daniel Huckelby v. State of Indiana (NFP)

Lanetta Y. Jackson v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court issues one today

In Kyle Kiplinger v. State of Indiana, a 9-page, 5-0 opinion, Justice Sullivan writes:

Defendant Kyle Kiplinger appeals his sentence of life in prison without possibility of pa-role imposed by the trial court after the jury failed to reach a unanimous sentencing recommen-dation. Because there is no jury finding of record that the State proved the charged aggravating circumstance beyond a reasonable doubt, the judge did not have authority under the Sixth Amendment to impose a sentence of life without parole. We vacate the trial court’s sentence and remand for resentencing.

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

Courts - 3rd Circuit considers independent internet search by district court judge

In U.S. v. Bari (3/22/10), the 2nd Circuit panel writes:

During the supervised release revocation hearing, Judge Chin noted that his chambers “did a Google search” to confirm that “there are also lots of different rain hats . . . that one could buy.” On appeal, Bari argues that this independent Internet search violated Rule 605 of the Federal Rules of Evidence. We now consider (1) to what extent the Federal Rules of Evidence apply in supervised release revocation hearings, and (2) whether the use of an Internet search to confirm a judge’s intuition about a fact not subject to reasonable dispute is grounds for reversal. We conclude that the Federal Rules of Evidence do not apply with their full force in supervised release revocation hearings. We also conclude that the District Court did not commit reversible error in conducting an Internet search to confirm his intuition regarding a matter of common knowledge. Affirmed. * * *

As broadband speeds increase and Internet search engines improve, the cost of confirming one’s intuitions decreases. Twenty years ago, to confirm an intuition about the variety of rain hats, a trial judge may have needed to travel to a local department store to survey the rain hats on offer. Rather than expend that time, he likely would have relied on his common sense to take judicial notice of the fact that not all rain hats are alike. Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search. See Reno v. ACLU, 521 U.S. 844, 853 (1997) (“The Web is . . . comparable . . . to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.”).

As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that. More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed. We will not consider it reversible error when a judge, during the course of a revocation hearing where only a relaxed form of Rule 201 applies, states that he confirmed his intuition on a “matter[ ] of common knowledge.” * * *

In the circumstances presented here, it was not reversible error for a judge to employ an Internet search to confirm a reasonable intuition on a matter of common knowledge.

Link via How Appealing.

Posted by Marcia Oddi on Monday, March 22, 2010
Posted to Courts in general

Environment - Still more on "SCOTUS to Reconsider Wading Into Asian Carp Fight "

Updating this ILB entry from March 19th, the AP is now reporting: "Supreme Court refuses second request to close shipping locks."

WASHINGTON | The Supreme Court has turned down a second request to immediately close shipping locks to prevent invasive Asian carp from infesting the Great Lakes.

The court on Monday refused a renewed request by Michigan to issue a preliminary injunction that would order the locks closed. The justices turned down the original request in January.

Posted by Marcia Oddi on Monday, March 22, 2010
Posted to Environment

Courts - "Courts in a quandary over cheap shots by anonymous bloggers"

The ILB has had a number of entries about anonymous posts, under the heading "Harsh Words Die Hard on Campus." On Sunday the Pittsburgh Post-Gazette had a story reported by Mackenzie Carpenter, headed "Courts in a quandary over cheap shots by anonymous bloggers." Some quotes from the lengthy article:

As anonymous content proliferates across the Internet -- one 2006 study estimated that 55 percent of American bloggers post under pseudonyms -- so does the opportunity for robust debate, invective, insights, insults and lawsuits.

Just how easy should it be to silence John or Jane Doe holding forth about a school superintendent's cronyism, a company's illegal dumping of toxic waste -- or just claims that a neighbor is of dubious moral character? When is anonymous Internet speech a richly textured exchange of ideas full of nuance, and when is it trash talk? * * *

[I]n this new digital era, courts are struggling with an increasing number of legal actions against bloggers or the websites that post their comments, searching for ways to balance First Amendment free speech rights with the right to not have one's reputation trashed or privacy invaded online.

Most of these cases can't go anywhere unless the speaker is identified, and that's where the battle begins -- usually with a subpoena aimed at the website provider, says Sam Bayard, assistant director of the Citizen Media Law Project at Harvard University.

"If you don't get the poster's identity, you don't get to bring a lawsuit," Mr. Bayard said, noting that different Web providers have different policies -- some require names, other require just e-mail addresses, some require nothing at all -- from people who register on their site.

Under a 1996 telecommunications law, Web service providers do have protection from comments made by third-party posters, but some courts will require them to divulge those posters' identities if a strong enough case for defamation can be made by the plaintiff.

About a half-dozen John Doe cases have been filed in Allegheny County since 1999, most famously one filed that year involving now-state Supreme Court Justice Joan Orie Melvin, who sought to unmask a blogger Justice Melvin said had defamed her.

While stating that anonymous speech was protected under the First Amendment, Allegheny County Judge R. Stanton Wettick also ruled that she needed the names of her critics to proceed with the case. She later dropped the suit. * * *

Since the Media Law Resource Center in New York began tracking data in 2004, 250 legal actions involving bloggers have been filed, although a handful of those date to the 1990s. Since April 2009, at least 50 cases involving anonymous bloggers have been added to the center's database, said spokesman David Heller.

While courts often are inclined to protect anonymous speech, "plaintiffs still win these cases all the time," said Paul Levy, a lawyer for Public Citizen, a consumer watchdog. Even before a complaint is filed, an Internet service provider will often divulge an identity without hesitation.

Depending on the state, two basic standards seem to be evolving: One standard requires that the plaintiff has to show that there is a strong legal case to be made for defamation. Another, stricter standard imposed by other courts adds a balancing test to measure the impact of disclosure on both sides.

While the state's high court has yet to rule conclusively on the issue, individual courts in Pennsylvania "have recognized that there is at least some qualified right to speak anonymously and to overcome that right the potential plaintiff needs to make a substantial legal and factual showing that his case has merit," Mr. Levy said.

While courts seek clarity, digital rights advocates fear those efforts may be complicated if Congress revises the 1996 Telecommunications Act, which protects Internet service providers from these kinds of suits.

"With the issue of Internet anonymity bubbling up in courts and legislatures across the country, a showdown between reputation, privacy and safety interests on the one hand, and the First Amendment rights of message posters and online service providers on the other, is inevitable," says Robert D. Richards, director of the Pennsylvania Center for the First Amendment at Penn State University.

Posted by Marcia Oddi on Monday, March 22, 2010
Posted to Courts in general

Ind. Decisions - More on "Supreme Court steps into player eligibility dispute"

Updating this ILB entry from March 18, 2010, Columnist Hillary Smith of the NWI Times has a column today headed "Supreme Court could decide right to fight IHSAA ."

First, a quote from Charles Wilson's story in the earlier entry:

[T]he IHSAA believes both a special judge and the state Court of Appeals exceeded the limits the top court has imposed on legal review of the athletic group, which is a private agency. Under those guidelines, judges are supposed to review the official record for blatant error, not reweigh all the evidence, [IHSAA attorney Robert M. Baker III] said.
Now from Ms. Smith's column today:
On Wednesday in Indianapolis, the Supreme Court attacked both sides of the IHSAA vs. Jasmine Watson eligibility dispute.

Yes, this legality is ongoing, even as Watson -- the player the IHSAA deemed an illegal transfer last season before a special judge and an appellate court both reversed the decision -- is now on the roster at the University of Massachusetts.

What's interesting is that this particular case is the one the IHSAA deemed most appropriate to take to the Indiana Supreme Court.

According to the IHSAA's own lawyer, the association used to have about one case per year challenged by a player or school and taken to court. There have been five in the last two years.

But this one is the one they've decided to make an example of.

In this instance, Watson transferred from Elkhart Memorial to South Bend Washington, explaining that her mother had lost hours at her job and their house in Elkhart had been foreclosed on. The IHSAA determined Watson had been recruited away from Elkhart Memorial and took away her senior season.

While it might just seem like another chance for the IHSAA to prove a point by continuing to fight long after the player is out of association jurisdiction, this case is more than that.

If the Indiana Supreme Court finds in favor of the association -- in this case with the IHSAA's assumption that judges should be ruling only on the record for error, not retrying the case -- this could set a precedence for keeping such cases out of the court system.

A good idea you might say? The catch is, in some cases, the IHSAA is blatantly wrong and the rules set up to appeal decisions weigh more heavily in favor of the association that made the decision in the first place.

A secondary look at the case is sometimes what is called for.

But if the Indiana Supreme Court decides to figure the IHSAA is right, it sets the tone that suing the IHSAA is no longer an option. Based on this same Watson case a year ago, a South Bend legislator drew up a bill to move the IHSAA under the purview of the Board of Education, though it was eventually withdrawn.

The argument then was that the IHSAA had grown to a dictatorship.

Should the Indiana Supreme Court find the same, the bill likely would be reintroduced and even more change is on the way.

After the oral arguments last week, Justice Theodore Boehm said: "From our point of view, the question is whether the courts should be involved in this exercise at all."

When the alternative isn't much justice at all, the courts should most definitely be involved, and he should help keep it that way.

Posted by Marcia Oddi on Monday, March 22, 2010
Posted to Ind. Sup.Ct. Decisions

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, March 21, 2010:

From Saturday, March 20, 2010: From late Friday, March 19, 2010:

Posted by Marcia Oddi on Monday, March 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 3/22/10):

Next week's oral arguments before the Supreme Court (week of 3/29/10):

Next Thursday, April 1st


This week's oral arguments before the Court of Appeals (week of 3/22/10):

Tuesday, March 23rd

Thursday, March 25th

Next week's oral arguments before the Court of Appeals (week of 3/29/10):

Next Monday, March 29th

Next Thursday, April 1st

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, March 22, 2010
Posted to Upcoming Oral Arguments

Sunday, March 21, 2010

Ind. Courts - Gary P-T editorial on Lake County Circuit judgeship

The March 19, 2010 editorial in the Gary Post Tribune, signed by Rich James, editorial page editor, is headed "Political deceit reaches on high." Some quotes:

Lake Circuit Court Judge Lorenzo Arredondo pulled a fast one on Feb. 19 when he told the voters of Lake County -- the ones who supported him for 30 years -- that they no longer count.

At 11:56 a.m. on Feb. 19 -- four minutes before the close of filing for the primary -- Arredondo withdrew his candidacy for re-election.

Arredondo had filed on Jan. 20 -- the first day of filing -- to make sure no one else got into the race, so that a month later he could deal an ace from the bottom of the deck.

Two minutes before he withdrew, Merrillville Town Judge George Paras filed for Lorenzo's Circuit Court seat.

Only because word of the sweetheart deal had leaked, did Alexander Dominguez get wind of the coup and filed for the job -- about half an hour before Paras.

What it comes down to is that Arredondo and Paras decided that they know what's best for the people of Lake County. They decided they also know what's good for the judicial community of Lake County.

With the utmost arrogance, they decided the voters don't matter.

No, they were going to pass down the judgeship as if it were an heirloom -- not a courtroom that decides the fate of individuals, organizations and corporations. * * *

Unfortunately for all of us, the legal community said nothing. They just shuffled along as if nothing had happened. Sheep in the pasture. * * *

The really sad part is that there is nothing to prevent this from happening again.

The only thing to stop it is remove the Circuit Court judges from politics and put them in the merit system.

But in the case of the Circuit Court judge, that would require a constitutional amendment. And we know that's not going to happen.

So Lake County is left with another black eye politically.

And the one who threw the punch is a judge. It doesn't get much worse than that.

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

Ind. Gov't. - Elkhart police are shocked, shocked, to find chickens in the city

"More than 40 chickens discovered within Elkhart city limits" was the headline to this story March 17th by Ed Ernstes of WSBT, South Bend. Some quotes:

ELKHART — A complaint led Elkhart police to a surprising discovery — more than 40 chickens inside city limits. Now investigators and animal control officers are trying to determine if this is just the tip of the iceberg to a much bigger issue.

“About 7:30, 8 in the morning, you would hear a rooster out here cock-a-doodle-doing, and I always wondered where it would be coming from right here on Cassopolis Street, in the middle of the city,” said Sean Mutchler.

Apparently, they weren't the only ones to hear it. Someone complained to police, so animal control went out to investigate a home on Country Club Drive.

“As he's turning on Country Club, he says he can actually hear the roosters crowing all the way from Cassopolis Street,” Lt. Ed Windbigler said about the animal control officer who responded to the complaint. “He pulls up and sure enough, there are several dozen chickens, roosters on this property.”

City ordinances do not allow such animals within the city limits. Officers seized the animals, which were being kept in the back yard of a residence. Some of them were injured.

“As you can imagine, it wasn't the easiest thing for the city animal control officer and members of the county Humane Society who pitched in to pick up the birds,” said Windbigler. “It wasn't easy to try and corral them.”

“You know, not many people are trained to be able to round up roosters, especially ones that were very aggressive,” said Rachel Dennis with the Humane Society. “All these roosters were very aggressive, you know. They are something that you can't catch quickly and put in a cage.”

Police say the majority of chickens found at the scene were roosters.

“You know, one would have to wonder why they have so many roosters compared to hens,” said Dennis. “You just can’t have 41 chickens running around, you know. It’s not the rural side.

One of the ILB's favorite entries was this one from Sept. 15, 2009, headed "Chicken underground' emerges in Indiana." The entry surveyed several Indiana cities, including Indianapolis, which (unlike Elkhart) permit urban chicken farming.

But there can also be a darkside, as this ILB entry from Sept. 20, 2009, headed "Limits on LA Roosters Get a Green Light," indicates. The presence of a large number of roosters may lead to the discovery of an illegal cockfighting operation. The new LA ordinance limited the number of roosters on one property to three to discourage this.

Posted by Marcia Oddi on Sunday, March 21, 2010
Posted to Indiana Government

Ind. Law - More on: "Indiana gun bill is signed into law: some businesses weighing legal challenge"

Updating this ILB entry from March 20, 2010, which included the ILB's thoughts on the case currently pending before the SCOTUS, McDonald v.City of Chicago, and its relevance to Indiana, the Indianapolis Star has an editorial today, headed "Ready for duel? Guns law ripe for legal challenges," that, IMHO, takes a purely parochial viewpoint, with no mention of McDonald. A quote:

By overriding employers' rights of property and self-protection in favor of a dubious cause of individual armed defense, the legislature set up a fundamental confrontation for some future courtroom.
The Elkhart Truth had a story March 20th, reported by Marilyn Odendahl, headed "Take your gun to work? Some are glad it's legal in Indiana now: People with security concerns at their jobs welcome the new law, hopeful that the threat of concealed arms will deter crime." The story does mention, in passing, a "case currently at the U.S. Supreme Court."

On the other hand, the ILB has received a release indicating that:

City-County Councillor Ed Coleman (L) will introduce a resolution this Monday, March 22, in support of the Second Amendment to the United States Constitution and the protections it provides to Indianapolis residents.

The resolution further expresses its support of the position of Indiana Attorney General Greg Zoeller (R) who co-signed a “friend of the court” brief in an important Second Amendment case argued before the Supreme Court. In the brief, Zoeller and a bi-partisan group of more than thirty other state attorneys general argue that the Second Amendment applies to state and local units of government. The case, McDonald v. Chicago, was heard before the Supreme Court earlier this month and is expected to be decided later this year.

Councillor Coleman proposed an ordinance earlier this year which would allow law-abiding citizens to defend themselves in city parks. The proposal is currently tabled. “This [resolution] is a simple vote,” says Coleman; “either you support the Constitution or not.”

Timothy Maguire, Chairman of the LPMC, is confident that Councillors and the Mayor can put aside their differences and support the Attorney General. “Regardless of our disagreements about Indianapolis gun laws, I think we can all agree that the Bill of Rights is as much of a limit on local government as it is on federal government.” Coleman continues, “If elected officials do not support the U.S. and State Constitutions, they should resign as they can’t effectively support their constituents.”

For more on McDonald, see this ILB entry March 1, 2010. The entry includes a link to the amicus brief filed by
the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming in Support of Petitioners.

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

Ind. Courts - More on: "Carmel hazing case takes new turn: Decision whether to file charges is now Hendricks County's, not Hamilton's"

Updating the ILB's entry from the morning of March 20, 2010, Bob Cook of the blog "Your Kid's Not Going Pro" posted this entry the evening of the same day.

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

Ind. Gov't. - More on: Police charge too much for incident reports; ILB asks what about crash reports?

Updating this ILB entry from May 24, 2009, which is worth reading again, today Dan Stockman of the Fort Wayne Journal Gazette has an article on the fees charged for "police reports," and the lack of a culture of openness in Indiana state and local agencies.

And the name shouldn't matter: "police reports," "incident reports," "accident reports," "crash reports." These are all public records, and the same rules -- and minimal copying fees -- should apply.

Then there are the problematic "investigatory records," the subject of a FWJG story March 18th - ILB entry here. Jeff Wiehe wrote:

Except for the required daily disclosure of basic information on suspected crimes, traffic crashes and complaints, Indiana law enforcement agencies can label police reports, videos, 911 recordings and other records as “investigatory” and withhold them from public view indefinitely.

Defined simply as “information compiled in the course of the investigation of a crime,” investigatory records can be almost anything.

Posted by Marcia Oddi on Sunday, March 21, 2010
Posted to Indiana Government

Ind. Courts - "Elkhart: Local attorney's law license revoked for misconduct "

Justin Leighty reported in the March 17, 2010 Elkhart Truth:

The Indiana Supreme Court revoked a local attorney's law license after he admitted to neglecting clients after courts ordered him to represent the people on appeals.

Michael Greene "admits to six counts of misconduct from 2005 through 2007 in cases in which a trial court appointed (him) to represent criminal defendants in appeals," the court wrote in its disciplinary ruling March 11.

Greene "then neglected the appeals, missed deadlines, and failed to respond to the clients' repeated requests for information about the appeals. He continued to accept appointments and failed to withdraw from cases after he knew he was having great difficulty completing appeals assigned to him," wrote Chief Justice Randall Shepard. In one case, Shepard wrote, Greene "failed to respond to a court order to respond to his client's motion to produce the client's file."

Greene mishandled appeals for Robert Storey, Randy Cobb, Donald Snover and Freddie McKnight, according to the Supreme Court Disciplinary Commission.

They filed the complaint in 2007, and Greene admitted to the counts in response.

It took more than two years before Greene and his attorney reached an agreement with the disciplinary commission on the punishment. While the disciplinary action was pending, Greene stopped working for the Elkhart County Public Defender's office.

The Supreme Court suspended Greene from the practice of law. He can ask to be reinstated in late October, but has to pay the costs of the disciplinary action.

Here is the March 11, 2010 Supreme Court order.

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

Courts - "Illinois offers option to keep driving records clean for speeders"

That is the headline to this story today in the Chicago Tribune, reported by Joe Mahr and Gerry Smith:

Illinois looks tough on speeders, at least on paper. The reality is that most official driving records wind up looking far cleaner than they would in nearby states.

The Secretary of State's office suspends drivers' licenses for those who rack up three speeding tickets in one year, no matter how fast the driver was speeding.

In Wisconsin and Indiana, three minor speeding tickets don't automatically carry suspensions.

But Illinois has something envied by speeders in other states: a generous "diversion" program, called court supervision.

The gist is simple: Admit you did wrong, do court-ordered penance, pay a fine and the case is dismissed. It's as if the ticket was never written. Most drivers qualify. Often it's as simple as checking a box on the ticket envelope, or signing up online.

In Indiana, lawyers said the courts are less generous with that state's diversion program. Prosecutors in each area decide the limits of what's acceptable, but it's rarely employed for people going 100 m.p.h. or faster, said former Judge Paul Stanko.

Stanko, now a defense attorney based in Crown Point, said the best that Indiana defense attorneys can usually do for triple-digit speeders is plea-bargain to a less harsh speeding ticket – but one that still stays on their driving records.

"I'm surprised they do it (in Illinois)," he said. "That is not something I would expect in Indiana."

Wisconsin doesn't even have a diversion program.

Madison attorney Gerry Mowris said it's a rude awakening for Illinoisans caught speeding in Wisconsin, who are used to Illinois' nearly automatic diversion program.

Wisconsin tickets can be pleaded down to less serious charges in some jurisdictions, Mowris said, but even that's not a guarantee in every county. And getting a plea deal would be even harder to do for someone caught going 100 m.p.h. or faster.

It may make practicing traffic law harder in Wisconsin, but he's not complaining. After all, he has to drive home at night.

"I guess I'd feel safer in Wisconsin, if that's what's going on (in Illinois)."

Posted by Marcia Oddi on Sunday, March 21, 2010
Posted to Courts in general

Ind. Law - More on "New drunken driving law quickens blood sample process"

Updating this March 16, 2010 ILB entry on SEA 342, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

This month, Gov. Mitch Daniels signed a bill into law changing part of the state’s drunken-driving law.

That change removed the phrase “certified phlebotomist” from the list of those authorized to collect blood samples for blood-alcohol-concentration tests. The change was needed after a summer ruling by the Indiana Court of Appeals sent prosecutors scrambling to keep their blood evidence in play.

State law, up until a couple of weeks ago, said that if a police officer needed a suspect’s blood drawn for evidentiary purposes, it had to be performed by a physician, a nurse, an EMT, a paramedic or a certified phlebotomist.

The state never defined what it meant by certified phlebotomist, Allen County Chief Deputy Prosecutor Michael McAlexander said.

And Indiana doesn’t seem to offer any certification for those who want to be a phlebotomist – a person who draws blood. Schools offer certificates in phlebotomy, but there was no state-level procedure for becoming a certified phlebotomist.

“It was very unclear as to how someone became a certified phlebotomist,” McAlexander said. “They didn’t define what a phlebotomist was.”

That discrepancy – between state law and reality – was pointed out by the Indiana Court of Appeals in August. A Clinton County man, Roger Brown, appealed his conviction for operating a vehicle while intoxicated, in part on whether the trial court abused its discretion by allowing the admission of his blood sample because it was not done by anyone on the state-approved list. His blood was drawn at St. Vincent’s Hospital-Frankfort by a certified lab technician.

While the court upheld his conviction, saying there was enough other evidence Brown was legally drunk, it ruled the trial court should not have allowed the blood evidence to be presented, according to the ruling.

That opened the door for defense attorneys around the state to challenge the admissibility of some blood draws, which they did. And it’s an issue that has come up in the recent case of Brian Mansfield, an already-convicted drunken driver who is accused of causing a fatal crash last November in east Allen County. * * *

In Allen County, prosecutors ask for blood tests only in DWI cases involving a crash causing serious injury or death, as in the case of Brian Mansfield.

Mansfield, 52, faces charges of operating a vehicle while intoxicated, causing death, after a crash in late November in eastern Allen County that left a 45-year-old woman dead and her teenage daughter seriously injured.

Injured in the crash as well, Mansfield was taken to a hospital and blood was drawn as part of routine medical procedures. According to court documents, the test revealed a blood-alcohol concentration of 0.33 percent, more than four times the legal limit of 0.08 percent.

The blood was drawn by a phlebotomist, but not a certified phlebotomist, according to court documents.

Anticipating a defense challenge to the test’s admissibility, prosecutors asked Allen Superior Court Judge Fran Gull to rule whether it could be used.

On Tuesday, Gull ruled the blood tests admissible, saying the blood was drawn in accordance with hospital protocols and properly obtained by police through a warrant after it was drawn for medical procedures.

Mansfield’s defense attorney, Nikos Nakos, said he might appeal Gull’s decision.

Nakos said the requirement of a “certified phlebotomist” was likely one of lawmakers not totally understanding the language they put in their bills.

And because it was what the law said at the time, Nakos had an obligation to raise the issue for his client.

“With all due respect to some of the legislators, they read legislation from other states and they become enamored with the language,” Nakos said. “They don’t really understand the language they are putting in the bills, and they make mistakes.”

With the governor’s signature on the bill, state law no longer lists “certified phlebotomists” as those who can draw blood for evidentiary samples, and the list does not apply if the blood is drawn at a licensed hospital. [ILB - The Gov. signed the bill and it took effect March 12, 2010.]

But at the time the case against Mansfield was filed, the appellate court decision was clear on the issue of “certified phlebotomist,” new legislation had not been adopted and the Indiana Supreme Court had not yet agreed to take a look at the issue. [ILB - The Supreme Court granted transfer in Brown on Dec. 17, 2009.]

Nakos is not sure whether Brown’s appellate case still applies to Mansfield’s case.

“From the defense point of view, we would like to have seen it apply, but I guess that’s why it went to the Supreme Court,” he said.

Appellate Rule 58(A) provides that where transfer is granted, the COA decision shall be automatically vacated, with some exceptions.

As reported at the end of the March 16th ILB entry, the Supreme Court granted transfer in Brown and oral argument was held Jan. 11, 2010. No opinion has yet been issued.

Posted by Marcia Oddi on Sunday, March 21, 2010
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Law

Saturday, March 20, 2010

Ind. Law - "Rethinking Sex Offender Laws for Teenage Texting"

That is the headline of a good story today in the NY Times, reported by Tamar Lewin. Some quotes from the lengthy story:

In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.

But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.

Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.

And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards.

The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.

Indiana was one of these 14 states. But the legislation with the sexting language, SEA 224, was amended and passed instead as a sexting study committee bill. (it also includes the "Wallace" provisions.)

Re the "first federal appellate opinion in a sexting case," see this ILB entry from March 18, 2010, headed "3rd Circuit declines to address whether 'sexting' was protected by free speech law."

Posted by Marcia Oddi on Saturday, March 20, 2010
Posted to Indiana Law

Ind. Law - "Indiana gun bill is signed into law: some businesses weighing legal challenge"

The "guns at work" bill, HEA 1065, was signed by Gov. Daniels on March 18th - ILB entry here. (Here is a list of ILB entries referencing HB 1065.)

Today Kevin Allen reports in the South Bend Tribune:

Gov. Mitch Daniels added his signature this week to a controversial measure prohibiting Indiana employers from banning guns in their parking lots.

The new law is scheduled to take effect July 1, but the debate over House Enrolled Act 1065 is likely to continue.

Businesses throughout the state argued against the bill during the General Assembly's session this year because of what they view as a violation of private property rights.

George Raymond, vice president of human resources and labor relations at the Indiana Chamber of Commerce, said several businesses in the state have indicated they plan to litigate against the new law.

H.E.A. 1065 says employees may keep legally permitted firearms out of sight in their locked vehicles while they are working.

The National Rifle Association has successfully lobbied for similar laws in 12 other states. About 300,000 Indiana residents have permits allowing them to carry a firearm, according to the NRA. [ILB - The General Assembly also acted this session to make secret information about who holds these permits. See HEA 1068.]

"We believe a citizen's constitutional right to self-protection doesn't stop when they drive onto their employer's property," NRA spokeswoman Rachel Parsons said. * * *

Raymond said the new law doesn't make it clear why employers will be allowed to control firearms inside their buildings when they're not allowed to control them in the parking lots they own.

He asked, "If you have a right to have a gun in the parking lot, why wouldn't you have a right to have a gun in the building?"

Alison Fox, a partner and employment-law specialist at Baker & Daniels in South Bend, said many employers are wondering if they will be allowed, or responsible, to take other steps to regulate the firearms workers keep in their cars.

For example, she said, the bill allows only legally permitted guns to be stored in employee vehicles, but can companies make workers verify they have permits for those firearms?

Another issue, Raymond said, is the process the legislature used to exempt schools, prisons, child-care centers, investor-owned utilities, and certain chemical and nuclear facilities from the rules.

ILB thoughts. The case currently pending before the SCOTUS, McDonald v.City of Chicago, is going to have a significant impact on these questions raised by HEA 1065. For background start with this ILB entry from March 1, 2010. Two years ago, in Heller, the SCOTUS struck a District of Columbia handgun ban, citing the 2nd amendment. The question in McDonald is whether the 2nd amendment extends to the states.

Another question largely unanswered by Heller is what, if any, restrictions on gun use are constitutional under the Court's reinterpretation of the 2nd amendment. Again, Heller only has federal application, but the same questions arise under McDonald -- if the 2nd amendment applies to the states, what restrictions, if any, may the states still impose.

Posted by Marcia Oddi on Saturday, March 20, 2010
Posted to Indiana Law

Ind. Courts - "Carmel hazing case takes new turn: Decision whether to file charges is now Hendricks County's, not Hamilton's"

Robert Annis and Mark Ambrogi of the Indianapolis Star report today:

It will be up to Hendricks County rather than Hamilton County to file any charges against the Carmel High School basketball players suspected in an attack alleged to have taken place on a team bus, Hamilton County Prosecutor Sonia Leerkamp said Friday.

That's because investigators have determined that the incident -- initially described as bullying or hazing but now under investigation for possible criminal charges -- occurred in Hendricks County as the team returned from a game in western Indiana the night of Jan. 22.

Leerkamp acknowledged that handing the case over to another prosecutor will prolong an investigation already in its fifth week and add to the public impatience and criticism over the way authorities have handled it. Carmel school and police officials have provided little information since disclosing in mid-February accusations that three seniors on the team had assaulted two younger players more than three weeks before.

Leerkamp said the Carmel police investigation is likely to last at least another week. Defending the length of the investigation, she said detectives are interviewing "lots of high school kids." * * *

It's relatively rare for two county prosecutors to work together on the same case, said Indiana University law Professor Joel Schumm.

"The Carmel police are used to working with the Hamilton County prosecutor, and I'm sure they work well together," Schumm said. "Hendricks County getting involved complicates things, so it may take a little longer. . . . It's important to try the case in the right place or else they might have to do everything over." * * *

Schumm said that once the case goes to Hendricks County Prosecutor Patricia Baldwin's office in Danville -- about 45 miles southwest of Carmel -- Hamilton County will have little if any say in what charges are filed.

Leerkamp agreed.

"If the (Hendricks County) prosecutor decided the charges had no merit, she would have the authority to dismiss the charges,'' Leerkamp said. "We want her to know from the inception what's there."

Bob Cook of the blog "Your Kid's Not Going Pro" has been following the Carmel incidents. Here is an entry from March 2, 2010.

On March 1st, in answer to a question from Cook about the pursuit of criminal charges in court, Prof. Schumm responded:

The prosecutor in the county where the crime occurred would need to seek an indictment before a grand jury or file an information and secure a probable cause determination from a judge in the county where the crime occurred. If charges were filed in Hamilton County but the crimes occurred somewhere else, the defendant would be entitled to a change of venue to the county where the crime occurred. If he had already been convicted, he would be entitled to a new trial in the proper county. (Here's an example of a recent venue case: http://www.in.gov/judiciary/opinions/pdf/11030902mpb.pdf )
The 18-page opinion cited concluded:
There is sufficient evidence that Neff committed Class C felony child solicitation. However, there is insufficient evidence that he committed that crime in Hamilton County. We reverse his conviction because of improper venue and remand with directions that this case be transferred to Madison County for further proceedings consistent with this opinion.

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

Ind. Courts - "Porter county judge orders trustee candidate removed from ballot"

Julie Hum reports today in the Gery Post-Tribune:

VALPARAISO -- Porter County Judge Mary Harper ruled that county election officials must remove a Union Township trustee candidate's name from May's primary election ballot.

Mike Herzog of Hobart did not sign the declaration of candidacy form in front of a notary as statute requires and must be disqualified, she said at the end of Friday's hearing that lasted nearly three hours.

"The bottom line is the good people of Union Township need to be able to trust their trustee," Harper said.

County election workers will have to cross off Herzog's name from the 5,800 Union Township Republican ballots with black markers.

Anthony Pampalone, a Republican candidate for Union Township trustee, brought the challenge earlier this week.

On Wednesday, Harper issued a temporary injunction to halt printing of those absentee ballots after Pampalone of Valparaiso made the request in his legal challenge against Herzog's candidacy.

According to Pampalone's suit, during the Feb. 26 hearing before the election board, Herzog admitted that he had not signed his papers in front of a notary as required. Nor was he present when the notary signed and notarized the papers.

The board voted 2-1 to keep Herzog on the ballot, concluding there was substantial compliance with statute.

Harper overruled that decision Friday afternoon.

"I think the Legislature wanted strict compliance," she said.

She added that her ruling does not imply there was any fraud or criminal intent on Herzog's part. * * *

Harper lifted the temporary injunction and allowed the election board to proceed with the printing of the Union Township Republican ballots that were being held up due to the legal dispute.

County election officials were facing a deadline to get those ballots printed today and ready for mailing by March 25 to overseas and military absentee voters.

The process of printing 103,000 ballots -- one for each registered voter in the county, had already begun.

County Clerk Pamela Fish testified Friday that any further delay could cost the county "upwards of $50,000."

The company that services the electronic voting machines for the county had already coded, or programmed, all the ballot information, Fish said.

The county could face additional costs if printing is delayed or anything is "extracted" from the coding, Fish said.

A company representative could not guarantee that all ballots would be coded correctly, Fish said.

"Because of coding and the way the system is organized and coded together," any new change could force the county to print 103,000 ballots again, Fish said.

Posted by Marcia Oddi on Saturday, March 20, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Widow denied worker's comp"

The Court of Appeals decision yesterday in the case of Alex B. Edwards v. Domino's Pizza (NFP) (ILB entry here) is the subject of a story by Dan Carden today in the NWI Times:

The widow of a Merrillville store manager, rear-ended and killed while driving an employee home after closing, is not entitled to collect worker's compensation, the Indiana Court of Appeals ruled Friday.

Alex Edwards, 58, was manager of Domino's Pizza in Merrillville and agreed to drive Anible Macklin, 53, home after closing the store on Aug. 20, 2005. Macklin, whose job as sign shaker was to attract customers using a banner outside the store, had not worked that day.

The pair were driving on Broadway toward Macklin's Gary home when Edwards' van was rear-ended and pushed into a building by a vehicle driven by a drunken Veltor Cotton. Edwards and Macklin were trapped in the van, which exploded in flames. Both men were pronounced dead at the scene.

Cotton, now 37, was sentenced to 30 years in prison for causing the deaths of both men.

Mary Edwards, Edwards' widow, asked the appeals court to reverse a finding by the Indiana Worker's Compensation Board that she was not entitled to worker's compensation. She claimed her husband was acting under the orders of store owner James Gronemann by driving Macklin home.

The Indiana Court of Appeals disagreed, saying "the facts support the Board's conclusion that Edwards' accident did not arise out of or in the course of his employment."

Specifically, the court ruled that because Edwards was driving his personal vehicle and not working at the time of the accident, Macklin had not worked that day and Edwards was not required to provide transportation as a condition of his job, his widow is not entitled to worker's compensation.

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

Friday, March 19, 2010

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

Here is the Clerk's transfer list for the week ending March 19, 2010. It is onr page long.

Three transfers were granted the week ending March 19, 2010 -- they are listed here in this entry from March 18th.

__________

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 Friday, March 19, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "Frontrunner for Indianapolis U.S. Attorney Emerges"

Main Justice has this report on our local U.S. Attorney speculation.

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

Ind. Law - Governor receives what may be the balance of the 2010 bills

The list of bills received by the governor has been updated again. Seventeen bills were received by the governor today. See the list here.

Posted by Marcia Oddi on Friday, March 19, 2010
Posted to Indiana Law

Ind. Courts - "Addressing a question of first impression at the appellate level, 7th Circuit holds that the use of video-conferencing to conduct a supervised-release revocation hearing violates FRCP"

So reports How Appealing. The opinion is U.S. v. Thompson. Judge Sykes opinion concludes:

A judge’s decision whether to send a defendant to prison requires a careful, qualitative, and individualized assessment of the offense and the offender; no matter how simple the case, this is never a mechanical or rote determination. At the end of the day, Rule 32.1(b)(2) reflects a conclusion that a judge cannot properly assess the defendant without the defendant’s in-person appearance before the court. The rule’s strictures are “mandatory in meaning as well as mandatory in form,” Escoe, 295 U.S. at 494, and the form of the hearing required by the rule excludes videoconferencing. VACATED and REMANDED.

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

Ind. Courts - "Democrat stalwart Hogsett said to be U.S. attorney nominee"

That is the headline to this just-posted IBJ story.

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

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Alex B. Edwards v. Domino's Pizza (NFP) - "In essence, Mary argues that Edwards’ accident arose out of and in the course of his employment because he was acting under the direction and following the instructions of the store owner when Edwards gave a ride to Macklin. We cannot agree."

Posey County and Posey County Sheriff's Dept. v. Angela Fuhs, et al. (NFP) - "In summary, the tree in the roadway was clearly caused by the storm, and thus was weather-related. This satisfies the causal element of I.C. § 34-13-3-3(3). Moreover, after immediately initiating its clean-up procedures, considering the totality of the circumstances, and consistent with Bules and Hochstetler, the tree did not remain untended and the situation unresolved for so long a period that it no longer qualified as “temporary.” This satisfied the temporal element of I.C. § 34-13-3-3(3). Therefore, Posey County established both elements required to establish immunity under I.C. § 34-13-3-3(3) and the trial court should have granted its motion for summary judgment. We remand and instruct the trial court to grant Posey County‟s motion for summary judgment."

Term. of Parent-Child Rel. of D.H.; V.H. v. IDCS (NFP)

NFP criminal opinions today (4):

Carlos Guerrero v. State of Indiana (NFP)

Lee Gleaves II v. State of Indiana (NFP)

Terrence G. Suter v. State of Indiana (NFP)

Clifford L. Fallon v. State of Indiana (NFP)

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

Courts - Yet more on: "Kentucky Supreme Court to hear online gambling case"

For background, start with this ILB entry from Nov. 3, 2009.

Beth Musgrave reports today in the Lexington Herald-Leader:

FRANKFORT — In a censorship case with international repercussions, the Kentucky Supreme Court ruled Thursday that owners of gambling Web sites must appear in court to defend themselves against Kentucky's attempts to seize their domain names and stop illegal Internet gambling.

The Internet gambling sites had been represented in court by pro-Internet gambling associations and players' groups — such as the Interactive Media Entertainment and Gaming Association and the Interactive Gaming Council — not by the owners of the Web sites, who have remained anonymous.

One of the lawyers for the gambling sites said Thursday that he expects the domain name owners to comply with the Supreme Court's decision.

"All of the parties are going to get together and determine how we are going to proceed and comply with this technical issue," said Jon Fleisch aker, a Louisville lawyer who represents Interactive Media Entertainment and Gaming Association. "I think it is a very, very temporary setback. It's a very unusual decision because it signals an interest in the merits of the case and gives us a road map on how to get back to the Supreme Court quickly."

Justice and Public Safety Secretary J. Michael Brown said the state was pleased with the ruling, "in that it allows us to continue our efforts to curb illegal Internet gambling."

If the state succeeds, online gambling advocates said Internet freedoms could be curtailed around the world.

"There are fundamental freedoms at stake in this case, not only the freedom of poker players in Kentucky and globally, but Internet freedom across the globe," the Poker Players Alliance said in a statement. "The commonwealth's effort at such a bold, broad and, we believe, unlawful seizure sets a dangerous precedent for anyone who uses the Internet."

In 2008, a Franklin Circuit Court judge said the state could seize 141 Internet domain names of online gambling sites that were allegedly taking illegal bets from Kentuckians. Lawyers acting on behalf of the gambling sites appealed to the Kentucky Court of Appeals to stop the seizure, which the appellate court granted.

State officials appealed to the Kentucky Supreme Court, arguing in part that those who have argued on behalf of the domain names had no legal standing to do so.

The court, in a 6-0 opinion, said the associations must disclose the companies that they represent. "The problem, however, is that (the Interactive Gaming Council) fails to disclose who these registrants are," wrote Supreme Court Justice Mary Noble. * * *

The 141 domain names have continued to operate as the case works its way through the courts.

"State wins procedural round in fight over gambling Web sites" is the headline to the Louisville Courier Journal coverage by Stephenie Steitzer.

For some perspective, see this article from Gambling 911 quoting the Electronic Frontier Foundation:

In amicus briefs filed with the Court of Appeals and the Kentucky Supreme Court in support of a writ vacating the trial court's order, EFF, Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) argued that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state.

Posted by Marcia Oddi on Friday, March 19, 2010
Posted to Courts in general

Environment - More on "SCOTUS to Reconsider Wading Into Asian Carp Fight "

Supplementing this ILB entry from March 17, 2010, Nathan Hurst of the Detroit News has this story today.

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

Courts - More on: Attorneys who provide bankruptcy assistance are debt-relief agencies

Updating this ILB entry from March 8, 2010 on the SCOTUS ruling in Milavetz, Gallop & Milavetz, P.A. v. United States, Thomas B. Scheffey of the Connecticut Law Tribune writes in an article that begins:

Bankruptcy lawyers will need to remain cautious about what sort of advice they offer clients, following a ruling by the U.S. Supreme Court last week.

The justices ruled the portion of the 2005 bankruptcy reform act that bars lawyers from advising clients to take on "any debt" is constitutional, though it may be less restrictive than first thought.

Still, lawyers are unhappy at being muzzled in any way by a law that they don't believe should apply to them. "Most attorneys were hoping [the Supreme Court] would strike down as unconstitutional the provision about not counseling your client to take on any debt, and I found it disappointing that they didn't do that," said Matthew K. Beatman, a partner in the Bridgeport, Conn., bankruptcy boutique firm of Zeisler & Zeisler.

He did, however, call it "helpful" that the Court explained that the prohibition refers to abusing the bankruptcy law by running up debt that can't be collected by creditors, and doesn't apply to lawful actions.

Writing for a unanimous Court, Justice Sonya Sotomayor ruled that bankruptcy lawyers fit the definition of "debt relief agencies" under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, even though neither the words "lawyer" nor "attorney" are specifically mentioned in the law.

As such, the justices said, the government can legitimately require lawyers with bankruptcy practices to include in their advertising the following message: "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code."

Posted by Marcia Oddi on Friday, March 19, 2010
Posted to Courts in general

Ind. Law - More on "Shoe camera man charged with voyeurism" [Updated]

This ILB entry from March 3, 2010 questioned whether charges of voyeurism would stand against a man accused of videoptaping up women's skirts. Today Jon Murray reports in the Indianapolis Star:

Recording video underneath women's skirts at a mall might seem like an obvious crime.

But not in Indiana, according to legal experts who say a recent Marion County case is at risk of collapsing, in part because of a hole in Indiana's voyeurism law. * * *

Prosecutors said they stood behind their decision to charge Delagrange with voyeurism. But two law professors and the head of the Indiana Prosecuting Attorneys Council said the 10 low-level felony counts don't conform to Indiana's voyeurism law, and other charges of attempted child exploitation might also fail legal scrutiny.

Because the activity is alleged to have occurred in a public place, "I don't think voyeurism applies to this circumstance," said Steve Johnson, executive director of the state prosecutors group.

The charges say only that Delagrange "did peep" at each victim without her consent, not mentioning where the activity occurred.

But Johnson's reading of the law is that it covers peeping only into another person's dwelling or into private areas such as restrooms and showers. Indiana University School of Law-Indianapolis Professor Joel Schumm and Henry Karlson, a professor emeritus at IU, agree.

Something as simple as an omitted semicolon in a criminal code manual provided to Indiana prosecutors might be responsible for the ambiguity, Johnson said. * * *

The exploitation charges also might be on shaky ground, Schumm and Karlson said, because the statute requires that a recording include "sexual conduct" involving a minor. The legal definition of that term includes only uncovered genitals.

But Deputy Prosecutor Jeff Knoop said simply recording under skirts was a large enough step toward that crime to qualify as a criminal attempt.

The General Assembly tried to address the voyeurism law's apparent gap this year. Johnson helped draft a Senate bill creating a new misdemeanor called invasion of privacy by photography, but it died without a committee hearing.

The bill was inspired by a similar incident in which a man in Northern Indiana was accused of using his cell phone to take pictures up a girl's skirt in a video store.

The DeKalb County prosecutor decided the voyeurism law didn't apply. She filed a single count of misdemeanor battery because the man was accused of touching the girl's leg.

Karlson said the Marion County prosecutors should consider a similar tack.

"They'd better have those battery charges ready as a backup," he said.

[Updated at 12:45 PM] Jon Murray has added more information, headed "A look at the law in mall-peeping case," in his Indy Star blog.

Posted by Marcia Oddi on Friday, March 19, 2010
Posted to Indiana Law

Ind. Courts - Yet more on: "Judges to jurors: Stay off the Web" [Updated]

Updating this ILB entry from March 14, 2010, Sophia Voravong of the Lafayette Journal Courier has this story today, headed "New media prompts new rules for jurors."

