« March 2010 | Main | May 2010 »

Friday, April 30, 2010

Ind. Decisions - Judge Barker rules in Greenwood school prayer case

Earlier today, John Tuohy of the Indianapolis Star reported:

A federal judge today strongly signaled that she would stop a prayer from being read at Greenwood High School's graduation ceremony next month.

U.S. District Court Judge Sarah Evans Barker aggressively questioned a lawyer for the school during a hearing today, repeatedly asking her to show how administrators weren't advocating government sanctioned prayer.

"You cannot deny that the school's hand was in this from the beginning," Barker told attorney Judy L. Woods, of Bose McKinney & Evans.

Senior valedictorian Eric Workman is suing to the school to stop a prayer from being recited during graduation, claiming it violates the 1st Amendment provision of church and state separation.

He is asking the court to issue an injunction before the May 28 ceremony.

The school claims the prayer meets constitutional muster because the students voted for it, and administrators weren't foisting it on them.

Barker scoffed at that contention.

"They (administrators) put it on the ballot, the school constructed the ballot," Barker said. "They anticipated its success."

Wood argued that a prior Supreme Court decision that banned school prayer noted that if students approved the prayer, it might be constitutional. She said the decision to put the question to a student ballot was made with that in mind.

But Barker said the vote "trampled" the rights of the minority and the school "put itself in constitutional duck soup."

The American Civil Liberties Union is representing the 18-year-old student, who was not at the hearing. Barker said she would issue her ruling to give enough time for either side to appeal. [ILB - and in fact, Judge Barker did issue a 21-page order granting an preliminary injunction just a few hours later -- scroll down to access a copy of the order.]

An AP story put it this way:
U.S. District Judge Sarah Evans Barker dismissed claims by Greenwood district attorney Judy Woods that the school’s case differed from Supreme Court precedents on school prayer, and called the district’s interpretation of the precedents “plainly wrong.” Barker also questioned why the district relied so heavily on dissenting court opinions rather than the precedents themselves.
Judge Barker has now issued an Order: "Defendants and their agents, servants, and employees are preliminarily restrained from permitting the planned student-led prayer or invocation arising from the election of the senior class, or any other school-endorsed, prayer, to occur at the upcoming May 28, 2010, Greenwood High School graduation ceremony."

Access the 21-page "Order granting motion for preliminary injunction" here. It is certainly worth the read. It concludes:

For the reasons detailed in this entry, the process in place permitting a student-led prayer at Greenwood High School represents a clear violation of the Establishment Clause of the First Amendment, as does the delivery of a specific prayer set to occur as the result of that process during the upcoming 2010 graduation ceremony. Plaintiff’s Motion for Preliminary Injunction is therefore GRANTED.

Defendants, Greenwood Community School Corporation and the Principal of Greenwood High School, as well as all of their agents, servants, and employees, are hereby PRELIMINARILY RESTRAINED from permitting the planned student-led prayer or invocation arising from the election of the senior class, or any other schoolendorsed prayer, to occur at the upcoming May 28, 2010 Greenwood High School
graduation ceremony. Notice of this order shall be distributed forthwith, well in advance of the scheduled graduation ceremony, to all District faculty, administrators, staff and employees as well as to the individual students/members of the 2010 graduating class, and their parents, guardians, or other responsible adults. IT IS SO ORDERED.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Another opinion today from the Supreme Court

In Paternity of N.P.; R.P. v. L.S., a 10-page, 4-1 decision, Justice Rucker writes for the majority:

In this opinion we conclude that where the parties in a domestic relations dispute sign a written agreement retaining the services of a guardian ad litem, the trial court, when awarding fees and expenses incurred by the guardian ad litem, is bound to enforce the terms of the agreement unless it is contrary to public policy. * * *

Because there was an absence of evidence that the parties’ agreements were void as against public policy, and the trial court made no findings as such, it was bound to enforce the terms and conditions of the agreements. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents in part with separate opinion. [which begins at p. 9] I depart from the majority and agree with the Court of Appeals that the trial court may review the reasonableness of the services rendered. Even if the hourly rate agreed is reasonable, a fee agreement is not a blank check for the attorney to fill in the amount of services rendered irrespective of the need for services. * * * Moreover, the trial court is in the best position to determine the extent to which the services rendered were in fact required or useful. * * *

I do not agree with the Court of Appeals that an attorney functioning as guardian ad litem is required to bill separately for legal and nonlegal services. Here the parties agreed on an hourly rate of $150 that the attorney says is approximately two thirds of her normal hourly rate as an attorney. If the parties choose to agree on a blended hourly rate that reflects both legal and non-legal services, I would find that presumptively valid. I would affirm the trial court.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - Angry filings in Cook County dispute

Above the Law has an entry this afternoon containing quotes from, and links to, a motion to reconisder and a reply, such as:

Plaintiff’s counsel could easily proceed to assail each and every paragraph in the trumped up pathetic rigmarole which is headlined as an “Opposition,” as though written by some contemporary of Coke or Blackstone who simply cannot bend his English to state “Response.”

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Courts in general

Ind. Decisions - Supreme Court grants three transfers today

The Clerk's transfer list should be available Monday, but meanwhile the ILB has received notice that the Supreme Court has granted transfers this week to three cases:

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Indiana Transfer Lists

Ind. Decisoins - One today from the Supreme Court

In Julie Gardiner v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:

In this case of first impression we conclude that a conviction for a Class D felony on which judgment is later entered as a Class A misdemeanor does not prevent the trial court from modifying a sentence below the statutory minimum on grounds that the defendant has a prior unrelated felony conviction. * * *

In the case before us, Gardiner had – past tense – a prior unrelated Class D felony conviction. However effective February 8, 2008, that conviction was vacated by the Hamilton Superior Court when it modified the D felony by entering judgment of conviction upon the Class A misdemeanor. As a consequence, by the time Gardiner filed her “Petition For Sentence Modification” in the Carroll Circuit Court her felony conviction was a matter of the past. We conclude that as a matter of statutory construction, for purposes of the non-suspension statute, Gardiner no longer has a prior unrelated felony conviction.

The trial court declined to suspend Gardiner’s sentence below the statutory minimum of twenty years. On this narrow point we cannot say the trial court abused its discretion. To the extent however the trial court’s decision was influenced by its assumption that it had no discretion to sentence otherwise, the trial court erred. We therefore remand this cause to the trial court for further consideration consistent with this opinion.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Ind. Sup.Ct. Decisions

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

U.S. v. Dunson (SD Ind., Tinder), a 3-page per curiam opinion, concludes:

Although Dunson was not sentenced as an armed career criminal, we interpret “violent felony” as used in § 2K2.1 the same way as “crime of violence” in § 924(e). See, e.g., United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). So Spells and Sykes are squarely on point, and the district court properly classified Dunson’s prior conviction for fleeing a police officer in a vehicle as a crime of violence. AFFIRMED.

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

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

For publication opinions today (4):

In Joyce Bellows, Edgar Bellows, Barbara Stutsman, and Wayne Stutsman v. Board of Commissioners of the County of Elkhart, et al. , a 28-page opinion by Judge Najam, the ruling sets out the entire complaint of the plaintiffs, and the entire order of the trial court. At issue was a rezoning ordinance for a recycling facility. The opinion concludes:

In sum, we affirm the trial court's dismissal of the Bellowses' and Stutsmans' complaint. Count I of the complaint fails to state a claim upon which relief can be granted. The trial court lacks subject matter jurisdiction to grant the judicial review requested in Count II of the complaint. And the Bellowses and Stutsmans lack standing to pursue their claim for declaratory relief in Count III of the complaint. Accordingly, the trial court properly granted the Board's and the Plan Commission's motions to dismiss.
J.J. v. State of Indiana - "J.J., quite simply, has made too many bad choices—whatever the source of those choices may be—and has left the juvenile justice system with no alternative but to order that he be committed to the DOC. Treatments for his mental health problems and substance abuse issues will be available to J.J. through the DOC. Under these circumstances, we cannot say that the juvenile court erred in ordering that J.J. be committed to the DOC for placement with the Indiana Boy’s School."