[Updated] Finally available online is this story by Jon Murray from last Sunday's Indy Star, headed "Judges to give more stringent warnings to jurors about technology."

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

Ind. Courts - "Public defender’s law license suspended for 6 months"

Laura Lane reports today ($$) in the Bloomington Herald Tribune:

Members of the state Supreme Court disciplinary commission have suspended a Monroe County public defender’s license to practice law for eight counts of professional misconduct, including one where he is accused of telling his own client to shut up during a court hearing, then pushing the man down into his chair when he said he had fired the lawyer.

A disciplinary agreement in the case states that the attorney, Patrick Schrems, lied to the commission when he denied pushing his client. It also stipulates that Schrems’ representation failed five clients in criminal cases and three in bankruptcy proceedings in which he “admits to repeated lack of communication with the clients and neglect of their cases.”

In several cases, Schrems missed deadlines for appeals. In others, he did not return unearned fees, the commission ruled. Schrems’ license to practice law is suspended for six months beginning April 22. After that, he can file a petition with the Indiana Supreme Court asking that it be made valid again. “If reinstatement is sought, it would likely be granted only with the involvement of and monitoring by the Indiana Judges and Lawyers Assistance Program,” the disciplinary agreement states. * * *

The disciplinary commission cited 10 violations — “serial misconduct” — and several aggravating circumstances, including the “vulnerability” of Schrems’ jailed clients, a previous reprimand in 2006 and his failure to cooperate with the commission.

Here is the order.

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

Thursday, March 18, 2010

Ind. Law - Governor signs more bills, including "guns at work" bill [Updated]

The list of bills received by the Governor has been updated again; 18 more were signed by the governor today. no new bills have been received.

Included in the bills signed today was HEA 1065, the "guns at work" bill. The governor issued this accompanying message:

Considering the clear language of the Second Amendment of the U.S. Constitution, and the even stronger language of Article 1 Section Thirty-Two of the Indiana Constitution, protecting these rights as provided in HEA 1065 is appropriate. I also am compelled to give great weight to the overwhelming consensus of both Houses of the General Assembly as they passed this bipartisan statute. The law does contain ambiguities that the General Assembly may wish to refine at some future date, to avoid unnecessary litigation, but the understandable concerns raised against the bill do not suffice to justify a trespass on a fundamental right so expressly protected by our founding documents.
The last sentence of the governor's message, about ambiguity, itself appears to be ambiguous. One might read the message to mean the current exceptions in the bill cannot be justified, given the language of the two constitutions. Or, perhaps with more difficulty, it may be read to mean additional exceptions may be appropriate.

[Updated at 4:52 PM] Dan Carden of the NWI Times has this report:

Indiana businesses cannot stop employees from keeping guns in their cars at work under a new law signed Thursday by Gov. Mitch Daniels.

Starting July 1, Hoosier companies are prohibited from enacting rules that ban guns in cars on their property, so long as a gun is stored out of sight in a locked vehicle, trunk or glove box.

Daniels said the right to bear arms is protected by the U.S. and Indiana constitutions and, as such, "should be infringed only for the most compelling of reasons."

The governor said an office shooting at the Department of Workforce Development in Portage earlier this month did not make him reconsider his decision to sign the legislation. * * *

Michael G. Rippey, president of steelmaker ArcelorMittal USA, urged the governor to veto the legislation, because it could make work sites less safe.

"There is no legitimate reason for employees to bring firearms into the workplace, either for safety or recreational purposes, and every employer should have the right to stop weapons at the plant gate or office door," Rippey wrote in a letter to Daniels.

The new law does allow some workplaces to continue to prohibit guns in cars, including schools, colleges and universities, child care facilities, emergency shelters, homes for the developmentally disabled, prisons, federal buildings, homeland security sites and utility companies.

During debate in the Senate, state Sen. Tom Wyss, R-Fort Wayne, suggested the exemptions might make the law unconstitutional, because the Indiana Constitution allows an unlimited right to carry a gun anywhere, Wyss said.

Rippey called the exemptions "arbitrary and capricious."

While the governor admitted future General Assemblies may want to reconsider some of the exemptions, he said "the understandable concerns raised against the bill do not suffice to justify a trespass on a fundamental right so expressly protected by our founding documents."

A NWI Times story from March 16, 2010 includes these quotes:
The top U.S. executive of steelmaker ArcelorMittal is urging Gov. Mitch Daniels to veto legislation that would outlaw workplace rules preventing employees from keeping firearms and ammunition in their vehicles at work.

"I do not ever want to be put into a situation where I have to call the spouse or family member of one of our employees and tell them their loved one won't be coming home tonight because a fellow employee went to their car, got a gun, and shot a co-worker," ArcelorMittal USA CEO Michael Rippey wrote to Daniels one day after the bill was passed by the Indiana General Assembly.

The ArcelorMittal executive also derided provisions in the proposed law that provide exemptions for some industries as "arbitrary and capricious" and lacking any "rational basis." * * *

Although the Indiana law often is described as limiting guns to company parking lots, there is no such language in the bill. Instead, it simply prohibits most employers from taking any action against employees or contract workers who have guns or ammunition out of sight in their locked vehicles. The measure includes exemptions for child care facilities, schools, shelters and similar sites.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Indiana Law

Ind. Law - "Golf Cart Bill Doesn't Get a Vote in the Legislature"

WKVI Radio reported March 16, 2010:

A powerful Ft. Wayne legislator bottled up a bill that would have allowed counties to create an ordinance that would have allowed golf carts on some county roads.

According to Rep. Nancy Dembowski, a bill with overwhelming support in the House and Senate failed to come out of the Senate Transportation Committee because Chairman Tom Wyss wouldn't allow a vote on it. So, golf cart use at a number of lakes in Dembowski's district will still be prohibited.

The Representative said the bill would have authorized county officials to put language into an ordinance that would have, for instance, demanded a person have a driver's license to operate a golf cart on a county road. Other restrictions could have been a requirement for insurance, turn signals, safety flags, and on which roads the vehicles could be operated.

Here are some earlier entries from the ILB:In short, the 2009 legislation included cities, towns, and counties. Wording slipped into the 2009 SS budget bill narrowed the exceptions for golf carts enacted during the regular session to golf carts operating under an authorizing municipal ordinance. This was one of the "budget bill surprises" - language very few knew about until long after the special session was over.

This is one example of how this practice, which subverts the legislative process, is often successful. The ILB will write shortly on the fate of several other 2009 "surprises", including restrictions on out-of-state placement of juveniles by judges, and the designation of the specific locations of certain local curb cuts by Indiana statute.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Indiana Law

Courts - 3rd Circuit declines to address whether "sexting" was protected by free speech law

Updating this ILB entry from March 27, 2009, which was headed "Students Sue Prosecutor in Cellphone Photos Case," Nathan Gorenstein of the Philadelphia Inquirer reported yesterday on the same case, in a story that begins:

A federal appeals court in will not decide whether "sexting" is pornography in the case of three Pennsylvania teenagers facing criminal charges for appearing in cell phone photographs partly clothed.

The court today did rule that the former district attorney in Wyoming County, George Skumanick Jr., was wrong when he threatened to prosecute a teen because she refused to attend his "education" class.

The case before the Court of Appeals for the Third Circuit in Philadelphia gained national attention earlier this year because it was, potentially, the first case to address whether "sexting" was protected by free speech law.

While the court in January heard arguments on the First Amendment issued, "We decline to consider it" the three-judge panel wrote in the 35-page decision released.

The controversy started in October, 2008, when officials in the Tunkhannock School District, north of Scranton, found photos of nude and semi-nude teenage girls on male students cell phones.

Skumanick was called in, an investigation was launched, and at a meeting of students' parents, he said any student who did not attend an "education program" of his design would face child pornography charges.

Three parents sued, and obtained an injunction from U.S. District Court prohibiting filing of criminal charges.

Here is a somewhat clearer story, from Michael Rubinkam of the AP.

Here is a link to the 35-page 3rd Circuit opinion in Miller v. Mitchell.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Courts in general

Ind. Gov't. - "Public records that might forever remain in the dark"

The Fort Wayne Journal Gazette has another Sunshine Week report today, this one by Jeff Wiehe. A few quotes:

Except for the required daily disclosure of basic information on suspected crimes, traffic crashes and complaints, Indiana law enforcement agencies can label police reports, videos, 911 recordings and other records as “investigatory” and withhold them from public view indefinitely.

Defined simply as “information compiled in the course of the investigation of a crime,” investigatory records can be almost anything.

In a 2009 opinion, former Indiana Public Access Counselor Heather Willis Neal called the investigatory rule “one of the broadest exceptions found” in the Indiana Access to Public Records Act.

The access counselor, who issues opinions on access denials, has concluded that law enforcement agencies for which the rule applies include fire departments with investigative arms.

The city of Fort Wayne has used the exception frequently in high-profile cases.

• In January 2009, various reports were written by Fort Wayne Fire Department investigators and recordings of 911 calls made in the aftermath of a blaze that left three college students dead at an apartment complex on the city’s southwest side.

• Several times between 2005 and 2008, Fort Wayne police were called to a home where a woman claimed her half brother was fathering her children. The man was not charged with incest until 2009, but some of the police reports made in the years before the man’s arrest have yet to be released.

• In December 2007, cameras in Fort Wayne police cruisers captured the death of Jose Lemus-Rodriguez, a 24-year-old man shot multiple times by a rookie police officer after a car chase on the city’s southeast side.

In each case, records have been withheld.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Indiana Government

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

For publication opinions today (1):

In Theotis Tolliver v. State of Indiana , a 24-page opinion, Judge Bradford concludes:

Having concluded that errors relating to body language testimony were harmless, that admission into evidence of certain alleged statements against interest did not constitute fundamental error, and that the trial court did not abuse its discretion in denying Tolliver‟s motion for a continuance and in prohibiting defense counsel‟s speculative cross-examination into witness bias, we affirm Tolliver‟s conviction for murder and the finding that he is a habitual offender.
NFP civil opinions today (1):

Alexander Miller, M.D. v. Mary Knight (NFP)

NFP criminal opinions today (3):

Hiltonio Flournoy v. State of Indiana (NFP)

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

Markquel Nance v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Four transfers granted, three today and one a week ago

The ILB has received notice of three transfers granted today and one a week ago - the three from today should be on next Monday's list, Francis was already included on last week's list:

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Indiana Transfer Lists

Ind. Law - Twenty-three bills were signed by the governor yesterday

Twenty-three bills were signed by the governor yesterday. No bills were received from the General Assembly yesterday, March 17th. Check the list here.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Indiana Law

Ind. Decisions - "Supreme Court steps into player eligibility dispute"

The Supreme Court heard oral arguments yesterday in the case of Indiana High School Athletic Association v. Jasmine S. Watson (for background start with this ILB entry from March 3, 2010). Charles Wilson of the AP has this long story. Some quotes:

Single mother Valerie Watson moved her family from Elkhart to South Bend following a foreclosure on the family's home, but the Indiana High School Athletic Association said the real reason was so her daughter could play for a basketball powerhouse.

Now, the state Supreme Court will decide whether the association acted unfairly in ruling Jasmine Watson ineligible to play her senior year when she transferred from Elkhart Memorial to then-nationally ranked South Bend Washington, or if lower courts overstepped their boundaries when they overruled the athletic group. * * *

The justices bombarded both sides with questions during a hearing Wednesday, asking why the IHSAA didn't lend more weight to the family's economic situation, why it focused on the player rather than possible improper recruitment by both schools, and whether the dispute even belonged in court. Watson now plays at the University of Massachusetts and is no longer involved in the case. * * *

[T]he IHSAA believes both a special judge and the state Court of Appeals exceeded the limits the top court has imposed on legal review of the athletic group, which is a private agency. Under those guidelines, judges are supposed to review the official record for blatant error, not reweigh all the evidence, [IHSAA attorney Robert M. Baker III] said.

IHSAA Commissioner Blake Ress said the appeal mainly was sought because the lower courts discounted much of the testimony at the 2008 administrative hearing on Watson's case as hearsay. Ress said the IHSAA has no subpoena power and must depend on hearsay evidence to make its decisions.

To overturn an IHSAA decision, a court must find that the organization acted “arbitrarily and capriciously” under previous Supreme Court rulings.

For an update on Ms. Watson herself, here is a March 17th story from MassLive headed "Case of UMass basketball player Jasmine Watson scrutinized by Indiana court":
Freshman Jasmine Watson, the second-leading scorer and top rebounder on the University of Massachusetts women’s basketball team this season, is the subject of controversy in Indiana high school sports circles.

In August 2008, the Indiana High School Athletic Association ruled that Watson was ineligible to play after she transferred from Elkhart Memorial School to South Bend Washington because it said she had switched primarily for athletic reasons. She changed schools after a foreclosure on the family’s home.

A special judge and the state appeals court disagreed, and allowed her to play, but Watson missed half the season. The state Supreme Court heard arguments in the case Wednesday, and will decide if the IHSAA acted unfairly.

A UMass spokesperson said Wednesday that Watson flew under the recruiting radar by not having played for half of the season, which is why the Minutewomen were able to sign her. Watson averaged 10.2 points and 5.9 rebounds for UMass.

Posted by Marcia Oddi on Thursday, March 18, 2010
Posted to Ind. Sup.Ct. Decisions

Wednesday, March 17, 2010

Not law but interesting - Australian newspaper allegedly hacks into secret government site

Not law, but it has parallels to the situation that involved Judge Alex Kosinski of the 9th Circuit (see ILB entry from July 5, 2009 and its links).

In the Australian story, like with Kosinski, a website was online, openly accessible to anyone who keyed in the correct address.

Some quotes from the Feb. 23, 2010 story in the Sidney Morning Herald, headlined "Minister, a monkey could have 'hacked' secret transport site" and reported in the first person by Matthew Moore:

You know a government is in trouble when it starts accusing aging Sydney Morning Herald hacks like me and my colleague Andrew West of engaging in high level cyber crime.

And yet, in his first day in Parliament since announcing on the weekend details of the government's transport blueprint, the only question from the Labor benches to Transport Minister Dave Campbell concerned a fanciful claim the Herald had somehow hacked a top secret website to reveal the plan early.

Campbell said that by accessing a website where the plan was available, the Herald had done the equivalent of "pick the lock off a secure office and take highly confidential documents".

He went further and said the campaign to crack the site had been so determined there had been "3727 hits on the firewall of the website from four different IP addresses" last Thursday and Friday and the contractor in charge of the site, IT private, had referred the matter to the police.

Really?

The IT help section at Fairfax will tell you that their staff run a mile whenever I call. I am squarely in the "learning disability" group.

And West's disdain for technology is as well known as his fondness for fountain pens, for which he generally requires assistance to refill.

The suggestions we hacks are hackers is a joke.

The facts are these:

- We got a tip on Friday that you could read the government's transport plan by accessing a website called, unsurprisingly, nswtransportblueprint.com.au.

- Even we did not need help to type in those letters. No password was requested or offered.

- Instead we were confronted with a dream menu for any reporter: rail services, cycleways, walking and cycling, bus services, paying and road network.

- With the mouse and the control P (print) command, we had our story.

As Premier Kristina Keneally's chief of staff, Walt Seccord, said on Friday night, the material we accessed were "working documents".

"This was a website in progress."

It was also a website with no protection.

(Hat tip to Slashdot.com)

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to General News

Courts - Articles on other states' online court records

"Tennessee lags behind with online court records" is the headline to this March 16, 2010 AP story from the Blount County Tenn. Daily Times. Some quotes:

NASHVILLE — Tennessee lags behind several other states when it comes to posting court case information online, with the vast majority of counties offering a virtual blackout of information.

Nobody tracks how many court systems throughout state allow the public to go online and look up case information, but only three out of 95 counties -- Shelby, Davidson and Hamilton -- appear to offer some form of the service to the public. An official with the state Administrative Office of the Courts said she knew of no other counties that provided the information online.

Of those three counties, only Shelby allows the public the ability to look up civil court case information online for free.

Open records advocates say there’s no excuse for the overwhelming majority of counties in the state to not provide the service to the public.

“If it’s online in one county, then there’s no reason why it shouldn’t be in others,” says Frank Gibson, executive director for the Tennessee Coalition for Open Government.

The sheer volume of user traffic on the Davidson County Criminal Court Clerk’s office Web page suggests that the information is in wide demand. More than a million people logged onto the clerk’s Web site within the last month, said Tommy Bradley, the clerk’s chief administrative officer.

The Web page allows users to find out the entire criminal history on someone arrested in Nashville, dating back to 1980.

“It’s an extremely valuable tool for the public, at no charge,” Bradley says.

It’s difficult to say how Tennessee ranks because of the way the issue is tracked.

“It’s hard to categorize how many states are doing this because there’s so much variance on the level of information that they’ve put out,” said Greg Hurley, an analyst for the National Center for State Courts.

Missouri, New York and Connecticut post everything online, he said. Records from the NCSC Web site show a number of other states doing better than Tennessee, including: Alaska, Arizona, California, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oklahoma, Rhode Island, Virginia and Wisconsin.

Tennessee does not have a unified court system, so many court clerks’ offices operate differently in some ways than others, said Laura Click, a spokeswoman for the state Administrative Office of the Courts.

So that was one end of the scale. Now here are two stories from the Milwaukee Journal Sentinel.

Patrick Marley reported Jan. 27, 2009 in a story that begins:

Madison — Public access to online court records would be scaled back dramatically under a bill before the state Assembly.

The bill by Rep. Marlin Schneider (D-Wisconsin Rapids) would make court records available online only for those who are convicted of a crime, found liable in a civil case, evicted or issued a restraining order or injunction by the court.

Court records for those who are found not guilty would not be posted online, nor would court records for pending cases. Those would be kept in a separate database available only to court officials, certain government bodies, law enforcement, lawyers, licensed debt collectors and accredited journalists.

The vast majority of state court records are posted online on the Web site known as the Consolidated Court Automation Programs, or CCAP. Those records are also available publicly in county courthouses, and they would remain so under the bill.

"Too many innocent people are being harmed" with online court records, Schneider said Wednesday during a public hearing before the Assembly Committee on State Affairs and Homeland Security.

He called CCAP a "court-created monster" that had ruined innocent people's lives because the public doesn't always differentiate between the guilty and innocent. Innocent people have been denied jobs and housing because they have been falsely charged, Schneider said.

The proposal drew opposition from the Wisconsin Newspaper Association, the Wisconsin Freedom of Information Council, the state Department of Justice and others.

"One of the pillars of our legal system is open and complete citizen access to the history of courts through its records," said Peter Fox, executive director of the newspaper association. "(The bill) would have a revisionist court history where only the guilty would be known to the general public."

The second story, also reported by Patrick Marley, is in the March 13, 2010 Journal Sentinel.( I thought about Indiana's closing access to records of handgun permits when reading this story.) Some quotes:
Madison — An effort to restrict access to online court records is foundering in the Legislature, but it may be gaining footing in the state Supreme Court.

In an administrative meeting last month, justices agreed they should study limiting what is posted on the Web site known as the Consolidated Court Automation Programs, or CCAP.

"Whatever problems we have has been incredibly exacerbated by CCAP and the Internet," said Justice David Prosser. "The case for redress is much too compelling to just let it die."

Meanwhile, a bill to prevent the media from broadcasting 911 tapes could get a vote before the Assembly as early as April 13.

The efforts to limit access to records come as media outlets highlight the state's open records laws during Sunshine Week, a national effort by the American Society of News Editors and others to promote the public's right to know.

Republican Attorney General J.B. Van Hollen opposes the bill to limit access to CCAP, saying some may abuse the database but most use it for legitimate purposes.

"I don't want to destroy a good openness tool for a few abusers," he said. "I'm a big proponent of open government, transparency and open meetings. We've got enough mistrust of government without hiding more things."

Limiting access to records can make it difficult to fully grasp what the government is doing. In 2003, the state signed contracts with unions that barred the release of the names of more than 20,000 state employees - keeping from the public the names of employees who had their privileges to drive state vehicles suspended and who earned more than $100,000 a year with overtime.

The Journal Sentinel and The Lakeland Times of Minocqua sued the state in 2005, and the state Supreme Court agreed last year the contracts did not trump the state's open records law. The state had to pay the newspapers $137,525 for legal fees.

Those who want to curtail access to online court records say CCAP leads to employment and housing discrimination. The Wisconsin State Bar has asked the state Supreme Court to make it easier to expunge records, making them inaccessible both online and at courthouses.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Courts in general

Environment - "SCOTUS to Reconsider Wading Into Asian Carp Fight "

So reports Gabriel Nelson this afternoon for the NY Times. Some quotes from the fairly long story:

Now faced with DNA evidence suggesting that Asian carp have reached Lake Michigan, the Supreme Court is scheduled to revisit this week its January decision not to order the temporary closure of two Chicago-area locks that could prevent some of the invasive fish from swimming into the Great Lakes.

The Supreme Court gave no explanation in January when it rejected Michigan's request to close the locks. Michigan decided to try its luck again last month, saying the need for the Supreme Court to intervene has become more urgent in light of new testing results that detected Asian carp DNA for the first time in Lake Michigan's Calumet Harbor.

The new request has been distributed to the justices for consideration at their private conference Friday. Orders made during a Friday conference are typically released the following Monday.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In In the Matter of the Estates of Obed Kalwitz, Sr., and Helen Kalwitz; Eugene Kalwitz v. Sharon Grieger, a 10-page opinion, Judge Najam writes:

Eugene Kalwitz appeals the trial court's order denying his petition to reopen the estates of Obed Kalwitz, Sr., and Helen Kalwitz (“the Estates”). Eugene raises several issues on appeal, but we address only the following dispositive issue: whether Eugene timely filed his petition to reopen the Estates. We affirm. * * *

Here, Eugene sought to reopen the Estates under Section 14 for the sole purpose of correcting an alleged “scrivener[']s error” in the Deed. But the real estate was distributed by the Deed in the former administration of the Estates. As such, it is not “an asset which had escaped the former administration,” and Eugene cannot use Section 14 to collaterally attack the final judgment on an already-administered asset. * * *

Accordingly, in order to correct the alleged scrivener's error on the previously administered Deed, Eugene was obliged to file his petition for relief within one year of the date of the discharge of the co-personal representatives. I.C. § 29-1-17-13. Eugene failed to do so. The date of discharge was January 4, 2008, and it is undisputed that Eugene did not file his petition until more than fourteen months later, on March 18, 2009. Hence, his petition was untimely, and we affirm the trial court's grant of summary judgment to Sharon.

In Pamela S. Fackler v. Melvin J. Powell, Jr. and M. Jack Powell, Jr. Living Trust, a 14-page opinion, Judge Najam concludes:
The trial court erred when it calculated the prejudgment interest owing to Fackler at a rate of 12% until February 6, 2003, and a rate of 8% thereafter. We remand with instructions for the trial court to apply the 12% prejudgment interest rate to the amount Powell owed Fackler from the date of the dissolution decree, March 22, 2002, until the date of final judgment, June 2, 2009. Fackler is entitled to prejudgment interest for the period of time she pursued the action in the wrong court. The trial court did not abuse its discretion when it ordered Powell to pay Fackler's attorney's fees in the sum of $62,284.43. And the trial court did not abuse its discretion when it denied Powell's request for attorney's fees. Affirmed in part, reversed in part, and remanded with instructions.
In Jerry W. Bass, Bettye A. Bass, Jack E. Sutton, and Kathy L. Sutton v. Jeffrey C. Salyer and Renea M. Salyer, a 21-page opinion, Judge Najam concludes:
We conclude as a matter of law that the Salyers have not proved that they own a prescriptive easement over the Drive. The Salyers' contention that they demonstrated an intent to use the Drive adverse to the interests of the underlying fee simple title holders is not supported by the trial court's finding that the Salyers' use of the Drive was “unique and distinct.” Rather, the evidence supports a finding that while the Salyers built a private pier to facilitate their use of the lake, they used the public easement over the Drive to access the lake, which was a permitted use, the very purpose for the easement, and a right shared with the public. The Salyers have also not shown the establishment of a prescriptive easement in the Lot Owners' riparian rights. Again, riparian rights arise from a claimant's interest in the land abutting the water. Because the Salyers own neither a fee simple interest nor a prescriptive easement abutting the lake, they cannot and have not established a prescriptive easement in the Lot Owners' riparian rights. To the extent the trial court found to the contrary, the trial court's findings and conclusions are clearly erroneous. Reversed.
In Johnnie Stokes v. State of Indiana , a 14-page, 2-1 opinion, Judge Crone concludes:
Stokes has failed to demonstrate that he suffered grave peril as a result of the jurors' knowledge that he was incarcerated pending trial. Therefore, the trial court did not abuse its discretion when it denied Stokes's motion for a mistrial. The State presented insufficient evidence to support Stokes's convictions for the attempted robberies of Earnest Simmons, Gregory Arnold, Jr., Fred Winfield, Shantell Williams, and Collin Moore, and we reverse his convictions on those five counts. We affirm Stokes's remaining convictions. Given that Stokes's class B attempted robbery sentences were ordered to be served concurrent with his sentences on other counts, our decision to reverse those convictions does not affect Stokes's aggregate sentence. However, because the trial court ordered Stokes's sentences on all counts to be served either consecutive to or concurrent with his class A attempted robbery conviction that we have now reversed, we remand to the trial court for resentencing. Affirmed in part, reversed in part and remanded.

RILEY, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion: I respectfully dissent from the majority's decision to reverse Stokes's conviction for the Class A felony attempted robbery of Moore. The evidence in the record is that Moore was in the recording studio hallway when he was ordered to “get down” by individuals he did not recognize and heard multiple gunshots, one of which struck him in his lower abdomen. I agree with the analysis of the Curtis Stokes Court that the fact that Moore "was singled out and directly ordered to 'get down' supports a reasonable inference that the perpetrators intended to rob him, but were interrupted when gunfire erupted." 919 N.E.2d at 1248. Because I believe that these actions constitute a substantial step toward the knowing or intentional taking of property from the person or presence of Moore, I would affirm Stokes's conviction for Class A felony attempted robbery.

NFP civil opinions today (3):

J.C. Penney Company, Inc. v. Simon Property Group, Inc., et al. (NFP)

George Dean King v. Kay S. King, et al. (NFP)

In the Matter of T.R., Alleged to be CHINS; K.T. v. IDCS (NFP)

NFP criminal opinions today (3):

Delores Bails v. State of Indiana (NFP)

Zachary Taylor v. State of Indiana (NFP)

Cicero Offerle v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana decisions from 7th Circuit today, plus Illinois sex offender case

In Brown v. Finnan (SD Ind., McKinney), a 17-page opinion, Judge Cudahy writes:

Having been convicted of murdering Charles Young, Jr. and Robert Hunter in 2000, Terry C. Brown was ultimately sentenced to serve two consecutive terms of 55 years. Brown subsequently filed a petition for post-conviction relief, claiming that he had received ineffective assistance of counsel at both the trial and appellate levels. His petition focused on an incourt announcement by one victim’s mother to the effect that “the situation [was] racist” and her further proclamation on the courthouse steps that the courthouse should be treated similarly to the World Trade Center and bombed. Brown’s attorney declined to request a hearing to determine the impact of these statements on the jury. Nor did his appellate counsel raise the issue on appeal. Brown now contends that his counsels’ failure to address this issue violated the Sixth Amendment. He argues further that the Indiana courts’ denial of his petition for post-conviction relief is contrary to well established principles of federal law, as established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). He therefore asserts that this Court should grant his petition for a writ of habeas corpus.

We decline to do so. To prevail on an ineffective assistance of counsel claim under Strickland, a petitioner must demonstrate that his counsel’s assistance was objectively unreasonable and resulted in a substantial risk of prejudice. Brown can meet neither requirement. The prejudicial impact of the statements here on the defendant’s right to a fair trial is attenuated. Since both Brown and his victim, Young, were African-American, it is far from clear how a juror would perceive the assertion of racism in a manner necessarily injurious to Brown. While obviously serious, a distraught parent’s threat of bombing the courthouse does not obviously bear on the guilt or innocence of the defendant. Moreover, there is no evidence that this out-of-court statement was heard by any juror. Finally, though no less important, there may be good reason not to draw explicit attention to such statements. Apt counsel might conclude that her client’s cause would best be promoted by not focusing on issues of tenuous significance to her client’s guilt or innocence. For these reasons, Brown’s counsels’ performance was not objectively unreasonable. Nor did his attorneys’ conduct result in a substantial risk of prejudice. For these reasons, and the reasons that follow, we deny Brown’s petition.

In Tully v. Rush County Prosecutor (SD Ind., McKinney), an 8-page opinion, Judge Bauer writes:
Michael Tully sued Paul Barada and Catherine Custer under 42 U.S.C. § 1983, asserting that they violated his rights under the Fourth and Fourteenth Amendments by summoning him into court and initiating juvenile proceedings against him without probable cause. The district court dismissed Tully’s case for failure to state a claim upon which relief can be granted. We affirm.
The Illinois case is Rosin v. Monken, an 8-page opinion where Judge Cudahy writes:
After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York. He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants’ motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject. Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm. * * *

The district court correctly dismissed Rosin’s lawsuit because the New York order was silent as to registration in any other state. Absent such language, there is no relevant provision to which Illinois must give full faith and credit. Even if there had been such a provision, however, New York lacks power to dictate the means by which Illinois can protect its public. The judgment of the district court is therefore affirmed.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Ind. (7th Cir.) Decisions

Law - Chief Justice John G. Roberts to speak at IU School of Law - Indianapolis

From a news release:

INDIANAPOLIS -- When John G. Roberts Jr., Chief Justice of the United States, delivers the Ninth Annual James P. White Lecture on Legal Education at the Indiana University School of Law - Indianapolis on April 7, 2010, he will be the third justice to have that honor, but the first chief justice to participate in the event. Justice Sandra Day O'Connor gave the inaugural lecture in 2002, and Justice Ruth Bader Ginsburg spoke at the law school in 2007. * * *

Attendance at the lecture is by invitation only. There will be limited overflow seating in room 385 of Inlow Hall at 530 West New York Street and a reception in the Conour Atrium after the lecture. The lecture will also be Webcast live through a link on the law school's Web site at indylaw.indiana.edu.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to General Law Related

Ind. Gov't - "Indiana will make each license plate unique"

Well, I didn't know that!

Mary Beth Schneider reports today in the Indianapolis Star:

In the past, the Bureau of Motor Vehicles used duplicate numbers for different types of vehicles. For instance, a semitrailer truck might have the same number as a pickup truck, or a motorcycle might have the same number as a car.

That worked fine in Indiana, where police knew to notice not just the number but the type of plate when issuing a ticket.

But Dennis Rosebrough, spokesman for the BMV, said the increased use of cameras in other states to nab motorists for driving through tolls without paying, or for running a red light, led to problems. Indiana motorists were getting tickets from places they'd never been.

To fix the problem, Rosebrough said, "We are going to never issue duplicate numbers again. We bagged that."

Fixing that problem, combined with a second change BMV instituted this year, ironically has led to some unhappy motorists.

Rosebrough said the Indiana State Police had asked the BMV to make specialty plates easier to read by using only full-sized letters next to the numbers on plates. Until now, specialty plates have had two small letters on each plate, one on top of the other.

But because the BMV also is going to unique numbers, that has meant some people who had a particular letter-number combination on a specialty plate can't have that, as it is already being used by another vehicle.

Rosebrough said the BMV will have made the switch to the nonduplicate numbers by the end of this year, and next year will replace all the specialty plates with the small, stacked letters.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Indiana Government

Courts - Wonderful website of NBC's "court artist"

The blog of Art Lien, court artist for NBC News. Its name, CourtArtist.com, "going where cameras cannot."

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Courts in general

Courts - More on: "Judiciary Approves PACER Innovations To Enhance Public Access "

Updating yesterday's ILB entry, the Law Librarian Blog notes today its opinion that:

[T]he most noteworthy development is the the Conference's approval of a pilot program to allow up to 12 courts to publish federal district and bankruptcy court opinions via the GPO's FDsys "so members of the public can more easily search across opinions and across courts."

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Courts in general

Ind. Courts - "Bren Simon loses bid to liquidate shares"

Updating earlier ILB entries about the Mel Simon estate dispute, Jeff Swiatek of the Indianapolis Star reports today:

Simon Property Group got its legal wish granted Tuesday in a lawsuit against its co-founder's widow.

A ruling by a Hamilton County judge agreed with the company's reasoning in refusing Bren Simon's request to liquidate more than $500 million worth of partnership shares she inherited from her husband.
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Judge William J. Hughes' ruling essentially could bring an end to the unusual lawsuit less than two months after it was filed.

The 15-page ruling also appears to get the Indianapolis-based shopping mall developer off the hook, for now, in having to decide whether to give cash or stock to Bren Simon for the massive number of partnership shares she controls and wants to liquidate. * * *

Bren Simon said in a court filing that she wants to convert the untradable partnership shares into cash or stock as part of her financial planning for her husband's more than $1 billion estate.

But the company denied her request, arguing that a suit filed by Bren Simon's stepdaughter Deborah Simon, challenging her stepmother's role as trustee of the estate, amounts to a lien or legal encumbrance against the partnership shares, giving the company the right to reject conversion.

Hughes agreed that "a lien exists" against the partnership shares in the form of Deborah Simon's lawsuit, which was filed in January.

Attorneys for both sides agreed at a hearing earlier this month that if the judge ruled that a lien exists against the partnership shares, that essentially would resolve the lawsuit.

But the judge didn't rule on Bren Simon's request for damages in the case, along with other matters, so the case remains open.

Hughes also is presiding over the Deborah Simon lawsuit against Bren Simon. A key hearing in that case is set for May 7 on Deborah Simon's motion to replace her stepmother as trustee of Melvin Simon's estate.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions "Short-term rentals OK in Ogden Dunes"

Yesterday's Court of Appeals decision in the case of Steven Siwinski, et al. v. Town of Ogden Dunes (ILB summary here - 2nd case) is the subject of stories today in both papers from the region.

Dan Carden and Joyce Russell of the NWI Times report:

The town of Ogden Dunes cannot stop homeowners who want to rent out their property for periods of less than a month, the Indiana Court of Appeals ruled Tuesday.

In 2007, the Porter County town of 1,300 people decided to stringently enforce its residential zoning code, which the town claimed prohibited short-term home rentals. The goal was to prevent the lakefront community from becoming a resort area.

Later that year, the town accused Steven and Lauren Siwinski of renting out their beachfront home five times that summer, essentially using their residence for a commercial purpose, which is prohibited. The town sought a $2,500 fine for each day the home was rented.

Porter Superior Court Judge Mary Harper ruled in favor of the town in June.

However, the appeals court found that -- because the zoning ordinance does not specifically prohibit short-term rentals and because the rented home is being used in a residential manner -- short-term rentals do not violate the zoning ordinance.

"Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property," wrote Judge James S. Kirsch in the court's 3-0 decision.

"We conclude that it was error to find that the Siwinskis' occasional short-term rental of their property was a commercial and not a residential use," the court said.

The Court of Appeals reversed the earlier Porter County court decision in favor of the town and ordered the Porter court to rule in favor of the Siwinskis.

"We're disappointed, but it is not totally a loss," Ogden Dunes town Attorney Chuck Lukmann said.

While the decision was not in the town's favor, Lukmann said, it did state that not more than one family can live in a house at a time.

"This will curtail a lot of activities," said Lukmann, adding that many of the problems come from when homes are leased to college students and used as "party houses" or when multiple families lease a single-family home at the same time.

"It is a setback, but it does assist with some of the town's goals," said Lukmann, adding it is not only an Ogden Dunes issue.

"Let anyone ask themselves if they would want weekend renters versus one family living there (next door) permanently," he said, adding a similar situation in any community would devalue property.

Lukmann said the Town Council will likely call an executive session to discuss their next course of action. They will have 30 days to decide whether or not they want to appeal the most recent decision.

Diane Krieger Spivak of the Gary Post-Tribune writes:
A Highland Park, Ill., couple received approval from the Indiana Court of Appeals on Tuesday to rent out their Ogden Dunes home, reversing a lower court's ruling.

The decision reversed a fine of $40,000 the town imposed on Steven and Lauren Siwinski for offering their $1 million home in the small beachfront community for short-term rentals.

"We are pleased that the Court of Appeals has clarified what always appeared clear to my family: If the town wants to ban short-term rentals, then the town should pass an ordinance that specifically bans them," Steven Siwinski said.

The Siwinskis' attorney, Thompson Coburn, had argued that the town's ordinance, which bans renting homes for periods of less than 30 days, was too vague, and that renting the home was not a commercial endeavor, as the town had said.

"Having a gotcha ordinance that doesn't allow homeowners to know what conduct is prohibited, and what is permitted, and then impose a fine of tens of thousands of dollars on a homeowner is not fair to anyone," Siwinski said.

"It is unfortunate that my family was forced to expend many tens of thousands of dollars to defend this lawsuit brought by the town."

The town sued the couple in 2007 in a crackdown on what officials said were loud parties by weekend visitors.

Siwinski, a mortgage broker, sued the town in federal court in 2008, claiming that the town allowed short-term rentals for years. Siwinski said he and his wife were targeted by the town because they were part-time residents.

See also this earlier NWI Times story from July 21, 2008.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana's Jump in inmates is biggest in U.S: State prison population rose 5.3 percent last year"

In this ILB entry from Sept. 7, 2009, headed "More on 'Lights Out at the Penitentiary: Strapped States are Shutting Prisons'" the ILB juxtaposed a story on other states' actions to "reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money" (quoting the LA Times) with a story on Indiana's "renewed focus on sentencing policies that allow some people to be released early from prison for good behavior and for getting an education while behind bars" (quoting from the Indy Star). See also this Sept. 5, 2009 ILB entry.

Today's Indianapolis Star features a lengthy story reported by Jon Murray, that begins:

For the first time since 1972, the number of inmates in state prisons in the U.S. has dropped. No thanks to Indiana.

Last year, the prison population dipped in 27 states, and a new report to be released today says that drove an overall decrease of 0.4 percent.

But in Indiana, the prison population last year swelled by 5.3 percent, the largest percentage increase of any state in the nation.

What's different about Indiana? Prison officials and experts say many other states have more aggressively reformed sentencing and pursued alternatives to prison incarceration -- often under pressure to slash gargantuan prison budgets, especially during the recession.

"When you're in the number one spot, it says that something is out of whack," said Adam Gelb, director of the Pew Center's Public Safety Performance Project, which conducted the study.

"It does cry out for a deeper look at why Indiana is leading the nation in growth," he said, "and what strategies could be employed to bend the curve, while continuing to protect public safety."

One factor that drives incarceration in Indiana is get-tough sentence enhancements, which even some legislators agree have snowballed to fill Indiana's adult male prisons nearly to capacity.

"They've created a time bomb over the last 10 to 20 years," said Larry Landis, executive director of the Indiana Public Defender Council. "Our problem is that we're addicted to incarceration."

More from the story:
The state now seems poised to seek a new path, and Landis and others sense Indiana is on the verge of progress.

Last year, the General Assembly created the Criminal Code Evaluation Commission and charged it with issuing recommendations in 2011 on changes to the Indiana Penal Code, last updated in 1977. They will consider factors including redundancy and appropriateness of sentencing classes assigned to different crimes.

In January, leaders from all three branches of Indiana's government sent a letter requesting that the Pew Center take a close look at how Indiana might reduce recidivism and safely manage prison population growth.

Gov. Mitch Daniels, Attorney General Greg Zoeller, House Speaker B. Patrick Bauer, Senate President Pro Tempore David Long and Indiana Supreme Court Chief Justice Randall Shepard signed the letter.

Many states have tackled the issue directly, often with the Pew Center's guidance.

Gelb said the Pew Center would respond to the Indiana officials' request for analysis after a site visit next month.

Each of Indiana's neighbors reported prison population decreases last year -- with Michigan's falling 6.7 percent. * * *

The recession has led some states to release prisoners early to reduce budgets, but the Pew report says recent economic pressures alone don't account for the population declines.

Indiana has avoided early releases and found other ways to cope with budget shortfalls. It has trimmed $15 million from this year's $678 million DOC budget, which makes up about 5 percent of the state's general fund budget, a lower proportion than in many states. * * *

Sen. Luke Kenley, R-Noblesville, said he welcomed proposals for ways to slow the growth. The Indiana Constitution's mandate to rehabilitate prisoners has received short shrift, he said, and at huge expense.

"We seem to have a continuing rise in the incarceration rate, and we also seem to have a fixation on increasing penalties in the legislature," Kenley said. "And some judges seem to have the mentality that you need to put (criminals) in prison longer.

"It's sort of a mind-set we have -- Hoosiers would rather be safe than sorry."

Here is the 10-page PEW Center report, titled "Prison Count 2010."

John Schwartz of the NY Times has a story on the report, headed "Report Finds States Holding Fewer Prisoners." A quote:

The results broaden the conclusions in a report issued this month by the Sentencing Project, a research and advocacy group in Washington that looked at efforts to reduce the prison populations in Kansas, Michigan, New Jersey and New York. That report found that all four states had achieved reductions, with New York reaching a 20 percent reduction and New Jersey 19 percent over a decade.

Marc Mauer, the executive director of that group, said the reduction was actually overdue, since crime rates have declined for some 15 years. “That’s the puzzling piece — why did this take so long?” he asked. The lag, he said, was partly the result of longer sentences and partly because of tough standards in many states for revoking parole.

The Pew report noted that while the squeeze on state and local budgets had contributed to efforts to reduce prison populations, “financial pressures alone do not explain the decline.” At least part of the fall-off resulted from changes like California’s decision to reduce the number of low-risk people on parole returning to prison because of technical violations, and Texas’ decision to step up its residential and community-based treatment programs.

“If you had to single out the most common reform that we’re seeing,” Mr. Gelb said, “it’s various strategies to hold parole violators accountable, short of jamming them back into a $25,000-a-year, taxpayer-funded prison cell.”

Stateline.org has a story today, by John Gramlich, that begins:
Mississippi is a tough-on-crime state, and in 1995, like many tough-on-crime states, it approved a version of “truth in sentencing” — a popular law requiring inmates to serve at least 85 percent of their prison terms before they could be considered for parole. More than half the states have similar laws on the books.

Mississippi, however, changed course two years ago. Responding to budget constraints and a surge in its prison population — from about 12,000 inmates in 1995 to more than 22,000 in 2008 — lawmakers revisited truth in sentencing. They changed the law so nonviolent offenders would be eligible for parole after serving a quarter, not 85 percent, of their sentences. Over the course of the next year, more than 3,000 inmates were released an average of 13 months earlier than they otherwise would have been.

The move put Mississippi at the leading edge of a major national change, one that appears to be the result of teeming prisons, a deep recession and changing attitudes toward corrections. For the first time in 38 years, state prison populations declined in 2009, according to a 50-state survey released Wednesday (March 17) by the Pew Center on the States, the parent organization of Stateline.org.

Posted by Marcia Oddi on Wednesday, March 17, 2010
Posted to Indiana Government

Tuesday, March 16, 2010

Ind. Decisions - "Seventh Circuit rules for deadbeat dad (and creates circuit split) on double-counting argument"

Sentencing Law and Policy Blog has posted this entry on a decision on a case out of Illinois, construing a federal law, the Deadbeat Parents Punishment Act of 1998 (DPPA).

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - "Judiciary Approves PACER Innovations To Enhance Public Access "

A news release today from the Judicial Conference of the United States:

March 16, 2010 — The Judicial Conference of the United States today approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to:
  • Allow courts, at the discretion of the presiding judge, to make digital audio recordings of court hearings available online to the public through PACER, for $2.40 per audio file.

  • Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.

  • Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts.
The Conference approved the plan to make digital audio recordings available on PACER after a two-year pilot project showed significant public interest in accessing these files. Prior to the pilot, such access was possible only by obtaining a CD recording from a court clerk’s office for $26. During the pilot, Internet access to the same content cost eight cents, but the $2.40 fee approved today was deemed by the Conference to be reasonable and come closest to recouping, but not exceeding, costs. Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage).

For printed court documents, the $10 fee waiver affects tens of thousands of PACER users. In fiscal year 2009, about 153,000 PACER account holders—nearly half of all active accounts— did not receive a bill. For that 12-month period, a quarterly waiver would have affected an additional 85,000 accounts— resulting in 75 percent of all active accounts not receiving bills. Analysis of fiscal year 2008 billing data showed a similar impact.

As mandated by Congress, electronic access to court information is funded through reasonable user fees, and not through taxes paid by the general public. Last year, PACER received more than 360 million requests for electronic access to information from the over 33 million federal cases that have documents online. The Electronic Public Access fee revenue is used exclusively to fund program expenses and enhancements that increase public access to the courts. As a result, PACER is a very economical service: the charge for accessing filings, other than opinions, is just eight cents per page, with a maximum charge of $2.40 regardless of the length of a document. At federal courthouses, public access terminals provide free PACER access to view filings in that court, as well as economical printouts (priced at ten cents per page). The charge for copies from the paper case file in the clerk's office was—and remains—50 cents a page.

All court opinions are available through PACER free of charge, and that will not change. The pilot project to make bankruptcy and district court opinions also available through the Government Printing Office’s system will enhance public access to those opinions.

The Judiciary is conducting a comprehensive assessment of its Electronic Public Access Program services to identify potential enhancements to existing services and new public access services that can be provided to litigants, the bar, and the public. All active PACER users were welcomed to participate in at least one of the assessment surveys, focus groups, or interviews. The results of that assessment will be available by July 2010.

The US Party/Case Index is a tool that enables users to locate a case across the federal courts. The application has been running in its current format since September 1999, and currently receives over 200,000 searches daily. A new version of the search tool, which includes additional search capabilities and result formats, has been developed and will be deployed under the new name PACER Case Locator this month.

The Judicial Conference is the policy-making body for the federal court system. The Chief Justice serves as its presiding officer. It is comprised of the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Courts in general

Courts - "Key New York Suit Calls Public Defender Programs Inadequate"

That is the headline to this story today in the NY Times, reported by William Glaberson. It begins:

A class-action suit to be argued next week in New York’s highest court has become a test of a national strategy by civil liberties groups to challenge what they say are failed public defender programs in many states.

Because an estimated 80 percent of felony defendants in large states are too poor to hire their own lawyers, and because the case is being watched around the nation, the case has the potential to alter the shape of the criminal justice system.

Filed by the New York Civil Liberties Union, the lawsuit is a broad challenge to a patchwork system that has been described by decades of studies and commissions as dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads. It says indigent clients have been failed by their appointed lawyers all around the state.

“The eyes of the nation will be on New York as it decides this crucial issue,” a brief filed by the National Association of Criminal Defense Lawyers argues.

As the system works now, defendants who are unhappy with their appointed lawyers can generally make those claims only after they are convicted. The court then reviews each appeal case by case. But the civil liberties lawyers argue that a broad review is necessary because the arrangement has not addressed systemic failings that unconstitutionally leave tens of thousands of defendants without meaningful representation in every part of the state.

The state has fought hard against the suit, which was first filed in 2007, arguing that if New York’s highest court, the Court of Appeals, allows it to proceed — and a court later uses the case to order the state to upgrade the public defender system — it would be a judicial invasion of the authority of the Legislature and the governor. Such improvements, some lawyers say, could cost hundreds of millions of dollars.

In one filing, the state argues that by appointing lawyers it fulfills its constitutional obligations. “It cannot be seriously contended that plaintiffs have been denied the right to counsel,” the state says. The state’s defender system includes Legal Aid Societies, private lawyers who are appointed by the courts, and local public defender offices.

Next Tuesday, the Court of Appeals is to consider whether the suit can proceed. A half-dozen friend-of-the-court briefs portray the scheduled argument as a critical step in defining the meaning of a landmark decision of the United States Supreme Court in 1963. The decision, Gideon v. Wainwright, declared that the Constitution required states to provide lawyers for indigent defendants.

See also the WSJ Law Blog's Ashby Jones' entry today headed "Is Gideon Alive and Well? New York Case Says Absolutely Not."

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Courts in general

Ind. Courts - "Indiana Supreme Court Gives Stamp of Approval to Lake County and Marion County Electronic Filing Plans"

The heading is from a story by James Walker and James F. Maguire in the March issue of Indiana Court Times. Some quotes from the lengthy story:

This past December the Indiana Supreme Court approved separate requests by the Lake County and the Marion County courts to implement an electronic filing system on a limited and trial basis. Lake and Marion are the first counties to implement an electronic filing system under Administrative Rule 16. Each county intends in 2010 to accept pleadings and court documents, and to send notices, by electronic means. Lake County is scheduled to begin their pilot project in February. They will limit electronic filing to only mortgage foreclosure cases. Mortgage foreclosure filings are randomly assigned to each court in Lake County, so the plan will be effective in all courtrooms.

Marion County will allow for electronic filing in both mortgage foreclosure cases and civil collection cases. Thirteen courtrooms will allow electronic filings: Marion Circuit Court and Marion Superior Court, Civil Divisions One through Seven, and Ten through Fourteen.

In each county, all registered users of the electronic filing system will be able to remotely access documents in mortgage foreclosure cases. But, in Marion County, only the registered users who are actual parties to a collection case will be able to remotely access court documents.

Registered users include attorneys, members of the news media, commercial users (such as title companies, banks, and mortgage companies), judges and their staff, court administrative staff and technical support staff, and self-represented litigants, who enter into a User Agreement with the court.

Lake County will utilize a self-contained system to file and serve documents in the court’s case management system, CourtView, through their Lake County Online Docket (LCOD). Marion County will utilize the services of the Lexis-Nexis File & Serve System (LNFS), an outside vendor.

In both counties registered users must sign an agreement and pay fees to utilize the electronic filing and service system. Each county plan protects confidential information and sealed documents as required by Administrative Rule 9. Both plans also provide assistance to self-represented litigants who choose to utilize the electronic filing system. There are opt-out provisions for parties who want to use traditional paper filings and service. * * *

Many court observers predict that all courts will one day use Electronic-Filing and Electronic-Service. A few jurisdictions have already implemented a statewide system, including: Colorado, Delaware, and Minnesota. For several years most of the federal courts have been linked to PACER (Public Access to Court Electronic Records). It is a system maintained by the Administrative Office of the United States Courts, with a separate URL for each Court. It includes federal district, appellate and bankruptcy courts. Their website can be found at pacer.psc.uscourts.gov.

Technology presents our Indiana courts with some exciting opportunities. We hope that many courts take advantage of the opportunity to begin a pilot project. We are ready, willing and eager to assist our courts in setting up a project that meets the requirements of Administrative Rule 16. While we know that one size does not fit all counties, we are developing a model for other counties that want to establish an electronic-filing plan. We will work to serve the individual needs of our courts on a county-by-county basis.

Apparently this project is unrelated to the Supreme Court's JTAC Odyssey project to link up the over 400 Indiana courts and put their dockets online, which at last report covers 50 courts in 18 counties.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Indiana Courts

Ind. Decisions - "Avon-area water feud bubbles over"

Josh Duke reports today in the Indianapolis Star:

AVON -- An ongoing feud over water in the Avon area will continue despite a Hendricks County judge's ruling last month.

The town of Avon filed an appeal with the Indiana Court of Appeals last week after Judge Mark A. Smith sided with Washington Township and the West Central Conservancy District in all but one count regarding a town ordinance passed in 2008.
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The town ordinance sought to regulate the removal of groundwater in the Avon area.

Avon's ordinance was crafted in response to an Indianapolis Water study that determined there would be a water supply shortage in the future. That study recommended local governments take action to preserve water resources.

The judge determined in a 24-page summary last month that Indiana law does not give the town authority over aquifers, wells or groundwater that it does not own. Avon currently doesn't have its own water utility.

"The Indiana Department of Natural Resources has the statutory authority to regulate groundwater," Smith said in his ruling.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Richard Thomas, Allita Thomas and Trustcorp Mortgage Co. and Fannie Mae and Everbank v. Benjamin Thomas, a 9-page opinion, Judge Bradford writes:

Appellant/Defendant Trustcorp Mortgage Company and Appellants/Third-Party Defendants Fannie Mae and EverBank appeal from the trial court’s judgment in favor of Appellee/Plaintiff Benjamin Thomas. Appellants challenge the trial court’s conclusion that the mortgage Trustcorp holds on Benjamin’s home is invalid. We affirm. * * *

In light of the amount of the loan, $118,000, we believe that a reasonably prudent lender would have taken the simple steps necessary to verify that a superior $200,000 mechanic’s lien had indeed been released, especially when the release instrument had been improperly notarized. * * *

It is not enough to show fraud on the part of the vendor, where the purchaser is not a mere volunteer, but pays a consideration for the land. To set aside the conveyance as fraudulent, much more must be shown.”) (citations omitted). As in the lis pendens context, the question here is whether Trustcorp qualifies as a bona fide mortgagee. As we previously decided, however, Trustcorp could not have been a bona fide mortgagee due to its failure to investigate Benjamin’s interest in the home. Consequently, we affirm the trial court’s judgment in this respect as well.

The opinion includes an interesting footnote #2 on p. 9, following the end of this quoted statement in the text: “It is a fundamental principle, worthy of the rank of a maxim, that what fraud creates equity will destroy.” Footnote #2 provides:
The version of this citation found in the www.westlaw.com database places quotation marks around the phrase “what fraud creates equity will destroy.” While this error does not seem to alter the meaning of the citation, we will continue to exercise caution in citing to non-official authorities.
What this means to me is that the Court is not simply relying on West's online database, but is looking back to the original opinion. The need to do so is pointed out in footnote - there is a variance. One additional thing I wish the Court would have done would have been to identify that the official source it looked to was the 1922 Indiana Appellate Reports. It would also be interesting to know whether punctuation in the 1922 Northeast Reporter version parallels the official version, or West's online version.

In Steven Siwinski, et al. v. Town of Ogden Dunes , an 8-page opinion, Judge Kirsch concludes:

Previous Indiana cases that have analyzed the language of restrictions on land use regarding residential uses have determined that such language was concerned with the physical activity conducted upon the property and not the profit-making intentions of the homeowners. Applegate, 908 N.E.2d at 1219; Lewis-Levett v. Day, 875 N.E.2d 293, 296 (Ind. Ct. App. 2008), trans. denied; Stewart, 635 N.E.2d at 192. As in Applegate, the renters of the Siwinskis’ property used the house for eating, sleeping, and other activities typically associated with a residence or dwelling place. Nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis’ property. Nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. Under the trial court’s overly broad construction of the Ordinance, the Siwinskis would be prohibited from, and subject to substantial fines for, such things as having weekend guests or allowing family members to use the property while they were away as the property would then not be occupied exclusively as a residence by one family. We conclude that it was error to find that the Siwinskis’ occasional short-term rental of their property was a commercial and not a residential use. The trial court erred when it granted summary judgment in favor of the Town and denied the Siwinskis’ motion for summary judgment. We reverse the summary judgment entry in favor of the Town and the trial court’s injunction and fine and remand to the trial court with instructions that summary judgment should be entered in favor of the Siwinskis.
In Francisco and Alisa Delgado v. Peter Boyles, et al. , a 10-page opinion, Judge Riley concludes:
We agree with the trial court. In light of Daffron and Reuille, the Delgados cannot be considered a prevailing party under the Vacant Land Purchase Agreement. Unlike Daffron, where the trial court entered a consent judgment after the settlement, the Delgados had nothing but a private settlement agreement. Moreover, in the absence of a contractual definition of prevailing or successful party and a trial on the merits, as in Reuille, we conclude that litigation which is resolved by mediation or private settlement cannot result in a winner or loser. Consequently, the Delgados are not entitled to attorney fees.
In Paternity of L.S.; M.S. v. L.S. and B.S. , a 14-page opinion, Judge Kirsch writes:
L.J.S. was born out of wedlock. In a custody dispute between L.J.S.’s maternal grandparents, L.S. and B.S. (“Grandparents”), and his natural father, M.W.S. (“Father”), the trial court granted Grandparents’ request for custody. Father appeals, raising the following restated issue: whether the important and strong presumption that L.J.S.’s interests are best served by placement with Father has been clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with Grandparents. We hold that it has not. Accordingly, we reverse and remand.
Lee Carroll v. State of Indiana - "Although the maximum sentence for a class A misdemeanor is a one-year term, see I.C. § 35-50-3-2, upon conviction of more than one misdemeanor offense, a defendant may be ordered to serve the sentences therefor consecutively. Dunn v. State, 900 N.E.2d 1291 (Ind. Ct. App. 2009). Here, the victim was attacked by two dogs, leading to the reasonable inference that her horrendous injuries were doubled. Such supports the imposition of consecutive sentences."

NFP civil opinions today (5):

Stacy Caldwell v. Shawn Caldwell (NFP) - "Although we find that the trial court erred in finding that the Agreement was unambiguous, we find that the trial court correctly denied Stacy relief under Trial Rule 60(B). Giving effect to the parties’ intent of a 50/50 split of the overall marital estate would involve a division of the investment accounts at the time of transfer, with 50% plus $8,000.00 going to Stacy, and 50% less $8,000.00 going to Shawn. This division would reduce what Stacy receives and increase Shawn’s share. Since neither party argues for such a division, we conclude that Stacy has failed to show that she was prejudiced as a result of the trial court’s ruling. As a result, any error in the trial court’s ruling was harmless."

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

Walter W. Jennings v. Judge Peter J. Nemeth (NFP) - "Further, a party who knowingly decides to proceed pro se despite his lack of legal training cannot claim on appeal that he was prejudiced by his own lack of legal knowledge. See Carter v. State, 512 N.E.2d 158 (Ind. 1987) (pro se defendant may not claim ineffective assistance of counsel because he would be alleging himself ineffective). We find that the Circuit Court did not err by not inquiring into Jennings’s competence to manage the proceedings pro se. Judgment affirmed."

A.C. v. Review Board (NFP)

Sylvester Hunter and Fitzhugh Lyons, Sr. v. Minton Business Services, LLC (NFP)

NFP criminal opinions today (5):

Jeffrey Penick v. State of Indiana (NFP)

Kevin Simmons v. State of Indiana (NFP)

Joseph L. Cottman v. State of Indiana (NFP)

Cory A. McClarin v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "New drunken driving law quickens blood sample process"

HEA 342, signed by the Governor March 12, 2010, is the focus of a story in the Bloomington Herald-Times. Some quotes:

New legislation closes what Monroe County Prosecutor Chris Gaal referred to as a “loophole” in drunken driving law.

Back in 2007, Gaal announced an expedited process for obtaining blood samples at Bloomington Hospital in drunken-driving cases. That allowed officers to get back on the streets more quickly, as well as provide evidence that led to improved enforcement in drunken driving cases, he said.

Then, a Court of Appeals case interpreted state law that blood draws must be conducted by a certified phlebotomist. Indiana did not have a certification process for phlebotomists, and hospitals were unable to comply with the new understanding of the law.

Gaal brought the issue to the attention of State Sen. Vi Simpson and State Reps. Matt Pierce and Peggy Welch. Legislation was developed with the Indiana Prosecuting Attorney’s Council, which clarified the section of the statute did not apply to blood draws conducted in a hospital setting. * * * Daniels signed the bill Friday.

The August 21, 2009 COA decision was Roger Brown v. State The Supreme Court granted transfer and oral argument was held Jan. 11, 2010. No opinion has yet been issued.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Indiana Law

Ind. Law - "Traffic court bill on its way to governor's desk"

From Jon Murray of the Indianapolis Star, this item on SEA 399, which is currently on its way to the Governor's desk:

The bill applies to people who contest their tickets for Class C infraction moving violations (most instances of speeding, running red light/stop sign, etc.) and take their tickets to trial. The odds are that they will lose, but several times a day they proceed anyway, at least in Marion County's traffic court (the state's busiest). The bill, if it becomes law, would make it so only those with a history of losing attempts to beat tickets would have to pay anywhere near the $500 maximum fine, plus court costs. Under Judge Bill Young, it's been common to get slammed with total fines and fees nearing that amount after he rules against you.

Once this law takes effect July 1, assuming the governor signs it, those contesting tickets could do so knowing they won't face the risk of a big fine. Only those who already contested two or more tickets and lost within five years (in the same county) would risk fines closer to the maximum; one previous failed attempt would limit the fine to $250, plus court costs.

Those who have no previous attempts within five years would pay the standard $32.50 fine in Marion County; with costs, that comes to $150.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Indiana Law

Law - WestlawNext pricing

The Law Librarian Blog has a long analysis today, headed "In re WestlawNext Pricing: "\'Hi, My Name is Johnny Westlaw, You Got the Money?'"

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to General Law Related

Environment - "13 million pounds of Ohio River fish eaten annually"

"Who knew?" begins this story by James Bruggers of the Louisville Courier Journal, in a story dated March 15, 2010. The story begins:

People are eating an estimated 13 million pounds of fish per year from the Ohio River — and that doesn’t count fish caught by commercial fishers.

Yes, there’s a commercial fishery, too, along the 981-mile Ohio River.

“There’s a stigma that only when you are desperately starving would you go eat fish from the Ohio River,” said Jason Flicker, the water resources program director for the Kentucky Waterways Alliance, a statewide environmental advocacy organization.

A new recreation survey of more than 5,000 people who live in communities in the river’s eight-state watershed, however, challenges that notion.

Not only does the survey by the Ohio River Valley Water Sanitation Commission indicate widespread fishing and fish consumption — despite various health warnings from mercury and other pollutants — it suggests more than 1.2 million people each year are using the river for recreational activities such as boating, waterskiing, swimming, hunting and fishing.

Among the most heavily used stretches of the river is its middle section, which runs roughly from the West Virginia border to just below the Louisville area.

“This perception of it being a dirty river and that it shouldn’t be touched is diminishing,” Flickner said. “This shows we need to continue to improve the river’s water quality for public health.”

ORSANCO commissioned the study after it abandoned a controversial effort in 2006 to allow higher bacteria levels in the river in periods of wet weather during the recreation season — May through October. Rains cause sewer systems to overflow and flush pollutants into the river from urban and rural landscapes, including roads, parking lots and farms.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Environment

Ind. Gov't. - "Porter jail seeks more money for fed prisoners"

$30 a day, $40 a day, or $50 a day for housing federal or state prisoners? The question was explored yesterday in this story by Jane Huh of the Gary Post Tribune.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Indiana Government

Ind. Courts - "Lake County considers closing satellite courthouses for savings"

From the AP, this story yesterday:

CROWN POINT, Ind. — Closing three satellite courthouses could save Lake County more than $1 million a year, although some officials say doing so would deny easy access to the courts for many residents.

A review by the county commissioners' attorney found that closing the courthouses in East Chicago, Gary and Hammond also could mean nearly 80 fewer workers would be needed in consolidated operations at the government center in Crown Point.

Some County Council members and commissioners suggested closing the courthouses as they've looked in recent months for ways to cut millions of dollars in the wake of property tax shortfalls.

Attorney John Dull said the county could save $1.1 million a year that it is now spending on utilities, maintenance and security guards at the three satellite courthouses. The job cuts could include 26 deputy clerks and 21 janitors.

That estimate does not include court personnel, which could significantly raise the savings.

Dull said the county would face spending about $22 million for building new offices and remodeling work to accommodate a move of the seven court offices from the three locations to Crown Point.

Lake Superior Court Judge Calvin Hawkins, whose courtroom is in East Chicago, said Lake County's poor public transportation system makes a perhaps 20-mile trip to Crown Point difficult for many in the northern part of the county, where the satellite courthouses are located.

“Even before becoming a judge here I supported keeping all the satellite offices open,” he said.

The idea of closing the courthouses has been attacked by commissioners and council members representing Gary, Hammond and East Chicago, who say the move would also leave abandoned buildings in their already struggling downtowns.

Not metioned: The satellite courthouses were the focus of several law suits during the last election.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Indiana Courts

Ind. Decisions - "Contrasting futures for sex offenders"

Alicia Gallegos of the South Bend Tribune reports:

Two offenders face vastly different fates after being sentenced Monday for their sex crimes against children.

Gabriel Herbert, 22, was sentenced to 10 years in prison for sexually assaulting a 14-year-old Mishawaka girl after luring her to his home last September.

Holly Rhodes, 36, received a six-year suspended sentence and six years of probation after admitting to molesting and having intercourse with a 7-year-old boy over the course of several years.

Both Rhodes and Herbert had no prior criminal history, and each readily admitted guilt for their actions.

But Rhodes' sentence was part of binding plea agreement with the state, meaning the punishment was pre-determined before a judge's sentencing.

Herbert, on the other hand, had an open plea, meaning his punishment could be argued by both sides. He faced up to 43 years in prison.

St. Joseph County Prosecutor Michael Dvorak said Monday that aside from being sex crimes, he did not believe the two cases were similar, adding that certain circumstances in the Rhodes case affected her plea terms.

"In one case you have a family member molesting (a relative), and in the other, you have a stranger picking up a girl on the street," he said. "I see no parallel."

In the Herbert case, the man told the victim he was lost and asked for help finding a certain street. Once in the vehicle, Herbert told the girl he needed a map and drove her to his home, where the victim said he attacked and raped her.

Herbert previously pleaded guilty to two counts of criminal deviate conduct, both Class B felonies, and one count of criminal confinement, a Class D felony.

As part of the agreement, the state dismissed a count of rape against Herbert and three counts of sexual misconduct with a minor.

According to the prosecutor's office, the original three counts of sexual misconduct with a minor were filed as "alternative theories of prosecution" to the rape charge and two counts of criminal deviate conduct.

The counts relate to the same three acts alleged to have been committed by Herbert, not six separate acts. The court could only enter judgment of conviction and impose a sentence on one count for each of the alleged acts.

In the Rhodes case, the woman admitted in court to Class C felony child molestation for inappropriately touching a young boy starting from the time he was about 7 years old.

As part of a plea agreement, the state dismissed two counts of Class A felony child molestation against Rhodes.

According to court documents, Rhodes began fondling the boy in the late 1990s, but the crime only came to light when the now-teenage boy spoke to officials at the CASIE Center, telling them he had been abused until age 10.

The victim said the molestation had included sex acts and sexual intercourse.

Posted by Marcia Oddi on Tuesday, March 16, 2010
Posted to Ind. Trial Ct. Decisions

Monday, March 15, 2010

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

In U.S. v. Angle (ND Ind., Moody), a 17-page opinion, Judge Williams writes:

This is the fourth time Ralph Angle appeals the sentences imposed for his child pornography crimes. Three times we have remanded for resentencing because of our uncertainty about the reliability of information used to justify a total period of imprisonment well above the range established by the sentencing guidelines. In our last remand we also directed the district court to explain why a “pattern of abuse” upward adjustment did not fully account for the uncharged conduct used to justify the stiff punishment. Both of these concerns have now been satisfied. Finally, the district court did not abuse its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release. * * *

Angle makes one additional argument that arose for the first time after our last remand. At the final resentencing, the district court imposed as a special condition of supervised release that Angle “shall not have personal access to computer Internet services.” This condition was not suggested in advance but first raised in open court during sentencing. Angle objected to that condition, and on appeal he contends that the district court was required to give him notice before imposing such a condition and that barring him from using the Internet is both unnecessary and unreasonable. * * *

Angle first argues that the court was required to give notice of its intent to impose this condition of supervised release because it was analogous to a departure from the guidelines. This argument fails. * * * the guidelines contemplate a term of supervised release, and provide the district court with broad discretion in imposing appropriate conditions for the supervised release, Angle could not reasonably believe that an Internet ban was so “out of the ordinary,” as to require notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir. 2005). In fact, the 2006 guidelines which the district court had the discretion to consult, specifically contemplate limiting the use of a computer in cases where the defendant used a computer for sex offenses. U.S.S.G § 5D1.3(d)(7)(B) (2006).

Angle next argues that the condition is unnecessary and unreasonable. We disagree. In 1997 and 1998, when the Internet was fairly new, Angle was convicted of using the Internet to solicit a minor for sex. He also used the Internet to set up a pornography trade with a distributer, and possessed an extensive amount of child pornography on computer diskettes and zip disks. Furthermore, his use of the Internet was not integrally connected to his profession as he was previously employed as a salesman and mechanic. These facts easily distinguish Angle from the defendant in Holm who was convicted of simply possessing child pornography and used the computer and Internet extensively in his occupation as a information systems technologist. Finally, unlike the district court in Holm, here the district court did not impose a complete ban on the Internet, disallowing only “personal” access to Internet services. Under these circumstances, we cannot conclude that the district court abused its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release.

Posted by Marcia Oddi on Monday, March 15, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 15 NFP)

For publication opinions today (1):

In Lees Inns of America, Inc. v. William Lee Irrevocable Trust , a 34-page opinion, Chief Judge Baker writes:

This eight-year-long litigation involving an Indiana-based hotel chain that was commenced under the Dissenter‟s Rights Statute has resulted in a judgment in excess of $7.5 million in favor of the minority shareholders in the corporation. Appellant-plaintiff Lees Inns of America, Inc. (Lees Inns), appeals the trial court‟s judgment in favor of appellees-defendants William R. Lee Irrevocable Trust, Donald Lee, and Robert Lee as co-trustees (collectively, the Trust), in this action that Lees Inns initiated. Specifically, Lees Inns argues that the trial court erred in refusing to appoint a master or expert appraiser to assist in calculating the value of Lees Inns‟ business. Lees Inns also claims that the trial court erroneously adopted a valuation of the business that was based, among other things, on speculative future transactions and that the evidence did not support a finding of a breach of fiduciary duty by the majority shareholder. The Trust cross-appeals, claiming that the trial court abused its discretion in awarding it prejudgment interest for only one-half of the relevant period because the Dissenters‟ Rights Statute expressly provides otherwise.

We conclude that the trial court properly exercised its discretion in denying Lees Inns‟ motion for a master or expert appraiser to assist it in calculating the value of the business. We also find that the trial court properly valued the business based on the evidence presented and that it correctly determined that the majority shareholder was in breach of his fiduciary duties that he owed to fellow directors and shareholders. Moreover, we conclude that the trial court properly disregarded a number of real estate options that were granted to the majority shareholder in determining the damages that resulted to the Trust as a consequence of the breaches of fiduciary duty. Finally, we conclude that the trial court properly reduced the amount of prejudgment interest that the Trust requested in light of the delays that resulted in bringing this matter to trial. Thus, we affirm the trial court‟s judgment in all respects.

NFP civil opinions today (5):

Greene County, Indiana, et al. v. Weddle Brothers Construction Co., Inc. (NFP) - "In this interlocutory appeal, Greene County of Indiana by and through its Board of Commissioners and Greene County Building Corporation (“Greene County”) appeals the denial of its motion for partial summary judgment regarding the effect of lien waivers and releases signed by the subcontractors and suppliers of Weddle Brothers Construction Company (“Weddle”). We affirm. * * *

"The ambiguity of the contracts raises a genuine issue of material fact and prohibits the entry of summary judgment. Due to this ambiguity, extrinsic evidence is permitted to determine the meaning and scope of the contracts."

Kevin and Nancy Green v. Community Hospitals of Indiana, Inc. (NFP) - "The Greens have not identified instructions and evidentiary rulings inconsistent with substantial justice."

Dennis Adkins v. Judy Saunders (NFP) - "Inasmuch as this is not an interlocutory appeal as of right and the trial court’s order has not been certified for a discretionary interlocutory appeal, we do not have jurisdiction over this cause. See Ind. Appellate Rule 14(A)-(B). This appeal is dismissed without prejudice and the cause is remanded to the trial court for further proceedings."

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

Term. of Parent-Child Rel. of Y.O., D.N., and C.O.; N.O. v. IDCS (NFP)

NFP criminal opinions today (10):

London Hood v. State of Indiana (NFP)

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

Kristy Kay Oglesby v. State of Indiana (NFP)

Jerry Joe Fuentes v. State of Indiana (NFP)

Marcus Crumble v. State of Indiana (NFP)

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

Khalid Jackson-Bey v. State of Indiana (NFP)

Peter Mudd v. State of Indiana (NFP)

Lashawna Ellis v. State of Indiana (NFP)

Julie Van Orden v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 15, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - Gov. receives more bills, but does not act on any today

Eighteen bills were received by the governor today. Check the list here.

Posted by Marcia Oddi on Monday, March 15, 2010
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending March 12, 2010

Here is the Clerk's transfer list for the week ending March 12, 2010. It is 2 pages long (but that is misleading because there is a lot more information scrunched on each page).

One of the cases granted transfer last week, Regunal Dowell v. State of Indiana, was granted with opinion. Another was Oaken Bucket Partners v. Hamilton County Property Tax Assessment Board, a tax case granted review. Both are discussed in this entry from March 11th.

Also granted transfer was a NFP opinion from April 30, 2009, Michael Francis v. Lawrence T. Newman (NFP).

Also on the transfer list with a grant is Isby v. State, for which there is "no opinion."

__________

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, March 15, 2010
Posted to Indiana Transfer Lists

Law - An incredible resource coming Wednesday via C-SPAN [Updated]

From the end of a story by the Washington Post's Chris Cillizza:

On Wednesday, C-SPAN will launch a searchable video library that includes all of its programming dating to 1987.

Which means that, if you were so inclined, you could watch every one of the late Sen. Ted Kennedy's floor speeches or relive Barack Obama's speech at the 2007 Iowa Democratic Party Jefferson-Jackson Dinner.

Of the video library, C-SPAN co-president Susan Swain said: "Its extensive holdings will allow the public to see how elected officials, politicians, journalists, experts, authors and other opinion leaders present themselves on the issues of the day and over time."

Bonuses: A "Congressional Chronicle" feature lets viewers to search all floor speeches and committee remarks for any member, and built-in tools allow you to post a video link to Facebook, Twitter or e-mail.

All told, C-SPAN is putting online 160,000 hours of searchable content on Wednesday. The Fix now knows what we will be doing with our weekends for the foreseeable future.

[Updated 3/16/10] Brian Stelter reports today in the NY Times:
WASHINGTON — Researchers, political satirists and partisan mudslingers, take note: C-Span has uploaded virtually every minute of its video archives to the Internet.

The archives, at C-SpanVideo.org, cover 23 years of history and five presidential administrations and are sure to provide new fodder for pundits and politicians alike. The network will formally announce the completion of the C-Span Video Library on Wednesday.

Having free online access to the more than 160,000 hours of C-Span footage is “like being able to Google political history using the ‘I Feel Lucky’ button every time,” said Rachel Maddow, the liberal MSNBC host. * * *

C-Span has been uploading its history for several years, working its way to 1987, when its archives were established at Purdue University, Mr. Lamb’s alma mater.

The archive staff now operates from an office park in West Lafayette, Ind., where two machines that can turn 16 hours of tapes into digital files each hour have been working around the clock to move C-Span’s programs online. They are now finishing the 1987 catalog.

“This is the archive’s coming of age, in a way, because it’s now so accessible,” said Robert Browning, director of the archives.

Posted by Marcia Oddi on Monday, March 15, 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?" The General Assembly adjourned sine die early Saturday morning, without overriding the Governor's veto of last year's bill (HEA 1491-2009) that would have made all courts in St. Joe County elective and would have added a new 6th District to the Court of Appeals. Here is more:

From Sunday, March 14, 2010:

From Saturday, March 13, 2010: From late Friday, March 12, 2010:

Posted by Marcia Oddi on Monday, March 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 3/15/10):

Wednesday, March 17th

Next week's oral arguments before the Supreme Court (week of 3/22/10):


This week's oral arguments before the Court of Appeals (week of 3/15/10):

Next week's oral arguments before the Court of Appeals (week of 3/22/10):

Next Tuesday, March 23rd

Next Thursday, March 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, March 15, 2010
Posted to Upcoming Oral Arguments

Sunday, March 14, 2010

Ind. Law - Still more on: What happened ...

Here is Eric Bradner's exhaustive coverage of what happened as a result of the 2010 General Assembly session, from today's Evansville Courier & Press.

Posted by Marcia Oddi on Sunday, March 14, 2010
Posted to Indiana Law

Ind. Courts - Even more on: "Judges to jurors: Stay off the Web"

Updating this ILB entry from March 5, 2010, which links to the newly released Indiana juror rule amendments, effective July 1, 2010, News24.com, out of South Africa, had this story earlier this month headed "Online jurors cause court chaos." Some quotes:

San Francisco - Enough with the tweets, the blogs, the internet searches.

That's the message being communicated by courts across the US as jurors using their portable electronic devices continue to cause mistrials, overturned convictions and chaotic delays in court proceedings. * * *

The rules for jury service in state and federal courts alike are evolving to grapple with this 21st century issue. New jury instructions are being adopted and electronics are being banned from courtrooms.

In January, the federal court's top administrative office, the Judicial Conference of the United States, issued so-called "Twitter instructions" to every federal judge, which are designed to be read to jurors at the start of the trial and before deliberations. [ILB - See this Feb. 3, 2010 entry re the federal memorandum.]

"You may not use any electronic device or media" in connection with the case, the recommended federal instructions admonish. They also bar visits to "any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter".

The guidelines were developed "to address the increasing incidence of juror use of such devices as cellphones or computers to conduct research on the internet or communicate with others about cases," according to a memo to federal judges from the committee's chief, US District Court Judge Julie Robinson of Topeka, Kansas. * * *

The Supreme Court in Michigan ordered judges there starting on September 1 to order jurors to refrain from using cellphones, computers and other electronic devices to discuss cases before them.

San Francisco Superior Court on January 1 began including such instructions after some of the 600 jurors said they went online because there were no explicit prohibitions against such independent research.

"You may not do research about any issues involved in the case," the new instruction states. "You may not blog, Tweet, or use the internet to obtain or share information."

A California legislator last month introduced a bill that would charge wayward jurors with a crime.

Several courts from Fort Wayne, Indiana, to tiny Malheur County in eastern Oregon have gone so far as to completely ban electronic devices.

After electronic communications caused two mistrials, St Paul, Minnesota, residents called to jury duty are now warned: "Do not bring wireless communication devices: phones, pagers and PDAs. Phones are available in the Jury Assembly Room."

The issue first surfaced a few years ago, but has only in the last few months garnered widespread attention because of the increased number of high-profile and disruptive incidents. * * *

While federal judges hope the new jury instructions will significantly limit jury problems, the National Centre for State Courts in Williamsburg, Virginia, said state judges continue to grapple with how best to deal with the issue.

"The thing that makes the electronic media issue a little different is that it is so accessible and anonymous," said Greg Hurley, an analyst at the centre. "Jurors face exposure if they go to the library or drive by a crime scene - but there's little risk in going online."

Jon Murray of the Indianapolis Star has an excellent feature story today on the new rules. Unfortunately, it won't be available online until mid-week under a new Star policy. At that point (if I remember) I will add the link here.

Posted by Marcia Oddi on Sunday, March 14, 2010
Posted to Indiana Courts

Ind. Gov't. - "Indiana gets an F for public access"

It is Sunshine Week again, and the Fort Wayne Journal Gazette is running a four-part series. Today Dan Stockman has a long story headed "State gets an F for public access: Indiana has no enforcement of its open record laws." Some quotes:

“You are on your own,” said Lucy Dalglish, of states, like Indiana, that have no mechanism to enforce their laws that require the public be able to watch their government make decisions and be able to see the paperwork surrounding it.

Dalglish is executive director of the Reporters Committee for Freedom of the Press, an Arlington, Va., advocacy group.

“We’ve never been able to get (enforcement provisions) on the federal level, either. And so a lot of people on the state and local level are saying, ‘We’re just doing what we’re told.’ ”

Indiana has laws that require public bodies such as city councils, school boards, state panels, zoning boards and others to allow residents to watch them work. It also has laws that require, with narrow exceptions, the paperwork generated by government to be given to those who ask to see it.

But violating those laws – known in Indiana as the Open Door Law and the Access to Public Records Act – brings no punishment for those who tell Hoosiers “No.”

Citizens who feel they have been illegally denied a document or access to a meeting can file a complaint with the Indiana Public Access Counselor, who can write a non-binding opinion on the matter. Their only other recourse is to sue the agency in question, but the judge can only require the record to be released, not impose a fine on the agency no matter how flagrant the violation. * * *

“I’m not a psychologist, but something happens to people when they work in these public agencies for a while,” said Tony Fargo, an Indiana University professor specializing in media law. “They start to see the records as ‘their’ records instead of ‘our’ records. They’re keeping and preserving those records for us so we can keep up with our government.” * * *

An attempt to add a $1,000 penalty to willful, knowing violations of Indiana’s access laws died in the General Assembly last year: The proposed $1,000 fine was lowered to $100, and though it passed the Senate 49-0, it couldn’t even get a hearing in the House.

Another attempt this year – with a penalty of $100 for willful, knowing violations – passed the House 97-0 but died in the Senate. * * *

“That is a big hole in Indiana law,” said Keith Robinson, president of the Indiana Coalition for Open Government. “I think you’ll find Indiana’s laws, by comparison (to other states’), are fairly weak.”

The survey of state laws by the Better Government Association and the National Freedom of Information Coalition graded states on factors such as how long officials have to turn over documents, the appeals process, fees and enforcement.

For the appeals process, Indiana scored 0.5 points out of 2 because citizens have no true administrative remedy when they’re denied records and their only choice is to go to court.

It received 1 point out of 2 for its provision allowing expedited review of court cases but failed to score higher because an expedited review is not required, meaning a court case could take months before it even gets a first hearing.

It scored 4 out of 4 points for its fees, because the law requires that the reasonable attorney fees be paid for citizens who sue and win, if they go through the Public Access Counselor process first.

Indiana got zero of 4 points in the sanctions category, because it does not have any.

It did, however, get 4 points out of 4 under “response time,” because agencies are required to give citizens a response within seven days of their request. But even that is a loophole and one that Robinson said “really got my blood going.”

The problem, he said, is that the law requires a response – not the documents – in seven days. The agency can simply respond within seven days that it is working on the request, then never comply, because there is nothing in the statute that says when records must be provided.

“There’s nothing in the law that says you have to turn them over in a certain amount of time,” Robinson said. “Months might go on.”

Robinson said among the provisions that advocates hoped to strengthen was a requirement that records be turned over in a “reasonable” amount of time. Even that couldn’t pass, he said.

“We tried to get that one word inserted into the law,” Robinson said. “It didn’t happen.”

There is much more to the article.

Posted by Marcia Oddi on Sunday, March 14, 2010
Posted to Indiana Government

Ind. Courts - "More probationers showing up drunk, Porter County Courthouse now armed with portable breath testers"

Interesting story here by Bob Kasarda of the NWI Times on the problem and how it is being addressed in the Porter County Courthouse.

Posted by Marcia Oddi on Sunday, March 14, 2010
Posted to Indiana Courts

Ind. Law - More on: What happened ...

Some wrap-ups. Here are a couple wrap-ups.

Mary Beth Schneiderand Bill Ruthhart of the Indianapolis Star has a lengthy story headed "From taxes to guns: a scorecard: Property tax caps to go to voters in November; higher taxes on jobless insurance are delayed."

"Lawmakers tout session; Daniels blasé" is the headline to Nki Kelly's story in the Fort Wayne Journal Gazette.

Wonder how effective your legislator was in getting legislation passed? The Gary Post-Tribune has a useful "list of successful bills authored by region lawmakers. This list does not include bills where local legislators were listed as co-authors or sponsors."

A complaint. And this happens every session, weekend or not. The minute the General Assembly adjourns sine die, the GA site stops being updated. It is often days before all the information from the last couple days is posted. This is a problem especially if you are interested, as here, in what happened to bills in conference during those last couple days that were not part of the compromise package.

For instance, here, this morning, is the list of Enrolled Acts passed by this session. It does not include the bills passed Friday night/Saturday morning.

Action on vetoed bills -- there were two on the House calendar - produces a blank page.

Table of Citations Affected
- last updated last Thursday morning.

This Bill Action History does appear to be current, insofar as legislative action is concerned, although SB 149 is boldfaced but does not appear to have been adopted by House conference committee.

Posted by Marcia Oddi on Sunday, March 14, 2010
Posted to Indiana Law

Saturday, March 13, 2010

Courts - "The Second Circuit held Friday that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment."

A New York attorney has successfuuly challenged the New York rules on lawyer advertising. Here are some quotes from a lengthy March 15, 2010 story in the New York Law Journal:

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit held Friday that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

Posted by Marcia Oddi on Saturday, March 13, 2010
Posted to Courts in general

Ind. Decisions - More on: Supreme Court suspends LaPorte County judge

Updating this ILB entry from March 11, 2010, Matt Field of the LaPorte Argus Herald writes today:

Judge Jennifer Evans-Koethe apologized to La Porte County residents Friday in press release and said she looks forward to resuming her duties after her court-ordered 60-day suspension.

The Indiana Supreme Court on Thursday accepted an agreement between Evans-Koethe and the Indiana Judicial Qualifications Commission and suspended the beleaguered judge for 60 days for misconduct and stipulated other provisions as well.

“I am truly sorry for those actions and apologize to the citizens of La Porte County for any conduct of mine that has not promoted the public’s confidence in the judiciary,” Evans-Koethe said in the statement. * * *

Although a grand jury indicted her for attempted obstruction of justice, she was acquitted by a jury in January.

“Although I was not guilty of a crime by a jury of my peers, I am accepting responsibility for the actions that have not reflected the standard of conduct that a judge is required to uphold,” Evans-Koethe said in the statement.

Evans-Koethe had been suspended with pay until the Supreme Court decision Thursday.

In addition to the unpaid suspension, the agreement Evans-Koethe made with the Indiana Judicial Qualifications Commission stipulates that for one year after she resumes her judgeship, she will recuse herself when certain witnesses that had been involved in her investigation are to appear in court.

She also will seek to address underlying personal issues.

“Upon the completion of my suspension, I look forward to moving on with my life, resuming my duties as judge and restoring the public’s confidence in my position,” Evans-Koethe said.

Posted by Marcia Oddi on Saturday, March 13, 2010
Posted to Indiana Courts

Ind. Gov't. - Encourage CAFOs, penalize small farmers and meat processors?

Doesn't seem right. At my local farmer's market this winter every third stand seems to be selling locally produced meat or poultry. There is great interest in buying from small Indiana farmers and processors. But instead of our state department of agriculture encouraging this, the state administration is cutting back on state meat inspections, without which there can be no sales.

The Fort Wayne Journal Gazette has an editorial this morning:

No question Indiana needs to trim its budget. But one proposed cut will likely create an undue financial burden on a state economic sector with promising growth. State officials should consider whether laying off meat inspectors to save money is worth the damage to Indiana’s smaller farmers and meat processors.

In January, the Indiana Board of Animal Health announced it was cutting its inspection program by 50 percent. The board said it would rethink the Draconian cuts after complaints flooded Gov. Mitch Daniels’ office. But it remains unclear exactly how many of Indiana’s 52 meat inspectors will lose their jobs.

A board official said the cuts are “still a work in progress.” The final trims are supposed to take effect July 1. But state-inspected meat and poultry producers are already operating under curtailed inspection schedules, and inspectors are spending fewer hours on site at slaughterhouses.

Meat and poultry must be inspected before it can be sold. Having fewer inspectors will slow that process, making it difficult to meet demand for locally raised meat. The cuts will hurt one of the few areas in the state’s economy that is growing. It’s also an industry that Daniels has previously held up as an economic development opportunity for the state. * * *

There’s no debate that decreased tax revenue means state officials need to decrease spending to balance the budget. But state leaders need to be cautious about making cuts that will hamper one of the few state industries that is experiencing job growth and is so crucial to public health.

And the Indianapolis Star has a long story, dated March 10, that begins:
Indiana's plan to lay off some meat inspectors to save money and reduce the time inspectors spend with small, independent processors has the industry and farmers fearing it could hurt what has been a growing industry.

It's not clear how many of the state's 52 inspectors will be let go, but meatpackers say any layoffs will prevent them from growing to meet demand for locally raised meat.

And, if state inspectors are scarce or unavailable, small meatpackers who can't afford to upgrade for federal inspections could cut back their operations or go under.

Their fears highlight a dilemma lawmakers in many states face as tax revenues decline and they struggle to balance budgets: How deeply do they cut programs that are essential to growing segments of their economies and could generate new tax revenues?

Posted by Marcia Oddi on Saturday, March 13, 2010
Posted to Environment | Indiana Government

Ind. Law - What happened ...

Masson's Blog has just posted a detailed list of the five bills that passed last night and are on their way to the Governor.

Dorothy Schneider of the Lafayette Journal Courier reports: "Bill fails to extend vote centers' life." It begins:

Tippecanoe County lawmakers and election officials were frustrated by a blow dealt to vote centers in the waning hours of the Indiana General Assembly session Friday.

"I think it's over," Rep. Sheila Klinker, D-Lafayette, said of the viability of House Bill 1106. "I'm very disappointed."