Jack Edwin Suprenant, Jr. v. State of Indiana - "In sum, we do not find that the nature of the offense or the character of the offender renders a sentence of five years more than the advisory sentence inappropriate."

Curtis Drue McGaha v. State of Indiana - "Curtis Drue McGaha (“McGaha”) appeals his conviction and sentence for Murder, a felony. We affirm."

NFP civil opinions today (1):

Daniel Wise v. Dina Deter-Wise (NFP) - "Appellant-respondent Daniel Wise (Father) appeals the trial court’s order directing him to pay 40.6% of his oldest daughter’s college expenses pursuant to appellee-petitioner Dina Deter-Wise’s (Mother) petition to modify support. Specifically, Father argues that the trial court abused its discretion in ordering him to pay that amount because the evidence established that he could not afford such a payment and he had no “assets that could be used to finance his portion of the college expenses.” Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (3):

Mitchell W. Tickle v. State of Indiana (NFP)

Manuel Hopson v. State of Indiana (NFP)

Damon Sinkovics v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Ind. App.Ct. Decisions

Courts - "New Push to Give Abuse Victims More Time to Sue: Latest Scandals to Hit the Catholic Church Ratchet Up Pressure on State Lawmakers to Extend or Eliminate Statutes of Limitations"

Ashby Jones has a long story in today in the WSJ - some quotes:

The recent wave of accusations that the Catholic Church has mishandled sexual-abuse cases is giving new momentum to state efforts to extend the time frame for alleged victims of childhood abuse to sue the church.

Legislatures in a handful of states, including Connecticut, Arizona, New York and Michigan, as well as the territory of Guam, are considering lengthening or eliminating their statutes of limitations in sex-abuse cases. On Monday, the Florida legislature voted to abolish its time limitations in any new cases filed. The church has been lobbying against such measures, which typically apply to all sexual-abuse cases, not just those involving the church. * * *

In many states, a statute of limitations is "tolled" or paused until a child turns 18, at which point a person will typically have a limited number of years to file a suit.

Victims of sex abuse and other advocates have for years lobbied state legislatures to change statutes of limitations in sex-abuse cases. About half of the states have enacted some change before the recent batch of allegations, said David Clohessy, the executive director of the Survivors Network of those Abused by Priests, or SNAP, an advocacy and support group.

Many states have extended the statute of limitations to file new cases for a handful of years. A small number have eliminated their statute of limitations altogether and two, Delaware and California, have opened up windows, or limited periods of time, in which individuals could retroactively sue over incidents that happened much earlier. Efforts to open windows have been defeated in some states, including Ohio, Wisconsin, Colorado and Maryland.

The same writer, who also edits the WSJ Law Blog, has this entry this monring headed "On the Catholic Church, Sex-Abuse and Time Limits." Some quotes:
[A]t the heart of every discussion about statutes of limitations are interesting questions: Should justice have a time limit? If so, what should it be and how should it be determined? Are some alleged crimes so heinous, so awful, that the right to file suit or criminal charges never expires? How long after an event is it simply unfair to expect someone to defend him or herself?
See this April 11, 2008 ILB entry re statute oi limitations cases in Indiana.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Courts in general

Ind. Courts - February 2010 bar exam results posted

Access them here.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Indiana Courts

Courts - More on: "The danger of judicial activism now comes from the right, not the left"

Echoing yesterday's ILB entry, which quoted an editorial column, today Charlie Savage and Sheryl Gay Stolberg of the NY Times report under the headline: "Obama Says Liberal Courts May Have Overreached." Some quotes:

WASHINGTON — In a seeming rejection of liberal orthodoxy, President Obama has spoken disparagingly about liberal victories before the Supreme Court in the 1960s and 1970s — suggesting that justices made the “error” of overstepping their bounds and trampling on the role of elected officials.

Mr. Obama made his remarks Wednesday night against a backdrop of recent Supreme Court rulings in which conservative justices have struck down laws favored by liberals, most notably a January ruling that nullified restrictions on corporate spending to influence elections.

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.

“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

He added, “The concept of judicial restraint cuts both ways.” * * *

Mr. Obama has criticized recent conservative Supreme Court rulings before — including the campaign-finance ruling, Citizens United, in his State of the Union address last January. But his remarks went notably further by drawing an equivalence to rulings a generation ago that have been widely celebrated by liberals as historic achievements.

Posted by Marcia Oddi on Friday, April 30, 2010
Posted to Courts in general

Thursday, April 29, 2010

Courts - More on: "Cameras and the Supreme Court "

Updating this ILB entry from earlier today, The Blog of Legal Times has an entry this afternoon reporting on this morning's Seate committee meeting:

The Senate Judiciary Committee passed several measures today addressing greater transparency in the judicial system—including televising U.S. Supreme Court hearings.

One of the bills, the Sunshine in the Courtroom Act, would allow chief district and appellate judges to permit cameras in court. * * *

The judiciary committee also passed a bill and a resolution that address camera access in the Supreme Court. The bill would require the Court to televise oral arguments unless the Court voted, in a particular case, to prohibit live coverage. The resolution expressed the sentiment that the Supreme Court should televise oral arguments. The bill and resolution passed 13-6.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Courts in general

Ind. Courts - "Judge Shields Majestic Star Execs From City Lawsuit"

The WSJ's Bankruptcy Blog has this entry this afternoon by Peg Brickley -- some quotes:

The heat is off Chief Executive Don Barden and other Majestic Star Casinos leaders, thanks to a bankruptcy court ruling Thursday shielding them from the wrath of Gary, Ind., at least for now.

Gary says millions that the gambling company was supposed to hold in escrow found their way into the Majestic Star’s Chapter 11 coffers, instead. Majestic Star disputes the debt. It’s a “criminal matter,” to Gary, said its attorney, Michael W. Hile of Katz & Korin.

Judge Kevin Gross disagreed, noting that, at bottom, it’s a fight over a share of revenue from Majestic Star’s riverboat gaming. It’s only money, the judge said, invoking the automatic stay of bankruptcy to halt a lawsuit the city filed under Indiana’s Criminal Victims Act.

With Barden and other members of Majestic Star’s “most senior management” targeted as defendants, Gary’s suit threatens to distract them from their efforts to reorganize, the judge said.

Distract them? Some members of Gary’s City Council have sponsored a resolution asking the Indiana Gaming Commission to strip Majestic Star of its casino license and put the riverboats into a receivership. * * *

Already badly beaten up by unemployment and economic woes when the recession hit, Gary is in such deep trouble now that a state court judge who looked at the dispute earlier found the cash in question would be safer in Majestic Star’s hands than it would be in the hands of the city, until the quarrel is resolved.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Everett Cash Mutual Insurance Company v. Rick Taylor and Katrina Taylor, an 8-page, 5-0 opinion, Justice Sullivan writes:

Rick and Katrina Taylor procured a farm personal liability policy from their insurer. The Taylors subsequently filed an action against their insurer for breach of contract following the in-surer‟s denial of coverage for injuries sustained on the Taylors‟s property by an employee of an independent contractor. We hold that the exclusion in the policy for injuries covered by work-er‟s compensation does not apply in this instance.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Court charges for miscellaneous services

The Supreme Court has posted an Order headed "In the Matter of Fees Charged by the Clerk of Courts for Miscellaneous Services." You may access it here. Here are some items that caught my eye:

Some ILB observations: These fees are much higher than those charged by the executive branch of government.