That bill would have allowed vote centers to continue in Tippecanoe County after this year, but was tied to controversial language about statewide absentee voting through the mail.

Sen. Ron Alting, R-Lafayette, described the situation as: "It's like getting a good scoop of ice cream and putting a topping on it that nobody likes."

Alting blamed Democratic leadership, though not Klinker, for insisting on an absentee voter provision in the bill. Klinker, and other key Democrats in the House, argued that the absentee language was in the bill from the beginning and should remain.

The provision for no-fault absentee voting by mail statewide would allow voters anywhere to cast early ballots by mail, even if they do not meet the current criteria for voting absentee.

The language passed narrowly in the House and was removed from the bill in the Senate. Some Republicans argued it would increase instances of voter fraud, but Democrats said there are other safeguards to prevent that.

Instead of passing blame Friday, Tippecanoe County election officials started thinking about what to do for next year's elections.

The vote center system will be eliminated before the 2011 municipal elections without legislative action. Tippecanoe County officials have estimated that next year's elections will cost at least $50,000 more if they have to use precincts instead of centralized vote centers.

More later, possibly a run-down of how "budget bill surprises" from 2009 were dealt with in 2010.

But first, a few paragraphs from a story today in the NWI Times, reported by Dan Carden:

The unemployment legislation had been a sticking point for several days, with Senate Republicans insisting on a two-year delay in the rate hike, while House Democrats supported a total repeal, so long as Democratic job-creation proposals were included in the legislation.

A tentative compromise on the unemployment legislation was reached Friday evening, but for a while it was not certain the deal would be approved. Female Democratic representatives engaged in a self-described "girlcott" of the Democratic party meeting where details of the final proposal were revealed. Their angst stemmed from a decision by the all-male House Democratic leadership to take pending legislation sponsored by state Rep. Peggy Welch, D-Bloomington, strip out her proposal and use that bill for other legislation.

State Rep. Linda Lawson, D-Hammond, and several female legislators voted against the unemployment legislation to show they felt it was wrong for House leaders to steal Welch's legislation.

"It's time that they recognize there are 14 women who are smart, who are bright and should be brought to the table," Lawson said. "It was time to stand up for Peggy, and we did."

Posted by Marcia Oddi on Saturday, March 13, 2010
Posted to Indiana Law

Friday, March 12, 2010

Courts - Still more on "Test Case Linking Vaccines and Autism Reaches Federal Court"

Updating this ILB entry from June 10, 2007, the LA Times reports today, in a story by Thomas H. Maugh II and Andrew Zaja, headed "'Vaccines court' rejects mercury-autism link in 3 test cases." The story begins:

Reporting from Washington and Los Angeles
The federal "vaccines court" ruled Friday in three separate cases that the mercury-containing preservative thimerosal does not cause autism, a finding that supports the broad scientific consensus on the matter but that greatly disappointed parents who are convinced that their child's illness was caused by vaccines.

The court had ruled 13 months ago that a combination of the measles-mumps-rubella vaccine, commonly known as the MMR vaccine, and thimerosal does not cause the disorder, so the new ruling may finally close the bulk of litigation on the matter. The earlier ruling has been appealed to the U.S. Court of Appeals, and this one most likely will be also, but most experts think the court will uphold the decision.

A claim that the MMR vaccine alone causes autism has been withdrawn by parents.

More than 5,300 parents had filed claims with the vaccines court, a branch of the U.S. Court of Federal Claims, seeking damages because they believed their children had developed autism as a result of vaccinations. And they reacted bitterly to Friday's ruling.

Also, on Monday the SCOTUS granted cert in "Bruesewitz v. Wyeth, in which the Court will consider whether and when vaccine manufacturers can be sued outside of the special “vaccine court” established by Congress to address vaccine-related injuries." Per SCOTUSblog. More here.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Courts in general

Ind. Court - CCR Filed for SB149 removes language re placement of children by juvenile courts outside of Indiana

Take a look here. Remember what happened in the SS Conference Committee Report last year - it was one of the "budget bill surprises."

Start with this Aug. 13, 2009 ILB entry for background.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Indiana Courts

Ind. Decisions - One Indiana case decided today by 7th Circuit

In U.S. v. Sykes (SD Ind., McKinney), a 12-page opinion, Judge Bauer writes:

Defendant Marcus Sykes pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court enhanced Sykes’ sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), having determined that he had previously been found guilty of three violent felonies. * * *

For the reasons set forth above, fleeing police in a vehicle in violation of Ind. Code § 35-44-3-3(b)(1)(A) is sufficiently similar to ACCA’s enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under ACCA. We affirm.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Vanderburgh Circuit Court rejects Presbyterian Church (USA) claims to a local church's property

The only writeup the ILB has seen of the March 9, 2010 decision by Judge Carl Heldt is in The Layman Online, an online national publication of the PCUSA, where Parker T. Williamson reports in a lengthy story that begins:

Citing conflicting interpretations of the Presbyterian Church (USA) Book of Order, and affirming that the First Amendment of the U.S. Constitution prohibits civil court interpretations of ecclesiastical documents, Indiana Judge Carl Heldt of the Vanderburgh Circuit Court has rejected PCUSA claims to a local church’s property.

At issue was an attempt by the Presbytery of Ohio Valley and the Synod of Lincoln Trails to seize property belonging to the Olivet Presbyterian Church, a former PCUSA congregation in Evansville, Ind., that left the denomination in order to join the Evangelical Presbyterian Church. Heldt rejected claims based on a “trust clause” in the PCUSA constitution and based his ruling in favor of the local church on “neutral principles of law.”

“The evidence shows that the deed and documents of ownership specifically provide that the real and personal property at issue in this case are held solely by the Olivet congregation rather than in trust for the PCUSA,” said the court.

In a letter to The Layman, Olivet Pastor Dave Mills said, “We are grateful for the verdict that the court agrees with what we had understood from the beginning – that indeed Olivet has always been and should continue to be God’s steward of this property. We are also grateful for the prayers and encouragement of our brothers and sisters throughout the country who have been following these developments.”
The story provides a link to the 29-page opinion by Judge Heldt.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Term. of Parent-Child Rel. of A.B., et al.; A.B. v. IDCS, an 11-page opinion, Judge Mathias writes:

A.M.B. (“Mother”) appeals the involuntary termination of her parental rights to her three children, A.B., J.B., and M.M. Mother raises several allegations of error, including an assertion that she was denied due process of law when she was not permitted to testify during the termination hearing. Although Mother was twenty minutes late to the termination hearing, which itself commenced more than an hour behind schedule, we believe that under the unique facts and circumstances before us, she should have been afforded the opportunity to testify. In light of the constitutional dimensions of the right to parent one’s child, we reverse and remand for at least the opportunity for Mother to be heard.
In State of Indiana v. Natasha Durrett, a 15-page, 2-1 opinion, Judge Vaidik writes:
The State appeals the trial court’s dismissal of a case in which Natasha Durrett allegedly drove a van that struck someone, resulting in serious bodily injury to that person, and allegedly failed to return to the scene of the accident. The State contends that the trial court abused its discretion in concluding that the absence of the van, the victim, and the investigating officer warrants dismissal. We find no evidence of bad faith in the State’s failure to preserve the van, no denial of Durrett’s right of confrontation due to the victim’s absence as a witness, and no evidence of bad faith in the State’s failure to provide discovery. Accordingly, we conclude that the trial court abused its discretion in granting Durrett’s motion to dismiss. We therefore reverse. * * *

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins] I respectfully dissent. The trial court determined that the cumulative effect of the missing instrumentality alleged to have been used in Durrett’s act (the van), the missing alleged victim, and the unavailability of the lead investigating officer endangered Durrett’s fundamental due process rights. I fail to see how we are in a position to determine that the trial court’s decision “is clearly against the logic and effect of the facts and circumstances,” which is the standard we must apply when reviewing the trial court’s dismissal. State v. Fettig, 884 N.E.2d 341, 343 (Ind. Ct. App. 2008), reh’g denied.

In State of Indiana v. Dustin Prater, a 10-page, 2-1 opinion, Judge Najam writes:
Pursuant to Indiana Code Section 35-38-4-2(3), the State appeals the trial court’s order granting Dustin Prater’s Motion to Correct Error. The State raises a single issue for our review, namely, whether Indiana Code Section 35-48-4-14.5(c) requires an individual in possession of anhydrous ammonia have the personal “intent to manufacture methamphetamine or amphetamine” in order to commit a Class D felony under that statute. We affirm. * * *

In sum, the plain language of Indiana Code Section 35-48-4-14.5(c) requires that the person who possesses anhydrous ammonia have the intent to use that chemical in the manufacture of methamphetamine to commit a Class D felony. When a statute is unambiguous, our interpretation is controlled by the statute’s express language. Ind. Pesticide Rev. Bd., 916 N.E.2d at 181. Here, the State presented no evidence that Prater personally intended to manufacture methamphetamine. As such, we must affirm the trial court’s grant of Prater’s motion to correct error, vacating his conviction under Indiana Code Section 35-48-4-14.5(c).

FRIEDLANDER, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins] In my view, persons who possess anhydrous ammonia for purposes of manufacturing methamphetamine, even if they intend for another individual to do the manufacturing, are covered under Indiana Code section 35-48-4-14.5(c) (2007). For this reason, I respectfully dissent.

NFP civil opinions today (2):

Brian D. Horner v. Jennifer L. Horner (NFP)

Term. of Parent-Child Rel. of Y.O., D.N., and C.O.; S.N. v. IDCS (NFP)

NFP criminal opinions today (4):

Jason Reeves v. State of Indiana (NFP)

Roger Wilson v. State of Indiana (NFP)

Edgar Burelison v. State of Indiana (NFP)

James L. Croom v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Ind. App.Ct. Decisions

Courts - "3rd Circuit Asked to Clarify Student Internet Speech Cases"

Read this in conjunction with yesterday's ILB entry, "School sued for punishing teens over MySpace pix."

Shannon P. Duffy of The Legal Intelligencer reports today in a story headed "3rd Circuit Asked to Clarify Student Internet Speech Cases" that begins:

Cutting-edge questions in the First Amendment arena have recently stemmed from clashes between students and school districts over the limits -- if any -- that may be imposed on speech posted on social networking sites like MySpace and Facebook.

The cases sometimes pose difficult questions because the students claim that their speech occurred entirely outside of school, while school officials contend that discipline is warranted because the intended audience was the school community and the goal was to create a disturbance.

Now lawyers on both sides of the issue are urging the 3rd U.S. Circuit Court of Appeals to vacate two recent -- and seemingly conflicting -- decisions by two different three-judge panels, and to hold rearguments before the full court. Both cases involved high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Outsiders are also weighing in with amicus briefs that say the rulings have muddied the waters and left students and school officials guessing about where the lines have been drawn.

Lawyers for student journalists argue that the conflicting rulings will invite censorship. And lawyers who specialize in juvenile law argue that teenagers have always ridiculed authority figures and that courts should not condone punishing kids for their speech outside school hours and off school grounds.

While the legal issues in the two cases appeared identical, the courts reached opposite conclusions -- both at the trial level and on appeal.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Courts in general

Ind. Decisions - "Valpo Cafe vows to press its case against VU"

The Court of Appeals' Feb. 1, 2010 decision in Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. (ILB summary here - 3rd case) is the subject of a story today by James D. Wolf Jr. in the Gary Post Tribune. Some quotes:

The attorney for Broadway Café wants to take the restaurant's suit against Valparaiso University to the Indiana Supreme Court because he said a previous appellate decision will affect commercial leasing throughout the state.

In February, The Indiana Court of Appeals ruled that the university was not denying lease rights to restaurant owner George Borovilos, upholding a decision by Porter County Superior Court Judge Roger Bradford.

But it went beyond Bradford's July 2009 ruling, Attorney Stephen Bower said.

In 1999, Borovilos signed an agreement with neighboring Kelsey's Steakhouse for shared parking lot spaces and expenses.

Borovilos filed the suit against Valparaiso University in 2007, claiming his business was hurt when the university fenced off the area where the Kelsey's building had been and land east of there.

Bradford ruled that the university as new owners didn't have to provide all of the old Kelsey's parking, Bower said.

However, the appellate court ruled that Broadway Café has no rights whatever to the land where Kelsey's once stood, although the owners before the university signed a sublease agreement that allowed it, he said.

That makes the Silhavy Road entrance to the restaurant and about 40 percent of the U.S. 30 entrance off limits to Broadway because it's on land that used to house Kelsey's.

Bower said that if, as the Court of Appeals ruled, the only way to have joint parking and guaranteed access rights is by direct deed with property owners instead of sublease, major mall stores are in trouble.

Mall owners usually lease to management groups, which sublease to tenants.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Federal Judge orders Pastrick, allies to pay $108M to East Chicago

Some quotes from Dan Hinkel's report today in the NWI Times:

HAMMOND | Region political icon Robert Pastrick and two former allies have been ordered to pay more than $108 million to the city of East Chicago in the landmark civil case centered on the sidewalks-for-votes scandal that capped Pastrick's 33-year mayoral reign.

Hammond federal Senior Judge James Moody filed his opinion Thursday afternoon, calling for Pastrick, former aide James Fife III and missing former City Councilman Frank Kollintzas to pay the city $108,007,584.33 in damages for the alleged racketeering scheme.

Indiana Attorney General Greg Zoeller, who inherited the state's lawsuit against Pastrick from former Attorney General Steve Carter, said Thursday in a written statement he was "enormously pleased" with the $108 million judgment the state's lawsuit secured on behalf of the city. That amount will symbolize the "brazen and shameless" corruption of the Pastrick administration, Zoeller said.

"This case is historic; never before has a city government been adjudged a corrupt organization under federal racketeering laws," Zoeller said.

"This is a victory for the state of Indiana," Zoeller said.

Speaking on behalf of current Mayor George Pabey, East Chicago spokesman Damian Rico said: "The city of East Chicago is grateful the court has indicated the importance returning the money to the city, which will further enhance our efforts to continue moving East Chicago in the right direction. That includes furthering our efforts to create jobs, and especially in our economic development effort.

"We're also hopeful that the attorney general considers returning the proceeds of the performance bond that the city purchased from the past administration, totaling half a million dollars."

Pastrick's attorney, Mike Bosch, said the former mayor has few assets and the judgment is "uncollectable." Kollintzas disappeared years ago, and Bosch said he believes Fife also does not have significant assets the government could take. * * *

Moody's decision was not a total legal victory for the state. He devotes much of the second half of the 53-page opinion to denying the state's claims. He denied certain claims for damages. Moody denied the state an injunction banning the defendants from public office. The state asked Moody to order a "forensic audit" of Second Century and the Foundations of East Chicago, the beneficiaries of a casino revenue deal engineered by Pastrick that remains controversial today. Moody denied that request, writing that he would not order such an accounting without violating due process. Moody also declined to rescind the agreement between the city and Second Century.

Moody did order the defendants to pay the state's legal fees. The state hired Chicago lawyer Patrick Collins to handle the RICO case, and a hearing will be held to determine the fees that will be awarded.

"So now we're going to get a chance to find out how much the attorney general of Indiana was willing to spend to get what I believe to be an uncollectable judgement," Bosch said.

Zoeller continues to pursue Second Century, most recently pushing city officials not to settle their legal fight with the for-profit company over millions of casino cash. Mayor George Pabey, who remains under federal indictment on charges he embezzled city funds, wants to settle the court battle. Zoeller seeks an accounting from the organizations that have reaped the casino money.

Here is AG Zoeller's press release.

Here, via the AG, is a link to Judge Moody's 53-page opinion in State v. Pastrick.

Posted by Marcia Oddi on Friday, March 12, 2010
Posted to Ind Fed D.Ct. Decisions

Thursday, March 11, 2010

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

Updating this ILB entry from Oct. 31, 2009, relating to "two girls, both sophomore fall-sport athletes, [who] were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet." More from the Oct. 28, 2009 story in the Fort WayneJournal Gazette:

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

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

Today Judge Philip P. Simon, ND Ind., issued a 10-page order denying class certification. Here are some quotes:
T.V. and M.K. are sophomores at Churubusco High School in Whitley County, Indiana, and Austin Couch is the principal of the school. T.V. and M.K., by their parents as next friends, bring this case pursuant to 42 U.S.C. §1983, challenging the constitutionality of a policy of Churubusco High School, administered by Mr. Couch as the principal, which they contend violates their First Amendment rights. In the motion presently before the court, T.V. and M.K. seek the certification of a class composed of students subject to the allegedly unconstitutional policy. But because the typicality and commonality requirements of Rule 23(a) have not been met, the motion for class certification will be denied. * * *

Here, for the reasons noted above, I conclude that class certification is not appropriate for failure of the requirements of Rule 23(a). I note, in addition, however, that were the Seventh Circuit to resolve its apparent internal historical difference of opinion on the “need” criterion in favor of what is by now the majority view, that consideration would also weigh against class certification here. A determination in favor of T.V. and M.K., that school authorities could not constitutionally punish out-of-school expressive conduct on grounds of disrepute to the school, would have school-wide impact going forward, without the need for a class-action dimension to this litigation. [emphasis by ILB]

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court suspends LaPorte County judge

In this Feb. 19, 2010 entry, the ILB quoted the Herald-Argus report that:

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.

But late this afternoon the Court issued this release:
The Indiana Supreme Court has disciplined LaPorte Superior Court 3 Judge Jennifer L. Koethe for actions related to a December 2008 shooting at her home where she received a superficial wound to the scalp. The full discipline against Judge Koethe can be found in the Court’s opinion in case 45S00-0905-JD-216 [In the Matter of the Hon. Jennifer L. Koethe]. Briefly, Judge Koethe is suspended from the bench, without pay, for sixty days.

In May 2009, a grand jury indicted Judge Koethe for Attempted Obstruction of Justice. In January 2010, a jury acquitted Judge Koethe of the criminal charge. During that time, Judge Koethe was investigated by the Indiana Judicial Qualifications Commission for alleged misconduct related to the shooting.

When the felony indictment was filed in May 2009, the Indiana Supreme Court suspended Judge Koethe with pay. In December 2009, the Indiana Commission on Judicial Qualifications filed disciplinary charges against Judge Koethe. The disciplinary charges are separate from the criminal charge, which was filed in an Indiana trial court. The Commission alleged three counts of judicial misconduct and the matter was set for hearing.

Before the matter went to hearing, the Commission and Judge Koethe submitted a “Statement of Circumstances and Conditional Agreement for Discipline” to the Supreme Court. The Court considered and accepted that agreement. The Court agrees with the proposed discipline and has suspended Judge Koethe for sixty days without pay. For one year, she must also disqualify herself from cases where certain witnesses appear, and she has agreed to certain treatment requirements.

The Indiana Supreme Court has final authority over judicial discipline. The Supreme Court order detailing the discipline against Judge Koethe concludes the disciplinary proceeding.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tranfers / reviews granted this week

The ILB has just received this information about transfers/reviews granted by the Supreme Court this week - look for them on next week's transfer list:

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Transfer Lists

Courts - More on "Three lawsuits may change how NCAA operates"

Updating this Feb. 13, 2010 ILB entry, Katie Thoas of the NY Times reports today:

Eleven former college football and basketball players have joined the former U.C.L.A. basketball star Ed O’Bannon in a class-action lawsuit that argues the N.C.A.A. should compensate former athletes for the use of their images and likenesses.

The athletes include Alex Gilbert, a teammate of Larry Bird at Indiana State, four participants in the 1966 Division I men’s basketball championship game, and football and basketball players who competed in the 1990s and in the past decade, according to documents filed Wednesday in federal court in Oakland, Calif.

Although the new plaintiffs do not change the substance of the lawsuit, which was filed last year, a lawyer for O’Bannon said their participation bolsters the case. “I think this is going to be a vivid illustration of the support among former student-athletes for no longer tolerating abuse by the N.C.A.A.,” said Michael Hausfeld, a lawyer for the plaintiffs.

The lawsuit argues that the N.C.A.A., athletic conferences and member institutions violate federal antitrust laws by usurping the rights of former players to earn royalties when their likenesses and images are licensed by the N.C.A.A. for use in television advertisements, video games, apparel and other products. Amateurism rules prevent current college players from earning money from their names or likenesses, but lawyers for O’Bannon and the other plaintiffs have argued that those rules should not apply to former athletes.

Plus here are two stories from yesterday:

"Landmark Case Against NCAA Turning Into College Basketball History Course," from The AmLaw Daily.

"Lawsuit against NCAA could lead to end of amateurism" by Frank Deford at Sports Illustrated.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Courts in general

Ind. Courts - Most court systems in other states cut to bone

As the Indiana General Assembly contemplates the possible override of the Governor's 2009 veto of HEA 1491, thereby expanding the Court of Appeals by 20%, the National Law Journal reports today on how "Nationwide, State Court Systems Continue to Feel the Pinch." Sheri Qualters writes, in a lengthy story:

As state court systems nationwide struggle with budget shortfalls, a Boston Bar Association task force is trying to head off a proposed $10 million Massachusetts court system cut in the upcoming fiscal year.

The budget decrease for the fiscal year starting July 1 would add to the steep $24.4 million reduction rolled out in the current fiscal year. The court also tightened its belt with $22 million in voluntary reductions during fiscal year 2009.

The state's judicial budget "has been cut so far to the bone" already, said Joan Lukey, the chairwoman of a Boston Bar Association task force on the FY 2011 Judiciary Budget. "The question is, at what point do you reach the precipice and fall over?" said Lukey, a Boston litigation partner at Ropes & Gray. "It's difficult for a court to perform its function [in some areas]." * * *

But Massachusetts is far from the only state feeling pinched.

Court systems in Arizona, California, Florida, Georgia, Illinois, Michigan, Nevada, New York, Ohio, Texas and Virginia are facing slashed budgets, higher fees and fewer resources or demands to curtail spending. Court systems in the District of Columbia and Maryland, in contrast, are faring comparatively well.

New York Gov. David A. Paterson recommended $130 million in cuts for the state's judiciary in the 2010-11 year, which begins on April 1, according to The New York Law Journal, an NLJ affiliate publication. * * *

In California, the state's budget crisis forced the courts to close once a month beginning last September.

Other austerity measures include judicial pay cuts, a hiring freeze and the closure of the California Supreme Court's clerk's office in Los Angeles. The Los Angeles County, Calif., Superior Court also expects to lay off more than 300 people this month.

Despite the fiscal pain, California Chief Justice Ronald M. George said in his Feb. 24 State of the Judiciary Address that the court would still continue to support funding for a systemwide computerization project for the upcoming fiscal year, which begins July 1. He also said he would not re-channel construction funding to operational expenses.

The 200-member Alliance of California Judges, formed in the wake of the court closure policy, has criticized those decisions. "Right now, they've been dumping literally hundreds of millions of dollars into a statewide computer system," said alliance director and Los Angeles Superior Court Judge Charles Horan. "While it's nice, it is an extravagance that can't be afforded right now while we're closing." * * *

In Arizona, the state court budget has been slashed by $38 million since July 1, 2007, said Jennifer Liewer, communications officer for the Arizona Supreme Court. She said the court has limited travel, imposed a hiring freeze and asked for voluntary pay reductions.

In Texas, Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus asked each state agency and appellate court in January to submit a plan for saving 5 percent on their 2010-2011 appropriations, according to The Texas Lawyer, an NLJ affiliate.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

Ind. Courts - Clerk's Office Accepting Applications for Appellate Case Manager

See the notice here. More:

The Clerk's Office of the Division of Supreme Court Administration is accepting applications for the position of Appellate Case Manager. Candidates must possess exceptional customer service skills, must have a thorough understanding of the Indiana Rules of Appellate Procedure and how they apply to the various filings received by the Clerk's Office and must be willing to to deal professionally and tactfully with practitioners, staff attorneys, co-workers, and the general public, even in the face of reciprocal unprofessional or abusive behavior.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

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

For publication opinions today (5):

In Heather L. Smitson v. Klinten M. Craig, a 4-page opinion, Judge Bailey writes:

H.S. (“Mother”) gave birth to K.C. out-of-wedlock in the State of Indiana and was thus the custodial parent pursuant to Indiana Code Section 31-14-13-1. Absent any adjudication of custody, K.M.C. (“Father”) removed K.C. from Indiana to Alabama and later to Mississippi. When Mother located Father several years later and filed a Petition for Writ of Habeas Corpus in Perry Circuit Court, Father moved to dismiss, claiming that Mississippi had become K.C.’s home state and the proper state to adjudicate custody under the Uniform Child Custody Jurisdiction Act (“the UCCJA”). The trial court determined that it lacked jurisdiction to adjudicate K.C.’s custody, in deference to Mississippi, and refused to issue a writ. Mother now appeals. We reverse and remand.
In Jean V. Poulard v. LaPorte Co. Election Board, et al. , a 7-page opinion, Judge Crone writes:
Jean V. Poulard, pro se, appeals the trial court’s denial of his motion for relief from final judgment. While Poulard presents several issues for our review, the dispositive issue in this case involves the residency of Poulard’s opponent in an election that Poulard in fact won. Despite winning the election, Poulard has continued to challenge his former opponent’s residency and to litigate this matter against the LaPorte County Election Board and Clerk of the Court Robert J. Behler (collectively, the “Election Board”). We conclude that the dispositive issue is now and has long been moot and, thus, we dismiss Poulard’s appeal. However, because we find this appeal frivolous, we remand to the trial court pursuant to Indiana Appellate Rule 66(E) to award appellate damages, which may include attorney’s fees, in favor of the Election Board. * * *

While we are cognizant of the chilling effect that an award of appellate damages can have on litigants, this case is an example of when a chilling effect is necessary to put an end to the matter. Poulard has maintained this cause of action in a manner calculated to require the needless expenditure of time and resources by the Election Board, the trial court, and this Court. In short, Poulard’s appeal was brought in bad faith and for purposes of harassment. For these reasons, we remand to the trial court for a determination of appellate damages to which the Election Board may be entitled pursuant to Appellate Rule 66(E). Dismissed and remanded.

Kevin Taylor v. State of Indiana is a 21-page, 2-1 opinion, with the majority ruling: "Kevin Taylor appeals the post-conviction court’s denial of his petition for post-conviction relief. Taylor raises two issues for our review, one of which is dispositive: whether the post-conviction court erred when it found that Taylor had not received ineffective assistance of trial counsel. We reverse and remand for a new trial."

Elmer D. Baker v. State of Indiana - "Elmer D. Baker appeals his two class A felony child molesting convictions and one class C felony child molesting conviction. We affirm."

In Dannie Ray Runyon v. State of Indiana, a 14-page opinion, Judge Vaidik writes:

Ray Runyon was sentenced to a suspended sentence of eight years and placed on probation with several conditions. Runyon later violated his probation by failing to pay child support. Runyon now appeals the revocation of his probation and imposition of six years of his previously-suspended eight-year sentence. We hold that when revoking a defendant’s probation for failing to support his or her dependents, the defendant bears the burden of proving that he or she was unable to provide support pursuant to Indiana Code section 35-38-2-3(f). Based on the record in this case, we conclude that Runyon has failed to prove that he had the inability to provide support and therefore the trial court did not abuse its discretion in revoking his probation. We also conclude that, given the multiple chances Runyon has been given to pay support, the trial court did not abuse its discretion in sentencing him to six years. We therefore affirm.
NFP civil opinions today (1):

Adoption of M.V.; S.S. v. G.R. and D.R. (NFP) - "S.S., the biological mother of M.M.V., appeals the probate court’s ruling that her consent to the adoption of M.M.V. by G.R. and D.R. (“the Guardians”) is not required. We affirm.

"Issue. S.S. presents a sole issue for review: whether there is sufficient evidence to support the probate court’s decision to dispense with her consent to M.M.V.’s adoption, pursuant to Indiana Code Section 31-19-9-8(2)(A)-(B), which obviates the necessity of consent by a parent who, when able to do so, for at least one year, has failed to significantly communicate with or provide for the care and support of her child who is in the custody of another person."

NFP criminal opinions today (4):

Darren V. Rogers v. State of Indiana (NFP)

Nathan D. Hawkins v. State of Indiana (NFP)

Jason E. Pressley v. State of Indiana (NFP)

Robert McFarland v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawyers seek limits on details in Simon case"

Jeff Swiatek of the Indianapolis Star, who has been covering (see, e.g, this Feb. 3rd ILB entry) the Simon estate dispute, reports today:

Melvin Simon's medical file and wife Bren Simon's household budgets likely will be stamped "confidential" and never see the light of day in Hamilton Superior Court.

Attorneys in the Melvin Simon estate dispute have asked Judge William J. Hughes to set strict ground rules for keeping sensitive records in the case confidential.
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A host of personal matters are likely to enter court records in the case, in which a daughter of the late billionaire Melvin Simon is challenging the legitimacy of his final will in a family fight over one of Indiana's greatest business fortunes.

"These matters should not become a tool for leveraging, for embarrassing . . . for financial harm," said David Beehler, an attorney for Bren Simon, as he suggested several ways of fashioning a confidentiality policy.

Hughes told the nine attorneys for both sides that they were taking confidentiality to new levels. "The parties have gone further with their protective order than the court is used to seeing," he said.

He hopes to rule on the issue next week.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

Law - Magnus-Stinson joins three other Hossiers awaiting Senate approval

Jane E. Magnus-Stinson, whose nomination to be United States District Judge for the Southern District of Indiana was held over at the Senate Judiciary Committee meeting March 4th, was approved this morning by the Committee.

Her name now joins that of Jon E. DeGuilio, nominated to be United States District Judge for the Northern District of Indiana, and Tanya Walton Pratt, nominated to be United States District Judge for the Southern District of Indiana, as eligible for approval by the full Senate. Dawn Johnsen's name was sent to the floor last week for the position of Assistant Attorney General, Department of Justice. The Committee also approved her nomination for the slot last year.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to General Law Related

Ind. Decisions - "Pinnacle doctors settle lawsuit against attorney"

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

A lawsuit filed by a group of Pinnacle Hospital doctors and owners against their former attorney ended with them paying the law firm.

The agreement, filed in the U.S. District Court in Hammond, says that E. Don Burman, Lonnie Ailes, Eric Leestma, Scott Keith and Arsenio Favor will pay $50,000 to Novack and Macey, a law firm in Chicago.

Burman, then Pinnacle CEO, and the group had hired the lawyers because they were trying to get rid of Kirnjot Singh in 2008, after the Indiana Medical Licensing Board found Singh guilty of sexual conduct with a patient.

The doctors said in their lawsuit that Novack and Macey had told them the law firm was an expert in "business divorces" and could help them get rid of Singh. However, according to the lawsuit, attorney Karen Levine and others with Novack and Macey advised the doctors against writing a letter specifying their accusations, suggesting instead a more general letter.

Singh eventually filed his own lawsuit protesting the firing and won. When he returned to Pinnacle, he fired Burman.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Anderson attorney faces child porn charges" [Updated]

Vic Ryckaert reported last evening in the Indianapolis Star:

An Anderson attorney remained in federal custody Wednesday after authorities say he distributed child pornography.

Samuel C. Hasler, 50, was arrested Tuesday at his law office, 1109 Meridian Plaza, Anderson, on two counts of distributing and one count of possessing child pornography, according to a statement from U.S. Attorney Timothy Morrison's office.

Hasler appeared late Tuesday afternoon for an initial hearing before U.S. Magistrate Judge Kennard P. Foster and remained in a holding facility in Indianapolis, the statement said.

Distributing child pornography carries a maximum sentence of 20 years in prison; the possession charge carries a maximum 10-year prison sentence.

Authorities say Hasler distributed explicit images of children through the Internet to someone in another state on Dec. 3 and sent more images to an undercover police officer on Feb. 14. Authorities say they found child pornography on his computer when they searched his office on Tuesday.

Hasler was granted a law license in 1987 and has never been disciplined, according to the Indiana Supreme Court.

An Anderson attorney, Sam Hasler, runs Sam Hasler's Indiana Divorce & Family Law Blog. Access it here.

[Updated at 4:51 PM] Here is a more detailed story headed "Attorney facing child porn charges," by Christina M. Wright of the Anderson Herald Bulletin.

Interestingly, although Mr. Hasler is reportedly "being held at a Community Corrections Center in Indianapolis until trial," his Family Law Blog continues to be updated.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

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

Updating this ILB entry from March 3rd, Mark Fass of the New York Law Journal reports today:

The second trial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges, has resulted in a second mistrial.

At the end of their second full day of deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless, the third time they reported they believed a unanimous verdict was impossible.

This time, Judge Donald Walter of the U.S. District Court for the Western District of Louisiana, sitting by designation, let them go.

He tentatively scheduled the third trial to begin on April 12.

The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case in Brooklyn federal court.

Following the first mistrial in January, in which the threatened judges -- Judges Richard Posner, William Bauer and Frank Easterbrook of the 7th U.S. Circuit Court of Appeals -- did not appear as witnesses, a juror told reporters the jury deadlocked due to a dearth of testimony.

"The prosecution's case was so weak," the juror said. "He just bailed out."

This time, all three judges flew to New York and took the witness stand, though somewhat begrudgingly. Posner complained from the stand that he would rather be working.

Now, Chicago's U.S. Attorney, Patrick J. Fitzgerald, will have to decide whether to try Turner for a third time, and if so whether to ask the judges to appear again.

Asked as he left the courtroom whether the government would again try the case, the lead prosecutor, Assistant U.S. Attorney William Hogan said, "We're going to review it. I'd say it's highly likely."

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

Ind. Courts - Still more on "Timing was terrible on guns at work bill"

Updaitng this ILB entry from March 8th, Bob Kasarda reported in the March 10th NWI Times:

VALPARAISO | Bond was set Tuesday at $200,000 cash and $200,000 surety for the Portage man accused of attempting to kill a supervisor Friday when he opened fire at an Indiana Department of Workforce Development office.

In setting the large bond amount, Porter Circuit Court Judge Mary Harper said of Edgar Tillery, "The defendant poses a significant danger to the community."

Harper ordered that if 60-year-old Tillery is released on bond, he is to avoid contact with any employee of the Department of Workforce Development, which is the agency that administers the state's employment and training programs and unemployment insurance system. He was further ordered to stay a minimum of a quarter-mile away from any Workforce Development office. * * *

Police believe Tillery was attempting to kill office manager Jennifer Chappell when he opened fire with a 12-gauge shotgun Friday after receiving an unfavorable job review at the office, 6224 Central Ave. in Portage.

No one was injured. Tillery reportedly told police the shotgun shells malfunctioned, stopping his rampage.

Police said they found wadding from a shotgun shell in the frame of the front door and the glass was shattered. They also found two unspent shells near the front door and another near the rear door where his co-workers had fled.

Police said they found two boxes of loaded 12-gauge shotgun shells inside Tillery's car parked outside the office.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts

Ind. Courts - More on: HEA 1491, vetoed last year, is on today's House calendar

As the ILB reported yesterday morning, HEA 1491 from the 2009 regular session, which would abolish merit selection of St. Joseph Superior Court Judges and also would create a 6th Court of Appeals panel, is on the House calendar for a vote.

A simple majority vote in each house before adjournment is all that is needed to override the veto. Otherwise, the veto will stand.

Here is some background on HEA 1491-2009: The original House bill proposed to make all St. Joesph County judges elective. Some are now appointed via a merit system. Lake is the only other county where all judges are not elected. Many have thought of these two counties as the models for future efforts to make all county judges merit.

The Senate added the provision to create a 6th Court of Appeals panel. The House agreed to the Senate change. There has been no demonstrated need for a new multi-million dollar appellate panel.

Here is Governor Daniels veto message from 2009:

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.

The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today’s challenging fiscal environment. Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone.

Fiscal impact: If the House and Senate vote to override last year's veto a new, 6th panel of three Court of Appeals judges will begin operating on July 1, 2011. The LSA projections are that the impact of the new panel over a two-year period will be nearly $4.5 million. That is at a time when government is severely cutting back services and fighting for every dollar of savings.

Is there a need for a new Court? No, a 6th panel for the Court of Appeals is unnecessary at this time. There was no request from the Court for a 6th panel, no claim that it was overburdened. To the contrary, the current Court of Appeals, consisting of five 3-judges panels, is well run, smoothly operating, and has no trouble handling the current caseload. In short, the workload does not justify creation of a new $4.5 million panel.

What can you do? There isn't much time. If you feel strongly one way or the other, you can contact your legislator, preferably this morning. The House must vote first on the override, if it fails there, the bill is dead. If it passes, the vetoed bill must also pass an overide vote in the Senate. An override requires only a majority vote in each house.

Posted by Marcia Oddi on Thursday, March 11, 2010
Posted to Indiana Courts | Indiana Government

Wednesday, March 10, 2010

Ind. Law - More on: AT&T and AG team up to fight texting while driving

Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette has this story today - some quotes:

INDIANAPOLIS – The ads in a new AT&T public-awareness campaign against texting and driving unveiled Tuesday by state and local officials are stark and simple.

One of the campaign’s advertisements shows “Yeah t” on the TV screen as a woman narrates: “This is the unfinished text message that my son was typing when he drove off the road and died of a massive skull fracture.”

Indiana Attorney General Greg Zoeller hosted AT&T Indiana President George S. Fleetwood and Sen. Tom Wyss, R-Fort Wayne, to urge drivers – especially young drivers – to resist the temptation to send or check text messages while driving. * * *

In 2009, the Indiana General Assembly updated the state’s graduated driver’s license law to prohibit Hoosier drivers younger than 18 from talking on cell phones or texting while driving.

It was authored by Sen. Travis Holdman, R-Markle.

“As texting-type tasks continue to grow in popularity, we have to use what resources are available to help reduce the amount of crashes and fatalities on our roads,” Holdman said.

A bill to expand the texting ban to all drivers was blocked in the Senate this year by a Republican committee chairman.

More here.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Law

Ind. Decisions - Supreme Court decides two today

In Kevin S. Varner v. State of Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:

When the five-member Parole Board denied an inmate parole by a vote in which only four members participated, the inmate sought to compel a vote by all five members. The statute governing final decisions by the Parole Board requires the “full parole board” to make the de-termination. We find that a majority of the Board constitutes the “full parole board” for this purpose. As such, the inmate received a decision from the board that accorded with the statute’s requirements. * * *

We hold that Indiana Code section 11-13-3-3(b) does not require the Board to determine parole eligibility by a five-member vote. The “full parole board” delineates a majority of the Board, which may consist of less than five members. * * *

The opinion of the Court of Appeals is vacated except for that portion addressing subject matter jurisdiction. App. R. 58(A)(2). Varner’s request for a writ of mandamus is denied; he received a determination by the full parole board.

In Regunal Dowell v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Shepard writes:
A good many jurisdictions employ the “prison mailbox rule” to determine whether court filings made by prisoners are timely. Indiana has regularly used this approach as respects filings governed by its appellate rules, recognizing the unique position of pro se prisoners, though we apparently have never expressly adopted the prison mailbox rule. We do so today, still obliging the litigant provide reasonable, legitimate, and verifiable documentation. Appellant Regunal Dowell's timing problem, however, does not center on a tardy filing under the appellate rules but rather on his attempt to file a motion to correct error under the trial rules.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law = "Throughout his 50-year law career, Cook was known as one of the best trial lawyers in Eastern Indiana"

From the March 10, 2010 Winchester News-Gazette, a story by Bill Richmond headed "Community mourns death of attorney John T. Cook."

The community mourns the loss of respected Winchester trial attorney and altruist John T. Cook who died Monday at his home.

Born and raised in Winchester, Cook was a 1945 graduate of Winchester High School and a 1954 graduate of Indiana University School of Law. He served with the US Navy during W.W. II, spending his 18th birthday on Okinawa. He would attend Ball State College through the GI Bill before receiving his law degree from IU.

Throughout his 50-year law career, Cook was known as one of the best trial lawyers in Eastern Indiana. His ability to effectively present a case and elude opposing argument was matched by his kindness and consideration for others. His motto, on display in his office, is: Everyday we do something for free and the recipient of that is asked to pass it on.

"John was dedicated to the practice of law," said Superior Court Judge Peter Haviza who served Cook for 18 years as an associate. "For many years he'd schedule a 3-week vacation and return after two weeks because he wanted to be back doing legal work. He enjoyed his work and took great pride in being a great lawyer."

Haviza recalls Cook as probably one of the smartest jury trial lawyers he's ever seen.

"He was great on cross examination," Haviza said. "Watching him cross examine a person was like watching someone playing chess. He would think three to four questions ahead and gradually build the witness into a box so when it came to the final key question, they had no choice but to answer the way John wanted."

Cook was also known for his charitable causes. He donated generously of his time, effort and money to principles he strongly believed in. He liked to see the C average student would get a scholarship or a break to otherwise help them advance in life. He served as a board member for the James Moorman Orphans Home Scholarship Fund.

Cook, throughout has career has provided legal representation for almost all of the banks in Randolph County and has represented three of the five county school corporations.

Perhaps his greatest trial success was the (circa 1978-80) Caldwell vs. Dayton-Walther case in which a Randolph County jury awarded Cook's clients $800,000. The verdict was appealed to and upheld by the Indiana Supreme Court. By the time the judgment was paid to the County Clerk, it was more than $1 million, including interest.

County Prosecutor David Daly who grew up as Cook's neighbor and was friends with his son, Johnny Ray during their youth recalls the senior Cook's reputation from a vastly different perspective with yet much the same result as those who worked directly with him.

"He was just a great guy," Daly said. "To me growing up, he was like Perry Mason."

Winchester Mayor Steve Croyle said Cook was a blessing to the community who gave back in many ways.

"He was a great friend to my father and he will be greatly missed," Croyle said.

Here is the obituary.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Law

Ind. Courts - HEA 1491, vetoed last year, is on today's House calendar

HEA 1491 is on today's House calendar. For background, see this long list of ILB entries. The bill would abolish merit selection of St. Joseph Superior Court Judges and also would create a 6th Court of Appeals panel.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 7 today (and 23 NFP)

For publication opinions today (7):

In Wells Fargo Bank, N.A. v. Tippecanoe Associates, LLC, Larry D. Contos, Paul M. Nicholson, and Scatterfield Road Associates, a 20-page opinion, Chief Judge Baker writes:

Two separate but related entities entered into mortgages on the same day. The mortgages refer to a cross-guaranty, but no such document was ever executed by the parties. Ten years later, the lending bank is attempting to enforce a non-executed, undated draft of the cross-guaranty against the debtors. Among other things, we find herein that the statute of frauds prohibits the bank from enforcing the cross-guaranty against them. * * *

We find that Midland is an improper party to this litigation, that the statute of frauds prohibits the unexecuted cross-guaranty from being enforced against Scatterfield, that the denial of the motion to appoint a receiver over Scatterfield was harmless error, and that the Tippecanoe receivership order impermissibly stripped the statutory right of redemption from Tippecanoe. Thus, we affirm in part, reverse in part, and remand with instructions detailed below.

In State of Indiana v. Shayla Shackleford & Devonna McDonald , a 12-page opinion, CJ Baker writes:
Appellant-respondent State of Indiana brings this interlocutory appeal challenging the post-conviction court’s denial of its motion for change of judge. Specifically, the State contends that various comments made by the trial judge at a status conference regarding matters involving appellees-petitioners Shayla L. Shackleford and Devonna T. McDonald (collectively, the petitioners) revealed a lack of impartiality that precludes him from taking future action in the case.

We conclude that the post-conviction court’s preliminary legal assessment of the case that was based upon the evidence in the record and the pleadings and memoranda filed in the case did not amount to personal bias or prejudice on the part of the judge that would render a fair judgment on the merits of the case impossible. Therefore, we find that the post-conviction court properly denied the State’s motion for change of judge. The judgment of the post-conviction court is affirmed, and we remand this cause for further proceedings consistent with this opinion.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, a 13-page opinion, Judge Robb concludes:
The trial court properly concluded Erie’s service of its complaint upon Marjorie was sufficient, and the Marshalls owed a duty of reasonable care to protect Cain from harm caused by a tree falling from their property. In addition, sufficient evidence supports the trial court’s finding that the Marshalls breached their duty of reasonable care. Finally, the trial court properly found John jointly and severally liable for his own negligence. As a result, the trial court did not abuse its discretion when it denied the Marshalls’ motion to correct error, and the judgment of the trial court is affirmed.
W.S.K. v. M.H.S.B. is a 43-page opinion by Judge Friedlander where "W.S.K. appeals a grant of summary judgment in favor of M.H.S.B. in a multi-count complaint against M.H.S.B. stemming from that facility‘s denial of his application to join its medical staff. * * * W.S.K. is an oncologist/hematologist."