It is interesting that the size of the document attached to an email, or the size of a document copied onto a CD, occasions a difference in charges.

In Advisory Opinion 03-FC-133 dated Dec. 29, 2003, the Indiana Public Access Counselor's response to "Alleged Denial of Access to Public Records by the Lake County Superior Court," included:

Indiana Code 5-14-3-8 governs fees generally, and permits state agencies and other public agencies to charge a copy fee for production of documents. A public agency may collect a copy fee in advance of production (IC 5-14-3-8(e)), and is permitted to collect any fee specified by statute or ordered by a court (IC 5-14-3-8(f)). For court records, Indiana Code 33-19-6-1 provides that the clerk of the courts shall charge a copy fee of one dollar ($1.00) per page.
IC 5-14-3-8(c), part of the Public Records Act, provides:
(c) The Indiana department of administration shall establish a uniform copying fee for the copying of one (1) page of a standard-sized document by state agencies. The fee may not exceed the average cost of copying records by state agencies or ten cents ($0.10) per page, whichever is greater. A state agency may not collect more than the uniform copying fee for providing a copy of a public record. However, a state agency shall establish and collect a reasonable fee for copying nonstandard-sized documents.
IC 33-19-6-1, recodified as IC 33-37-5-1, provides in part:
(b) Except as provided in subsection (c), the clerk shall collect a fee of one dollar ($1) per legal size or letter size page, including a page only partially covered with writing.

(c) The legislative body of a county may adopt by ordinance a schedule of document fees to be collected by a clerk under this section. If an ordinance has been adopted, the clerk shall collect document fees according to the schedule. However, the document fee collected by the clerk under this subsection may not exceed one dollar ($1) per legal size or letter size page, including a page only partially covered with writing.

Another item that caught my attention was this:
$150.00 -- CD containing Roll of Attorneys database
Seeing that item sent me searching for this June 12, 2008 ILB entry about the State of Illinois refusing to turn over the names on its Roll of Attorneys to a private online lawyer-rating company.
_________

[More] I just pulled up this directly on-point PAC opinion from Oct. 12, 2001, 01-FC-63 "Alleged Violation of the Access to Public Records Act Concerning Copying Fees by the Clerk of the Supreme and Appellate Courts." I haven't had a chance to see if it is all still current, but the conclusion from 2001 is that, in the absence of a court-ordered copying fee (which this new Order would seem to be), the changes should be limited to their actual cost:

It is my opinion that, in the absence of a statutory or court ordered copying fee for the Manual you requested, the Clerk of the Supreme and Appellate Courts may charge only the actual cost of copying as authorized under Indiana Code section 5-14-3-8(d). The burden lies with the Clerk's Office to show that the one dollar ($1.00) per page copying fee is the actual cost, or to charge you the amount that does constitute actual cost under the APRA. Further, absent any other statutory authority or an order from a court providing you with indigent status with respect to the public records requested, the Clerk's Office is not obligated to waive this copying fee.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Indiana Courts

Ind. Courts - "Newest U.S. attorney set to 'do the right thing'"

Andy Grimm has this story in today's Gary Post Tribune:

HAMMOND-- It's official: David Capp is U.S. attorney for the Northern District of Indiana.

U.S. Chief District Judge Philip Simon Wednesday administered the oath of office to the career prosecutor, who has been top deputy in the office for nearly 20 years and has served as "interim" head of the office since 2007. * * *

Capp, who lives in Beverly Shores, said after his ceremony that public corruption would remain "one of the main priorities of this office" under his leadership. Capp also said he has already begun reaching out to area police agencies, offering to help bring federal resources to the problems of violent and gang crime in Northern District communities.

Capp has three times served as interim U.S. attorney, including a stint that began nearly three years ago when Joseph Van Bokkelen was appointed to a federal judgeship.

"There is no way the office would have been as effective and successful without David," Van Bokkelen said Wednesday. "They couldn't have made a better pick."

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Indiana Courts

Law - More on "Learning How to Fight the Debt Collector"

Supplementing this ILB entry from April 25, 2010, here is a very long story from the Dallas Observer, dated Jan. 21, 2010, headed "Better Off Deadbeat: Craig Cunningham Has a Simple Solution for Getting Bill Collectors Off His Back. He Sues Them."

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to General Law Related

Courts - "The danger of judicial activism now comes from the right, not the left"

So writes E.J. Dionne, columnist for Washington Post, in a long column featured today on the Fort Wayne Journal Gazette editorial page. A sample:

Nowhere has the conservative intellectual offensive been more effective than in transforming our discussion of the judiciary, and that is why the coming clash over President Obama’s next Supreme Court nominee is so important. The test of success for liberals should not simply be winning the confirmation battle. This fight must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it.

Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas ranging from pay discrimination and school integration to antitrust laws and worker-safety regulation.

If anyone doubted that the Supreme Court’s current conservative majority wants to impose its own view no matter what Congress or state legislatures decide – or what earlier precedents held – its decision in the Citizens United case should end all qualms.

In granting corporations an essentially unlimited right to spend money to influence the outcome of elections, that ruling defied decades of legal precedents and congressional enactments. The non-elected branch of government decided it didn’t like existing legislation, so it legislated on its own.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Courts in general

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

For publication opinions today (2):

In Paul L. Patterson v. State of Indiana , a 10-page opinion, Judge Robb writes:

Paul Patterson appeals the ten-year sentence imposed after he pled guilty to dealing in cocaine, a Class B felony. For our review, Patterson raises two issues that we consolidate and restate as one: whether Patterson received ineffective assistance of counsel when counsel did not move for the judge presiding over his sentencing hearing to recuse himself. Concluding that the sentencing judge’s prior participation in the case as a prosecuting attorney required his disqualification and, therefore, Patterson’s counsel was ineffective by failing to move for a change of judge, we reverse and remand this case to the trial court with instructions to have the case assigned to a different judge. * * *

On August 5, 2009, Patterson appeared before Judge Burns for a status hearing, at which time Judge Burns and the State had a conversation that, while only partially audible, seems to indicate the State was informing Judge Burns of his prior involvement in the case. Judge Burns stated, “I don’t think that knocks me out of the box necessarily,” and indicated he would address it at the next hearing. On August 20, 2009, Patterson appeared, with attorney Hirschauer, before Judge Burns for a sentencing hearing. Judge Burns did not disclose his previous participation in the case, and Patterson did not move for a change of judge. At the conclusion of the sentencing hearing, the trial court sentenced Patterson to ten years in prison, the maximum sentence allowed by his plea agreement. Patterson now appeals. * * *

Judge Burns acted as a prosecuting attorney on behalf of the State at the inception of the criminal proceedings against Patterson in this case. As a result, Judicial Conduct Canon 2.11(A) disqualifies Judge Burns from presiding over the same proceedings as a judge. Patterson’s counsel was ineffective by not filing a motion for change of judge under these circumstances, and Patterson was prejudiced because he was denied his right to have an impartial judge preside over his criminal proceedings. Therefore, we reverse and remand this case to the trial court with instructions to have the case assigned to a different judge. Reversed and remanded with instructions.