The ILB's question is -- why are the parties in this lawsuit not identified? The docket refers to Adm. Rule 9(G)(4)(a)(ii), which relates to cases in which the entire record is excluded from public access by statute or by rule.

The docket also shows an 8/17/09 order of CJ Baker, finding that "Appellant has shown cause why it is necessary to withhold the entire Appellant's brief and most of the Appellant's Appendix from public access." Judges May and Garrard concur, Judge Robb dissents.

ILB: What statute, what rule, what cause?

Charity Bailey v. State of Indiana - "In sum, the record reflects that Bailey is a self-absorbed and self-focused individual, and we cannot say that the thirty-five-year sentence, which was an enhancement of only five years above the advisory sentence for a class A felony, was inappropriate."

Thomas Munford v. State of Indiana - "The trial court did not commit fundamental error in instructing the jury regarding the defense of abandonment, and the State presented sufficient evidence to disprove Munford‟s defense of abandonment beyond a reasonable doubt."

Mark Wells v. State of Indiana - "Simply put, we cannot say Wells’s actions and responses constituted reasonable suspicion of criminal activity justifying a significant extension of the traffic stop. As such, the dog sniff of his vehicle and ensuing search was the result of an unconstitutional seizure. The trial court improperly denied Wells’s motion to suppress. We reverse."

NFP civil opinions today (6):

In the Paternity of D.P.; T.P. v. C.P. (NFP)

Big Lots Stores, Inc. v. Stanley E. Kerstiens (NFP)

Tamika (Bates) Henderson v. Carlos Bates (NFP)

The Estate of Nicole H. Tholl (NFP)

Hane Management Services, Inc., Mary Mabel Ellis Hane and Delbert Craig Hane v. Bank of Indiana, N.A. (NFP)

Hendricks County Planning and Building Department v. Thomas I. Goode (NFP)

NFP criminal opinions today (17):

Ronald L. Wright v. State of Indiana (NFP)

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

Donald Brown v. State of Indiana (NFP)

Loreal L. Blackwell v. State of Indiana (NFP)

David L. McQueen v. State of Indiana (NFP)

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

Fred Wall v. State of Indiana (NFP)

Jonathan Castillo v. State of Indiana (NFP)

Jeramy White v. State of Indiana (NFP)

Anthony Craig v. State of Indiana (NFP)

Terrance LaVale Jones v. State of Indiana (NFP)

Timothy Allen Robbins v. State of Indiana (NFP)

Jordan Clayton v. State of Indiana (NFP)

James Talley v. State of Indiana (NFP)

Cory C. Carter v. State of Indiana (NFP)

Lance Anderson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: Building a picture out of a million brush strokes

Updating the entries on my Twitter idea for following the end of this 2010 General Assembly from March 8th and March 6th, where did my idea come from?

It came from this blog entry titled "How to create a Rare Bird Alert system for cell phones through Twitter, hashtags and RSS."

I thought if a number of people could work together to issue alerts on birds they had sighted, the same thing might work to track the fast moving end of the session.

Unfortunately, the idea does not seem to have caught on, but I will give it another day.

Here is the RSS feed

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Government

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

Updating this ILB entry from Jan. 31, 2010, this from an editorial today in the Fort Wayne Journal Gazettethat begins:

Legislators’ pettiness could thwart efforts to make voting more convenient and less expensive for Hoosiers.

A proposal to allow Indiana counties to change from precinct-based polling stations to vote centers will die unless legislators act now.

Vote centers allow voters to choose for themselves the most convenient location to cast their ballots rather than being tied to assigned precincts.

But a partisan battle over a proposal to change absentee ballot rules is preventing the vote center proposal from moving forward. With the legislative session ending by Sunday, lawmakers have only a few days to revive the measure.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Government

Ind. Decisions - "Indiana Supreme Court won't consider French appeal"

As listed on p, 2 of the Clerk's transfer list for the week ending March 5, 2010, the Supreme Court on March 4th denied transfer in the case of Anthony W. French v. State of Indiana (18A05-0901-CR-2). The NFP opinion issued Dec. 16, 2009 by the Court of Appeals will stand.

Douglas Walker reports today in the Muncie Star-Press:

MUNCIE -- The Indiana Supreme Court apparently isn't interested in hearing more about the 2008 murder conviction of Muncie resident Anthony W. "Tony" French.

Dateline NBC might be willing to lend an ear, however.

A Delaware Circuit Court 3 jury in November 2008 found French, now 48, guilty of murder and conspiracy to commit murder in the May 1993 shooting death of his wife, Teresa. The 29-year-old victim's body was found in the garage of her family's West Cromer Avenue home.

Prosecutors said French paid co-defendant Jess David Woods $5,000 to kill his wife, who was pursuing a divorce at the time of her slaying.

French was later sentenced to 80 years in prison by then-Circuit Court 3 Judge Robert Barnet Jr.

Woods, a former Daleville resident who lived in California at the time of his March 2008 arrest, was later convicted of the same charges by another Circuit Court 3 jury and received a 100-year sentence from Barnet's successor on the bench, Linda Ralu Wolf.

Local authorities cracked the case nearly 15 years after Teresa French's death when a mutual acquaintance of French and Woods came forward with details of the murder conspiracy. An ex-wife of Woods also testified that he had confessed to the slaying.

In December, the Indiana Court of Appeals upheld French's convictions. The state Supreme Court last week ruled it would not accept transfer of the case, in effect allowing the appeal court's ruling to stand.

Meanwhile, producers from Dateline NBC have contacted some key players in the French saga, including Deputy Prosecutor Eric Hoffman, to arrange interviews for a segment on the show expected to be broadcast in May.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Several Republicans thrown off Allen County ballot"

Laura Donaldson reported yesterday:

FORT WAYNE, Ind. (Indiana’s NewsCetner) - Several republicans are now removed from the 2010 Allen County ballot.

Those republicans were removed after crossing over to vote in the other party's primary.

Four different candidates registered as democrats in their most recent primary election. The act of crossing over cost the republican candidates their chance to run. That’s because Indiana law states you're only eligible to run in the party primary that you last voted in. So if you voted as a democrat in the 2008 primary you must run as a democrat in the 2010 election.

“All they needed to do is go to the party chairman, Steve Shine, and explain the situation and he could have provided a consent which then would have been attached to the form,” Allen County Election Board Chairman and Republican Zach Klutz said. “It doesn't preclude them. They just needed to provide a consent and in this case they didn't.” * * *

One candidate admitted to crossing over because of the prompting by popular radio host Rush Limbaugh. During the 2008 presidential election, Limbaugh encouraged republicans to cross over into the democratic primary to vote for Hillary Clinton in hopes of beating then Senator Barack Obama.

Amanda Iacone has a report today in the Fort Wayne Journal Gazette:
The board removed six candidates from the Republican primary ballot and agreed to allow one candidate to remain.

Challenges were filed against the candidates, most for voting in a recent Democratic primary instead of the Republican primary. Under Indiana law, candidates must receive the permission of the party chairman to run in that party’s primary if they last voted in another party’s.

Those challenged did not seek permission from Steve Shine, Allen County Republican Party chairman.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Government

Ind. Courts - "Lake officials discuss probe of bonus scandal "; new court created

Bill Dolan reports today in the NWI Times:

CROWN POINT | Lake County Council President Thomas O'Donnell said he is hearing public calls for a probe of past unauthorized bonuses within the county clerk's office.

"My constituents are asking for a criminal investigation," O'Donnell said Tuesday during a council discussion of how to spend federal grant money meant to improve the collection of court-ordered child support payments.

He said he recently passed those concerns on to county Prosecutor Bernard Carter, who didn't return telephone calls Tuesday by The Times seeking comment.

Auditor's records show former county Clerk Thomas Philpot, now the county coroner and a candidate for sheriff, distributed $111,236 in annual supplemental payments to himself and his employees beginning in 2004.

Philpot repaid the county $24,000 in bonuses after receiving a legal opinion last month from County Attorney John Dull, who said Philpot needed -- but never received -- permission from the County Council to increase his salary.

Dull also said the council should tighten spending controls on $2 million in supplemental money paid to hundreds of county and township government employees out of as many as 15 funds and 97 line items. O'Donnell said the council is working to identify and take control of those funds.

"It is hard to figure out who is grabbing this money," tax activist James Premeske, who attended the council meeting, said Tuesday, * * *

O'Donnell said Thursday the scandal regarding the clerk's IV-D money is completely unrelated to the council's vote Tuesday that approved $172,759 to create a new court to speed the retrieval of uncollected child support.

The court, which may begin operating as early as next month, will employ a judicial magistrate, a bailiff and court reporter using a federal IV-D grant awarded to the county prosecutor's office, not local tax dollars.

The court is expected to collect $2 million a year in additional child support to be paid to custodial parents and to reimburse the government for welfare benefits paid to low-income families.

Lake Juvenile Court Judge Mary Beth Bonaventura, who will oversee the new court, said none of the money can be used to give bonuses to court employees.

Posted by Marcia Oddi on Wednesday, March 10, 2010
Posted to Indiana Courts

Tuesday, March 09, 2010

Ind. Law - AT&T and AG team up to fight texting while driving

Remember this ILB entry from Dec. 7, 2009, headed "A Victim’s Daughter Takes the Cellphone Industry to Court"? You might re-read it in conjunction with this story today from the Kokomo Perspective. Some quotes from today's story:

Today, Indiana Attorney General Greg Zoeller hosted AT&T Indiana President George S. Fleetwood and State Sen. Thomas Wyss and joined in urging drivers - especially young drivers - to resist the temptation to send or check text messages while driving. * * *

Zoeller today spoke in conjunction with AT&T's national campaign to raise awareness about the risks of texting while driving and to remind all wireless consumers, especially youth, that text messages can and should wait until after they reach their destinations.

"Attorney General Zoeller, Senator Wyss and Senator Travis Holdman are true champions for Hoosiers and we applaud them for taking a leadership role in this important consumer protection issue," Fleetwood said. "Through our network and our devices, we connect a lot of people around our great state. We are proud of that fact and we are also committed to educating people not to text when it might be unsafe for them or other drivers."

Zoeller and Fleetwood today were joined by Wyss, R-Fort Wayne, who for years has been one of the leading advocates for traffic safety in the Indiana General Assembly. Wyss authored Indiana's .08 percent legal limit law and seat belt law, and he chairs the Senate Homeland Security, Transportation and Veterans Affairs Committee that screens traffic-safety legislation. * * *

AT&T's campaign consists of true stories and the final text messages sent or received before one or more lives were altered, or even ended, because of texting and driving. By featuring the real stories, the campaign will demonstrate how insignificant a text message is compared to the potentially dire consequences of reading or responding while driving.

Here is a list of ILB entries containing the phrase "Lawmaker to push texting-driving ban."

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to Indiana Law

Ind. Law - "Lowell Council says 'no' to Illiana proposal: Members tell lawmakers they're frustrated by lack of information on project"

Christin Nance Lazerus reports today in the Gary Post-Tribune about SEA 382:

LOWELL -- Town council members expressed their opposition to the proposed Illiana Expressway on Monday. All members mentioned their frustration with the lack of information the state has provided communities that could be affected by the project.

"I'm opposed to the Illiana Expressway," said Town Council President Phillip Kuiper. "As far as I'm concerned, there's been no information on this project whatsoever. I don't know how they are voting on this."

Last week, the Indiana Senate voted 42-0 to send the Illiana bill to Gov. Mitch Daniels for his signature. It previously passed the House 89-6.

The legislation establishes a public-private partnership to build the highway. The Illiana, which would likely be a toll road, could connect Interstate 65 in Indiana with either Interstate 57 or Interstate 55 in Illinois.

The state has looked at three possible routes that go through or near Lowell, but council members feel shut out of the process.

"This is going to affect our way of life ... and they don't even have the common decency to tell us what's going on," Councilman David Gard said.

Under the bill, the governor's office can negotiate with investors that are interested in building the toll road with private dollars. Ten miles of the highway would be in Indiana.

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP) [Updated]

For publication opinions today (0):

NFP civil opinions today (3):

Amjad M. Al-Jundub v. Ardizzone Enterprises, Inc. (NFP) - "Amjad Al-Jundub appeals the trial court’s judgment, following a bench trial, in favor of Ardizzone Enterprises, Inc. (“Ardizzone”). Al-Jundub raises three issues for our review, which we consolidate and restate as (1) whether the trial court abused its discretion in excluding evidence offered by Al-Jundub, and (2) whether the trial court erred in entering judgment in favor of Ardizzone for $10,761.80. Concluding the trial court did not abuse its discretion in excluding evidence, and the evidence favorable to the judgment establishes Ardizzone is entitled to recover in quantum meruit and supports the trial court’s award of damages, we affirm."

Term. of Parent-Child Rel. of S.S.; C.S. & L.S. v. IDCS (NFP)

Paternity of D.B.; J.N. v. T.B. (NFP)

NFP criminal opinions today (2):

David Robert Haney v. State of Indiana (NFP)

Darren McDuffy v. State of Indiana (NFP)

[Update] The Court has also reposted a decision posted yesterday with a bad link:

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

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Cass County ballots to change: Candidates will be rotated"

Jennifer Tangeman reports today in the Logansport Pharos-Tribune:

Candidates will be listed on the ballot differently for this primary election.

Rather than listing candidates alphabetically in every category for every precinct, candidates will be listed on a rotating basis in each precinct.

Cass County Clerk Beth Liming said a few candidates had approached the county election board requesting the change.

“A lot of voters, if they don’t know the candidates or don’t recognize the names, will just pick the first name listed,” Liming said.

The rotating system should provide more equity for the candidates, she said.

For example, say a candidate by the name George Cass is running for county sheriff. He is first alphabetically among his competitors. Another candidate is named Jack Logansport, and he is second alphabetically for the sheriff candidates.

Under this system, Cass would be listed first among the candidates for sheriff for the first township — Adams. For the next township or precinct, Bethlehem, Cass would be listed last and Logansport would be bumped up to the top of the list.

The cycle would continue for all 39 of Cass County’s voting precincts.

“Rotating names of candidates on the ballots, to my knowledge, has never been done before,” Liming said. “We are working to see how many times we put each candidate first on the ballot, and it should be within one time of each other.”

Liming said the election board made the change in accordance with Indiana law, which requires that the rotations be done by precinct and promote candidates as equally as possible.

“We are not just going in and randomly picking,” the clerk said. “But this is a change. It is something different that people are not used to seeing before.”

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to Indiana Government

Law - "Public Pension Funds Are Adding Risk to Raise Returns"

Mary Williams Walsh has a long story in the NY Times today, under that headline. Some quotes:

States and companies have started investing very differently when it comes to the billions of dollars they are safeguarding for workers’ retirement.

Companies are quietly and gradually moving their pension funds out of stocks. They want to reduce their investment risk and are buying more long-term bonds.

But states and other bodies of government are seeking higher returns for their pension funds, to make up for ground lost in the last couple of years and to pay all the benefits promised to present and future retirees. Higher returns come with more risk.

“In effect, they’re going to Las Vegas,” said Frederick E. Rowe, a Dallas investor and the former chairman of the Texas Pension Review Board, which oversees public plans in that state. “Double up to catch up.” * * *

The $30 billion Colorado state pension fund is one of a tiny number of government plans to disclose how much difference even a slight change in its projected rate of return could make. Colorado has been assuming its investments will earn 8.5 percent annually, on average, and on that basis it reported a $17.9 billion shortfall in its most recent annual report.

But the state also disclosed what would happen if it lowered its investment assumption just half a percentage point, to 8 percent. Though it might be more likely to achieve that return, Colorado would earn less over time on its investments. So at 8 percent, the plan’s shortfall would actually jump to $21.4 billion. Contributions would need to increase to keep pace.

Colorado cannot afford the contributions it owes, even at the current estimated rate of return. It has fallen behind by several billion dollars on its yearly contributions, and after a bruising battle the legislature recently passed a bill reducing retirees’ cost-of-living adjustment, to 2 percent, from 3.5 percent. Public employees’ unions are threatening to sue to have the law repealed.

If Colorado could somehow get 9 percent annual returns from its investments, though, its pension shortfall would shrink to a less daunting $15 billion, according to its annual report.

That explains why plan officials are looking everywhere for high-yielding investments. * * *

Wisconsin, meanwhile, has become one of the first states to adopt an investment strategy called “risk parity,” which involves borrowing extra money for the pension portfolio and investing it in a type of Treasury bond that will pay higher interest if inflation rises.

Officials of the State of Wisconsin Investment Board declined to be interviewed but provided written descriptions of risk parity. The records show that Wisconsin wanted to reduce its exposure to the stock market, and shifting money into the inflation-proof Treasury bonds would do that. But Wisconsin also wanted to keep its assumed rate of return at 7.8 percent, and the Treasury bonds would not pay that much.

Wisconsin decided it could lower its equities but preserve its assumption if it also added a significant amount of leverage to its pension fund, by using a variety of derivative instruments, like swaps, futures or repurchase agreements.

It decided to start with a small amount of leverage and gradually increase it over time, but word of even a baby step into derivatives elicited howls of protest from around the state.

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to General Law Related

About this blog - RSS feed for ILB Tweets

Here is the RSS feed for ILB Tweets. They all center aroundf the end of the 2010 Indiana General Assembly, as detailed here and here.

Posted by Marcia Oddi on Tuesday, March 09, 2010
Posted to About the Indiana Law Blog

Monday, March 08, 2010

Ind. Law - More on "Timing was terrible on guns at work bill"

Updating this ILB entry from earlier today, Evan Shields posted this long story this evening on the Evansville Courier and Press site, headed "After shooting, business groups urge Daniels to veto guns-at-work bill." It begins:

Last Thursday, the Indiana General Assembly sent a bill to Gov. Mitch Daniels’ desk that would prevent businesses from making rules barring employees from bringing guns to work, as long as those guns remain locked in their vehicles.

The next day, a Portage, Ind. man who was angry about a poor performance review at the Indiana Department of Workforce Development, where he had worked as an auditor for 19 years, went to his car, grabbed a shotgun, returned to his office building and began shooting at his co-workers.

Though no one was injured in the incident, some Indiana lawmakers and business groups pointed to it Monday as they pleaded with Daniels to veto the bill.

“This is further evidence that guns and the workplace simply don’t mix,” said Indiana Chamber of Commerce President Kevin Brinegar. “The last thing our state should do is validate the opportunity for a disgruntled employee to get a gun from his or her vehicle and threaten the lives of innocent co-workers and bystanders.”

Asked about the guns-at-work bill Friday, Daniels said he had “no comment till I’ve really looked at it.”

He said the exemptions lawmakers added last week were “good adjustments.” But as to whether he’ll sign it into law, he said: “I want to see the legislation before giving you a final answer.”

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Law

Environment - The condition of the Grand Calumet River and efforts to clean it up

Gitte Laasby of the Gary Post Tribune has three reports today:

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Environment

Ind. Law - Linton to consider golf cart ordinance again tonight

Linton council members have been working on the ordinance since last year. Tonight it is on the agenda again. Timberly Ferree had this report March 5th in the Greene County Daily World:

The golf cart ordinance tops the agenda of the monthly meeting of the Linton City Council on Monday.

Linton Mayor Tom Jones explained, "If the majority of people want that, then that's what we'll do."

In the past, Jones has stressed safety as his main concern when it comes to legalizing golf carts in the city. He also would like to see the results from the city's recent mobility survey before moving forward with an ordinance.

"I'd like to wait until the mobility survey is done... get in narrowed down and kind of just wait to see what the results are," he added. The on-line survey asks how adult citizens of all ages "get around town" and asks for opinions about proposed golf cart regulations.

Those who reside in the 47441 zip code are eligible to take the on-line survey -- which can be found at www.agingindiana.org. The survey takes about seven to 10 minutes to complete and will be available on-line through March 15.

During February's city council meeting, an edited golf cart ordinance was brought to the table. City Attorney Tim Shonk worked with Council Member Linda Bedwell on the revisions. It was during that meeting that Jones stressed his concern over the proposed golf cart ordinance.

"My opinion, as it's written today, is I'd veto it...I don't want to sign something that gets someone killed...," he stressed.

The mayor also explained that he's not against a golf cart ordinance, but that it currently lacks several safety provisions such as mandatory use of child restraints. Jones also said it's dangerous for golf carts to cross intersections at highways and that golf carts shouldn't be used on certain streets in town.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending March 5, 2010

Here is the Clerk's transfer list for the week ending March 5, 2010. It is 2 pages long (but that is misleading because there is a lot more information scrunched on each page).

One transfer was granted last week, the card counting case, Thomas P. Donovan v. Grand Victoria Casino & Resort, L.P. See this March 1, 2010 ILB entry for background.

In the Matter of the Annexation Proposed by Ordinance 11-07, a 10/6/09 COA opinion, was dismissed. Here is the 10/6/09 ILB summary of this case involving Muncie.

__________

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, March 08, 2010
Posted to Indiana Transfer Lists

Ind. Gov't. - More on: Building a picture out of a million brush strokes

So how is my Twitter idea for following the end of this 2010 General Assembly working out so far? It doesn't seem to have caught on yet, but I'm doing my part, and Doug Masson has contributed.

You may be able to check it out here.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Government

Courts - Per settlement, Eli Lilly to add ethics watchdogs

John Russell has the story today in the Indianapolis Star. Some quotes:

Eli Lilly and Co. has agreed to add four new senior positions to "promote highly ethical and compliant behaviors" as part of a settlement of two lawsuits arising from the company's illegal marketing and promotion of several drugs.

The Indianapolis drugmaker also has agreed to upgrade its policies and procedures to ensure that patient safety "shall be of paramount importance," according to a government filing the company made today. * * *

[S]everal shareholders sued the company, claiming it breached fiduciary duty in connection with the illegal marketing, exposing Lilly to substantial risk of damage. The suits are known as "derivative claims" as they were brought by shareholders on behalf of the company, rather than on behalf of shareholders, seeking to force the company to take corrective steps.

Lilly has agreed to pay $35,000 to the named shareholders, and to pay $8.75 million for attorneys' fees, including about $450,000 for plaintiffs fees.

The new positions that Lilly has agreed to create are a vice president for global compliance strategy, vice president of global ethics, a senior director of enterprise risk management and a project manager to implement and monitor the new policies.

Lilly spokesman Mark Taylor said the positions are all new and are in the process of being filled. All four people would report to Anne Nobles, Lilly's chief ethics and compliance officer.

The settlement must be approved by a federal judge next month. It would cover two of seven outstanding "derivative shareholder" cases spread over three courts.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Courts in general

Ind. Decisions - 7th Circuit decides bankruptcy case

In In re Ray, a 12-page opinion, Judge St. Eve (District Court, Northern District of Illinois, sitting by designation) writes:

Appellant Becker & Poliakoff, P.A. (“Becker”) seeks to appeal from an order of the district court affirming the bankruptcy court’s dismissal of two Chapter 11 bankruptcy cases. Becker, however lacks standing to appeal the bankruptcy court’s order. Accordingly, the judgment of the district court that Becker had standing to appeal the bankruptcy court’s order is vacated.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indiana Law Review Election Law Symposium

The ILB has received information from Prof. Michael J. Pitts on an upcoming CLE event of interest:

The Indiana Law Review is pleased to announce its 2010 Symposium exploring the legal issues surrounding our system of democracy. In addition to the keynote speech given by Professor Heather Gerken of Yale Law School, there will be three panels addressing campaign finance, voting rights, and election administration.
The event, set for the afternoon of April 8 and the morning of April 9, is free to registrants, and includes 5.0 CLEs.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)

For publication opinions today (3):

In David Gertz, et al. v. Douglas Estes, et al. , an 8-page opinion involving a spite fence, Judge Barnes writes:

The Gertzes raise one issue, which we restate as whether the trial court erred by requiring them to completely remove a “spite fence.” The Esteses argue that they are entitled to appellate attorney fees under Indiana Appellate Rule 66(E).

This is the second appeal in a dispute between the Gertzes and the Esteses, neighbors in rural Hebron. See Gertz v. Estes, 879 N.E.2d 617 (Ind. Ct. App. 2008), trans. denied. As a result of a boundary line dispute, the relationship between the two couples disintegrated. At some point, the Gertzes equipped their home with a public address system and installed surveillance cameras capable of viewing the interior of the Esteses' residence. The Gertzes used the public address system to make disparaging comments to and about the Estes family on various occasions.

The Gertzes received a permit to construct a fence seven feet tall, but instead they erected a 720-foot long, eight-foot tall wooden fence, running parallel to and eight inches away from the property line. All along the three supporting horizontal slats, nail points protruded from the side of the fence facing the Esteses' property. The nails extended between a quarter- and a half-inch from the fence. As a result, “thousands of protruding nails” faced the Esteses' property. * * *

On September 13, 2005, the Esteses filed a complaint, alleging that the fence violated the Indiana “spite fence” statute, Indiana Code Section 32-26-10-1 to -2, and that the Gertzes' use of the cameras and public address system were a nuisance. * * *

Despite our denial of the Esteses' request for attorney fees, we caution the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees. We encourage the Gertzes to fully comply with the trial court's order and protective orders.

Conclusion. The trial court did not err by refusing to modify the original judgment or by again ordering the Gertzes to remove the fence, regardless of its decreased height. Further, we deny the Esteses' request for an award of appellate attorney fees. We affirm.

In Mayfair Investment Corp., et al. v. Wallace Patterson Bryant, et al. , a 19-page opinion (with many long footnotes) involving physical partition of real estate, Judge Brown writes:
The Appellants essentially argue that the trial court should have examined the impact of physical partition of Tract I in a vacuum and not account for the fact that the Illinois Building sits atop it. The Appellants argue that the trial court should have looked only at whether a six hundred square foot parcel was less valuable than the proceeds of its share from the sale of the entire 3,600 square feet comprising Tract I, and that the Appellants presented evidence showing that to be the case. The Appellants do not cite to any authority, however, for the proposition that the trial court could not consider the entire circumstances affecting the land in making its determination.

While the parties presented conflicting evidence regarding Tract I's susceptibility of physical partition or a sale, on appeal, we cannot reweigh the evidence. Buck, 833 N.E.2d at 116 (citing Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000), reh'g denied). Consequently, we cannot say that the trial court's findings adopting Lady's view of the susceptibility to physical partition are clearly erroneous. See Gibbs, 883 N.E.2d at 828-829.

For the foregoing reasons, we affirm the trial court's judgment of physical partition.

In Christopher R. Embry v. State of Indiana , a 16-page opinion, Judge Vaidik writes:
Christopher Embry appeals his conviction for Class D felony domestic battery. Embry was accused of beating his ex-wife. His theory at trial was that he acted in self-defense. When the victim took the stand, the defense impeached her by eliciting evidence of her animosity toward Embry. The State then offered evidence of five prior acts of violence that Embry allegedly committed against the witness in order to explain her hostility. Embry argues that the trial court erred by admitting this evidence in violation of Evidence Rule 404(b). We hold that, where the defense impeaches a State‟s witness by exposing her bias against the defendant, the State may not offer evidence of prior misconduct committed by the defendant against the witness solely to explain the witness‟s disposition. However, we conclude that Embry‟s uncharged misconduct was admissible to prove motive and negate his self-defense claim. We affirm.
NFP civil opinions today (2):

Laura Cyrus v. Town of Munster Board of Zoning Appeals (NFP) - "Based upon the foregoing, we cannot say that the BZA‟s denial of Cyrus‟ petition was arbitrary, capricious, or an abuse of discretion; in excess of statutory authority; or unsupported by substantial evidence. See Hoosier Outdoor, 844 N.E.2d at 162. Nor do we find clear error from the trial court‟s judgment affirming the BZA‟s determination because (1) the record contains facts and inferences to support the court‟s findings and conclusions; and (2) our review of the record does not leave us with a firm conviction that a mistake has been made. See Weida, 896 N.E.2d at 1223."

Betsy Duncan v. Kurt Duncan (NFP)

NFP criminal opinions today (12):

Robert T. Tiller v. State of Indiana (NFP)

Daniel Seltzer v. State of Indiana (NFP)

John W. Rendell v. State of Indiana (NFP)

Jason Dixon v. State of Indiana (NFP)

William Robinson v. State of Indiana (NFP)

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

Timothy Hobbs v. State of Indiana (NFP)

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

Jorge Granados v. State of Indiana (NFP)

Nasheed S. Waqia v. State of Indiana (NFP)

Jeremy Cundiff v. State of Indiana (NFP)

Bobby J. Humphries v. State of Indiana (NFP) - Link was wrong - the Court has been advised.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Majestic Star mortgages may be invalid on Ind. casinos"

Another bankruptcy story this morning, this one via Bloomberg News:

The creditors' committee for Majestic Star Casino LLC constructed a theory where secured lenders didn't properly perfect liens on the two riverboat casinos in Indiana.

Consequently, the committee filed a motion in bankruptcy court last week asking for authority to file a complaint looking to void the defective mortgages. Majestic Star itself gave up the right to challenge the validity of secured claims in the process of agreeing to financing for the Chapter 11 case that began in November 2009.

Under the committee's theory, the two boats are now "fixtures" rather than "vessels" because they no longer leave the dock. For failure to make requisite "fixture filings," the committee contends the secured claims are in reality unsecured.

A hearing on the motion for permission to sue has been set for March 22 in bankruptcy court in Delaware. The committee is seeking to void liens not only of the first-lien banks but also of the second-lien noteholders. * * *

The case is In re Majestic Star Casino LLC, 09-14136, U.S. Bankruptcy Court, District of Delaware (Wilmington).

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Courts in general

Courts - Attorneys who provide bankruptcy assistance are debt-relief agencies; Action on petitions [Updated]

So ruled the SCOTUS today in Milavetz, Gallop & Milavetz, P.A. v. United States. See details here via SCOTUSblog. See Oct. 9, 2009 ILB entry here.

[More] Among the grants today were none of the "of interest to Indiana" cases described here by the ILB on March 4th, but Lyle Denniston of SCOTUSblog reports on "Court to rule on funeral pickets."

[Updated at 12:19 PM] CBS News has posted a good rundown of the grants today, headed "High Court to Hear Protest, Vaccine Cases: Anti-Gay Westboro Baptist Church Subject of Free Speech Case to Be Heard in Fall; Can Parents Sue Vaccine Makers?" The story concludes:

The justices on Monday turned down an appeal from David Paul Hammer, an inmate on the federal government's death row in Terre Haute, Indiana. Hammer argued that the policy adopted after Oklahoma City bomber Timothy McVeigh appeared on a television program in March 2000 is an unconstitutional violation of his free speech rights.

Twenty-three news media organizations also urged the court to hear the case.

Hammer's sentence has been thrown out, but he remains housed with other death-row prisoners while the government decides whether to seek to have him re-sentenced to death.

No mention of the Kentucky sex offender appeal.

[Updated at 7:46 PM] The WSJ Law Blog has posted this entry, headed "Silenced! High Court Upholds Ban on Type of Legal Advice."

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Courts in general

Ind. Gov't. - "Going to the mat over money "

Jake Grovum, in an excellent "special" to Stateline.org, writes today:

In the final days of Minnesota’s legislative session last year, the governor invoked a rarely used authority granted more than 70 years ago that allowed him to rescind $5.3 million of already allocated program funds. He did so to help balance the state budget. But six low-income people whose state supplemental diet plan went away with that cut sued the state. The case has now found its way to the state Supreme Court, which will decide the constitutionality of the governor’s use of his so-called “unallotment” power.

As states continue to find ways to plug an estimated $460 billion hole that opened up in their budgets between 2009 and 2012, “trimming the fat” and “cutting to the bone” are ancient history. But deeper cuts have gotten trickier. “Everything that hasn't been nailed down has been cut,” Anthony Wright, executive director of Health Access California, told The Sacramento Bee. "What's left is the legally questionable stuff."

And that’s just the point for targets of some of those cuts who are, in increasing numbers, taking their appeals to the courts. A number of states are dealing with budget-related lawsuits stemming from their various cost-cutting decisions.

The complaints challenge a wide variety of issues from a governor’s authority to cut the budget to spending money that voters designated for other uses to laying off union workers and cutting school money. California, Illinois, Arizona, Kansas, Indiana, New York and Minnesota have all recently faced lawsuits or are in court now.

The collateral damage of these complaints and related court rulings is they can cost a state a lot of money in lean times, although they often provide a successful last resort for those affected by budget cuts. The suits also open the door for a reluctant judiciary to become a sort of third party in crafting a state budget and could further complicate the already wrenching budget-making process in many state capitols. * * *

A constitutional issue is at the heart of the case in Minnesota that the state Supreme Court will hear March 15. It centers on the lawsuit brought by the residents whose state supplemental diet plan was cut and could have implications for the state’s current budget and for executive authority in Minnesota. * * *

A district court in Minnesota has already ruled against Pawlenty’s use of unallotment. “It is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiations with the legislature,” Chief District Judge Kathleen Gearin ruled in December. “The Governor crossed the line between legitimate exercise of his authority to unallot and interference with the legislative power to make laws,” the ruling said.

Pawlenty and the state have appealed that decision, and the governor said in a statement after the ruling he was “disappointed” in it. “More than 70 years ago, the legislature granted Minnesota governors the authority to unallot and the district court’s decision misinterpreted that law in key respects,” a Pawlenty spokesman said in a statement after the ruling. “We hope the Minnesota Supreme Court will more clearly and directly address this issue.”

The Supreme Court has said it will review both the constitutionality of Pawlenty’s use of the unallotment authority and whether it violated separation of powers, meaning the case could have wide implications for the state. The Minnesota House of Representatives has filed a brief, along with at least one candidate for governor and various cities and advocacy groups. * * *

While Minnesota’s case centers on gubernatorial authority, others involve the will of the voters. In Arizona, where the state is facing its own monstrous deficits, a number of lawsuits have been brought against the state after lawmakers tapped money from accounts approved by voters for other purposes. The state’s legal costs quickly reached $500,000, The Arizona Republic reported Dec. 30. * * *

But what has historically been the root of a number of lawsuits against states has been school funding. In a situation that involves constitutional funding issues, labor unions and children, there’s no shortage of legal fodder.

Late last month, three Indiana school districts challenged the state’s per-pupil funding formula, drawing criticism from Attorney General Greg Zoeller. “The costs for the schools’ lawyers to bring this suit and for the state’s lawyers to defend it and for the court to preside over it ultimately are paid through the same source: taxpayers’ wallets,” he said in a statement after the lawsuits were filed.

For more on the Indiana school funding lawsuit, see this ILB entry from Feb. 24, 2010. AG Zoeller's objections to the lawsuit are the focus of his Feb. 23, 2010 press release.

Not mentioned is the suit pending in Indiana federal district court re Indiana's 10% cut in foster care payments - start with this Feb. 19, 2010 ILB entry.

See this June 23, 2009 ILB entry for a discussion of an Indiana governor's authority to withhold allotments of appropriated funds.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Government

Ind. Law - "Smoke-free Indiana? Wait another year"

That is the headline to this editorial today in the Gary Post-Tribune. Some quotes:

'Wait until next year" is becoming the unofficial mantra of supporters of a statewide smoking ban in Indiana.

State Rep. Charlie Brown's latest effort -- an amendment inserted in a health bill -- was snuffed out last week, likely ending the bill's chances this year.

Brown once again had authored legislation calling for a statewide ban, but his bill became saddled with so many exemptions the Gary Democrat withdrew the bill.

It was resurrected briefly in the Senate before being extinguished.

The General Assembly's lack of backbone underscores an all-too-familiar refrain when it comes to progressive government. The latest failure marks the fourth time Brown's bill died in the General Assembly, leaving Indiana as one of 12 states without a smoking ban. * * *

The state spends $2.1 billion each year for medical care related to tobacco use. About 1,000 Hoosiers die each year from secondhand smoke. Some are forced to inhale smoke because it's part of their workplace environment.

Republicans in the state Senate felt a smoking ban would hurt businesses struggling to survive in a tough economy. But in Indianapolis, tourism groups joined with anti-smoking advocates in criticizing the city's lack of a smoking ban, saying it's endangering tourism.

The ILB hasn't been able to verify the "12 states" statement - check out this Wikipedia map from Dec. 18, 2009. It shows the P-T figure is close, counting Alaska, it is 13.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Law

Courts - Kentucky state mock trial match featured

Darla Carter of the Louisville Courier Journal has a nice story with photos on the the Kentucky High School Mock Trial Tournament. I've haven't run across one on Indiana's competition this year.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Courts in general

Ind. Law - "Timing was terrible on guns at work bill"; what of "open carry"?

Updating this lengthy ILB entry from March 5th, Jon Seidel of the Gary Post-Tribune has a story today that includes these quotes:

Just before the General Assembly devolved into bitter end-of-session politics, lawmakers passed a bill with fairly overwhelming and bipartisan support.

House Bill 1065 makes sure gun owners can bring their weapons with them to work as long as they are kept out of sight in a locked vehicle.

As a lobbyist from the National Rifle Association watched from the gallery Thursday, the House voted 75-20 in favor of the bill. A few hours later, the Senate voted for it 41-9.

They couldn't have timed it any worse. The next day, an angry worker at the Department of Workforce Development in Portage walked out to his car, grabbed a 12-gauge shotgun, and fired into his office. No one was hurt.

"All of the arguments against this are now coming true," Rep. Charlie Brown, D-Gary, said when he was told about the shooting Friday. "I'm sorry to hear that. I really am." * * *

Finally, the bill prohibits Indiana governments from declaring an emergency and restricting Hoosier gun rights.

Supporters say the bill protects the Second Amendment rights of Hoosiers, making sure they are able to protect themselves while they are at the workplace. * * *

Gov. Mitch Daniels didn't commit to signing the bill when he met with reporters Friday. He said he wants to read it first. Republican Daniels is flirting with the idea of a presidential bid in 2012. It'll be interesting to see how he handles a bill championed by the NRA.

But Brown called out the powerful lobbying group before the House's vote on the bill. He joined local lawmakers who included Smith and Randolph in speaking out against it, saying the NRA's influence cuts across party lines.

"I think once and for all we need to tell the NRA, 'Hell, no, you don't have a stranglehold on this chamber,'" Brown said. "I'm not afraid of the NRA."

The NY Times today has an article by Ian Urbina asking whether "open carry" is the next big thing. Some quotes:
For years, being able to carry a concealed handgun has been a sacred right for many gun enthusiasts. In defending it, Charlton Heston, the actor and former president of the National Rifle Association, used to say that the flock is safer when the wolves cannot tell the difference between the lions and the lambs.

But a grass-roots effort among some gun rights advocates is shifting attention to a different goal: exercising the right to carry unconcealed weapons in the 38 or more states that have so-called open-carry laws allowing guns to be carried in public view with little or no restrictions. The movement is not only raising alarm among gun control proponents but also exposing rifts among gun rights advocates.

The call for gun owners to carry their guns openly in the normal course of business first drew broad attention last summer, when opponents of the Obama administration’s health care overhaul began appearing at town-hall-style meetings wearing sidearms. But in recent weeks, the practice has expanded as gun owners in California and other states that allow guns to be openly carried have tested the law by showing up at so-called meet-ups, in which gun owners appear at Starbucks, pizza parlors and other businesses openly bearing their weapons. * * *

Gun control advocates say the open-carry movement’s real aim is to push the envelope and to force companies to take a public stand on the issue.

”You have to wonder where their next frontier will be,” said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. “Will gun owners start trying to carry firearms openly into banks, on subways and buses, in schools?”

Here is the Wikipedia entry on gun laws by state - Indiana.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Indiana Law

Law - "Federal Program Will Pay Homeowners to Sell at a Loss"

This NY Times long story today by David Streitfeld begins:

In an effort to end the foreclosure crisis, the Obama administration has been trying to keep defaulting owners in their homes. Now it will take a new approach: paying some of them to leave.

This latest program, which will allow owners to sell for less than they owe and will give them a little cash to speed them on their way, is one of the administration’s most aggressive attempts to grapple with a problem that has defied solutions.

More than five million households are behind on their mortgages and risk foreclosure. The government’s $75 billion mortgage modification plan has helped only a small slice of them. Consumer advocates, economists and even some banking industry representatives say much more needs to be done.

For the administration, there is also the concern that millions of foreclosures could delay or even reverse the economy’s tentative recovery — the last thing it wants in an election year.

Taking effect on April 5, the program could encourage hundreds of thousands of delinquent borrowers who have not been rescued by the loan modification program to shed their houses through a process known as a short sale, in which property is sold for less than the balance of the mortgage. Lenders will be compelled to accept that arrangement, forgiving the difference between the market price of the property and what they are owed.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to General Law Related

Ind. Decisions - "Concealed Carry Not A License To Be Searched"

The March 4, 2010 Court of Appeals opinion in Melvin Washington v. State of Indiana (ILB entry here, 2nd case) is the subject of a story today in TheNewspaper.com: A journal of the politics of driving:

Police may not search a vehicle merely because its driver has been issued a valid concealed carry permit, the Indiana Court of Appeals ruled on Thursday. A three-judge appellate panel weighed the actions of Indianapolis Police Officer Danny Reynolds who pulled over Melvin Washington for driving with a burned-out headlight on September 17, 2008 at 12:30am.

On that morning, Reynolds first asked Washington whether he had a gun, and Washington said he had one under his seat. Washington also carried a valid concealed carry permit. At this point, Reynolds ordered Washington out of the car and handcuffed him so that he could conduct a search under the seat of Washington's vehicle. Reynolds spotted a small bag of marijuana and issued Washington a court summons and a ticket for the defective headlight. Washington was then released with his handgun placed in the trunk of his vehicle, unloaded.

Washington moved to have the evidence against him suppressed because the warrantless search, he argued, violated the Fourth Amendment protection against unreasonable searches. A lower court disagreed, insisting that "officer safety" justified the search. The court of appeals did not buy the safety argument.

"In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety," Judge James S. Kirsch wrote for the majority. "Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer's questions, and showed no disrespect to the officer. At the time he searched for the handgun, Officer Reynolds had no information that any crime or violation of law had been or was about to be committed, except for the inoperable headlight infraction. Further, at the suppression hearing, Officer Reynolds did not testify that he had any specific concern for officer safety during his traffic stop of Washington."

Because no legitimate safety exception to the Fourth Amendment applied in this case, the court ruled the search was improper. Judge Melissa S. May added in a concurring opinion that the majority's ruling created a subjective element -- cooperation -- that could serve as a loophole allowing searches. To solve this problem, May cited the US Supreme Court case Arizona v. Gant where a warrantless vehicle search was overturned because the suspect had no access to his car.

"While we are dealing here with a traffic stop, rather than an arrest, the fact remains that Washington, like Gant, was removed from his car and handcuffed," May wrote. "Accordingly, Washington's statement there was a gun under his seat simply could not justify a search of his car based on concern for officer safety."

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Ind. App.Ct. Decisions

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

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

From Sunday, March 7, 2010:

From Saturday, March 6, 2010: From late Friday, March 5, 2010:

Posted by Marcia Oddi on Monday, March 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 3/8/10):

Next week's oral arguments before the Supreme Court (week of 3/15/10):

Next Wednesday, March 17th


This week's oral arguments before the Court of Appeals (week of 3/8/10):

Next week's oral arguments before the Court of Appeals (week of 3/15/10):

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

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


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 08, 2010
Posted to Upcoming Oral Arguments

Sunday, March 07, 2010

Envirnment - Illinois farmland sought to lease for natural gas exploration

Updating a list of earlier ILB entries on extracting natural gas from scale, using a technology called hydraulic fracturing, Len Wells has this report today in the Evansville Courier & Press. Some quotes:

A Louisiana energy company has sent a team of workers to Edwards County, Ill., to lease hundreds of acres of farmland for a natural gas exploration project. The company is targeting a gas-bearing shale formation known as the New Albany Shale Group that lies about 5,000 feet beneath the surface.

"We first noticed the company doing research in the county assessor's office about three weeks ago and decided to invite them to address our board," said Rebecca Perry, director of the Edwards County Farm Bureau. "They actually wanted the board's help getting these leases signed. But, it's our position that we neither support nor oppose their plans." * * *

Landowners who have been contacted by Eagle Resources have been offered $6 per acre for their land for each year of a five-year lease. In return for the lease, the landowner would also receive one-eighth royalty on any natural gas produced from the wells, which is considered a standard oil or gas royalty in the Tri-State oil basin. * * *

Officials with the Farm Bureau are advising landowners to consult an attorney before signing any lease forms.

Posted by Marcia Oddi on Sunday, March 07, 2010
Posted to Environment

Saturday, March 06, 2010

Ind. Gov't. - Building a picture out of a million brush strokes

The last days of a legislative session are the time when those on the outside, and many of those on the inside, have little real idea of what is going on.

I have a plan that might work to shed a little light, by collecting together little nuggets of information from many people, using Twitter.

Here is how it would work:

If you have a tidbit of interest, add this hashtag to your twit -- #INGA2010.

I've created an RSS feed to which anyone can subscribe, allowing them to follow the Tweets containing the hashmark #INGA2010. It isn't necessary to be a Twitter user to read the feeds, you can follow them via RSS.

If you are a Twitter users, another option would be to simply search for entries containing the hashtag. But RSS has the virtue of being automatic.

Here is the RSS link: http://search.twitter.com/search.atom?q=%23INGA2010

What kind of Tweets would be useful for this effort?

1. Those that provide color, such as this one Eric Bradner published last Friday: "My favorite Friday quote came from Vi Simpson, who said of Long, Bauer, & co: “A little estrogen in that group is probably not a bad thing."

2. Those that provide information, such as: "So much for that early end to the legislative session. Negotiations crumbled with accusations flying between House & Senate leaders." posted the evening of March 4 by Bill Ruthhart.

3. Those that provide specifics -- here are some I might have posted if I had been tweeting last week:

You may also want to retweet (with the insertion of #INGA2010) any tweets you come across that are perfect for this project, but that would otherwise be missed because they don't include the hashtag.

I hope those of you who tweet and who follow the General Assembly will give it a try to see what can be accomplished by compiling bits of information from a number of different sources in the brief period between now and the end of the session.

Thoughts?

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Government

Ind. Courts - "Gibson County gets tort notice over sex offender registry"

Andrea Howe of the Princeton Daily Clarion reported this story on March 2nd:

PRINCETON—Bradley D. Tomey of Princeton is seeking $35,000 in damages from the county for making him register as a sex offender.

He claims the Indiana Supreme Court has ruled that the 1992 law requiring sex offender registration was adopted after his 1989 rape conviction, and doesn’t apply to him.

The tort notice claim was filed against the county and sheriff in recent weeks. County Attorney James McDonald said Tuesday the matter has been referred to the county’s liability insurance carrier for review.

Tomey seeks the damages for emotional injury and humiliation, loss of work time, cost of attorney fees and medical expenses “among other losses and injuries yet to be determined,” according to the notice prepared by his attorney, John Emry of Franklin.

According to the claim notice, Tomey was convicted of rape in 1989, when he was 19, and has lived in Gibson County since completing his sentence and parole without any problems.

The state law requiring certain offenders to register with the state was enacted in 1992, and later amended in 1994, but an Indiana Supreme Court decision of April 30, 2009, reversed the requirement in Wallace v. State for a sex offender convicted prior to the adoption of the law.

Tomey’s attorney says in the tort claim notice that Tomey was contacted by the Gibson County Sheriff’s Dept. in late July, 2009, about not being registered, and Tomey contacted the New Castle parole officer and Gibson County Prosecutor’s Office for more information, but wasn’t provided an answer.

His claim against the county alleges that Tomey was contacted again Oct. 1, 2009, and told he would be arrested if he did not register as a sex offender. When Tomey contacted the Indiana Dept. of Correction, he was told the same thing, according to the notice.

A day later, fearing arrest, he registered, and was told “what he could do and not do and where he could go and not go.”

Tomey’s claim says as a result of the events, he had to go back to medication to control mental anguish and was forced to hire an attorney.

It also says the county was contacted Oct. 12, 2009 by Tomey’s first attorney, Michael Cochren, about the error, that commissioners and the sheriff acknowledged the error, but wouldn’t take his name off the registry unless he released them from liability.

The tort claim says Tomey wouldn’t sign the liability release, and there was no resolution to the problem as of Dec. 22, 2009. Some time later, his claim notes, Tomey’s name was removed from the list.

There were 75 registered sex or violent offenders listed this week on the Gibson County registry, a searchable database at www.insor.org/insasoweb

In November 2009, county commissioners established an ordinance that requires convicted sex and violent offenders to pay for complying with the state registration laws.

The county charges a $50 initial registration fee to offenders who are required to register in the county in which they live and/or work.

A $5 fee is also assessed each time an address is changed.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Courts

Law - Illinois attorney charged with bilking village of Calumet Park

From the NWI Times today, Rick Bird reports:

A Chicago attorney employed by the village of Calumet Park has been charged with the theft of government funds over allegations he billed the south suburb as much as $600 an hour and stole more than $1 million from its coffers.

Judge Ramon Ocasio III on Friday ordered a $25,000 bond for Mark J. McCombs, 50, who is charged with theft of government funds in excess of $100,000, a Class X felony, punishable by six to 30 years in prison.

Prosecutors said McCombs used his position to defraud the village out of funds from its tax increment financing district and billing for work he never performed.

"In this economic climate it is outrageous to think that someone would steal resources intended to create jobs and put people back to work," Cook County state’s attorney Anita Alvarez said. "This arrest should serve as warning to those who would engage in this type of conduct."

Prosecutors allege that McCombs, an attorney for over 25 years, was responsible for drafting as well as for filing all TIF-related reports as required by state law.

McCombs was required to present an itemized bill to the village government for approval, and then he would receive a payment voucher to present to the bank holding the TIF's accounts. Instead, McCombs allegedly circumvented the process and obtained payment for services he never performed. Prosecutors said he also increased his fees up to $600 a hour without notifying the village and without filing TIF reports with the state as required by law.

The alleged scheme was discovered earlier this year when another governmental agency that shared TIF money with the village found discrepancies in a presentation McCombs had put together regarding the fiscal health of the fund.

When contacted, McCombs allegedly offered to transfer TIF money to that agency in exchange for it dropping its inquiry. Alarmed by his response, administrators contacted Calumet Park officials, who obtained several years worth of records and uncovered that McCombs has billed the fund for $2 million worth of work since 2007 without the completion of any economic development projects, prosecutors said.

McCombs is scheduled to appear in court March 26.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to General Law Related

Ind. Courts - Still 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. 28, 2010, Erin Blasko of the South Bend Tribune reports today:

The St. Joseph County Board of Commissioners has agreed to release nearly $70,000 to overhaul the chillers at the Juvenile Justice Center.

Commissioners had previously refused to sign over the money, citing pending litigation. But that changed last month when Probate Judge Peter Nemeth threatened legal action.

On Feb. 19, Nemeth held a news conference at the JJC. He announced that if commissioners did not release the money, he would issue a judicial mandate ordering its release.

The following Monday, Commissioners Dave Thomas and Andrew Kostielney quietly signed the necessary requisition form. Bob Kovach still refused.

Only two signatures are required.

Nemeth originally requested the money in November. County Council members approved the request but commissioners vetoed it. The council then overrode the veto.

For his part, Thomas said he never intended not to sign the requisition form; he simply was not aware his signature was required.

"I thought once the council overrode our veto it was kind of a done deal," Thomas said, "... I didn't really think it (the form) needed my signature, to be honest."

Kostielney also said he never intended not to sign, but the form never reached his desk.

"Actually it never got to me," said Kostielney, explaining forms typically land in his inbox last, after they've been signed by Thomas and Kovach.

For his part, Kovach made no excuses, again citing "pending litigation that in my opinion would be impacted."

As to his colleagues choosing to sign the form, "that's their prerogative," he said.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Courts

Ind. Courts - Still more on: Indiana Supreme Court hears Voter ID law challenge

Updating this ILB entry from March 5th, Jon Murray of the Indianapolis Star has a long story today on how obtaining an ID from the BMV has become a whole new ballgrame in 2010. The "don't miss" story begins:

Backers of a challenge to Indiana's voter identification law in the state Supreme Court say forcing voters to flash a photo ID at the polls is only half the problem.

Good luck getting a valid ID in the first place, they say -- especially under stricter rules that went into effect in January for new state-issued driver's licenses and ID cards.
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"It's now a completely different ballgame when it comes to getting a new driver's license or state ID card," attorney Karen Celestino-Horseman said after participating in Thursday's arguments to the Supreme Court on behalf of the League of Women Voters, which is seeking to overturn the law.

She brought up the Indiana Bureau of Motor Vehicles' new "SecureID" requirements at the start of her presentation to the five justices.

And the justices asked questions zeroing in on the potential that some people might experience hair-pulling frustration as they struggle to document name changes or track down birth certificates. Marriages, divorces and adoptions can complicate matters.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Courts

Ind. Law - "Exemptions shoot down gun theory"; shotgun incident shows dangers

The Indianapolis Star today has a strong editorial about HB 1065 (see yesterday's report here), which is on its way to Governor Daniels:

If the Indiana General Assembly really cares about the safety of Hoosiers, what does it have against students, teachers, toddlers, prison guards and people who work in the pharmaceutical business?

For that matter, why are lawmakers picking on the disabled?

Those, of course, are among the exceptions to a bill passed by both chambers Thursday that would permit people to take guns to work as long as they keep them locked in their cars and out of sight.

Safety is supposed to be the goal. The dispensations shoot down that claim.

Employers, who are responsible for safety and liable for shootings on their premises, are outraged by the legislation and are imploring Gov. Mitch Daniels to veto it. He should do just that. So far, he's not saying; but he's no foe of the gun lobby and has authorized the carrying of firearms in state parks.

If the bill becomes law, litigation is likely as the business community pursues its right to govern and secure its property. In a technical sense, that prerogative lost out to the right to personal protection.

As a practical matter, this slapdash appeal to pro-gun sentiment is self-contradictory. For reasons ranging from federal law to political clout to common sense to sympathy for the fearful father of a developmentally disabled teenager, the bill is shot through with exemptions. By the logic of "armed and safer," those entities -- schools, universities, prisons, investor-owned utilities, child-care centers, Eli Lilly and Co. -- have been imperiled.

It is safe to say that imperiled is not how they feel. Nor do operators of hospitals and oil refineries feel safer. They sought exemptions and somehow were turned down.

Opponents cited numerous incidents across the nation in which angry employees and ex-employees have opened fire in workplaces. They noted that guns are often stolen. They go off by accident.

Proponents may argue, mostly hypothetically, that armed workers would thwart the bad guys. But here also is a glaring inconsistency. Earlier in this session, the legislature by landslide votes banned public access to records from which The Indianapolis Star had learned that gun permits are routinely handed out to individuals with a history of violence.

The common denominator: The realities of public safety proved no match for the emotional and political firepower of "gun rights." The governor, taking up his pen in a Statehouse from which weapons are banned, can end an unfair fight.

Here is a Feb. 14, 2010 ILB entry on SB 195, passed earlier this session, that closes public access to records of handgun registrants.

The new "guns to work" law would apply to, among others, public employees, guaranteeing them the right to take their guns to work, so long as the weapons are locked in their cars. The rationale? Perhaps they take a dangerous route to work, or may have a need to run out of the office to retrieve their firearm.

The "value" of that guarantee was illustrated by an incident that happened yesterday in Northwest Indiana. Joyce Russell reports today in the NWI Times:

PORTAGE | A 19-year auditor with the Indiana Department of Workforce Development, apparently distraught over a job review, opened fire with a shotgun Friday afternoon on fellow employees at an administrative office at 6224 Central Ave., police said.

No one was injured, and the man, identified as a 60-year-old Portage resident who works as an auditor for the agency, was taken into custody. * * *

The shooting comes one day after the Indiana House and Senate approved legislation allowing Hoosiers to keep guns locked in their cars while at work. The bill now is in the governor's hands.

In opposing the bill, state Rep. Vernon Smith, D-Gary, had said he believed the legislation would result to more on-the-job shootings.

"I told them this was going to happen," Smith said after learning of the Portage shooting. "It's not a good law to allow people to bring guns that close to work. If you have a chance to go home, you might cool off."

On Friday, 16 employees were in the office in a strip mall located in the downtown area, police said. The suspect had been called into a manager's office for a job review, became upset, left the building and took a 12-gauge semiautomatic shotgun from his vehicle and returned to the building, Portage police Sgt. Keith Hughes said.

Hughes said a manager "had a bad feeling" and ordered employees to lock the door. The suspect fired the first shot at the door, shattering the glass. He entered the building and chased employees out the back doors, firing another shot into the back of the building. He then followed employees as they scattered around the building, returning to the front of the office.

Police arrived, guns drawn. The suspect, who was in the process of reloading his shotgun, said, "I surrender," and he put down the gun, Hughes said.

Christin Nance Lazerus of the Gary Post-Tribune has this report.

Finally, as related in this Dec. 9, 2006 ILB entry, even though the new HB 1065 will mean state employees can have their guns locked in their vehicles in the Statehouse complex garages and parking lots, these employees may not bring their guns into the Statehouse, unless they are legislators or judges.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Law

Ind. Law - Still more on: "Movie rental kiosks hit with legal threats: Video stores say children can rent mature films at kiosk competitors" [Updated]

Updating this March 5, 2010 ILB entry, this article posted March 5th in Home Media Magazine gives the industry perspective on the recent brohaha. It begins:

The Vanderburgh County, Ind., prosecuting attorney decided March 5 to drop his case against DVD kiosks, a case in which retailers with Redbox and MovieCube kiosks had been threatened with felony prosecution if they did not remove DVDs rated higher than ‘G’ that could possibly be accessed by minors.

Calling it “a virtual certain not guilty verdict,” Vanderburgh County prosecuting attorney Stanley Levco said he reached his decision after reviewing case law and speaking with members of his community.

“The kiosks have protections in place to restrict access [of objectionable DVDs] to minors, and there was a strong community objection to filing,” he said. “I don’t believe a jury would have convicted.”

Letters from Levco’s office were sent to about a dozen county retailers with DVD kiosks in January, warning them to remove DVDs rated above ‘G,’ or face felony charges under Indiana state law. Levco’s office was prompted to send the letters by the owner of a chain of local video stores.

“The county prosecutor wisely refused to take the bait from competitors,” said attorney Larry Mackey, who is representing both Redbox and MovieCube operator NCR Corp. in Indiana.

[Updated 3/7/10] Here is a response from the Video Buyers Group, published in today's Evansville Courier & Press. And here is a letter headed "No on kiosk issue: Such regulation is a waste of time and taxpayer money."

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Law

Ind. Courts - "Judge rejects deal in man’s third OWI charge"

Updating a long list of earlier ILB entries on La Porte Circuit Court Judge Tom Alevizos, many dealing with plea agreements and sentencing, Stan Maddux reports today in the LaPorte Herald Argus:

A judge is getting tough on another suspected drunk driver after the man was involved in an accident after which he fled.

La Porte Circuit Court Judge Tom Alevizos on Wednesday rejected a plea agreement offered by 29-year-old Joshua Eggert of Union Mills.

“These are the people who are eventually going to go out but for the grace of God haven’t killed anybody,’’ Alevizos said.

Eggert had already racked up at least two prior drunken driving convictions and was driving on a 10-year suspended license when he hit a vehicle in Fox Park.

According to officials with the La Porte Police Department, Eggert, while trying to pass a vehicle, sideswiped the car and kept going in his sport utility vehicle.

The driver he hit called 911 and followed Eggert until police stopped him in the 500 block of Lincoln Way.

His alleged blood alcohol level was .25-percent.

Under a plea reached between the defense and prosecution, Eggert would have been found guilty of operating while intoxicated and domestic battery as Class D felonies.

However, Alevizos took exception to a stipulation that the convictions officially go down on his record as Class A misdemeanors.

A 180-day sentence in the La Porte County Jail was called for, along with six months on work release and 550 days on probation.

“We think it’s a fair plea agreement given all of the negotiations that took place in this matter,’’ said defense attorney Kurt Earnst.

Alevizos told the defense one of his main contentions was that a misdemeanor conviction would prohibit his license from being taken away for life, something that typically occurs in cases involving defendants with at least three OWI convictions like Eggert. He pointed to fatalities being reduced by half nationwide since law enforcement began getting tough on drunken driving in the early 80s.

“The reason we have these drunk driving laws is because they’re effective,’’ Alevizos said, adding that the plea did not include restitution for the victim to cover the damage to his car and felt it should reflect his actions in the domestic battery case.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Courts

Ind. Decisions - "Sex exploiter to serve 10 years on 9 felony counts"

Aaron Organ reports today in the Fort Wayne News-Sentinel in a story that begins:

When Allen Superior Judge Fran Gull finished methodically reading down her sentencing terms to convicted sexual exploiter Bradley J. Kowalczyk in court Friday afternoon – “10 years on count one, 10 years on count two, 10 years on count three…” – to the cumulative tune of 55 years, she paused.

Gull then turned to Kowalczyk and said, “It pains me greatly, Mr. Kowalczyk, but I’m ordering them to be served concurrently.”

Gull noted the Indiana Court of Appeals making it known through recent rulings consecutive sentences are to be reserved for the worst of the worst, and rather than risk Kowalczyk winning an appeal and ending up back before her bench, she compromised.

So despite his possession of some 4,000 images of child pornography, including over 1,000 depicting a 14-year-old in lewd poses taken during a two-week sexual relationship between the two, the 39-year-old Kowalczyk will serve 10 years in prison on nice felony counts.

“You’re not the worst of the worst, Mr. Kowalczyk,” Gull said. “You rank up there, but you’re not the worst I’ve seen.”

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions

Ind. Courts - "Judge hopes feds' probe of tax breaks will clear air"

Bill Dolan reports today in the NWI Times in a story that begins:

CROWN POINT | A candidate for Lake Circuit Court judge said he welcomes a federal investigation into how an improper tax break appeared on property his family owns.

George C. Paras said Friday, "I want a federal investigation, because then maybe they will find out who went in and changed this record. I will cooperate and tell them everything I know because I haven't done anything wrong."

Paras is Merrillville town judge and one of two lawyers running in the May 4 Democratic primary for Circuit Court judge.

Sources said investigators are looking into Paras' property ownership documents. Mary Hatton, a spokeswoman for the U.S. attorney's office, declined to comment on any pending investigations.

County records indicate the county honored homestead credits in Paras' name for his Merrillville residence and a Hobart residence used by his sister Theresa Christos.

State law limits property owners to only one such credit, on their principal residence.

Posted by Marcia Oddi on Saturday, March 06, 2010
Posted to Indiana Courts

Friday, March 05, 2010

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

Updating this ILB entry from Feb. 21, 2010, the ILB is now able to post the new rules, effective July 1, 2010, amending the Indiana Rules of Court: Jury Rules, specifically Rule 20. Preliminary Instructions and Rule 26. Final Instructions.

Here are the long anticipated rule amendments.

And yes, the headline to the Gary Post-Tribune story (still available here) was wrong, there is no mention of specific web destinations or social networks.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Indiana Courts

Ind. Law - More on: "Movie rental kiosks hit with legal threats: Video stores say children can rent mature films at kiosk competitors"

Updating this ILB entry from March 3rd, reporter Jon Murray is now reporting in his Indianapolis Star blog, "Justice Watch":

A crackdown on Redbox and other DVD kiosks in Evansville is off, apparently. * * * Larry Mackey, an Indianapolis attorney retained by Redbox and competitor MovieCube, told me a few minutes ago that Levco has decided not to pursue criminal charges. * * *

Mackey said he provided a legal position paper to Levco, and the prosecutor called him this morning to say he wouldn't pursue any charges. "It would be unconstitutional to bring a criminal case," Mackey said, since the ratings -- set by the Motion Picture Association of America -- aren't in the law. Instead, a prosecutor would have to review each movie to consider whether it violated what he considered to be the community's standards, and he would need to prove a child successfully rented the movie, Mackey said.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Citizens State Bank of New Castle v. Countrywide Home Loans, Inc., et al., a 9-page opinion, Judge Crone concludes:

Specifically, we looked to a decision of the Federal District Court for the Southern District of Indiana, applying Indiana law, and its explanation for determining the priority rights of superior and junior lienholders in cases where the superior lienholder has acquired fee simple title to the mortgaged property by foreclosure sale and no longer holds a mortgage. See Brightwell v. United States, 805 F. Supp. 1464 (S.D. Ind. 1992)(citations omitted). * * *

Contrary to Countrywide and FNMA’s suggestion, we conclude that Brightwell correctly states Indiana law regarding priority rights when a foreclosing mortgagee sells the property to a third party. We hold that while Countrywide’s mortgage lien was preserved after it acquired title to the property via sheriff’s sale, Countrywide’s right to assert the mortgage against CSB was extinguished upon subsequent transfer of the property to FNMA and, thus, the mortgage-assertion right did not pass to FNMA. When property is transferred for value or resold to a third party, that party cannot then assert what was formerly a superior mortgage lien position against the judgment lien. Rather, the third party takes the property subject to the valid judgment lien. This is fair and just.[4] Accordingly, Countrywide’s attempt at strict foreclosure fails as a matter of law.

Therefore, we reverse the trial court’s entry of summary judgment in favor of Countrywide and FNMA. We remand to the trial court with instructions to enter summary judgment in favor of CSB on Countrywide’s complaint for strict foreclosure and also to enter summary judgment in favor of CSB on its complaint to foreclose judgment lien against FNMA and the Steuben County Treasurer and all other remedies consistent with this opinion.
____________
[4] We feel compelled to state the obvious. All of this could have been avoided had Countrywide conducted a thorough title search of the property prior to the original foreclosure or had FNMA done the same prior to purchasing the property from Countrywide, as such searches surely would have revealed CSB’s properly recorded judgment lien. While Countrywide and FNMA fancy these mistakes as “technicalities,” they are significant when applying principles of equity.

In Oscar Guillen v. R.D.C. Mail Clerk, et al. , a 6-page opinion in a pro se appeal, Sr. Judge Sharpnack writes:
Plaintiff-Appellant Oscar Guillen appeals the trial court’s dismissal of his complaint against the Reception-Diagnostic Center (R.D.C.) mail clerk, the R.D.C. warden, and the Commissioner of the Department of Correction (collectively, “prison officials”). We reverse and remand for further proceedings. * * *

The prison officials in this case have promulgated a rule regarding the “disposition of incoming correspondence.” (Exhibit E to Guillen’s complaint; Appellant’s App. at 11). The rule states, “If the offender’s name, identification number or housing unit is not included in the address on incoming correspondence, the facility shall make a reasonable attempt to deliver the correspondence in as timely manner as possible.” Id. We find it difficult to believe the Lake County court failed to place Guillen’s name upon the correspondence sent to him at the R.D.C. We hold that Guillen’s complaint set forth a set of facts which may allow him to recover damages from the named defendants because they negligently or deliberately refused to follow R.D.C. rules and interfered with Guillen’s constitutional right to pursue his Lake County claim. The complaint is sufficient to require the prison officials to respond thereto.

Upon our order, the State Attorney General has filed a brief in this appeal. The State first argues that the appeal should be dismissed because Guillen failed to make a cogent argument. Our review of the notice of complaint disclosed a somewhat unfocussed, but cogent, argument that necessitated our order that the State respond.

The State further argues that Guillen is trying to litigate the Lake County case in the action filed in Hendricks County. As our statement of facts reveals, this is not so.

Finally, the State cites Lewis v. Casey, 518 U.S. 343, 353, 116 S.Ct. 2174, 131 L.Ed.2d 999 (1996) for the proposition that the State need not enable the prisoner to litigate effectively once in court. The State reads too much into Lewis, which holds that a court interferes with a State’s political branches when it attempts to micro-manage prison procedures. Id. at 350. Lewis also holds that courts may protect a prisoner from the prison’s active interference with a lawsuit. Id.

We conclude that the trial court erred in dismissing Guillen’s complaint for failure to state a claim. Thus, we reverse and remand with instructions that the prison officials be required to answer.

In Stonington Insurance Company v. Wiley Williams, an 18-page opinion, Chief Judge Baker's introductory summary cuts through a complicated fact situation:
Here, a Texas insurance company issued an insurance policy to a Wisconsin moving company through a Colorado broker and a California insurance services company. An Indiana company was added to the policy as an additional insured and received a certificate amending the policy to that effect. A truck driver for the Indiana company was injured in an accident caused by an uninsured motorist. The accident occurred just after the driver had connected his tractor to a trailer that was registered and garaged in Indiana and covered by the insurance policy at issue. Although many states have had contacts with the underlying insurance contract, we find that Indiana has the most intimate contacts and, consequently, that Indiana substantive law should apply herein. Likewise, we find that the Indiana uninsured motorist statute applies and requires the insurer to provide uninsured motorist coverage at the same limits as its liability coverage.
NFP civil opinions today (1):

Baker & Daniels, LLP, et al. v. Coachmen Industries, Inc., et al. (NFP) - "Upon appeal, Baker & Daniels claims that the trial court abused its discretion in reinstating the St. Joseph Circuit Court action. In making this claim, Baker & Daniels argues that the action was dismissed due to attorney neglect and that, pursuant to Indiana Trial Rule 60(B)(1), reinstatement following dismissal on this ground is prohibited after one year has passed; that no “exceptional circumstances” justified reinstatement; that Coachmen failed to establish the necessary element that its claim was meritorious; and that, in light of the “significant interest” in finality for this litigation, Coachmen cannot demonstrate that dismissal amounts to an injustice. * * *

"Having concluded that this action was properly reinstated pursuant to Indiana Trial Rule 60(B)(8), and having rejected Baker & Daniels's challenges to the legitimacy of reinstatement on that ground, we affirm the decision of the trial court permitting reinstatement of the instant action."

NFP criminal opinions today (5):

Anthony Scott v. State of Indiana (NFP)

Darrell S. Aubuchon v. State of Indiana (NFP)

William James Wise v. State of Indiana (NFP)

Thomas Huffine v. State of Indiana (NFP)

Shaum M. Locke v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from 7th Circuit

InU.S. v. White (ND Ind., Moody), an 11-page opinion, Judge Evans writes:

Pursuant to a written plea agreement with the government, Dewayne White pled guilty to one count of distributing crack cocaine. After the plea was accepted by the judge, but before sentencing, both parties learned that White’s criminal history made him ineligible for a “safety valve” reduction, which, in turn, negated the practical effect of the two other reductions the government had agreed to support. Upon learning this news, White filed a motion seeking to withdraw his plea on the basis of this “mutual mistake.” The government opposed the motion, arguing that the plea should stand because the “mutual mistake” did not affect the essential terms of the agreement and because White knew that the safety valve reduction might not apply. The district judge sympathized with White but denied his request. White now appeals. * * *

Like the district court, we too sympathize with White. But had he been allowed to withdraw his plea, a subsequent guilty verdict by a jury looks here like it would have been a foregone conclusion. And then he might have received a sentence of even more than 10 years. Because the agreement did not promise a specific sentence, and the record shows that White knew the possible consequences of his plea, the district judge did not abuse his discretion in denying White’s motion. For these reasons, since we reject White’s attempt to set aside the plea agreement, the appeal waiver stands and we must dismiss his appeal for want of jurisdiction.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - Big vote-buying trial going on in Kentucky

Here is one of the earlier stories, reported Feb. 2, 2010 by Bill Estep of the Lexington Herald-Leader and headed "Jury selected in Clay vote-fraud case". Some quotes:

The indictment in the case alleges that the eight took part in a conspiracy to buy or steal votes between 2002 and 2007.

Those charged are former Circuit Judge R. Cletus Maricle; former school Superintendent Douglas Adams; county Clerk Freddy W. Thompson; Magistrate Stanley Bowling; former election officers Charles Wayne Jones and William Stivers; and William "Bart" Morris and his wife, Debra Morris.

The eight deny the charges. Attorneys have argued that some prosecution witnesses have lied.

The case is part of a federal investigation dating back several years in which a number of public officials and prominent Clay County residents have been charged.

Here is another story from Mr. Estep, this one dated March 4:

FRANKFORT — The loser in a knock-down race for Clay County clerk in 2002 sat in a courtroom with the winner Wednesday and said both sides bought votes hand over fist.

Former county Clerk Jennings B. White said he and two allies, then-state Rep. Barbara White Colter and Edd Jordan, sheriff at the time, pooled $100,000 to buy votes as a group.

There has been testimony that candidates in the slate opposing White's group pooled $150,000 or more to buy votes.

White lost that 2002 Republican primary to challenger Freddy W. Thompson, who is now charged with being part of a scheme to buy votes in that race.

White testified against Thompson on Wednesday, saying he saw people allied with Thompson buy votes.

One, William Stivers, came with pockets full of money to the office where people cast early absentee votes, but his pockets were empty by the end of the day, White said.

However, White said that in some cases he went into the voting booth with people who'd been paid to vote for Thompson and instead cast their votes for him.

"I stole every vote I could from him," White said.

He testified in the trial of eight Clay County residents charged with conspiring to buy and steal votes from 2002 to 2007 so they could get or keep power. * * *

The 2002 race between White and Thompson was volatile, with shootings and jostling at the absentee-voting machines, allegedly related to the vote-buying efforts.

Jordan, a friend of White, twice shut down the absentee polls. A witness in the current trial said that was an effort to slow down the vote-buying against White.

White testified for the first time Wednesday that he staged a shooting that year.

Shortly before Election Day, White reported that someone ambushed him on an isolated road, riddling his van with more than 30 bullets as he jumped out and rolled down a hillside, barely escaping with his life.

"All I heard was shots. I didn't bother looking to see who was firing," White said at the time.

Jordan, the sheriff, said then that the hit was politically motivated and raised the idea that supporters of Thompson could be involved.

But many people thought White had staged the shooting to gain sympathy or try to make Thompson look bad, or both, and White confirmed that he set up the shooting with Roger "Uncle Bud" Smith, a vote-buyer.

In response to questions from Stivers' attorney, Robert Abell, White contradicted an earlier witness, convicted drug dealer Denver Sizemore.

Sizemore testified that as he rode around with White on Election Day in 2002, both of them armed, White wanted him to shoot Stivers' brother at a precinct where he was buying votes.

Sizemore also said that after the election, White offered him $25,000 to kill a man who had dug up information on an old criminal charge against White.

However, White said Wednesday that he didn't suggest shooting Stivers and did not offer Sizemore money to kill the other man.

A side-bar to this story provides links to a number of additional stories about the trial.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Courts in general

Ind. Law - "Lawmakers pass gun-at-work bill: Divisive measure lets most Hoosiers take firearm to job; Daniels likely to sign it"

So reports Mary Beth Schneider of the Indianapolis Star today, updating this ILB entry from Feb. 23rd. Some quotes:

Most Hoosiers could take a gun to work as long as the weapon is stored out of sight in a locked vehicle, under legislation enacted Thursday to the delight of gun-rights advocates and the alarm of Indiana businesses.

At least 12 other states, including Kentucky, have passed similar legislation.

House Bill 1065, which passed the House 74-20 and the Senate 41-9, now goes to Gov. Mitch Daniels for his signature. * * *

The bill, though, grants some exceptions.

Schools, universities, prisons, child-care centers and domestic-violence shelters can ban their employees from bringing guns to work. Homeowners can declare their property a gun-free zone if they choose. Investor-owned utilities such as Duke Energy and Indianapolis Power & Light Co. also are exempted.

So are businesses licensed by the U.S. Nuclear Regulatory Commission and regulated by the federal Department of Homeland Security's anti-terrorism standards. That includes Eli Lilly and Co. and Roche Diagnostics. * * *

Other groups seeking exemptions were rebuffed, including hospitals and oil refineries. Maggie McShane, executive director of the Indiana Petroleum Council, said it is "standard procedure at all oil refineries, and considered common sense, to bar any firearms from the premises. Now this bill will stand between the refinery manager and his ability to fully secure his facility."

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Indiana Law

Ind. Courts - More in: Indiana Supreme Court hears Voter ID law challenge

Niki Kelly of the Fort Wayne Journal Gazette reports today on yesterday's oral argument:

INDIANAPOLIS – The state’s strict photo identification law went under the microscope Thursday with Indiana Supreme Court justices questioning whether the law creates an unconstitutional burden on voters.

State attorney Thomas Fisher contended the law is simply “another safeguard for fair and honest elections.”

But Karen Celestino-Horseman, attorney on behalf of the Indiana League of Women Voters, said the law goes beyond a simple regulation to being a qualification that bars some people from voting.

“The legislature can’t impose a qualification,” she said. “This particular law crosses a line.”

Indiana’s Republican-backed voter ID law passed in 2005 and requires voters to present a driver’s license or other government-issued photo identification at the polls.

A Hoosier who shows up to vote without a picture ID may cast a provisional ballot but must present a photo ID to the county election board within 10 days.

The U.S. Supreme Court upheld the law 6-3 in April 2008 based on provisions the U.S. Constitution. But the Indiana Court of Appeals struck down the law in September based on challenges to two separate provisions in the Indiana Constitution.

The panel of three appellate judges then found that the law violates the Indiana Constitution because it favors Hoosiers using mail-in absentee ballots who do not have to show ID to vote while those voting in person at the polls do.

The League of Women Voters also claims the law is illegal because it is an additional qualification to vote rather than a regulation on voting.

Regulations include such things as being required to register to vote, having specific voting hours and signing the poll book before voting. But an example of a qualification includes a requirement to own property – something struck down by the courts.

Celestino-Horseman pointed out that people who cannot obtain identification have no other alternative if they don’t fit the requirements to vote absentee.

“There is a whole group of folks out there effectively being denied the right to vote,” Supreme Court Justice Robert Rucker said.

“How does that inspire confidence?”

And Supreme Court Justice Frank Sullivan Jr. seemed sympathetic to the struggles some might have trying to obtain birth certificates or other documentation in other states to get a state ID or driver’s license here.

“That’s a lot to have to go through for a constitutional right,” he said.

Several justices were disappointed that the League of Women Voters has sued on behalf of its group instead of on behalf of a specific person denied the right to vote under the law, which has been around for nine elections.

Celestino-Horseman briefly cited several instances in her legal briefs but said details on those cases are more appropriate if the lawsuit is not dismissed and is allowed to go forward.

Fisher said there are only a handful of anecdotal cases involving a person being denied the right to vote.

Sullivan pointed out conversely, though, that the only documented cases of voter fraud he is aware of are absentee ballots “and yet no one has to show ID to get an absentee ballot or cast one.”

Fisher also argued that Secretary of State Todd Rokita isn’t the proper defendant to sue because he doesn’t enforce the law – that duty falls upon county election boards.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Indiana Courts

Ind. Law - "Lawmakers approve Capital Avenue curb cut bill"

As first reported by the ILB in this entry yesterday, HB 1125 has now been approved by both houses and is ready for enrollment.

Kevin Allen reports in the South Bend Tribune:

The General Assembly gave final approval Thursday to a bill that will clear up the future of Capital Avenue.

The measure, House Bill 1125, is now eligible for Gov. Mitch Daniels' signature.

H.B. 1125 allows for intersections at Ireland Road, which nearby houses need for street access, and across from Exit 83 of the Indiana Toll Road, which will make development possible on nearly 300 acres there.

It also adds Douglas Road, which already has an intersection with Capital, to the list of acceptable intersections approved by the legislature last year. The Indiana Department of Transportation eventually would have had to close the Douglas intersection if the legislature didn't correct last year's error.

Memorial Health System owns 23 acres near the planned intersection across from the Toll Road exit.

Memorial and the city of Mishawaka are suing the state over last year's legislation, but this year's bill could resolve that dispute.

The background provided by the Dec. 2, 2009, and March 3, 2010 ILB entries is helpful to fully understand this story.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Indiana Law

Ind. Courts - Court of Appeals decision appealed to SCOTUS

SCOTUSblog reports today that among "the noteworthy petitions currently filed" was this appeal from the Indiana Court of Appeals:

Title: Jaskolski v. Daniels
Docket: 09-946
Issues: (1) Whether the court below erred in holding that one of the petitioners was an “independent contractor” rather than an “employee of the government,” such that the United States had no authority to supervise or control the manner in which he interrogated federal grand jury witnesses, reviewed grand jury materials, or managed documents or witnesses at a federal criminal trial; and (2) whether the same court erred by including in the definition of “employee of the government” the additional burden of proving that the federal government “pressed [the petitioner] into service” or “required” him to act?
Here is the April 24, 2009 Indiana Court of Appeals opinion. The link SCOTUSblog provides to the Petition for Certiorari is not working at the moment, check back later at their entry.

Posted by Marcia Oddi on Friday, March 05, 2010
Posted to Ind. App.Ct. Decisions

Thursday, March 04, 2010

Law "Judiciary Committee Approves Dawn Johnsen, But is This as Far As She’ll Get?"

This entry this afternoon by Ashby Jones of the WSJ Law Blog voices what many of us may be thinking by this point, even those of us who are supporters.

[More] See also this entry yesterday from The blog of Legal Times.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today

In Eric P. Sibbing v. Amanda N. Cave, a 15-page, 5-0 opinion (with a separate concurring opinion), Justice Dickson writes:

Following a plaintiff's verdict in this automobile rear-end collision personal injury case, the defendant appealed, claiming trial court error in (a) permitting the plaintiff to testify about what she was told by her treating physician and her own beliefs about the cause of her pain, and (b) excluding medical necessity evidence from the defendant's expert witness. The Court of Appeals affirmed. Sibbing v. Cave, 901 N.E.2d 1155 (Ind. Ct. App. 2009). We granted transfer and affirm, holding that some of the challenged medical testimony of the plaintiff was improper-ly admitted but that the resulting error does not require reversal, and that the defendant's evidence regarding medical necessity was properly excluded. * * *

In summary, we hold that the phrase "reasonable and necessary," as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another, and (3) the rule in Whitaker is a correct application of the "scope of liability" component of proximate cause.

In the present case, the defendant challenges the exclusion of evidence from his medical expert challenging the medical necessity of Dr. Saquib's nerve conduction studies at Priority 1 Medical and the "passive care" treatment provided more than four weeks after the collision, first from Priority 1 Medical and later under Dr. Sheppard at Castleton Chiropractic. The defendant does not assert that such treatment lacks causation in fact, that is, that plaintiff failed to establish that, but for the collision, the challenged treatment would not have occurred. Instead, the defendant disputes the medical judgment of the plaintiff's medical providers in choosing to administer the questioned studies and treatment. This he may not do. The trial court was correct to exclude the proffered evidence, and the Court of Appeals properly applied Whitaker to affirm the trial court's decision.

Conclusion. We affirm the judgment of the trial court.

Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs in result with separate opinion [that concludes] But the breadth of today’s ruling will lead future judges and juries to work injustices at the very moment when judgment is most needed to hold to account providers at the edge of reasonably necessary treatment, or beyond it. Today’s “Sibbing rule” insulates sharp practices from scrutiny, which is why I decline to join in.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Madison Courthouse repair is eyecatching

In May of 2009 the Jefferson County Courthouse in Madison Indiana was severely damaged in a fire. Happily, reconstruction is now underway. Today the Eagle News, covering SE Indiana northern Kentucy, and SW Ohio, had a brief story by Mike Perleberg, headed "Portalet In The Sky."

The story today
features two photos by "Eagle 99.3 listener Monica Oevermeyer." Don't miss.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Indiana Courts

Ind. Courts - Indiana Supreme Court hears Voter ID law challenge

The oral argument was this morning at 9:00 AM. The case: League of Women Voters, et al. v. Todd Rokita. If you would like to watch the video, access it here.

Jon Murray's report today (and you know he was there because he can be seen in the video, the reporter on the aisle) for the Indianapolis Star is headed "Indiana justices lob questions at voter ID law." Some quotes:

Sharp questions from the five justices dominated an hour of arguments today about the state's voter identification law in the Indiana Supreme Court. * * *

Karen Celestino-Horseman, an attorney representing the League, was about a minute into her presentation when Justice Frank Sullivan Jr. interrupted. She had begun by saying the League's contentions are that the voter ID law is an unconstitutional qualification for voting and that it imposes an unconstitutional burden on voters -- particularly in light of new Bureau of Motor Vehicles rules that require several documents to obtain a secure ID.

Sullivan noted that at least three election cycles had passed since the law's passage. "Has the use of this statute ferreted out any voter fraud?" he asked.

No, Horseman said.

"How about the other side of the coin?" Sullivan said. "Have any voters been denied the right to vote? Can you give me the name of any such voter?"

The latter question would be raised several times throughout the next hour, and Celestino-Horseman replied that the League's attorneys have been contacted by numerous people whose lack of a state-issued ID kept them from voting. Even if they voted using a provisional ballot, those votes wouldn't be counted unless they obtained an ID and showed it within 10 days -- an unlikely proposition, she said.

And if the case gets sent back to Marion County court to proceed to trial, she said, there will be plenty of time to explore evidence on both sides of the case. * * *

The state's attorney, Solicitor General Thomas M. Fisher, argued the voter ID law amounts to a regulation that bolsters the integrity of the system, as allowed by the state constitution. Another key issue is whether exemptions to the photo ID requirement -- for mail-in absentee voters and those who live in state-licensed nursing homes that serve as polling places -- treat voters unequally.
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Justice Robert D. Rucker questioned the integrity argument. "There is a whole group out there that effectively has been denied the right to vote," he said, since the poor, the disabled and the elderly might not be able to afford the time or money it takes to obtain a state-issued ID.

Fisher said the difficulties have been overstated by the law's opponents, and other lawful voting regulations necessarily impose some burdens.

Sullivan pressed him: "Suppose our legislature, in light of the current fiscal crisis, were to impose a $250 charge (for a state ID) ... would that change things?"

Yes, Fisher said, but he noted that the legislature had thought of such issues when it debated voter ID.

Sullivan noted that absentee voting -- exempted from the photo ID requirement -- seemed to pose much more possibility for fraud.

Lesley Stedman Weidenbener of the Louisville Courier Journal has posted this story. Some quotes:
Indiana Supreme Court justices had tough questions for attorneys Thursday as they focused on whether the state’s voter identification law is an unconstitutional burden on voters or simply an appropriate safeguard against fraud.

In an hour of arguments, the five justices picked apart the law – one of the strictest in the nation – that requires voters to show a government-issued photo ID before casting a ballot.

State attorney Thomas Fisher said the law is similar to the regulations that set polling hours or require voter registration – rules the court has previously upheld. He called it “another safeguard for fair and honest elections.”

But Karen Celestino-Horseman, an attorney for the League of Women Voters that is challenging the law, said it “crosses the line” because it’s difficult for some voters to obtain the necessary ID while identification isn’t even required for people who mail in ballots.

She compared the law to “qualifications” for voting – such as a requirement to own property – that lawmakers passed years ago but that courts found unconstitutional.

“If the regulation imposes a burden and acts as a bar … then it becomes essentially a qualification,” Celestino-Horseman said.

Chief Justice Randall Shepard said if the court finds the law to be “a qualification, it’s unconstitutional. Period.”

But there are other issues in the case, and justices probed procedural questions, including whether the league brought its challenge against the right official – Secretary of State Todd Rokita – or whether it should have been directed at county election administrators.

Fisher argued the latter, saying that Rokita only advises local officials. He said the case should have been brought against a county where individual voters had been aggrieved by the ID requirement.

But Celestino-Horseman called Rokita the state’s top election official and said he tells county officials how to implement the law.

Justice Ted Boehm said Rokita “has been pretty visible” on the issue. In fact, Rokita later issued a statement about the case, saying, “as Indiana’s chief elections officer, I am proud to defend and will continue to stand up for a law that emulates Hoosier commonsense.”

But the meat of Thursday’s debate focused on whether the identification itself is appropriate.

Justice Frank Sullivan Jr. said he’s worried about voters who might have trouble finding the birth certificate, Social Security card and other information needed to obtain a driver’s license or state identification card – especially because the state is tightening those requirements. He said adoptions, name changes, and out-of-state moves might make that documentation even more difficult.

“It’s a lot to have to go through for a constitutional right,” Sullivan said.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Indiana Courts

Ind. Law - More on "Shoe camera man charged with voyeurism"

Updating yesterday's ILB entry, WHAS11 has a story headed "Suspected shoe-cam peeper in court, police release equipment photos." In addition to the photo heading the story, check out this one.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Indiana Law

Ind. Courts - "Gambler challenges casino for giving him credit, says he was drunk"

On May 30, 2006, Grace Schneider reported in the Louisville Courier Journal under the headline "Kentuckian battles Caesars over his gambling losses: Suit claims casino let him bet drunk." That story began:

A developer from Corbin, Ky., who said he has lost at least $500,000 over the years at the Caesars Indiana casino has gone to court to prevent the riverboat from getting even more of his money.