In Michael E. Johnson v. State of Indiana , a 6-page opinion, Judge Najam writes:
Michael E. Johnson appeals his conviction for Failure to Register as a Sex Offender, as a Class C felony, following a bench trial. Johnson presents a single dispositive issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We reverse and remand with instructions. * * *

Indiana Code Section 11-8-8-11 does not expressly state that a sex offender is required to notify law enforcement regarding a change in address when he moves out of state. It merely states that the sex offender “shall report in person” within seventy-two hours if he changes his principal residence address. Id. However, subsection (e) of the statute requires the local law enforcement authority to inform the state police in the new state of the sex offender’s new place of residence. The only way to read the statute as a whole and avoid an absurd result is to read it to require that the sex offender notify the local law enforcement authority having jurisdiction over the sex offender at his current principal address of his move out of state and his new address. See In re J.Q., 836 N.E.2d at 965. Only then can the local law enforcement authority comply with subsection (e) and notify the state police in the new state.

Here, again, the State presented evidence that Johnson did not notify the law enforcement authority of his move out of Indiana within seventy-two hours. Accordingly, the evidence is sufficient to support his conviction for failure to register as a sex offender, as a Class C felony, under Count II. We remand to the trial court with instructions to vacate the conviction on Count I, to reinstate the vacated conviction on Count II, and to sentence Johnson accordingly, with credit to be given for time served on the vacated conviction.

NFP civil opinions today (1):

Paternity of J.J.; G.S., et al. v. W.J. (NFP)

NFP criminal opinions today (5):

Gregory L. Finger v. State of Indiana (NFP)

Byron James v. State of Indiana (NFP)

James L. Reynolds, Jr. v. State of Indiana (NFP)

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

Kenneth L. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Cameras and the Supreme Court "

This morning SCOTUSblog has a long entry by Matt Sundquistby setting out the history of cameras and courts, the precedents, and the views of justiceds and senators.

Posted by Marcia Oddi on Thursday, April 29, 2010
Posted to Courts in general

Wednesday, April 28, 2010

Courts - Transcript of Doe #1 v. Reed oral argument [Updated]

Updating this ILB entry from earlier today, the SCOTUS has now posted the transcript of today's oral argument in Doe #1 v. Reed.

[Updated 4/29/10]
Kyung M. Song writes for the Seattle Times:

WASHINGTON — U.S. Supreme Court justices on Wednesday sharply questioned the argument that Washington voters who signed a petition to overturn the state's gay-rights law were entitled to remain anonymous.

Rather than dwelling on whether signing a petition is political speech protected under the First Amendment — as argued by conservative groups who filed the case — the justices repeatedly honed in on the wider implications of exempting any referendum or initiative petition from public disclosure.

"Running a democracy takes a certain amount of civic courage," said Justice Antonin Scalia, who also called the arguments to keep the names private "touchy-feely."

[More] Check the "Thursday Roundup" this morning on SCOTUSblog, particularly para. 4, which has many links to commentary on yesterday's argument, It begins (check the original for the links):
Assessing yesterday’s oral argument in Doe v. Reed, Dahlia Lithwick at Slate discerned a split between “tough-skinned” Justices, like Justice Scalia, who believe that political acts such as petition signing require “civic courage” and those who believe that political processes ought to be shielded. Like Lithwick’s, recaps of the argument by Marcia Coyle at the National Law Journal, McClatchey, and the Constitutional Law Prof Blog focus on the hard questioning faced by James Bopp, who argued on behalf of the petitioners in the case.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Courts in general

Ind. Courts - Defendant pleads guilty to forging SD Ind. court documents

From News 13, KECI in Missoula Montana, a U.S. Attorney's news release -- some quotes:

The United States Attorney’s Office announced that during a federal court session in Missoula on April 27, 2010, before U.S. Magistrate Judge Jeremiah C. Lynch, JEREMY CLARK-ERSKINE, a 36-year-old resident of Missoula and Indiana, pled guilty to forgery of a signature of a United States judge, false personation of a Social Security number, interstate transportation of a stolen vehicle, and aggravated identity theft. Sentencing has been set for July 21, 2010. He is currently detained. * * *

On September 6, 2009, presenting himself as a Captain in the United States Army, CLARK-ERSKINE, attempted to gain entry onto Malmstrom Air Force Base in Great Falls. At the time, CLARK-ERSKINE was driving a vehicle which had been reported stolen by Enterprise Rent-A-Car out of Chicago, Illinois.

Pursuant to a federal search warrant, law enforcement searched the car and recovered numerous fraudulent documents. Two of the documents included an “Entry” and “Judgment” purporting to be from the United States District Court, Southern District of Indiana. The documents bore a false case number and both documents contained the forged signature of the Chief Judge of the Southern District of Indiana. CLARK-ERSKINE had forged the signature on the documents for the purpose of authenticating them to use to obtain a new social security number for “Angus Jocko Ferguson” to replace the original (and now compromised) number issued to him under the name Michael Bruce Lafferty, later changed to Finn J. UiNeill in an attempt to protect his identity.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Editors need savvy to navigate posting hazards" [Updated]

That is the headline to a "Legally Speaking" column by Stephen Key in the April 15, 2010 issue of The Indiana Publisher.

In what may be a first in Indiana, a federal magistrate judge has applied the federal Communications Decency Act to reader posts on a newspaper Web site.

Magistrate Judge Andrew Rodovich dismissed all counts of a civil suit against the Journal and Courier (Lafayette), which was defended by Jan Carroll of Barnes & Thornburg in Indianapolis.

Timothy Collins III filed the case based on what happened while he was a student at Purdue University. The university, its police department, the newspaper and some anonymous bloggers were named as defendants.

While the Journal and Courier have been dismissed from the case, Collins’ lawsuit against Purdue and other defendants continues, Carroll said.

Collins reported to campus police on Jan. 13, 2007, that he was injured in an assault on the West Lafayette campus. Three days later, another Purdue student, Wade Steffey, was reported missing after having last been seen on Jan. 12. Steffey’s body was found March 22, 2007, in a building utility closet where he had been accidentally electrocuted.

Before Steffey’s discovery, Collins was questioned by the police as a possible suspect in the student’s disappearance and eventually was charged with false informing, a Class A misdemeanor, in Tippecanoe County.

The Journal and Courier wrote a story about Collins’ arrest a few days later, posted on its Web site, which allows readers to post comments about articles. Several anonymous posts and posts attributed to Purdue employees implied that Collins was involved in the disappearance of Steffey.

Collins, who had nothing to do with Steffey’s accidental death, sued. The claims against the newspaper included emotional distress claims, defamation and false light for the newspaper’s coverage and alleged responsibility for materials posted on its Web site by third parties.

Collins argued that the Journal and Courier was not protected under the Communications Decency Act because it is an “information content provider,” not an “interactive computer service” as defined by the CDA.

The magistrate judge ruled that the newspaper could not be held liable for the publication of remarks or postings by third parties

“…Federated did nothing to induce any readers to post a commentary on the article nor to express a preference for a particular viewpoint in the posts,” Magistrate Radovich wrote. “Nowhere in Collins’ Amended Complaint is the assertion that [Journal and Courier] chose the particularly hateful and denigrating posts over a batch of kinder, gentler comments. Nor does Collins suggest that any of the [Journal and Courier]’s staff writers or editors were responsible for the particular posts or their content.

Carroll said it was the first Indiana case she knew of that applied the CDA immunity to reader posts on newspapers’ Web sites.

• • • • • •

On a related note, an Ohio case should remind newspapers to be cautious about revealing the identities of anonymous posters.

The Plain Dealer (Cleveland) faces a $50 million lawsuit filed by an Ohio judge and her daughter. They claim the newspaper breached the terms of use for its Web site by disclosing their identity in articles about anonymous comments they made on the newspaper’s Web site.

Cuyahoga Court of Common Pleas Judge Shirley Stickland is seeking $25 million in compensatory damages and $25 million in punitive damages for alleged breach of contract and invasion of privacy, according to a report by the American Bar Association.

The comments concerned defendants and at least one attorney involved in cases before the judge.

Indiana newspapers should consider the potential for breach of contract issues along with the First Amendment protection offered to anonymous speech before outing posters to their Web sites.

For background on the Ohio situation, start with this ILB entry from April 8, 2010, headed "Anonymous commenter turns out to be judge's daughter."

[Updated 4/29/10] Here is a copy of the 35-page, March 24, 2010 opinion in Collins v. Purdue University.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Indiana Law

Courts - "Without Scalia, whither anonymity? John Doe No. 1 v. Reed, Argument recap"

Here is SCOTUSblog's Lyle Denniston's great writeup of this morning's oral argument, updating this ILB entry from earlier this morning linking to Nina Totenberg's preview.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Courts in general

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

For publication opinions today (1):

In David Hopper v. State of Indiana , a 12-page opinion, Judge Barnes writes:

David Hopper appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his conviction for Class A misdemeanor operating while intoxicated (“OWI”). We reverse and remand.

The sole issue is whether the post-conviction court properly concluded that Hopper knowingly and intelligently waived his right to counsel before pleading guilty to the OWI charge.* * *

Here, there clearly was no conversation or advisement by the trial court to Hopper regarding the “dangers and disadvantages” of self-representation. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. In fact there was no meaningful inquiry by the trial court at all with respect to whether Hopper waived his right to counsel knowingly and intelligently. Nonetheless, the State urges that we adhere to Sedberry and cases that have followed it. * * *

Hopper contends that Sedberry and its progeny were decided incorrectly, and that his waiver of counsel was not knowing and intelligent. After careful consideration, we decline to follow Sedberry, Redington, and Greer to the extent they seem to establish two different standards for reviewing a waiver of counsel: one for defendants who choose to go to trial and a different, less demanding standard for defendants who choose to plead guilty. * * *

Here, Hopper never was advised of the disadvantages of self-representation, either at his initial hearing or at his change of plea hearing. Indeed, he was wholly misadvised at the initial hearing regarding his right to counsel. Specifically, the “Your Rights in Court” form Hopper read and signed indicates that an indigent person would be appointed counsel by the trial court only if “the case is serious enough . . . .” App. pp. 46, 47. This clearly is a misrepresentation of the scope of the right to counsel. It has been clear since 1951 for the Indiana Constitution and since 1972 for the United States Constitution that the right to counsel applies in both misdemeanor and felony proceedings. [ILB-cites omitted] The right to counsel in a criminal case is not dependent upon the “seriousness” of the case. If this form is still in use, we direct that the references to the “seriousness” of the case be deleted from the form's discussion of the right to counsel.

The misadvice on the form aside, the form does not advise defendants on the perils of self-representation, and there is no indication the trial court gave such advice orally at the initial hearing or the change of plea hearing. The trial court never conducted any detailed inquiry into Hopper's decision to proceed pro se. There is no evidence in the record demonstrating that Hopper independently understood the dangers and disadvantages of self-representation. * * *

Hopper has established that his waiver of counsel before pleading guilty in 2005 to Class A misdemeanor OWI was not knowingly or intelligently made. The post-conviction court erred in concluding otherwise, although we acknowledge that it did so in reliance upon Redington, with which we now disagree. We reverse the denial of post-conviction relief and remand for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Keith McCray v. State of Indiana (NFP)

Reginald Doss v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on cell phones in prison

Earlier this month the ILB has two stories (4/15/10 and 4/20/10) headed "Federal prosecutors: inmate ran Indiana drug ring from prison." Last year, on June 2, 2009, the ILB had an entry headed "Prison Cell-Phone Use a Growing Problem."

Now Charles Wilson of the AP has a lengthy story, in the LJC, headed "Indiana prisons to use trace DNA to track weapons." Some quotes:

Beginning next week, prison officials in Indiana will begin using a new system that tests trace amounts of DNA left on “shanks,” cell phones and other contraband used by inmates.

The so-called “touch DNA” technology tests DNA contained in skin cells left behind where someone has touched something.

Officials from the state Department of Correction and Indianapolis-based contractor Forensic ID demonstrated the system Tuesday at the Indianapolis Re-Entry Educational Facility. * * *

Guards often find contraband hidden in common areas with no sign of who might have left it there, officials said. But using the kit, a guard can swab the weapon and seal the sample into an evidence envelope then sent to the Indiana State Police, who maintain a database of DNA samples from all state prison inmates.

“Knowing who you're looking for, you're halfway there,” Perez said.

The test requires only a minuscule amount of DNA — less than a grain of salt, he said.

Weapons aren't officials' only concern. Inmates aren't allowed to have cell phones, but more and more of them — even phones with Internet access — are being found behind bars, said Correction Commissioner Edwin Buss.

Officials said that's a concern because inmates can use cell phones to maintain real-time connections with the outside world, threaten outsiders and even plot crimes — like a New Castle prison inmate accused of running a methamphetamine ring from behind bars.

“Cell phones are a big problem to us,” Buss said.

Officials hope the new technology will be a deterrent, reducing the spread of contraband — which also can include drugs and cigarettes — as inmates realize they can more easily be caught and face a hearing at which they risk losing good-time credit so they spend more time behind bars. * * *

The kits are expected to cost the department about $50,000, with half coming from an Indiana Criminal Justice Institute grant. Inmates linked to contraband will be assessed the cost of individual tests, about $450, officials said.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Indiana Government

Law - Is Arizona's new immigration law constitutional?

"A Law Facing a Tough Road Through the Courts" is the headline to a NY Times story today by John Schwartz and Randal C. Archibold. It behins:

Can Arizona’s controversial new immigration law — allowing the police to stop people and demand proof of citizenship — pass constitutional muster?

To many scholars, the answer is, simply, no.

“The law is clearly pre-empted by federal law under Supreme Court precedents,” said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona’s effort to enforce its own laws is destined to fail.

But even some experts who say they are troubled by the law said it might survive challenges.

“My view of the constitutional question is that it is unconstitutional,” said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. “But it’s a far cry from predicting empirically what a judge who actually gets this case will do.”

Whether any challenges to the Arizona law succeed could come down to the perception of judges about whether it competes with federal law.

To Kris W. Kobach, the law professor at the University of Missouri-Kansas City School of Law who helped write Senate Bill 1070 and many other immigration measures around the country, the key issue is “concurrent enforcement” — that is, whether the state law parallels federal law without conflict.

Because the Arizona statute draws directly on federal statutes concerning documentation and other issues, “the Arizona law is perfect concurrent enforcement,” Professor Kobach said.

The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants’ rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, “will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant.”

Ashby Jones of the WSJ Law Blog has an entry this morning headed "Constitutional Challenges to Arizona Immigration Law on Their Way."

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to General Law Related

Courts - More on: "Supreme Court takes up Wash. case involving disclosure of petition signatures: The case could decide whether signing a petition for a ballot measure is private or whether the names of signers can be made public"

Updating this ILB entry from April 25, 2010, about an oral argument today before the SCOTUS, Nina Totenberg of NPR had an excellent introduction to the case this morning - you can read or listen to it here. The over 7 minute long story begins:

The U.S. Supreme Court hears arguments Wednesday in a major campaign disclosure case that tests whether the Constitution protects the anonymity of people who sign petitions to get an initiative on the ballot.

Earlier this year, a narrow court majority reversed a century of campaign finance law, ruling that corporations can spend unlimited cash in candidate elections. The outcome of today's case could undermine the other pillar of campaign regulation: widespread disclosure provisions in federal and state campaign laws.