His claim: That he was drunk when he accepted $75,000 in credit from the casino and then lost it all in a single night.

"They kept serving me till I was totally intoxicated," Jimmy L. Vance said in an interview. "In fact, I don't remember losing all the money."

The legal maneuvering began last October when the casino, which is in Harrison County, Ind., near Louisville, sued Vance for failing to repay the $75,000. Last month Vance fired back, taking an approach that may be unprecedented in Indiana.

In his countersuit filed in Harrison Circuit Court, Vance, 64, maintains that he was visibly drunk and was "induced" by Caesars employees to take several credit advances during a night of gambling. Therefore, his suit claims, the casino is responsible for his losses.

Yesterday, 3 1/2 years later, Ms. Schneider reported in the LCJ:
PAOLI, Ind. — During a night of blackjack at the former Caesars Indiana, Kentucky businessman Jimmy L. Vance sipped at least seven bourbon cocktails and gambled away $75,000 loaned to him by the casino.

Vance, of Corbin, is now claiming in a lawsuit that he was so drunk he doesn’t remember most of that September 2004 night —and the casino took advantage of his intoxicated state, violating state law by providing him money on credit.

But during the trial of the case Wednesday before special Judge Larry Blanton in Orange Circuit Court, lawyers for the casino said surveillance video taken that night show no signs that Vance was intoxicated.

Vance “doesn’t sway. He doesn’t stagger,” said Gene Price, the casino’s lawyer.

The case isn’t the first time in Indiana or the country that a gambler has waged a legal battle arguing that he was impaired and that the casino was responsible for his losses. But such claims seldom sway skeptical judges, who have ruled repeatedly in favor of casinos.

The Vance case began in mid-2005 when Caesars, now Horseshoe Southern Indiana, sued him in Harrison Circuit Court, contending he failed to repay the loan after the markers bounced because of insufficient funds. Vance filed a countersuit, claiming he had been induced to gamble while drunk.

Wednesday’s trial came after several attempts to resolve the dispute failed. If the casino ultimately prevails, state law allows it to recoup triple damages — $225,000 — as well as interest, court costs and legal fees.

Blanton is expected to rule by this summer after reviewing a final round of briefs from the lawyers.

Vance’s lawyer, Larry Wilder of Jeffersonville, said after the trial that a key issue is whether Indiana law allows a casino to enter into a legal contract with a patron who is drunk.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Indiana Courts

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

The ILB has had a number of entries about "surprises" that have appeared in the 2009 budget bill. The surprise discussed most recently involved curb cuts in Mishawaka, reported first on Dec. 2, 2009, and the latest was March 3, 2010.

News this afternoon is that a version of the curb cut bill discussed in the March 3rd entry, HB 1125, has today been approved by both houses and is ready for enrollment.

Also today, Doug Masson of Masson's Blog reports a 2009 SS Budget Surprise of his own, as detailed in his entry, "INDebt Delinquent Tax List eliminated in 2009 Special Session."

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Indiana Law

Courts - SCOTUS "Petitions to Watch" of interest to Indiana

The "Petitions to Watch" feature from SCOTUSblog today includes several "of interest to Indiana" cases up for consideration at the Justices’ private conference tomorrow on Friday, March 5 that Tom Goldstein thinks have a reasonable chance of being granted.

One is a decision by then-district court judge Tinder re press interviews with death row inmates, Hammer v. Ashcroft.. It is third on the list.

Another is a Kentucky case about which the ILB has had a number of entries (including this one from 10/31/09), Kentucky v. Baker. It is ninth on the list. The issue summary:

Do the Kentucky residency restrictions for registered sex offenders violate the Ex Post Facto Clause when applied to registrants who committed their offenses requiring registration prior to the effective date of the statute but who resided in a prohibited area after the statute took effect?
Eighth on the list is another 7th Circuit case, Shabaz v. United States.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Michael Kilgore v. State of Indiana , a 12-page opinion, Judge Darden writes:

Michael Kilgore appeals his conviction for escape as a class D felony and his adjudication as an habitual offender. We affirm in part, reverse in part, and remand.

Kilgore raises the following issues: [1] Whether the State violated Kilgore's due process rights when it charged him with escape.[ 2] Whether the trial court abused its discretion in refusing a tendered jury instruction.

The State also raises the following issue: [3] Whether the trial court improperly sentenced Kilgore. * * *

Here, Kilgore “was serving an executed sentence” on home detention when he violated the detention order by leaving his residence and failing to return. He therefore was not entitled to an instruction on unauthorized absence from home detention. * * *

In this case, the trial court improperly imposed a separate sentence for the habitual offender finding, rather than enhancing Kilgore's felony sentence. Accordingly, we reverse and remand the case to the trial court for re-sentencing in accordance with this opinion.

In Melvin Washington v. State of Indiana , a 9-page opinion (with a separate concurring opinion) on an interlocutory appeal, Judge Kirsch writes:
Melvin Washington brings this interlocutory appeal of the trial court’s denial of his motion to suppress evidence discovered during a search of his automobile. Although he contends that the search violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 on the Indiana Constitution, we find the following issue dispositive: whether the warrantless search of Washington’s vehicle to find a handgun that Washington admitted he had and for which he possessed a valid permit, violated the Fourth Amendment when the officer lacked an articulable basis of concern for officer safety. * * *

As in Malone, we conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, the search of Washington’s car for a handgun was not justified. Here, because neither of these conditions was satisfied, the search was illegal, and the trial court should have suppressed the evidence. Reversed.

DARDEN, J., concurs.
MAY, J., concurs in result with separate opinion. [that begins at p. 8, and quotes Arizona v. Gant (USSC, 2009)] While I concur with the majority’s result, I would reach that result with a slightly different analysis and, thus, I write separately to explain.

NFP civil opinions today (2):

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

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

NFP criminal opinions today (6):

Wilfredo Almodovar v. State of Indiana (NFP)

Lanell T. Ayers v. State of Indiana (NFP)

Arthur L. Beatty v. State of Indiana (NFP)

Ralph E. Farris v. State of Indiana (NFP)

James Brackin v. State of Indiana (NFP)

Craig Mitchell v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Ind. App.Ct. Decisions

Law - Dawn Johnsen Approved by Judiciary Committee, Again

Main Justice reports "The panel voted to report Johnsen out of committee by a 12-7 vote."

No word yet on the other three Indiana nominees.

[More] Sylvia Smith, Washington editor of the Fort Wayne Journal Gazette, already had a complete story published. A few quotes:

WASHINGTON – A Hoosier law professor whose nomination for a senior role in the Obama administration was a lightning rod for conservatives last year was approved by a Senate committee Thursday.

The Senate Judiciary Committee voted 12-7 Thursday to recommend the Senate approve the nomination of Indiana University professor Dawn Johnsen to head the Justice Department office that provides legal advice and opinions to federal agencies, including the White House. * * *

The Judiciary Committee also recommended the Senate approve the nominations of two other Hoosiers:

  • Jon Deguilio to be a federal district judge for the Northern District of Indiana; and
  • Tanya Walton Pratt to be a federal district judge for the Southern District of Indiana.

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to General Law Related

Ind. Decisions - Transfer list for week ending February 26, 2010

Here is the Clerk's transfer list for the week ending February 26, 2010. It is 3 pages long (but that is misleading because there is a lot more information scrunched on each page).

Six transfers were granted last week.

Five of them are listed and detailed in this entry from Feb. 26, 2010.

The sixth, Washington Township Fire Dept. v. Beltway Surgery Center, was granted with opinion on Feb. 24, 2010. "We grant transfer, adopt and incorporate by reference the opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A)(I), and affirm the Board.------ Per Curiam."

__________

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 Thursday, March 04, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments: Voter ID case this morning

A reminder: before the Supreme Court this morning at 9:00 AM - League of Women Voters, et al. v. Todd Rokita (49S02-1001-CV-50). More details here. Watch here at 9:00 AM.

The Indianapolis Star law reporter, Jon Murray, has a good, front-page preview of the case today, going through the various "different directions in which this case could take things."

Posted by Marcia Oddi on Thursday, March 04, 2010
Posted to Upcoming Oral Arguments

Wednesday, March 03, 2010

Ind. Law - "Shoe camera man charged with voyeurism"

WANE.com Fort Wayne posted this story early this afternoon:

INDIANAPOLIS, Ind. (WANE) - A Fort Wayne man accused of videoptaping up women's skirts is charged with voyeurism at the Marion County courthouse Wednesday.

40-year old David Delagrange is charged with seven counts of voyeurism, four counts of child exploitation, and one count of resisting law enforcement for taking video up women's dresses at an Indianapolis mall. * * *

Marion County Prosecutor Carl Brizzi says all of the evidence collected, plus witness testimony, will make for a pretty strong case against him.

Last year, an Ashley, IN man was not charged with voyeurism after he was accused of taking pictures of women up their skirts in a video store. The Dekalb County prosecutor, then, said she couldn't charge him, because taking those type of pictures in a public setting is not prohibited under current Indiana law.

Brizzi calls Delagrange a 'peep' and says he interperted the law to cover taking upskirt videos or pictures.

A reader writes that "Sen. Tom Wyss filed a bill to try to address this this year, SB 101, but it did not receive a hearing." Here is the digest of that bill:
Invasion of privacy by photography. Establishes the crime of invasion of privacy by photography, a Class A misdemeanor. Provides that the crime is committed if a person, with the intent to: (1) gratify the person's sexual desires; (2) humiliate or embarrass the victim; or (3) publish, transmit, or disseminate the photograph; surreptitiously photographs the private area of an individual under circumstances in which a reasonable person would believe that the individual's private area would not be visible to the public. Increases the penalty to a Class D felony if the person publishes, transmits, or otherwise disseminates the photograph.
Here is the voyeurism statute, IC 35-45-4-5. It appears to be aimed at a "peeping tom", peeping into a residence, a public restroom, etc.

Child exploitation is covered by IC 35-42-4-4, and is age dependent. Jon Murray, in his Star blog, "Justice Watch," reports:

"It's scary stuff," Marion County Prosecutor Carl Brizzi said after Delagrange's initial hearing this morning, noting that four of the seven victims are younger than 18. Some were shoppers when they were targeted by Delagrange Saturday, according to a probable cause affidavit, and others were working at clothing stores. Brizzi said several saw Delagrange's picture in the media, and he encourages other potential victims to come forward.

Brizzi's office filed four counts of attempted child exploitation, a Class C felony; seven counts of voyeurism, a Class D felony; and a count of resisting law enforcement, a misdemeanor. The attempted exploitation charges could each carry a penalty of two to eight years in prison if Delagrange is convicted.

Our Court of Appeals last September decided a case involving the child exploitation statute, Brown v. State.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

Ind. Law - More on: Bill to significantly expand authority of Attorney General

Senate Bill 394, a bill which would significantly expand the authority of the Attorney General, as described in this Feb. 2, 2010 ILB entry, passed Third Reading in the House Feb. 25th by a vote of 94-2. The two votes against it were Reps. Dvorak and Wolkins. As there were no House amendments, SB 394 is now ready for submission to the Governor.

The ILB described the bill in detail in the earlier entry. And here is the Digest prepared by the legislative staff:

Authorizes the attorney general to intervene in a declaratory judgment action in which a statute, ordinance, or franchise is alleged to be unconstitutional. Provides that a court must notify the attorney general if the constitutionality of a state statute is called into question, and permits the attorney general to intervene in the case to present evidence and arguments concerning the constitutionality of the statute. Permits the attorney general to intervene in a case in which a claim or defense is based on a statute or executive order administered by a state officer or agency. Authorizes the attorney general to file an amicus curiae brief without the leave of the parties or the court.

I've been waiting for the House video archives for the afternoon of Feb. 25th (they just became available today), where a number of Senate bills of interest were up for final passage in the House, to see the discussion of this and several other bills.

You can find the discussion and vote on this bill, SB 394, by moving the time marker to about 03:28:50. Here is Rep. Lawson, who is the House sponsor of the bill. Rep. Lawson is also chair of the House Judiciary Committee and a member of the Courts & Criminal Code Committee.:

I'd like to thank Matt Light and David Miller for shepherding this through the Senate and House for the Attorney General's office. This is an Attorney General's bill, it's a notice of the Attorney General any time the state law is claimed to be unconstitutional. In the past year there have been at least six cases when they didn't receive notice.

The second part of the bill is the ability for the Attorney General to intervene to cases by filing amicus briefs -- and thank you Rep. DeLaney for giving me that definition -- it's to defend the state law if there is anything that's unconstitutional. This change makes it equitable with federal law. I'd appreciate your support.

Except for the co-sponsor's brief statement that "Rep. Lawson described it wonderfully well and I urge your support," that was the totality of the discussion. As noted, the bill then passed, 94--2.

Other bills of interest on Third Reading.

If you do look at the video, there are two other bills that the ILB has been following that are in that segment. The links below are to earlier ILB entries on the bills.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

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

For publication opinions today (3):

In Term. of Parent-Child Rel. of K.L.; D.L. v. IDCS , a 12-page opinion, Judge Friedlander writes:

D.L. (Father) appeals from the trial court’s refusal to set aside the judgment terminating his parental rights. * * * Did the trial court abuse its discretion in refusing to set aside the judgment terminating Father’s parental rights? We reverse and remand. * * *

It remains, however, that all advisements and questions were clouded by the misrepresentation contained in the home study report and the TCDCS’s subsequent actions that served as the basis for K.L.’s placement with Ann and Glen and the TCDCS approval of the permanency plan calling for K.L.’s adoption by Ann and Glen. Father was not the only party moving forward in K.L.’s best interest in reliance upon the misrepresentation made by an employee of the TCDCS. It seems safe to say that had FCM Huck adequately searched the DCS records, K.L. never would have been placed in Ann and Glen’s home and the possibility of adoption of K.L. by Ann and Glen would not have been the deciding factor in Father’s decision to terminate his parental rights. Under these circumstances, we find that Father’s consent to voluntarily terminate his parental rights was vitiated by the misrepresentations made by the TCDCS through FCM Huck. Therefore, the petition to set aside the judgment terminating his parental rights should have been granted.

In Robert Keck and Janet Russell v. Mary Ann Walker, a 13-page opinion, Judge Mathias writes:
Robert F. Keck (“Keck”) and Janet L. Russell (“Russell”) (collectively “the Plaintiffs”) filed a complaint in Ripley Circuit Court against Mary Ann Walker, individually and as the personal representative of the Estate of Edith M. Dawdy (“the Estate”), challenging the validity of the probated will and codicils of the decedent. The trial court granted summary judgment in favor of the Estate. The Plaintiffs appeal and claim that the trial court erred in concluding that the bequest to their deceased mother lapsed. We affirm. * * *

We hold that the bequest made to Luella lapsed when she predeceased Dawdy, and the share that Luella would have received should instead go to the remaining residuary beneficiaries. See Carey v. White, 126 Ind.App. 418, 424-25, 126 N.E.2d 255, 257 (1955) (where testator gave one-third interest of residue of his estate to three named, non-descendant beneficiaries, and one of these beneficiaries predeceased the testator, the devise to the deceased beneficiary lapsed and the remaining two residual beneficiaries each received one-half of the lapsed one-third interest, in addition to their one-third interest, for a total of one-half of the residual estate). The trial court did not err in granting summary judgment in favor of the Estate.

Robert Spivey v. State of Indiana - "Spivey’s specific challenge is that the evidence in the record did not support the giving of the instruction setting forth the rebuttable presumption that he knew his driving privileges were suspended. The State argues that it provided evidence meeting the requirements for establishing the rebuttable presumption. The State points out that Spivey’s driving record indicates the notice of suspension had a “Mail Date” of January 16, 2008. State’s Exhibit 1. The State argues that the record need not specifically indicate the notice was sent by first class mail, but that showing a “Mail Date” is sufficient. We agree with the State.

"To establish the rebuttable presumption that the defendant knew of his license suspension, I.C. § 9-24-19-8 requires the BMV to have sent notice by first-class mail to the defendant’s last known address. Spivey does not contest that he had lived at the address in the BMV records on the date his driving record shows that notice of his suspension was sent to that address and that he had lived at that address for ten years. Further, it is common knowledge that the general method of mailing a letter is through the United States Postal Service via first-class mail. The State introduced into evidence Spivey’s driving record that clearly indicated that notice of his suspension had a “Mail Date” of January 16, 2008, from which the trier of fact may reasonably infer that the notice was sent via first-class mail. The State’s evidence supported the giving of the final instruction setting forth the rebuttable presumption that Spivey had knowledge that his license had been suspended when he committed the instant offense."

NFP civil opinions today (2):

Stephen Engel v. City of Plymouth (NFP)

Term. of Parent-Child Rel. of A.H. et al.; Tr.S. and Te.S. v. IDCS (NFP)

NFP criminal opinions today (6):

Zachary Gootee v. State of Indiana (NFP)

Tony Broomfield v. State of Indiana (NFP)

Joshua Maurer v. State of Indiana (NFP)

Howard Cannady v. State of Indiana (NFP)

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

Dwight Sargent v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Illinois case on attorney-client privilege

In re: Whirlpool Corp. is a petition for mandamus from the ND Illinois. The panel is Easterbrook, Wood and Evans. The Per Curiam opinion is 4-pages. Worth reading. The gist:

The Supreme Court held in Mohawk that rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders. Id., 130 S. Ct. at 609. Consequently, as the parties acknowledge, Whirlpool’s appeal must be dismissed for lack of jurisdiction.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Movie rental kiosks hit with legal threats: Video stores say children can rent mature films at kiosk competitors" [Updated]

Jon Murray has this story this morning in the Indianapolis Star. Here are some quotes:

A Southern Indiana prosecutor has threatened criminal charges unless stores with DVD rental kiosks remove R-rated movies and other material considered harmful to children.

The rollout of hundreds of automated Redbox-style kiosks to grocery stores, McDonald's restaurants, Walmarts and other retailers in Indiana has met resistance in some communities over the perception that they provide children younger than 17 with easier access to adult-rated movies.
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Letters sent to retailers in recent weeks by the office of Vanderburgh County Prosecutor Stanley Levco may amount to the largest crackdown yet in Indiana.

It's driven, at least in part, by the kiosks' old-school competitors -- the brick-and-mortar video stores that say they provide safeguards by requiring customers renting R-rated DVDs to show ID.

Kiosks, they say, aren't playing by the same rules, though Redbox officials say their kiosks require customers to affirm their age and are on firm legal ground. * * *

In Vanderburgh County, one letter -- addressed to the general manager of a Schnuck's grocery store and dated Jan. 27 -- cites an Indiana law prohibiting dissemination of matter harmful to minors, a Class D felony.

It says that category might include adult-rated videos in that store's MovieCube kiosk, a Redbox competitor.

"We suggest that the machine or machines dispensing these materials at your location no longer provide access to videos, movies, games" and other material that are unrated or have ratings of R or even PG, the letter says. William Roberts, an investigator in Levco's office, signed the letter.

The ILB asked IU Law professor Joel Schumm about this issue. His response:
It is hard to see how the stores are committing D felony dissemination, unless perhaps they are within 500 feet of a school or church (but this would presumably apply to regular video stores, too). The only thing displayed on the kiosk is an image of the DVD box, which I can't imagine would qualify. R movies run trailers on television. Are the television stations committing felonies, too?

It would be hard to prove Redbox violated IC 35-49-3-3(1) [see statute below] if a kid actually gets an R-rated movie. Redbox requires a credit card and verification, so their conduct would not be knowing or intentional, any more than a video store clerk who doesn't see through a fake ID. I don't see how requiring face-to-face contact at a video store is going to eliminate the problem, as evidenced by the number of kids under 18 with cigarettes and people under 21 who get alcohol.
Here is the statute:
IC 35-49-3-3: Dissemination of matter or conducting performance harmful to minors

Sec. 3. (a) Except as provided in subsection (b), a person who knowingly or intentionally:
(1) disseminates matter to minors that is harmful to minors;
(2) displays matter that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by the minor's parent or guardian;
(3) sells, rents, or displays for sale or rent to any person matter that is harmful to minors within five hundred (500) feet of the nearest property line of a school or church;
(4) engages in or conducts a performance before minors that is harmful to minors;
(5) engages in or conducts a performance that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by the minor's parent or guardian;
(6) misrepresents the minor's age for the purpose of obtaining admission to an area from which minors are restricted because of the display of matter or a performance that is harmful to minors; or
(7) misrepresents that the person is a parent or guardian of a
minor for the purpose of obtaining admission of the minor to an area where minors are being restricted because of display of matter or performance that is harmful to minors;
commits a Class D felony.

[Updated at 4:09 PM] Jon Murray posted this entry to his Star blog a few minutes ago. Some quotes:
The Vanderburgh County prosecutor, who made a splash on The Star's front page today with his office's recent letters urging retailers to remove adult-rated DVDs from Redbox-style automated kiosks, said he hasn't decided yet how to proceed. Evansville-based Prosecutor Stan Levco wasn't available when I wrote The Star's story last night, but he is quoted in a new Associated Press article today.
Here is the AP story. A quote from it:
[Vanderburgh County Prosecutor Stan Levco] said he was looking into whether a state law that makes it a felony to provide matter harmful to minors could apply to the rental of movies rated R or PG-13.

"This statute is a pretty tricky area," Levco said. "All movies that could potentially be harmful to minors is what we're talking about and that gets to be a question of what exactly does that mean?"

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

Ind. Law - "Jobs-creation provisions are in peril: Senate strikes items from bill; new home sought as session winds down"

Mary Beth Schneider reported yesterday in the Indianapolis Star:

House Democrats say finding a way to boost jobs is the No. 1 priority in these final days of the legislature, but first they'll have to find a way around the Indiana Senate.

Senate President Pro Tempore David Long, R-Fort Wayne, ruled that the jobs package Democrats had inserted into Senate Bill 396 was not germane to the bill's main subject matter of addressing agricultural property tax assessments.

That means the program is dead unless another bill can be found that is a more acceptable home for the issue. * * *

Long said Monday that Bauer had not spoken to him about the issue. He said his decision had nothing to do with the merits of the jobs programs and everything to do with the rules.

"If the language does not fit within the subject matter of the bill, we don't allow it," he said.

Rep. Peggy Welch, a Bloomington Democrat who has championed the Mississippi program as one Indiana should emulate, said she wasn't surprised by Long's decision. She said some bills have been identified as potential homes for the package, but nothing has been agreed upon.

Here is the Senate Rule at issue:
C. Subject Matter

50. No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to the that of the bill or resolution under consideration shall be in order. However, this rule does not apply to House bills raising revenue and relating to other taxation matters.

51. Any conference committee report not in accordance with Article 4, Section 19 of the Constitution shall be not in order.

The House Rules do not contain a similar provision.

In my experience, just how strictly the Senate rule is adhered to depends upon the Pro Temp and the circumstances. And under the separation of powers, non-adherence of the General Assembly to its internal rules may not be successfully challenged in court.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

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

Updating this ILB entry from Feb. 23rd, the Indianapolis Star posted this report this morning ocompiled by Tom Spalding - some quotes:

A week after the City Council in East Chicago, Ind., deadlocked on a vote to approve a deal with private firm Second Century Inc. to settle a five-year court battle, a new vote is planned today.

A 4-4 vote prevented the council from adopting a resolution in favor of a settlement with that would end payments of city casino money to the for-profit corporation and split some $8 million in an escrow account. * * *

In Indianapolis, Indiana Attorney General Greg Zoeller in a news release reiterated his strong opposition to the city settling the lawsuit, calling it an example of "public corruption." Zoeller said he intends to bring up his concerns with the U.S. attorney general this week.

“What I told the City Council last week still applies: Settling out of court for money but without transparency ... is the wrong thing to do,” Zoeller said in the release. “Nothing has changed since last week to cleanse this settlement of its tainted appearance.”

The attorney general and the city filed the long-running lawsuit against Second Century to divulge how it spent $16 million in casino revenue from the East Chicago riverboat over 10 years since the company’s creation during former Mayor Robert Pastrick’s administration. Even though the casino revenue was intended to boost economic development in East Chicago, Second Century thus far has refused to name publicly who received the grants it dispensed or to divulge how the money was used, his office said.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Decisions

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

Updating this ILB entry from Feb. 26th, Mike Fass of the New York Law Journal reports today under the headline "7th Circuit Judges Testify in Trial Over Blogger's Web Threats: Chief Judge Frank Easterbrook's cross-examination featured several defense stumbles." Several quotes from the lengthy story:

Three judges from the 7th U.S. Circuit Court of Appeals -- Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer -- took the witness stand Tuesday in the Brooklyn trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban.

Easterbrook told the jury that upon reading Turner's posts his "principal concern was that somebody would try to come kill me or shoot me or blow me up."

"The world contains an unknown number of people who are willing to do violence that don't know who might be a target until some rabble rouser rouses them," Easterbrook said.

Turner was arrested last June after posting blog entries stating that the three judges "deserve to be killed" for their ruling in National Rifle Association v. Chicago, 08-4241. * * *

The cross-examination of Easterbrook, however, proved to be riveting drama and a primer on constitutional law. It also featured a series of stumbles by the defense.

In questioning the generally jovial Easterbrook, Orozco initially followed the same line of questions he and his co-counsel, Sanan, asked of the first two judges: Did the judge ever seek a security detail? (No.) Did Judge Lefkow have one following the attack on her family? (Yes, Easterbrook said, though he discounted his own testimony as hearsay).

The turning point came when Orozco challenged Easterbrook, 61, on the merits of the decision in National Rifle Association v. Chicago, the opinion that spurred Turner's alleged threats and which was written by Easterbrook.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Even more on "Surprises" in the 2009 budget continue to be revealed

Updating this Feb. 24th ILB entry about: (1) how language ("a late amendment to the state budget bill, crafted by Rep. Craig Fry, D-Mishawaka") hidden in the 2009 special session budget prohibited additional curb cuts on Capital in Mishawaka and neglected to allow for a curb cut at the busy intersection Douglas Road and Capital Avenue; (2) how the City of Mishawaka went to court to challenge the ban on curb cuts, winning a temporary injunction prohibiting the State from closing off the affected driveways and intersections; and (3) how this session's HB 1125, also authored by Rep. Fry and returned to the House with amendments on Feb. 22, 2010, would make additional refinements to last year's surprise provision, continuing to designate by statute the precise location of curb cuts on Capital Avenue ...

Today Kevin Allen of the South Bend Tribune has this story, headed "Indiana lawmakers agree on Capital intersection":

State lawmakers arrived at a tentative agreement Tuesday to allow an intersection for a new road at Capital Avenue across from Exit 83 of the Indiana Toll Road.

The accord could pave the way for development on nearly 300 acres of land west of Capital Avenue and north of the Toll Road.

It could also bring resolution to a lawsuit Memorial Health System and the city of Mishawaka filed against the state over a law approved last year to prevent the new intersection where Memorial owns 23 acres.

Rep. Craig Fry, D-Mishawaka, sponsored legislation last year in the General Assembly to limit the number of Capital Avenue intersections to nine specific roads.

He followed that with another bill this year, House Bill 1125, to add Douglas and Ireland roads to the list of acceptable intersections.

Fry opposed an intersection across from the Toll Road exit because he said he didn't want Capital Avenue to become another traffic-clogged retail corridor like Grape Road or Main Street in Mishawaka.

The Senate amended H.B. 1125 to allow an intersection across from the Toll Road exit, and Fry said as recently as last week that he would fight the amendment.

However, he said Tuesday in a House-Senate conference committee that he changed his mind because the land near the intersection will need to be annexed by Mishawaka if it's developed.

The city requires anyone within 300 feet of its sewer and water lines to be annexed before tying into the system.

Fry said those who planned Capital Avenue never intended for an intersection to be built across from the Toll Road interchange, but he is comfortable knowing the Mishawaka City Council and Mayor Jeff Rea will make sure the area is developed responsibly.

"I am confident that the City Council and the mayor will find the best use for that land and not duplicate the retail already on Grape and Main," Fry said.

Another new element of H.B. 1125 is a provision that the new road will be named Joseph D. Zappia Boulevard in honor of the former St. Joseph County commissioner who played a key role in planning Capital Avenue.

"I don't think Capital Avenue would have happened without Joe Zappia," Fry said.

The planned road had previously been referred to as Evergreen Road.

Fry and the other three members of the conference committee — Rep. Jackie Walorski, R-Jimtown, and Sens. John Broden, D-South Bend, and Joe Zakas, R-Granger — need to sign the committee's report to amend H.B. 1125 before the full House and Senate can vote on the final version of the bill.

If both chambers approve the bill, it will be eligible for the governor's signature.

Rea said H.B. 1125 could solve the issue that led Mishawaka to sue the state, but he wouldn't make any promises before the General Assembly passes a final version of the bill.

"We didn't want to be in a lawsuit in the first place," Rea said. "We were not pleased with what they did last year. We were put in a place where we had no choice but to pursue legal action."

Walorski said the General Assembly set a bad precedent last year by "meddling" with how many intersections should be allowed on local roads.

"I understand the intention, because of what's happened with Mishawaka's growth, and I appreciate the efforts to correct it," she said. "But there's a lawsuit pending — there's tax money that's being paid for this."

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

Ind. Law - "Ethics bill is hailed as a starting point"

The House yesterday voted to concur in the Senate changes to the ehtics reform bill, HB 1001, and it will now be sent to the Governor for his action.

The drive for ethics legislation formally began last fall - see this ILB entry from Nov. 15, 2009, headed "Ind. Gov't - Access to Power: How lobbyists buy legislators' time and attention."

Mary Beth Schneider of the Indianapolis Star has a long story today on the bill's passage. A few quotes:

Currently, more than 30 former legislators are lobbyists.

In 2007, only a few months after winning new two-year terms, Reps. Matt Whetstone, R-Brownsburg, and Robert Kuzman, D-Crown Point, resigned to become lobbyists. And in 2002, Rep. Mike Smith, R-Rensselaer, resigned only days after his re-election to head the Indiana Casino Association. All three are now regulars in the Statehouse hallways. * * *

Rep. Jeff Thompson, R-Lizton, voted for the bill but told his colleagues that the cooling-off period may have gone too far. Under the bill, a candidate for election to the General Assembly this November may not be registered as a lobbyist or employed as a legislative liaison before June 1, 2011.

That means, Thompson said, that if a lobbyist has decided to be a legislative candidate this year, "you're out of a job" through next summer, even if he or she doesn't win the election.

That "really alarms me," Thompson said.

Rep. David Wolkins, R-Winona Lake, said the ban on lobbyists' paying for legislators' out-of-state travel -- a provision aimed at such things as the Puerto Rico trip that Bauer and other lawmakers had taken courtesy of the Indiana Motor Truck Association -- goes too far. But he said that if re-elected he'll be back seeking some additional changes.

He wants the legislature to explore ways to limit the taxpayer-financed jobs legislators might accept in office, and singled out the several legislators who are employed by Ivy Tech Community College. * * *

But even as some folks talked about what changes they'd like next, House Minority Leader Brian Bosma, R-Indianapolis, said the legislature, and the public, should be proud that lawmakers chose to make these reforms and were not driven to them by scandal. * * *

At the same time as they voted for more disclosure, however, it clearly rankles at least some lawmakers that the media, particularly The Indianapolis Star, has focused a spotlight on lobbying, creating databases showing the tickets and gifts lawmakers have accepted and running a daily box on The Star's editorial page highlighting individual lawmakers and their gifts.

Tuesday, Rep. Scott Pelath, D-Michigan City, told the House that The Star's editorial section is "a steaming pile of sanctimonious hypocrisy" that has been "demonizing" Bauer over the years.

The South Bend Tribune has this story by Kevin Allen. Niki Kelly of the Fort Wayne Journal Gazette has a story that includes:
House Bill 1001 was authored by House Speaker Patrick Bauer, D-South Bend, who said it should provide comfort for voters concerned about scandals that have plagued other states.

Many House members praised a key provision in the bill requiring those lobbying on behalf of state universities and colleges to report their expenditures, which is a first for Indiana.

The biggest example of this cited during the floor debate was when universities provide legislators with tickets and transportation to bowl games or other sporting events.

From the AP's Ken Kusmer:
The bill authored by House Speaker Patrick Bauer and co-sponsored by Minority Leader Brian Bosma passed on a 97-0 vote. It now goes to Gov. Mitch Daniels for his expected signature.

“I think it's going to be remembered as one of the best things that have happened this session,” Daniel told reporters. * * *

The Senate version of the bill needed Bauer's assent if it were to avoid a conference committee and perhaps become snared on last-minute machinations as the Legislature moved toward a likely adjournment this week.

The Senate removed so-called “pay-to-play” language that would have barred vendors holding or seeking state contracts worth $100,000 or more per year from donating to the campaigns of candidates seeking state office. The Senate also added language that would require university liaisons to the General Assembly to register as lobbyists and bar statewide elected officials from using tax dollars for ads that mention themselves by name.

A key provision in Bauer's bill that the Senate kept would require lobbyists to report conflicts of interest involving more than one of their clients and how the lobbyists would resolve those conflicts.

Sen. Patricia Miller, R-Indianapolis, guided the bill through her chamber with all 50 senators as sponsors. She said a key provision was more transparency in reporting of lobbyists' gifts to lawmakers and said it might reveal things that surprise some observers of the legislative process.

“I think there are people who are concerned that there may be things happening in this area that aren't, and with more thorough reporting the public will be able to see more accurately what transpires,” Miller said.

From Jon Seidel of the Gary Post Tribune, these quotes:
House Speaker B. Patrick Bauer wrote the bill, which has been praised by Daniels. The legislation was also promoted by an editorial campaign led by the Indianapolis Star and joined by the Post-Tribune.

Rep. Scott Pelath, D-Michigan City, lauded Bauer but took aim at the Star's editorial page, which he called a "steaming pile of sanctimonious hypocrisy."

"I just want to give Speaker Bauer credit for being bigger than what they wrote here," Pelath said.

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Law

Ind. Decisions - "Case involving South Bend basketball player lives on"

As reported by the ILB on Feb. 26, the Supreme Court has granted transfer in the case of Indiana High School Athletic Association v. Jasmine S. Watson. See also this ILB entry from Sept. 28, 2009.

Late yesterday Jeff Parrott of the South Bend Tribune reported:

The Indiana Supreme Court has agreed to rule on the dispute between a former Washington High School girls basketball player and the Indiana High School Athletic Association.

Her Washington days behind her, Jasmine Watson is having a successful freshman year at University of Massachusetts at Amherst. She’s earned a spot on the team’s starting five and is one of five freshmen nominated for the Atlantic 10 Conference Rookie of the Year award.

She had to sit out the first eight games of her senior year at Washington, after the IHSAA declared her ineligible, ruling that she transferred from Elkhart Memorial for athletic reasons.

A St. Joseph County special judge disagreed, instead believing the Watson family’s claim they moved to South Bend for financial reasons. The Indiana Court of Appeals affirmed the trial court’s ruling. * * *

Should the IHSAA prevail before the Supreme Court, it could enforce its restitution rule, which would force Washington to forfeit any victories in games when Watson played.

But that isn’t what’s motivating the IHSAA to pursue the case, commissioner Blake Ress told The Tribune.

"That’s not the purpose of the appeal and it’s unlikely we would go there," Ress said. "I won’t rule it out but I feel it’s unlikely."

Rather, the IHSAA worries that the Watson rulings undermined its authority in athlete eligibility disputes, Ress said.

"The original decision, we felt, was way too broad," Ress said. "It prevented us from making schools follow our rules. We’re pleased they’re going to hear it because we thought it set a bad precedent for the future."

Posted by Marcia Oddi on Wednesday, March 03, 2010
Posted to Indiana Transfer Lists

Tuesday, March 02, 2010

Ind. Decisions - Still no transfer list for the week ending Feb. 26, 2010

Again today, no transfer list has been received today for the week ending Feb. 26, 2010. There should be one, as the Court granted transfer in five cases on Feb. 25th. And of course, the information on cases not granted transfer is just as important.

Maybe it is late. Of course, this is very late, for years the Clerk's Office produced the list on the closing Friday. Then it was "first thing Monday morning." Now ...

As I wrote in this ILB entry on Feb. 23rd, I've been notified that the Clerk's Office has stopped producing a MS Word version of the transfer list. The ILB did receive the Feb. 19th list, albeit in Microsft Excel format, which required conversion. But since then, nothing. So, to those of you who have inquired, sorry.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Indiana Transfer Lists

Ind. Decisons - Supreme Court decides one this afternoon

In Andrew King v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:

Having granted transfer to resolve a conflict among decisions of the Indiana Court of Appeals, we hold that the offense of Attempted Dissemination of Matter Harmful to Minors can be committed when a defendant attempts to transmit proscribed matter by the Internet to an adult police detective posing as a minor.

The defendant was convicted of two counts of Child Solicitation and one count of Attempted Dissemination of Matter Harmful to Minors. His appeal claims: (1) insufficient evidence to convict for Attempted Dissemination of Matter Harmful to Minors because the offending matter was received not by a minor but by an adult police officer; (2) numerous errors in the admission of evidence; and (3) erroneous admission of the defendant's statement to police in violation of the corpus delicti rule. The Court of Appeals affirmed his convictions. King v. State, 908 N.E.2d 673 (Ind. Ct. App. 2009). We granted transfer to resolve a decisional conflict regarding the effect of an adult recipient posing as a minor in prosecutions for this attempt crime.[1] As to all other issues raised by the defendant, we summarily affirm pursuant to Indiana Appellate Rule 58(A)(2). * * *

The essence of an attempt is that one or more elements of an offense are not fully satisfied, but a defendant still has taken a substantial step toward the offense while acting with the requisite intent of that offense. If each of the elements of an offense are fully satisfied, the charged offense will be the offense, not an attempt of that offense. Here, the defendant disseminated matter harmful to minors to a person he believed or intended to be a child less than eighteen years of age. The only element not met for the offense of disseminating matter harmful to minors is that the recipient was not in fact a child less than eighteen years of age. Because the recipient was not a minor, the defendant was charged with Attempted Dissemination of Matter Harmful to Minors, rather than Dissemination of Matter Harmful to Minors.

To the extent that Gibbs and Alpin may be read to prohibit convictions for Attempted Dissemination of Matter Harmful to Minors where the supposed minor is in fact an adult, these opinions are disapproved and overruled.

Conclusion. We hold that the general Attempt statute applies to the offense of Dissemination of Matter Harmful to Minors and that the crime of Attempted Dissemination of Matter Harmful to Minors is not precluded when the intended minor recipient is actually an adult. The judgment of the trial court is affirmed.
____________
[1] The Court of Appeals's decision in this case is inconsistent with its decisions in Gibbs v. State, 898 N.E.2d 1240 (Ind. Ct. App. 2008), trans. denied, and Alpin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), trans. denied. In Gibbs, the defendant appealed his convictions for Child Solicitation, Attempted Dissemination of Matter Harmful to Minors, and Attempted Sexual Misconduct with a Minor. Relying upon Alpin, a divided panel of the Court of Appeals looked at the statutory language defining the crimes of Sexual Misconduct with a Minor and Dissemination of Matter Harmful to Minors and determined that where there is no opportunity to commit the crimes because the supposed minor is in fact an adult, there can be no attempt of those crimes.

For background, see these ILB entries referencing the Aplin decision, particularly this one from Feb. 17, 2009 and this one from June 30, 2009 summarizing the COA decision in King v. State (3rd case). A quote from the ILB:
Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "The law firms of Benesch Friedlander Coplan & Aronoff LLP and Dann Pecar Newman & Kleiman P C announced that they will merge their practices, effective March 1, 2010"

Here are some quotes from a press release the ILB just received:

CLEVELAND, OH and INDIANAPOLIS, IN -- March 2, 2010 – The law firms of Benesch Friedlander Coplan & Aronoff LLP and Dann Pecar Newman & Kleiman P C announced that they will merge their practices, effective March 1, 2010.

“We are very excited about our firms joining together. It is another step in what we hope will be many in executing our growth plan and our plan to continuously enhance the quality of service that we provide to our clients,” said Ira Kaplan, Benesch’s Managing Partner. He added, “both of our firms have long lasting relationships with our clients, including in the real estate area as well as other sectors. Our strategic plan calls for growth in core practices and Benesch and Dann Pecar match up very well in that regard. It also is important to us to expand our Midwest presence which provides us with broader reach and depth to better serve our clients.”

Dann Pecar also is excited about the combination as a way to expand their current market and client base. “In looking at our growth plan this combination with Benesch made perfect sense to us. In addition to similar clients, we have similar values and a great cultural fit,” said Jeff Abrams, Managing Partner. “Our firm has been strong in recognized practice areas in Indianapolis. We see this as the right time to take it to the next level and expand our opportunities.”

The firm will do business as Benesch/Dann Pecar in the Indianapolis market. “Dann Pecar has a great reputation and a century long history in Indianapolis. We want to make sure that the business and legal communities understand that we are here to partner with Dann Pecar to expand their continued service to the community” said Kaplan, who will continue as the combined firm’s Managing Partner. Jeff Abrams will be Partner-in-Charge of the Indianapolis office and a member of the firm’s Executive Committee.

Both firms have strong roots in their communities. David Kleiman who is a named partner at Dann Pecar said “we were very impressed with Benesch’s support for the arts and other not-for-profits, a value we share and intend to grow.” He added, “we expect that the transition will be seamless as both parties share the same values, culture and commitment to quality client service. We are looking forward to the combination of our two firms. We pride ourselves on our ability to deliver superior legal services to our clients. Now, by joining forces with Benesch, our clients will benefit from the additional knowledge, resources and experience of a strong Midwest firm with an entrepreneurial spirit.” * * *

This combination will greatly reinforce the core practice areas for the two firms, specifically in the areas of Real Estate, Commercial Litigation and Bankruptcy as well as in the Transportation/Logistics and Construction industries. Additionally, other areas that will be strengthened are Intellectual Property, Health Care, Labor, Public Finance and Commercial Finance & Banking.

[More] Tom Spalding of the Indianapolis Star reports:
It's the latest deal resulting in a longtime Indianapolis law firm giving up or altering its name as a way to grow larger.

In 2009, local firm Sommer Barnard merged forces with the law firm of Taft Stettinius & Hollister, based in Cincinnati. And in January, one of the city's oldest mid-sized firms, Locke Reynolds, best known for defending such clients as Ford and Honda in product-liability cases, merged with the powerhouse law firm of Frost Brown Todd, based in Cincinnati and Louisville, Ky.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to General Law Related | Indiana Law

Ind. Law - Even more on "Grandparents testify in Indy to establish visitation rights"; Bill defeated

Updating the ILB entry from Feb. 26th, I am posting this press release from State Representative Cindy Noe, dated today, March 2nd, and headed "Courts Should Leave Intact Families Intact."

Recently, I voted against a bill which would have greatly expanded the power of the courts over intact families.

Because the public doesn’t often get to hear the floor debate on controversial bills, I wanted to explain to you my opposition.

Currently in Indiana, the biological father and mother are the only people with enforceable visitation rights. Grandparents do not have the right to petition for visitation with their grandchild, except in cases of death, divorce or when the child is born out of wedlock.

Senate Bill (SB) 59 would have extended that right to families where the grandparents feel they have been cut off because of an estrangement with the child’s parents—while the parents are still married.

Last week, we voted on it and the measure failed. The final total was 46 voting in support, and 53 against.

I was concerned about this bill from the very beginning. Back in January when the House version of this bill, House Bill 1055, was going through the committee process, I was the only vote against the measure.

This bill is not the answer for families where abuse—child abuse, drug abuse or any other kind of abuse—is taking place. Such cases are for Child Protective Services and public safety to deal with.

Instead, it would have meant that two married parents who have decided not to continue contact with a grandparent would have had to face a long and costly litigation process if the grandparent decided to take them to court.

Court cases between family members most often cause psychological, emotional and familial scarring that is nearly impossible to heal. Families would probably be less likely to reconcile after such an ordeal.

The Indianapolis Bar Association testified in committee last Tuesday that it was also opposed to SB 59, and this time two other representatives also opposed the measure.

At its core, SB 59 implied that intact families are no healthier than non-intact families, which is just not what we find in the statistics.

Children who grow up in a home where the biological mother and father are still married are more likely to graduate from high school, more likely to go on to higher education, less likely to be incarcerated, etc.

Of course, statistics like this can’t possibly diminish the pain of loving grandparents who are cut off from their grandchildren because of an estrangement with the child’s parents, especially when the grandparents have served as the child’s guardian for any length of time.