At issue in Wednesday's case is whether a state's open records law violates individual rights by requiring the names of petition signers to be available to the public.

Not surprisingly, the flint that started this constitutional conflagration is gay rights. The Washington state Legislature passed a law giving gay partners "everything but marriage" rights. Opponents of the measure sought to reverse that legislation by putting the law on the ballot. To qualify their initiative, they had to collect 120,577 signatures.

Gay-rights activists then asked to see the signatures to check for fraud, they said. State Attorney General Rob McKenna says that indeed is one of the reasons the open records law was enacted in Washington and elsewhere.

"As we've shown," he says, there are "dozens of examples of where public review of petitions has uncovered mistakes, has uncovered outright fraud -- and, in a number of cases, has resulted in petitions being rejected and measures not even qualifying for the ballot."

The effort by gay-rights groups to monitor the petition drive faltered, however, when their opponents went to court to block it.

The petition's sponsors contended that petition signers were entitled to anonymity under the Constitution. A federal judge issued a broad ruling that barred the state from releasing not just the names of signers in this petition drive, but those in any petition drive.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Courts in general

Ind. Gov't. - Did IPS violate open meetings law re video recordings?

No, not under the current law, according to this Formal Opinion 10-FC-80 issued by the state Public Access Counselor::

Under the ODL, a “meeting” is defined as “a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business.” I.C. § 5-14-1.5-2(c). Here, only three of IPS’ seven board members attended the March 24th budget information session. If the session lacked a majority of the IPS board members, it was not a “meeting” of the board under the ODL. In that case, the requirements in section 3 of the ODL regarding open meetings and the public’s right to record such meetings do not apply.

However, I note that while IPS argues “the budget information session was held for the purpose of gathering community feedback and not ‘for the purpose of taking official action,’”1 “gathering community feedback” is clearly the type of activity that falls under the definition of “official action” in the ODL. See I.C. § 5-14-1.5-2(d)(1). Under the ODL, “official action” includes, among other things, the act of “receiv[ing] information.” IPS cites to Dillman v. Trustees of Indiana Univ., 848 N.E.2d 348, 351 (Ind. Ct. App. 2006), in arguing that no official action can occur in the absence of a majority of a governing body’s members. I agree, but also I note that the General Assembly added the “serial meetings” section to the ODL in 2007 in an attempt to prohibit public agencies from engaging in the type of conduct that was at issue in Dillman. See I.C. § 5-14-1.5-3.1. In that case, the president of Indiana University admitted during his deposition testimony that “he deliberately gathered with fewer than a quorum of the Trustees ‘to exclude any impropriety with respect to the Open Door Act.’” Id. at 350. In its decision, the Indiana Court of Appeals noted that “[t]he conduct of the I.U. Trustees was in direct contravention to the public policy behind the Open Door Law.” Id.

Because less than a quorum of its board members was present, IPS did not violate the ODL when it asked EAG’s representatives to leave the budget information session. Moreover, unlike the situation in the Dillman case, there is no allegation here that IPS conducted a series of meetings. Nevertheless, it is disturbing that two members of the public were apparently singled out for unspecified “disingenuous purposes” and asked to leave a meeting that was otherwise open to the public and relevant to the public’s business.

For background, see this March 26, 2010 entry at Ogden on Politics.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Indiana Government

Law - Pew Report on "Government Online: The internet gives citizens new paths to government services and information"

Issued April 27, 2010, the new Pew Research Report. From the 44-page report's 2-page Summary of Findings:

As government agencies at all levels bring their services online, Americans are turning in large numbers to government websites to access information and services. Fully 82% of internet users (representing 61% of all American adults) looked for information or completed a transaction on a government website in the twelve months preceding this survey.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to General Law Related

Environment - "'Easterly's pile' a waste site, after all"

Remember this ILB entry from April 12, 2010, quoting a Gary Post Tribune story where IDEM denied the existence of "Easterly' pile" and called the location on an aerial photo taken by the paper simply "a hole"?

Today Gitte Laasby of the Post Trib reports:

BURNS HARBOR -- After months of stern denial by top officials, the Indiana Department of Environmental Management admits "Easterly's pile" is not a hole in the ground after all.

In fact, the waste area at the northeast corner of ArcelorMittal Burns Harbor plant -- named after Indiana Department of Environmental Management Commissioner Tom Easterly -- consists of a 900 foot long and 67 feet tall pile of basic oxygen furnace sludge and rubble interspersed with burnt lime. IDEM estimates the "BOF farm" consists of 274,000 cubic yards of waste of which 16,000 cubic yards is rubble.

The waste has been dumped a couple of hundred feet from Lake Michigan and the Indiana Dunes National Lakeshore longer than the six months law allows. Piles of brick and rubble have been dumped at the lakefront nearby for at least five years.

So says the IDEM in an inspection report based on visits by four IDEM staffers to the facility on March 10 and 11 and April 19. The report also contains photos of the waste. The Post-Tribune obtained the report through a public information request.

The newspaper first reported the open dumping on Nov. 15, 2009, but as late as a month ago in an interview with the Post-Tribune, IDEM Chief of Staff Kent Abernathy and Scott Nally, assistant commissioner of IDEM's office of external affairs, referred to the area as "a hole." * * *

[Valparaiso attorney Kim Ferraro of the Legal Environmental Aid Foundation of Indiana] said the dumped waste still contains pollutants like selenium and cadmium that shouldn't be sitting out in the open.

"They shouldn't be putting this next to the lake. That's just mind-boggling to me. You have five square miles (of property), you have to do this 200 feet from Lake Michigan, without covers, without berms, without any environmental controls," she said.

Ferraro noted that IDEM staff still hasn't tested the dumped waste, but relies on samples from ongoing processes and test results that Bethlehem Steel submitted to the U.S. Environmental Protection Agency in 1999.

ILB: Here is a link to the inspection report and cover letter.

Sarah Tompkins of the NWI Times had this story about the report yesterday. The headline: "IDEM report confirms waste piles at ArcelorMittal Burns Harbor."

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Environment

Law - "Illinois lawmakers send sexting bill to governor"

The Chicago Tribune reports this morning, via a story by Michelle Manchir:

SPRINGFIELD — Teens who forward or post online racy pictures of their underage classmates would get juvenile court supervision that could result in mandatory counseling or community service, under legislation sent to Gov. Pat Quinn on Tuesday.

The measure aims to educate teens about the dangers of "sexting" while modernizing state statutes for the Internet age. Under current Illinois law, teens caught with nude photos of other juveniles can be charged as sex offenders, lawmakers said.

"As the Internet explodes and people are taking advantage of it, these images hang around forever," said Sen. Ira Silverstein, D-Chicago. "Once they're disseminated, they can ruin somebody's career."

The sexting phenomenon surfaced in the suburbs in December when Plainfield police launched an investigation after a 16-year-old honors student at Plainfield East High School sent a nude photo of herself to a classmate, who forwarded it to several friends.

A January case in Valparaiso, Ind., was opened when a teacher discovered a phone in which a 12-year-old boy had sent a nude picture to a 13-year-old girl, according to police.

The Illinois bill, which passed 52-0, doesn't penalize youths who send or receive the risque photos but choose not to distribute them widely. It applies to kids under 18 who use computers or cell phones to distribute the pictures of minors, and the court supervision amounts to a scolding.

Silverstein left open the option of crafting more severe penalties for sexting.

"If it continues, we might have to take harsher steps," he said.

In In diana, a stody committee will discuss the sexting issue this summer. Here is a list of earlier ILB entries on the topic.