There are grandparents who take ongoing, regular care of grandchildren in the parent’s absence. When the parents return to reclaim their children, the grandparents—who have been the psychological parents—are shut out. This causes suffering for all parties, especially the children.

This is why I offered amendments to SB 59 which would have narrowed the scope of its reach, but still allowed grandparents in this situation to petition for visitation. Unfortunately, those were not accepted by the House.

This bill, as constructed, was just too far-reaching and too broad. It was highly invasive and promoted prolonged litigation into family structures which are still intact. The threshold for bringing legal action against an intact, married couple was just far too low.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Guardianship of Winona E. Brewer; Debra J. Ault, Rebecca L. Pavone, et al. v. Robert Brewer, a 15-page opinion, Judge Riley writes:

[II] Appellants argue that the trial court abused its discretion by appointing a guardian over Toby’s estate. Specifically, they contend that Toby had created a durable power of attorney, and, therefore, no guardian over her estate was necessary. Additionally, they argue that if a guardian was properly appointed, the trial court abused its discretion by not appointing Toby’s designated co-attorneys-in-fact. We address these issues together because our analysis is intertwined. * * *

Appellants are correct that Indiana law favors appointment of a principal’s nominated attorney-in-fact as her guardian, but here there is sufficient evidence to support the trial court’s conclusion that Toby was incompetent when she signed the General Power of Attorney, and the Appellants are estopped from disputing that fact. Therefore, Toby made no nomination in a power of attorney that would make applicable the considerations of Indiana Code section 30-5-3-4, or the priorities favoring attorneys-in-fact in Indiana Code section 29-3-5-4 and 5.

Appellants also contend that there was no evidence or determination that the appointment of Bevers as guardian over Toby’s estate was in Toby’s best interest. * * * The last thing in Toby’s interest would be a protracted legal fight between her husband and children. The appointment of a disinterested party as the guardian over Toby’s estate will hopefully prevent unnecessary disputes caused by mistrust between Robert and the Appellants. Therefore, we conclude that the Appellants have failed to demonstrate that the trial court abused its discretion when it appointed Bevers as guardian over Toby’s estate.

[III] Appellants argue that the trial court abused its discretion by empowering Bevers to combine Toby’s financial holdings into one account, which would effectively dispose of Toby’s directive that the funds in certain accounts be paid to her daughters upon her death. Appellants contend that no statutory authority permits a guardian to effectively terminate disposition designations. * * *

By unifying Toby’s financial holdings, Bevers was facilitating her duty to take possession of Toby’s property and to provide care and supervision over that property. These acts were fully within her authority as guardian over Toby’s estate. Therefore, we conclude that the trial court did not abuse its discretion when it authorized and suggested that Bevers unify Toby’s accounts for administration.

[Conclusion] Based on the foregoing, we conclude that the trial court did not abuse its discretion by appointing Bevers as guardian over Toby’s estate, nor did it abuse its discretion by empowering Bevers to unify Toby’s financial holdings for administration of that estate. Affirmed.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of G.H., IV; S.R. v. IDCS (NFP)

NFP criminal opinions today (4):

Larry Buntain v. State of Indiana (NFP)

Jimmy Clark, Jr. v. State of Indiana (NFP)

Michael Rogers v. State of Indiana (NFP)

Larry Rinearson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Ind. App.Ct. Decisions

Courts - "New Orleans: Prospective Juror Sues Judge Over Intrusive Questionnaire"

From the Courthouse News Service today, this story by Sabrina Canfield. Some quotes:

NEW ORLEANS (CN) - A Tulane graduate student sued a state judge in Federal Court, demanding the return of a 7-page jury-selection questionnaire that asked intrusive questions, including the name of his church, and whether he has ever been affiliated with the American Civil Liberties Union, The National Organization of Women, or Amnesty International.
Joshua Galjour, a Swiss national who is a graduate student at Tulane's School of Public Heath and Tropical Medicine, says he filled out the intrusive questionnaire because he was afraid he could be prosecuted if he refused.

Galjour says the questions included: "Have you ever belonged to or been involved with the American Civil Liberties Union, or the National Organization of Women, or Amnesty International? ... if the answer is yes please list the group you had contact with and explain your participation."

The complaint adds: "There was no indication given as to the nature of the case for which the plaintiff had been summoned to serve on a jury and no indication of the relevance of the questions on the questionnaire to the facts of any specific case," according to the complaint.

"The questionnaire included requests for information that the plaintiff believed to be highly personal, intrusive and not relevant to his ability or qualification to serve as a juror.

"The plaintiff was a graduate student at Tulane University taking a heavy course load when he was summoned for jury duty and, therefore, requested from the defendants an exemption from jury service.

"The plaintiff was informed that in order to have his exemption considered, he had to first fill out the 7-page questionnaire and return it to the jury office. Concerned about the penalty for refusing to answer the questionnaire and his ability to obtain an exemption, the plaintiff answered each question contained therein, forwarded the questionnaire to the jury office, and was ultimately granted an exemption for jury service.

"However, on information and belief, plaintiff's sensitive, personal, and private information is still on file with the 17th Judicial District Court."

Galjour says the questionnaire also asked about his mental health history, whether he is taking antipsychotic drugs, his religious affiliation, and for the name of the church he attends, if any. * * *

Galjour wants his questionnaire destroyed, and the court enjoined "from issuing jury questionnaires that seek to compel the disclosure of constitutionally protected private information."

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Courts in general

Ind. Gov't. - "Sign rules stump candidates: City attorney hopes to issue letter to clarify problematic ordinance"

Erin Blasko reports today in the South Bend Tribune:

If a city passes an ordinance and no one enforces it, does it exist?

Better yet, why does it exist at all?

The question is a timely one for the city of South Bend, which finds itself fielding questions about an ordinance involving campaign signs that should be clear as day.

As written, the ordinance (21-07.03) dictates campaign signs be placed no earlier than 30 days before an election and removed no later than 15 days afterward. It also covers issues related to size and location.

Simple enough, except that the part about the 30 days is apparently unconstitutional, and therefore not enforced.

"Our position up to this point has been that we are not enforcing the 30 days prior," city attorney Chuck Leone said, explaining that case law shows such restrictions violate free speech.

That has been the city's position since at least 2006, but for some reason the ordinance has never been rewritten.

Why?

"I don't know the answer to that," Leone said.

As with previous elections, the situation has caused some confusion among candidates as to what is and is not lawful in regard to the placement of campaign signs in the city. * * *

It doesn't help that the county as a whole has no uniform policy regarding campaign signs, but rather a hodgepodge of local policies and ordinances.

St. Joseph County, for example, prohibits the placement of campaign signs earlier than 45 days prior to an election.

In Mishawaka, it is 30 days, and the city strictly enforces the limit. In fact, it sent a letter last week informing primary candidates that repeated violations of the policy could result in a citation.

In an effort to clear up confusion, Leone said he plans to draft a similar letter in the next few days, as soon as he finishes researching the relevant case law.

"At this point, what I'm going to do is bring the research current and up-to-date," he said, "and then issue a letter."

In other words, heed the code book, but check the mailbox.

No explanation is offered for the statement that "the part about the 30 days is apparently unconstitutional."

At the state level, SB 64, which "prohibits a homeowners association from adopting or enforcing certain restrictive covenants or homeowners association rules concerning the display of political signs," has passed both houses and is ready to send to the Governor. This bill also has a "30 days before" provision.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Indiana Government | Indiana Law

Law - "Digital Billboards, Diversions Drivers Can’t Escape "

The ILB has had a number of earlier entries on digital or electronic billboards and the surrounding controversy. Now Matt Richtel of the NY Times has a long story on the billboards, as part of a series examining "the dangers of drivers using cellphones and other electronic devices, and efforts to deal with the problem." Some quotes:

Abby Dart, executive director of Scenic Michigan, a nonprofit group trying to block construction of new digital billboards in the state, calls the signs “weapons of mass distraction” and says they can be more dangerous than phones.

“You can turn off your phone,” she said. “The billboard gets your attention whether you want to give it or not.”

Last Thursday, Michigan lawmakers held hearings on legislation, the first of its kind, that would impose a two-year moratorium on the construction of new billboards. Minnesota’s legislature is scheduled to hold hearings this month on a similar moratorium. As digital billboards begin to pop up around the country, questions about whether to regulate the emerging technology are being asked in other states as well, and by federal officials.

The Federal Highway Administration has been conducting a study, which it says will be completed this summer, that uses eye-trackers inside cars to see whether drivers who have volunteered for the study look at the digital billboards, and for how long. The agency also has organized a tour this spring to take researchers to various cities around the world to study how other nations are regulating digital billboards.

In the United States, only about 2,000 of the nation’s 450,000 billboards are digitized, but the industry expects there to be tens of thousands of them, as many as 15 percent of its overall inventory.

The signs are typically used in busy traffic areas, where advertisers are willing to pay a premium for them. A digital billboard costs $250,000 to $300,000, roughly half what it did five years ago, but much more than the $5,000 to $50,000 for a traditional billboard.

Space on the digital signs fetches a premium in part because up to six advertisers can share a single location. Traditional billboards fetch a wide range of monthly rents (from $1,000 to $5,000 depending on location and audience) and the digital versions cost the same or a bit more, but the industry benefits by selling that space at that price to more than one advertiser.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to General Law Related

Environment - "Tippecanoe shores up wind energy codes"

Dorothy Schneider has this March 1st story in the Lafayette Journal Courier:

In anticipation of wind turbines eventually springing up in Tippecanoe County, county commissioners gave initial approval today to a fee schedule and more regulatory details in the county's wind energy code.

The changes to the county's existing Wind Energy Conversion System further outline requirements for large system developers.

Under the new code, developers would have to sign an economic development agreement with the county, explained county attorney David Luhman. The company also would have to sign a separate decommissioning agreement, in case the deal falls apart.

"We don't want turbines sitting out there rusting in the field," said Sallie Fahey, executive director of the county's Area Plan Commission.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Environment

Courts - " Supreme Court lets stand order to remove Ten Commandments monument" [Updated]

Warren Richey of the Christian Science Monitor reported March 1st:

The US Supreme Court declined on Monday to take up a dispute over the placement of a Ten Commandments monument on the lawn outside a county courthouse in Oklahoma.

The justices dismissed the case in a one-line order without comment.

The action lets stand a ruling by a federal appeals court and clears the way for the display to be removed from public property. A federal judge had ordered the removal last August.

The case, Haskell County Board of Commissioners v. James Green, stems from a dispute over a Ten Commandments display erected in a public park by a local pastor in 2004. The display is among several monuments on the lawn outside the county courthouse in Stigler, Oklahoma.

The monument displays the Ten Commandments and includes the notation: “Erected by Citizens of Haskell County.” The text of the Mayflower Compact is displayed on the other side of the monument.

Local resident James Green and the American Civil Liberties Union of Oklahoma filed suit in federal court, alleging that display of the Ten Commandments on public property is an unconstitutional endorsement of religion by the county commissioners who approved the display. A federal judge held a two-day trial and disagreed, ruling that the county commissioners had a secular purpose of acknowledging the historical significance of the Ten Commandments.

The judge ruled that under an existing 2005 Supreme Court precedent in a Texas case, the display did not amount to an unconstitutional endorsement or establishment of state-sponsored religion.

A panel of the Tenth US Circuit Court of Appeals disagreed. It ruled that the display was an endorsement of religion and thus violated the First Amendment’s prohibition on excessive church-state entanglement.

The county asked the full Tenth Circuit to review the case, but the appeals court deadlocked 6 to 6. The tie vote meant the panel decision stood.

In asking the Supreme Court to hear the case, lawyers for Haskell County said the Tenth Circuit’s decision conflicted with earlier Ten Commandments rulings in the Eighth and Ninth Circuits.

“This case provides the court with an opportunity to correct the doctrinal instability currently existing in religious display cases,” wrote Kevin Theriot in the county’s petition to the court. The petition quoted a Tenth Circuit judge’s lament that the high court’s church-state jurisprudence exists in “establishment clause purgatory.”

In urging the high court to reject the appeal, ACLU lawyer Daniel Mach said the dispute over the monument divided the community along religious lines. Some community members backed the county’s stance on the monument as a defense of Christian values and religious beliefs, while others were offended by the display and what they perceived as the county’s endorsement of the majority’s religious beliefs. * * *

Nine states filed a friend of the court brief asking the high court to hear Haskell County’s appeal. It said Ten Commandments display lawsuits are particularly burdensome to state and local governments “because public officials cannot reliably predict their outcomes based on precedents from this or any other court.”

The states urged the court to use the case to develop clearer guidance for public officials and lower courts about when governments may display the Ten Commandments.

The nine states are Indiana, Idaho, Michigan, New Mexico, South Carolina, Texas, Virginia, Washington, and West Virginia.

The ILB has been able to obtain a copy of the amicus brief mentioned in the story above, filed in support of the Haskell County petition for a writ of certiorari. The amicus brief was authored by the State of Indiana and joined by a number of other states. Access it here..

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Courts in general

Ind. Courts - More on: Greene County Courthouse lawsuit tops $1 million in legal fees and counting

Updating this ILB entry from July 28, 2009, Nick Schneider, Assistant Editor of the Greene County Daily World, reports today:

The funding and authority to re-finance a $4 million portion of the courthouse building and renovation project Bond Anticipation Notes (BANS) is now in place.

On Monday morning, the Greene County Commissioners approved by a 3-0 vote the plan and included an extra $1 million in bonding that may be used for legal fees during the appeals process of the courthouse construction lawsuit, if needed, commissioner's attorney Marilyn Hartman said.

On Feb. 22, the county council provided the funding authorization to roll over $2.5 million in Bond Anticipation Notes (BANS) with MainSource Bank due in June and another $1.5 million that will come due in 2012. They also made available the additional $1 million in bonding for legal fees anticipated by Indianapolis law office of Drewry Simmons Pitts & Vornehmand, which has been hired by the county.

"It's kind of a good time to refinance," Hartman commented.

Greene County has been engaged in a complicated civil lawsuit to collect up to $6.5 million in unexpected costs related to the original $10.5 million courthouse remodeling/renovation project that turned into a $17 million nightmare.

The construction project has been substantially complete since mid-2008, but the lawsuit, which originated in 2004, is still an active case.

The seven-count, 25-page lawsuit was originally filed Dec. 30, 2004 in Greene Circuit Court on behalf of the county commissioners and building corporation against United Consulting Engineers, Inc., Indianapolis; architects DLZ Indiana, LLC, Indianapolis; Alt & Witzig Engineering, Inc. Carmel (structural engineers) and general contractors Weddle Brothers Construction, Co. of Bloomington.

The county is seeking two parts of damages in the case.

The county is asking for relief in the initial damages that relates to the movement of the soil and the cracking on the south end of the building. This is directly related to drilling down and removing sand out of the foundation area of the building, Hartman said.

Then, after the soil stabilized, the county had a concrete wall pumped underneath the ground and around the south edges (of the building) so there would no longer be any ability for the foundation of the original building to move. Then the other building was constructed. After the steel was up and the frame was in, there was drift on the walls. The plans were looked at by two separate engineering firms with attention paid to calculations for the amount of steel that was going to be required for the building.

That led to the determination that the original design by DLZ in that the structural steel for the strength of the building did not meet building code. At that point, the county had to re-engineer the steel strength -- putting extra steel inside the walls and there had to be a re-design.

More than $1 million has already been spent on legal costs involved in the county's civil lawsuit against a host of contractors and subcontractors involved in the courthouse construction/renovation project that spanned more than five years in the midst of several alleged engineering flaws, according Hartman.

The case remains in Owen Circuit Court and could go to court later this year, if pre-trial negotiations are unsuccessful.

Hartman explained that the civil suit is now before the Indiana Court of Appeals.

Greene County is appealing the summary judgment ruling from Owen Circuit Judge Frank M. Nardi involving a $2 million payment dispute with Weddle Brothers Construction Company of Bloomington, the project's general contractor. Weddle, in turn, questions the validity of the county's claim -- contending the payment for the work in question was done by sub-contractors who had signed a waiver.

"It's really one of the difficult issues (in the case)," Hartman told the Greene County Daily World. "You have a very complicated contractual structure here when all of these people are going around and trying to settle this, everybody starts pointing their fingers."

Hartman said she has no firm idea when the Court of Appeals will make a ruling on the case.

"I hope it is in the next three or four months we'll get a ruling on that (appeal). If that goes, it (the appeal ruling) makes the possibility of (out of court) settlement an awful lot different," she said. "No one wants to spend any money if we get rid of this $2 million claim of Weddle's. It will make it a lot easier to look at this (settlement) because you have this (claim) totally out of the picture," Hartman stressed. "We are just waiting for that (court of appeals) decision."

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Indiana Courts

Ind. Decisions - "Search did not violate Jeff defendant’s rights"

Yesterday's Court of Appeals decision in Canon Harper and Adrian Porch v. State of Indiana (see ILB entry here) is the subject of a story today in the New Albany News & Tribune, reported by Matt Thacker. Some quotes:

CaNon Harper, 34, had filed a motion to suppress evidence and the motion was denied by Clark County Superior Court No. 2 Judge Jerome Jacobi. Attorneys for Harper, along with 39-year-old co-defendant Adrian Porch, of Detroit, filed an interlocutory appeal of the decision. * * *

Harper and Porch were stopped by Clark County Sheriff’s Department deputies in November 2008 after they had pulled into the Bel Air Motel in Clarksville. As Harper and Porch walked into the motel, Officer Bradley Jones ordered the two to stop because the license plate light on their 2005 Cadillac was not working, according to a police report.

Porch was carrying a duffel bag, and Jones took the bag and placed it on the hood of the car.

According to court records, Jones stated during a suppression hearing that he wanted to “keep people in [his] sight and know what they’re doing” and that he used precaution because he did not know what was in the bag or who was in the motel.

“He was trying to freeze the scene to see where everyone is going and briefly detained Porch,” Elder said. “All of that was allowed under the law.”

The Court of Appeals stated that “it is not unreasonable for the police to order a passenger to return to the vehicle” since concern for “officer safety outweighs the potential intrusion to the passenger’s liberty interests.”

According to court records, Jones said he asked Porch if he objected to him searching through the bag and Porch said he did not object. Harper reportedly told the officer that the bag belonged to his ex-girlfriend and he did not know what was inside.

Elder said the officers found what was later revealed to be 48.81 grams of cocaine inside the bag. As police searched the bag, Harper broke free from Officer Donovan Harrod and ran. Police caught up to him and Tasered him.

The defense’s motion to suppress argued that the search of the bag was unreasonable because they had already confirmed the license plate light was out. Harper’s attorney said police officers do not have lawful authority to investigate anything once it has been determined whether a person is in compliance with a traffic violation.

Although the Court of Appeals found the state had not proven the search was justified, it also found that it was an exception to search warrant requirements since Porch consented to the search.

Posted by Marcia Oddi on Tuesday, March 02, 2010
Posted to Ind. App.Ct. Decisions

Monday, March 01, 2010

Ind. Decisions - Transfer list for the week ending Feb. 26, 2010

No transfer list has been received today for the week ending Feb. 26, 2010. Perhaps tomorrow ...

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Continuing with "Senate bill intended to crack down on Marion County's traffic court" [Updated]

Updating this ILB entry from Feb. 25, reporting that SB 399 had passed the second house with amendments, Jon Murray of the Indianapolis Star has just posted online a "Behind Closed Doors" item published in yesterday's Star, but not made available online. The item concludes (but be sure to read it all):

[Marion County Traffic Court Judge Bill Young] has met with some sponsors, including the author, Sen. Michael Young (no relation), R-Indianapolis. Judge Young's concerns include uncertainty about which moving violations are covered and the reduction of judges' discretion.

Sen. Young doesn't foresee changing the bill's thrust. "I'm just going to let the judges work this out," he said, if it becomes law.

The senator has asked for a conference committee to firm up the bill's language. As of this afternoon, no meeting has been scheduled.

[Update at 5:22 PM] Note that HB 1154, which inter alia would "Provide that in addition to any judgment otherwise entered in Marion County for a traffic violation constituting an infraction, an additional judgment amount of not more than $35 may be entered for the traffic violation," is ready for enrollment, nw that the House todat concurred in the Senate amendments.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Indiana Courts

Courts - "Debate brewing over Supreme Court change to Miranda Rights"; and yet another Miranda case awaiting a decision

That is the headline to this story today by Troy Kehoe of WSBT TV, Mishawaka. The case he is writing about is Maryland v. Shatzer, decided last week by the SCOTUS (see this ILB entry). From today's lengthy story:

For suspects, since 1981, it's meant that investigators can't continue questioning in a case once a person-of-interest has invoked their Miranda Right to an attorney. Without that attorney's consent, police can't legally interrogate the suspect any further.

The ruling was aimed at preventing police from coercing a person into waiving their rights to a lawyer by keeping them in custody. But, many officers said it's only led to frustrating roadblocks in important cases.

"It's been a fundamental tenant of police work that once somebody has invoked their Miranda Rights, they're unapproachable again except through their attorney. And when you go through their attorney, that's almost an automatic no," said South Bend Police Captain Phil Trent.

"After that point, it was expected that we could not approach that individual regarding the case again. So, a lot of cases just died in the water right there when we couldn't approach our suspect," Trent continued.

But, a recent case in Maryland involving a child molester who had asked for a lawyer nearly three years before he confessed challenged that ruling.

Michael Shatzer confessed in 2006 to abusing his own son. He had asked police for a lawyer when he was first questioned while already imprisoned on a child sex abuse conviction in 2003 when police questioned him about allegations he also sexually abused his own 3-year-old son.

Shatzer refused to talk and asked for a lawyer, and the questioning ended.

Then, in 2006, when Shatzer's son was old enough to offer details, a different police officer approached Shatzer in prison. He waived his Miranda rights, made incriminating statements and was eventually convicted.

But, Maryland's Court of Appeals threw out his confession, saying the passage of time did not make his first request for a lawyer less valid. The lower court judges also said that Shatzer's release from police interrogation back into the general prison population was not a sufficient break in custody to invalidate his lawyer request.

Wednesday, Justice Antonin Scalia, writing for the majority, said enough time had passed between the first and second interrogations for Shatzer, even though he was being held in prison.

"The duration of the break in custody here (2 1/2 years) was plainly enough," Scalia wrote.

"In fact, the court decided--not just two years--but two weeks was enough," Trent said. "Now, 14 days after the first approach — even if we're turned down — as long as that person's had 14 days of non-custodial, clear thinking, we can re-approach that person without their attorney."

Trent called the ruling a major surprise that could make a major impact on law enforcement across the country.

"I'm personally shocked at this," he said. "It changes a rule I've been dealing with for 23 years, and it's a major, major modification."

But, perhaps the biggest modification will come on older, "cold cases." Officers can now bring in witnesses or suspects that were previously considered untouchable to question them a second time.

"It certainly allows us the ability to keep a case open and have a little bit more hope," Trent said.

But, some are concerned the new ruling also opens the door to potential abuse of power.

"I am concerned," said South Bend criminal defense attorney Andre Gammage, a partner in the firm Berger & Gammage. "I see this as an opportunity for a person's will to be eroded if police approach, and approach, and approach every [two weeks]."

Police might have "an incentive to badger suspects through repetitive catch-and-release tactics," the National Association of Criminal Defense Lawyers told the Supreme Court.

"A police officer questioning you on day 1 or day 15, it's still an intimidating situation for you. It may be that additional information may be gained by an officer between day 1 and day 15 or sometime down the line. So, he's asking the question again and trying to do his job," Gammage said.

"But, by the same token, that person who's being questioned, I believe, just by the very nature of being questioned, feels a bit intimidated — especially when it's for the second or third time," he continued.

Gammage, and other criminal defense attorneys are worried repeated questioning could wear down a suspect's will until they do something their lawyer would advise against.

"There's a real danger in the thinking — 'if I tell them what they want to know, will they stop bothering me? They may not believe that they're incriminating themselves, and say look: if I just tell them this, or tell them something, will they leave me alone? Well, that something just might be something that would land them in jail," Gammage said.

Some lawyers have even referred to the change as a "merry-go-round" that will allow police to "legally" badger suspects. It's enough to cause Gammage to add a new piece of advice to all of his clients.

"Remember, they may now approach you again. Your answer is still: I want to talk to my lawyer. You need to invoke that again," he said.

Re the case heard today, Berghuis v. Thompkins (08-1470) (see SCOTUSblog entry here), Jesse J. Holland of the AP has just released a long story headed "Court weighs if silence alone can invoke Miranda." Some quotes:
Police told Van Chester Thompkins he had a right to remain silent, and so he did.

But his silence meant he never officially told officers he wasn't going to talk, and so they kept interrogating him. A couple of hours later, Thompkins implicated himself in a murder. * * *

This case is another example of the high court's recent struggle to clearly define Miranda rights, which have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can't afford one.

Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction.

But Michigan Solicitor General Eric Restuccia told the justices that Thompkins waived his right to be silent by answering questions from the police.

After two and a half hours of interrogation, Thompkins answered three questions, said Justice Stephen Breyer: "One, do you believe in God? Yes. Two, do you pray to God? Yes. Three, have you asked God for forgiveness for shooting the boy? Yes.

"OK," Breyer said. "So, where did he waive it?"

"When he answered those questions," Restuccia said.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Courts in general

Environment - "Rulings Restrict Clean Water Act, Foiling E.P.A."

From a front-page story in today's NY Times, reported by Charles Duhigg and Janet Roberts:

The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.

“We are, in essence, shutting down our Clean Water programs in some states,” said Douglas F. Mundrick, an E.P.A. lawyer in Atlanta. “This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

“This is a huge deal,” James M. Tierney, the New York State assistant commissioner for water resources, said of the new constraints. “There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.”

The court rulings causing these problems focused on language in the Clean Water Act that limited it to “the discharge of pollutants into the navigable waters” of the United States. For decades, “navigable waters” was broadly interpreted by regulators to include many large wetlands and streams that connected to major rivers.

But the two decisions suggested that waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be “navigable waters” and are therefore not covered by the act — even though pollution from such waterways can make its way into sources of drinking water. * * *

In the last two years, some members of Congress have tried to limit the impact of the court decisions by introducing legislation known as the Clean Water Restoration Act. It has been approved by a Senate committee but not yet introduced this session in the House. The legislation tries to resolve these problems by, in part, removing the word “navigable” from the law and restoring regulators’ authority over all waters that were regulated before the Supreme Court decisions.

But a broad coalition of industries has often successfully lobbied to prevent the full Congress from voting on such proposals by telling farmers and small-business owners that the new legislation would permit the government to regulate rain puddles and small ponds and layer new regulations on how they dispose of waste.

“The game plan is to emphasize the scary possibilities,” said one member of the Waters Advocacy Coalition, which has fought the legislation and is supported by the American Farm Bureau Federation, the National Association of Home Builders and other groups representing industries affected by the Clean Water Act. * * *

The consequences of the Supreme Court decisions are stark. In drier states, some polluters say the act no longer applies to them and are therefore refusing to renew or apply for permits, making it impossible to monitor what they are dumping, say officials.

Cannon Air Force Base near Clovis, N.M., for instance, recently informed E.P.A. officials that it no longer considered itself subject to the act. It dumps wastewater — containing bacteria and human sewage — into a lake on the base.

More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators. And even as the number of facilities violating the Clean Water Act has steadily increased each year, E.P.A. judicial actions against major polluters have fallen by almost half since the Supreme Court rulings, according to an analysis of E.P.A. data by The New York Times. * * *

The two Supreme Court decisions at issue — Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in 2001 and Rapanos v. United States in 2006 — focused on the federal government’s jurisdiction over various wetlands. In both cases, dissenting justices warned that limiting the power of the federal government would weaken its ability to combat water pollution.

“Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,” said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration.

The ILB has a very long list of entries dealing with the two Supreme Court decisions and the wetlands issue.

[More] Jon Murray of the Indianapolis Star had a long story Feb. 27 on an Indianapolis company with a pre-treatment permit that is charged with flushing large quantities of untreated oil and other pollutants into city sewers:

The U.S. attorney's office filed charges earlier in the day against two former managers of Ecological Systems Inc. for violations of the federal Clean Water Act.

They have signed plea agreements and are cooperating with the investigation.

The single charge against each man centers on the company's flushing of 300,000 gallons of untreated wastewater over eight hours on Feb. 11, 2009, according to charging documents filed in U.S. District Court in Indianapolis. * * *

The discharge "caused an oily sludge-like substance to flow out of various sewer manholes and into the yards of several Indianapolis residents," according to the documents.

The discharge allegedly occurred at ESI's Northwestside treatment facility, 4910 W. 86th St., which takes in used oil, coolants and other liquid waste from industrial clients and treats wastewater before releasing it into the sewer system.

Larry Mackey, an attorney for ESI, said the Indiana Department of Environmental Management and the U.S. Environmental Protection Agency still have an ongoing investigation of the company, which operates as ESI Environmental. * * *

Prosecutors said that during the February 2009 rainstorm, ESI managers directed lower-level employees to pump a tank containing oil, wastewater and other materials and flush the untreated water directly into the sewer system, violating its city permit.

The managers wanted to maintain the facility's ability to accommodate new truckloads of waste as storm water collected in its tanks, the court documents say.

Prosecutors said Milem and Snow each face up to three years in prison and a maximum $250,000 fine, though their cooperation would be taken into consideration.

After the discharge, the charging documents say, Milem and Snow were among company officials who falsely insisted to IDEM inspectors that there had been no "bypass event."

Prosecutors also allege Snow regularly submitted falsified monitoring reports to the city, at the direction of an unidentified corporate officer, and that ESI misrepresented its available waste storage capacity to regulators.

The same facility came under scrutiny by a City-County Council committee in May.

Area residents alleged that a gaslike odor was coming from the site, a charge disputed by a company lawyer. A proposed ordinance aiming to control offensive smells coming from businesses failed to garner support from the Public Works Committee.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Environment

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

Updating this ILB entry from Feb. 26th, more on tomorrow's oral argument.

From today's Fort Wayne Journal Gazette:

In Washington, D.C., the U.S. Supreme Court will hear oral arguments on an even bigger case [than the Indiana voter ID case] that could well reverse a 137-year-old precedent and require Chicago and other cities to permit residents to have handguns.

The court will hear the case of McDonald v. Chicago on Tuesday. Two years ago, the justices ruled that the Washington handgun ban violated the Second Amendment. So it seems inevitable that the court will extend that ruling past the federally controlled District of Columbia to the 50 states.

At issue is not only the Second Amendment but also the 14th Amendment, the privileges and immunities clause. The language in question: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

An 1873 Supreme Court decision ruled that language did not automatically apply the Bill of Rights to states and cities, though the courts have “incorporated” most of those rights to apply to the states. But not the Second Amendment.

One brief filed in support of the lawsuit carries the names of Rep. Mark Souder, Texas Sen. Kay Bailey Hutchison and two other members of Congress. Fifty-six additional members signed on – including Sen. Evan Bayh. Among the brief’s questionable arguments: “If many States and local governments followed (Chicago’s) example, Congress’ ability to exercise its enumerated martial powers would be undermined.”

The court is likely to strike down Chicago’s handgun law.

In addition, here is the amicus brief of the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming in Support of Petitioners.

Take a look at the SCOTUS Wiki page on McDonald v. City of Chicago for more information, including listings and links to the enormous number of amicus briefs filed in the case.

Robert Barnes of the Washington Post has a story today headed "Gun case presents quandary for Supreme Court justices." Here is a sample:

To most, it might seem illogical that the Bill of Rights would apply only to actions of the federal government, but that was its intent. Over the years, the court has said most of it applies -- or in the court's language is "incorporated" -- through the 14th Amendment.

That post-Civil War amendment was meant to protect rights and outlaw discrimination. It forbade states to pass laws that abridged "the privileges or immunities of citizens of the United States." It said states may not "deprive any person of life, liberty, or property, without due process of law" and guaranteed "equal protection of the laws."

Mostly, the justices have used the "due process" clause to incorporate the majority of the Bill of Rights. The National Rifle Association and others have urged the court to continue to use it to incorporate the Second Amendment.

But others, notably scholars from the liberal Constitutional Accountability Center and the libertarian Cato Institute, have urged the court to revive another clause from the 14th Amendment, the one that protects the "privileges or immunities of citizens of the United States" -- 19th-century-speak for "rights." An 1873 Supreme Court decision has buried the "privileges or immunities clause" by saying it covered only a narrow range of national rights, such as traveling to the capital.

The justices said in taking the McDonald case they would decide whether either clause incorporated the Second Amendment. And the exercise will provide interesting revelations.

See also this editorial today from the LA Times, According to the editorial, "If the court were to rule for the city and uphold the ban, it would undermine one of the most significant developments in legal history: the "incorporation" of the Bill of Rights (with minor exceptions) under the 14th Amendment to apply to the states.."

[More] At 4 PM today, March 1, 2010, C-SPAN will air (and archive) a panel discussion on McDonald v. Chicago.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Courts in general

Law - Still more on: Four Indiana nominees on Committee on the Judiciary agenda for Thursday

Updating this ILB entry from Feb. 25th, where, after the postponement last Thurday, Chairman Leahy promised:

“Next week we will complete action on Dawn Johnsen.”
The meeting of the full Senate Judiciary Committee is set for this Thursday, March 4th. On the agenda:
March 4, Full Committee, business meeting to consider S. 1789, to restore fairness to Federal cocaine sentencing, S. 1132, to amend title 18, United States Code, to improve the provisions relating to the carrying of concealed weapons by law enforcement officers, S. 2772, to establish a criminal justice reinvestment grant program to help States and local jurisdictions reduce spending on corrections, control growth in the prison and jail populations, and increase public safety, S. 1624, to amend title 11 of the United States Code, to provide protection for medical debt homeowners, to restore bankruptcy protections for individuals experiencing economic distress as caregivers to ill, injured, or disabled family members, and to exempt from means testing debtors whose financial problems were caused by serious medical problems, S. 1765, to amend the Hate Crime Statistics Act to include crimes against the homeless, and the nominations of Dawn Elizabeth Johnsen, of Indiana, to be an Assistant Attorney General, 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.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to General Law Related

Ind. Decisions - Transfer granted in card counting case

Transfer was granted today in the case of Donovan v. Grand Victoria Casino, the blackjack card counting case. Oral argument is set for April 7 at 9:00 a.m.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides bankruptcy case today

In re Howard is a 12-page opinion. Judge Posner writes:

This direct appeal from the bankruptcy court, pursuant to 28 U.S.C. § 158(d)(2)(A), requires us to consider an issue that is new in this court. It is whether the bankruptcy court’s “cramdown” power in a Chapter 13 bankruptcy (the counterpart, for an individual, to corporate reorganization in bankruptcy— Chapter 11) extends to an automobile dealer’s, or other creditor’s, taking a security interest in a customer’s “negative equity” in his traded-in vehicle. (Often as in this case the financing of the purchase of a car is done by a finance company rather than by the dealer who sells the car. So when we refer to the “creditor,” it is to the finance company rather than to the dealer.)

The issue presented by the appeal requires some explaining, beginning with “cramdown,” which means forcing a secured creditor to take cash in lieu of his collateral. * * *

We therefore join the other courts in ruling that negative equity can be part of a purchase money security interest and if thus secured is not subject to the cramdown power of the bankruptcy judge in a Chapter 13 bankruptcy. The decision of the bankruptcy court denying cramdown of a Chapter 13 plan that excludes negative equity from a purchase money security interest is therefore AFFIRMED.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Canon Harper and Adrian Porch v. State of Indiana , a 12-page opinion, Judge Riley writes:

Appellants-Defendants, Canon Harper (Harper) and Adrian Porch (Porch), bring this joint interlocutory appeal following the trial court's denial of their motion to suppress evidence seized during a traffic stop. We affirm.

Porch and Harper present two issues on appeal, which we restate as follows: (1) Whether the trial court erred when it denied their motion to suppress evidence; and (2) Whether the trial court erred when it failed to apply the Seatbelt Enforcement Act to the present case. * * *

Porch and Harper argue that after the traffic stop had been completed and they had confirmed that the license plate light was out, the subsequent pat down search and search of the duffle bag was unreasonable. Nevertheless, because Porch consented to the search of his person and to the search of the duffle bag, insofar as they complain that the search was unreasonable, they cannot prevail, as it is well established that consent is a valid exception to the requirements of the Fourth Amendment. Thayer, 904 N.E.2d at 710; see also United States v. Maldonado, 38 F.3d 936, 940 (7th Cir. 1994) (a suspect's failure to object can indicate consent).

We reach a similar result when analyzing Porch and Harper's claim under the Indiana Constitution. [Article 1, Section 11] * * *

Here, upon review of the totality of the circumstances, the State has failed to demonstrate that the pat down and search of the duffle bag was reasonable under the circumstances. * * *

Nevertheless, as the State aptly points out, Officer Jones testified that Porch verbally assented to the search of his person and the duffle bag. One exception to the search warrant requirement occurs when consent is given to the search, under the theory that “when an individual gives permission to a search of either his person or property, governmental intrusion thereon is presumably not unreasonable.” * * *

Porch and Harper argue that the trial court erred in failing to recognize that I.C. § 9-16-6-4(e) governing license plate illumination should be treated similarly to the occupants of a vehicle stopped for violation of the Seatbelt Enforcement Act, I.C. § 9-19-10-3.1, as “[t]hese traffic violations are analogous because neither violation directly places other drivers in danger []” and furthermore, neither of “these traffic violations implicate concerns regarding potential criminal activity beyond the mere violation.”

The Seatbelt Enforcement Act states that “a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter.” I.C. § 9-19-10-3.1. Indiana Code section 9-16-6-4(e), which requires the illumination of license plates, does not include the same language as the Seatbelt Enforcement Act limiting the scope of the stop if violated.

We decline to extend the language of I.C. § 9-19-10-3.1 to I.C. § 9-16-6-4(e). Recently, our supreme court held that the Seatbelt Enforcement Act should not be construed to “prohibit police from questioning motorists or seeking consent to search following a terminated traffic stop.” State v. Washington, 898 N.E.2d 1200, 1207 (Ind. 2008). In light of Washington, it was not unreasonable for the officers to seek consent from Porch and Harper and the trial court did not err by failing to treat the statutes similarly.

CONCLUSION. Based on the foregoing, we find that the search did not violate the Fourth Amendment or Art. 1, Section 11 because Porch consented to the search and the trial court did not err by failing to extend the language of I.C. § 9-19-10-3.1 to I.C. § 9-16-6-4(e). Affirmed.

NFP civil opinions today (2):

M.B. v. Review Board (NFP) - "M.A.B. appeals the Indiana Department of Workforce Development Review Board’s (“the Review Board”) conclusion that M.A.B. voluntarily left employment without good cause in connection to the work. We affirm."

City of New Castle v. Randy Neal, Integrity Land Management, LLC , et al. (NFP) - The question here was whether was whether Neal's Businesses needed to obtain special exception approval to operate the businesses on real estate in New Castle zoned as I-2. "The City contended that, according to the New Castle City Zoning Ordinances (NCZO), Neal's Businesses constituted a junkyard and required the approval of a special exception to operate on the I-2 zoned property. * * * Neal Scrap Metals is required to obtain a license under Chapter 127 of the New Castle City Code, which regulates the operation of junkyards. This chapter requires that for a junkyard license to issue, the applicant must comply with the zoning ordinance requirements. New Castle City Code § 112.04, App. at 22. The description of the operations of the businesses clearly falls within the definition of Junkyard for the purposes of the NCZO. * * * Therefore, Neal's Businesses must obtain special exception approval to operate these businesses within the City of New Castle."

NFP criminal opinions today (2):

Sherri Sullivan v. State of Indiana (NFP)

Jose O. Aparicio-Garcia v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on: Kentucky courthouse spending spree

On Feb. 18, 2010 the ILB posted this entry quoting a Louisville Courier Journal editorial about the courthouse building spending spree in Kentucky and its results. A line from the editorial: "Former Kentucky Supreme Court Chief Justice Joseph E. Lambert embarked on a campaign to replace county courthouses in all of Kentucky's 120 counties."

At the time the ILB noted: "Indiana generally tries to preserve its existing courthouses."

Earlier ILB coverage included links to a Lexington Herald-Leader series titled "Law & Mortar: An examination of a courthouse building boom"noted in this Sept. 18, 2008 entry,.

Now, thanks to the Kentucky Law Blog, here is a lengthy, mid-February story from the Williamson Ky Daily News, headed "Making way for progress?" reported by Julia Roberts Goas. Some quotes:

PIKEVILLE, KY – The wrecking ball is swinging to make room for a new Judicial Center in Pikeville, with construction set to begin despite criticism from several directions. * * *

The new courthouse is one of 70 in the commonwealth that have been authorized, begun construction or completed since 1998. Pike County’s new facility will replace the current Hall of Justice, which was built in 1992 at a cost of $7.3 million. The budget for the new 94,900 square foot building has been set at $28.4 million.

Some of the controversy surrounding the new courthouse is centered on the site on which it will be built. That property is owned by Kentucky Supreme Court Justice Will T. Scott. The planned site takes up roughly 60,000 square feet of land and includes nine properties. Buildings on the block included the Pinson Hotel, Weddington Theater, Raccoon Auto sales, Pike County Artisan Center, law offices and a dry cleaner. Although the county has offered to buy the property, Scott has said he does not want to sell the properties, which means there is no conflict of interest.

Another issue is the preservation of the historic integrity of the city. Some of the buildings demolished for the new courthouse were considered historic, which has made the project controversial in Pikeville. At least one of them dates from the 1880s.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Courts in general

Law - "The Politicization of 'Miranda'"

An article by Joel Cohen and Katherine A. Helm today, published as a special to Law.com, concludes:

We cannot dispense with Miranda warnings as stage dressing, just as we cannot let a fear of terrorism justify a Miranda exception for "uncommon" criminals. After all, who's going to make the classification? A town hall vote on a case-by-case basis or a law enforcement officer's snap call at the border's edge is equally ill-fitting. This type of thinking erodes Miranda, which is an immovable part of our system of justice. Those of us involved in, and who understand the value of, the legal system need to stand at the front lines to curb the erosion. Our criminal justice system is not optional for any of its participants -- judges, prosecutors, defense attorneys and police officers -- nor should it be for the likes of terrorists.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to General Law Related

Ind. Decisions - Voter ID case in a nutshell

The Fort Wayne Journal Gazette has this note about the upcoming oral argument on its editorial page today:

Lawyers for the League of Women Voters and state government will face off in the Indiana Supreme Court this week over the voter identification law.

After the law survived federal court challenges, the Indiana Court of Appeals struck it down because it does not require Hoosiers who vote through absentee ballots to provide identification, while those who vote at the polls are required to do so. Such unequal treatment is unconstitutional, the court ruled.

Until that ruling, most of the debate surrounded the argument that the identification requirements are onerous to the poor and to minorities, who are more likely to have difficulties assembling the required forms of identification – an argument the courts have thus far rejected. The reasoning about unequal status for absentee voters seemed to come as a surprise to both sides.

Gov. Mitch Daniels scoffed at the state Court of Appeals ruling, but the state Supreme Court may well uphold it. Meanwhile, state lawmakers will likely adopt language either this week or next year requiring ID for absentee voters.

Lawyers for the two sides will give their arguments and answer questions from the justices, who will likely take weeks or months to rule on the case.

Please correct me if I'm wrong, but the only still viable election bill this session is HB 1106, which is in conference committee, and it currently does not appear to contain language re identification for voters using absentee ballots.

For much more on Thursday's oral argument in League of Women Voters, et al. v. Todd Rokita, see today's ILB entry on "Upcoming Oral Arguments."

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Upcoming Oral Arguments

Ind. Law - "Indiana Sheriff's Sales: Local Rules, Customs and Practices Control"

"[I]n essence, that there are 92 counties in Indiana and therefore 92 different sets of rules applicable to sheriff's sales." That is a quote from a useful article by John D. Waller on his Indiana Commercial Foreclosure Law blog.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Indiana Law

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. 28, 2010:

From Saturday, Feb. 27, 2010: From late Friday, Feb. 26, 2010:

Posted by Marcia Oddi on Monday, March 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 3/1/10):

Thursday, March 4th

Next week's oral arguments before the Supreme Court (week of 3/8/10):


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

Tuesday, March 2nd

Wednesday, March 3rd

Thursday, March 4th

Friday, March 5th

Next week's oral arguments before the Court of Appeals (week of 3/8/10):

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

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


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 01, 2010
Posted to Upcoming Oral Arguments