Posted by Marcia Oddi on Wednesday, April 28, 2010
Posted to Indiana Law

Tuesday, April 27, 2010

Ind. Decisions - Supreme Court posts one this afternoon

In Gary Dennis Jackson v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:

The trial court declared a mistrial after interviewing jurors regarding their exposure to a newspaper article reporting a letter written by the defendant to the prosecution. The Court of Appeals reversed the defendant‘s conviction by a newly impaneled jury. The Court of Appeals found insufficient grounds to discharge the earlier jury, and therefore ruled the trial by the new jury violated the double jeopardy clause of the Fifth Amendment. We hold that the trial court‘s determination of the need to discharge the earlier jury is entitled to deference and was not an abuse of discretion on this record. Accordingly, we affirm the conviction.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - More on: "Justices Take Case on Video Game Law"

Updating yesterday's ILB entry, today's papers have a number of stories, including this one from Warren Richey of the Christian Science Monitor. A quote:

“California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment,” wrote Washington lawyer Paul Smith in his brief on behalf of the Entertainment Merchants Association.

Federal appeals courts in Chicago, St. Louis, Cincinnati, and New York have refused to uphold similar restrictions against violent material that did not involve sexually explicit content. In addition to California, nine other states have enacted similar bans and had them struck down as unconstitutional. * * *

In its ruling, the Ninth Circuit said it was refusing to “boldly go where no court has gone before.” The panel said it was declining the state’s invitation to expand and redefine obscenity to include violent material as well as sexually-explicit material.

Here is the story from Ben Fritz and David G. Savage of the Los Angeles Times. Some quotes:
The video-game industry, which like the film industry runs a self-enforced rating system, has prevailed in 12 lower federal court rulings striking down state and local governments' attempts to regulate what types of games can be sold to minors.

The Supreme Court's decision on Monday to take up the issue, however, could provide the last word on whether video games should be given as much freedom as books and movies or whether the government has an interest in keeping violent games from children as it does with pornography.

"After years of court cases in variety of states and localities, we are looking forward to having the Supreme court issue a definitive opinion on this issue," said Mike Gallagher, president of the Entertainment Software Assn., an industry trade group.

The arguments expected to occur this fall would mark the first time that the nation's highest court has weighed in on the burgeoning video games business, which generated $20 billion last year in the U.S. and is now bigger than the recorded music industry. In addition, games are increasingly stealing consumers' attention from traditional entertainment forms such as movies and television. Several Hollywood companies, including Walt Disney Co. and Warner Bros. are now aggressively investing in developing video games.

Fewer than 20% of the games sold in the U.S. last year carried an M rating, which like an R rating for movies means they are not intended for children under 17. However, some of the most popular had the "mature" rating, including the bestselling game of 2009, the military action simulation Call of Duty: Modern Warfare 2, from Santa Monica-based Activision Blizzard Inc.

Here is the post from the WSJ Law Blog.

Finally, an interesting take from Tony Mauro, writing at the First Amendment Center, that begins:

WASHINGTON — When the Supreme Court agrees to hear a new case, it almost always does so to resolve a dispute among lower courts over the issue at stake.

But there must have been another reason behind the Court’s decision yesterday to take up Schwarzenegger v. Entertainment Merchants Association, a dispute over California’s 2005 law banning the sale of violent video games to minors.

Why? Because, as even the state of California acknowledged in its petition to the Court, there was no disagreement among the nine lower courts that have looked at similar laws in the past. Each law, California acknowledged, had “suffered the same fate”; all, including California’s, have been struck down. But still, the state said, the justices should grant review, to extend the Supreme Court’s 40-year-old doctrine governing the sale of sexual material to minors to the sale of violent video games, as a way to “help states meet a new, modern threat to children.”

The Supreme Court went along with California’s plea, in effect adding the improbable category of “too much circuit court agreement” to the traditional criterion of “circuit conflict” as a reason for reviewing a case.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Courts in general

About this Blog - Another chance to sign on as annual ILB supporter

Thanks to MillerMeyer, LLP for signing on today as an ILB Law Firm Supporter.

Check the Law Firm Supporters page. Your firm could join the list of supporters.

Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

Or become a Front Page ILB Supporter, like the Indiana State Bar Association and Doxpop.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to About the Indiana Law Blog

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

For publication opinions today (2):

In State of Indiana, Ex Rel., et al. v. Aisin USA Mfg., Inc. , a 13-page opinion, Judge Mathias writes:

The State of Indiana, ex rel. Gregory F. Zoeller, Attorney General of Indiana ("the State"), filed suit in Jackson Superior Court seeking to recover funds the State claims were erroneously refunded by the Indiana Department of Revenue ("DOR") to Aisin U.S.A. Manufacturing, Inc. ("Aisin") as a result of Aisin‘s 2001 corporate income tax return. The trial court granted Aisin‘s motion to dismiss for lack of subject matter jurisdiction. The State appeals and claims that the trial court erred when it concluded that the Indiana Tax Court had exclusive jurisdiction over the subject matter of the State‘s claims. We affirm. * * *

As Americans, and as Hoosiers, we take great pride in being a society of laws rather than of men. If so, statutes of limitation should apply regardless of whether the State is the plaintiff or a defendant, and regardless of whether the State claims it is entitled to recover very large sums or is defending itself against claims for very large sums. In UACC, 629 N.E.2d at 1298-99, the Tax Court held that a taxpayer could not seek a refund for a tax period outside the statute of limitations. We believe the same reasoning applies to the State when it seeks to recover an allegedly improper tax refund outside the relevant limitations period. To have any real meaning, statutes need to apply equally to the State as well as to its citizens.

The trial court did not have subject matter jurisdiction to hear the State‘s claims. The trial court therefore properly granted Aisin‘s motion to dismiss.

In Derrick Bush v. State of Indiana , an 11-page opinion, Judge Robb writes:
Derrick Bush appeals his conviction, following a bench trial, of carrying a handgun without a license, a Class A misdemeanor. For our review, Bush raises one issue, which we restate as whether a stop and search of an automobile Bush was driving violated his rights under the Fourth Amendment to the United States Constitution and Article 1, section 11 of the Indiana Constitution and the trial court therefore abused its discretion by admitting evidence of the handgun. Concluding the canine sniff that led to the search was not a contemporaneous incident of the initially lawful traffic stop but an unreasonable expansion of it, and as such, the canine sniff and resulting search violated the Fourth Amendment, we reverse.
NFP civil opinions today (0):

NFP criminal opinions today (7):

Vernell Brock v. State of Indiana (NFP)

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

Jaron L. Ratliff v. State of Indiana (NFP)

Richard Kniola v. State of Indiana (NFP)

Tamara Ward v. State of Indiana (NFP)

Jose L. Nieto v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Ind. App.Ct. Decisions

Law - "Law school: Big debt, shrinking payoff" [Updated]

Ameet Sachdev writes about this in his "Chicago Law" column today in the Chicago Tribune. Here are a few quotes:

The rising cost of law school is becoming a sore subject as the number of high-paying jobs shrink.

With large numbers of unemployed or underemployed lawyers who borrowed heavily to pay for their educations, legal educators face growing skepticism about the value of a law degree. Anonymous critics have started blogs with harsh names such as "Big Debt, Small Law" or "The Jobless Juris Doctor."

With three-year programs at top schools costing nearly $150,000, not including room, board or even books, some of the criticism is coming from inside the legal profession. * * *

The recession already has forced law schools to rein in tuition hikes that were well above inflation for the last 25 years, including double-digit increases in many years. Last fall, Northwestern University's law school raised its tuition by about 4 percent, its smallest increase in 32 years, said David Van Zandt, its dean. Its annual tuition is still among the highest in the country at $47,202.

Van Zandt said the small tuition hike reflected the tougher job market students face, even at one of the nation's elite law schools. Northwestern could justify bigger increases in the past because typically about 70 percent of its graduates find jobs at the nation's largest 250 law firms, where starting salaries had reached $160,000.

But with law firms cutting salaries and hiring fewer graduates last year because of the economy, Northwestern sent just 55.9 percent of its 2009 graduates to the largest firms, according to the National Law Journal. Yet the school still was No. 1 in the publication's annual ranking of graduates who found jobs at big firms.

Van Zandt said he believes big law firms will never go back to hiring graduates in droves. That means they will recruit from fewer schools.

"It doesn't make a lot of sense to go to law school unless you go to a pretty good one," Van Zandt said.

Still, law schools of every stripe are seeing more applicants than ever before. Loyola University Chicago's law school saw a 35 percent increase in applications for the school year that begins in the fall. Dean David Yellen speculated that the recession had something to do with the spike but otherwise could not explain why the increase was bigger than other schools.

[Updated at 2:00 PM] Elie Mystal of Above the Law has a lengthy entry this afternoon on law school debt

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to General Law Related

Courts - "Wal-Mart to face massive class-action suit"

A story from Paul Elias of the AP in today's Washington Post begins:

SAN FRANCISCO -- A sharply divided federal appeals court on Monday exposed Wal-Mart Stores Inc. to billions of dollars in legal damages when it ruled a massive class action lawsuit alleging gender discrimination over pay for female workers can go to trial.

In its 6-5 ruling, the 9th Circuit U.S. Court of Appeals said the world's largest private employer will have to face charges that it pays women less than men for the same jobs and that female employees receive fewer promotions and have to wait longer for those promotions than male counterparts.

The retailer has fiercely fought the lawsuit since it was first filed by six women in federal court in San Francisco in 2001 and said it would appeal the decision to the U.S. Supreme Court.

The ruling "opens up every company in America that has employees to class actions like this," said Theodore Boutrous, the company's lead lawyer on the largest gender bias class action in U.S. history.

The appeals court upheld a lower court ruling allowing the lawsuit to go forward as a class action, which attorneys for the Wal-Mart employees said encompasses more than 1 million women. Wal-Mart disputes that figure and asserts fewer than 500,000 women are covered by the decision Monday.

Here is the 137-page opinion of the 9th Circuit in Dukes v. Wal-Mart.

Steven Greenhouse of the NY Times has this story, headed "Wal-Mart Gender Case Divides Court." It begins:

In a closely watched case, a sharply divided federal appeals court on Monday ruled 6-5 that a sex discrimination lawsuit against Wal-Mart could proceed as a class action for more than a million women. The suit is the biggest employment discrimination case in the nation’s history.

After a decade of pretrial maneuvering, the decision by the United States Court of Appeals for the Ninth Circuit, in San Francisco, was a victory for the plaintiffs. It hastens an eventual trial for the women,, who are seeking billions of dollars from Wal-Mart, the world’s largest retailer.

“Wal-Mart tries to project an improved image as a good corporate citizen,” said Brad Seligman, a lawyer for the plaintiffs. “No amount of P.R. is going to work until it addresses the claims of its female employees.”

The lawsuit, brought in 2001, accuses the retailer of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion. The plaintiffs stressed that while 65 percent of Wal-Mart’s hourly employees were women, only 33 percent of the company’s managers were.

Recall this Sept. 16, 2009 ILB entry re a $28 million Indiana settlement in a class-action lawsuit that accused Wal-Mart "of forcing employees to work through bathroom and meal breaks, and requiring them to work several hours off the clock."

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Courts in general

Courts - "Kentucky Supreme Court rejects state funding for Baptist college"

Updating this April 19, 2009 ILB entry headed "Can the Indiana General Assembly appropriate money to Notre Dame?" and the followup from the following day, which reported "As it turns out, it already does," both of which were occasioned by a story that the Kentucky Supreme Court would "decide whether a Baptist university can use $11 million awarded by state lawmakers three years ago to open a pharmacy school," Deborah Yetter of the Louisville Courier Journal now reports in a lengthy story dated April 22, 2010:

The Kentucky Supreme Court ruled unanimously Thursday that the legislature violated the state constitution’s ban on public funding for religious education when it allocated $10 million to build a pharmacy school at a Baptist college in southeastern Kentucky.

By a 5-2 vote, the court also struck down as unconstitutional a provision that allocated $1 million for scholarships to the proposed pharmacy school at the University of the Cumberlands in Williamsburg.

The last-minute addition of the construction and scholarship money to the 2006-08 state budget was engineered by Senate President David Williams, a Burkesville Republican whose district includes the university.

Here is the April 22, 2010 opinion in Fox v. Grayson.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Courts in general

Ind. Courts - Update on: Marion County Traffic Court in the news today

The Oct. 6, 2009 ILB entry began: "It is like siting a landfill or a nuclear plant." But today Francesca Jarosz reports in the Indianapolis Star:

People cited for traffic violations soon will find relief from long lines and crowds that have plagued the state's busiest court.

On Monday, the City-County Council gave the Marion County traffic court the green light on a proposal to move from its cramped quarters inside a Far-Eastside police-training hub to a more spacious building about a mile away.
Advertisement

The former Target store near East Washington Street and South Franklin Road could be converted into a more user-friendly court by October.

The new, 15,000-square-foot location, which will replace a 9,000-square-foot space, was the third site that court officials had proposed in their three-year hunt to find more room for the 1,000 people who go through the court daily.

Two attempts to find new spaces last year on the Westside were torpedoed by resistance from neighbors, who balked at the idea of a probation office that was initially planned to co-locate with the traffic court.

After the council rejected the second proposed site in October, Judge Bill Young, who oversees the traffic court, determined it would be too tough to find a location that worked for both services and sought a separate space for the traffic court.

City and court leaders are still working to finalize a location for the probation office.

Far-Eastside residents welcomed the traffic court proposal, which passed the council 27-2, because it will bring people and police officers attending court to the area. Councilman Ben Hunter, who represents the district where the court is located, said it would be a boon to nearby businesses.

"These folks are coming to the Eastside and going to eat breakfast and lunch along the Washington Street corridor," Hunter said. "It's (filling) a vacant building, and it will help out the area."

Young said the expanded digs with better facilities and more modernized equipment would help alleviate concerns that have been raised about the court.

A lawsuit filed in December targeted hefty traffic fines and court conditions, including its practice of banning the public from the courtroom, barring those with court dates from leaving during a session and locking the doors once court convenes. The plaintiffs later withdrew their federal claims, with plans to pursue the case in state court.

Young has blamed the need for such constraints on security concerns and tight space in the current location. All would be alleviated or addressed in a new, larger space designed with the court's needs in mind, he said. * * *

Among the changes will be the addition of kiosks, where people can pay traffic tickets and avoid the series of long lines they now have to navigate. A waiting area wired to the courtroom will allow people who can't fit into the courtroom to follow court proceedings on TV. And a security station at the door will allow people to be screened before they enter the building and go into and out of the courtroom.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Indiana Courts

Ind. Law - "Respect, tradition are hallmarks of legal system"

The Evansville Courier & Press is publishing two articles this week "penned by" The Evansville Bar Association's Editorial Board on this year's theme for Law Week -- "Law in the 21st Century: Enduring Traditions, Emerging Challenges." Here are some quotes from the first article:

One very important legal tradition is showing respect to the court before which a person appears. Attorneys are expected to dress in appropriate business attire. This tradition may have roots in historical England, where, for centuries, judges and lawyers donned special robes and powdered wigs for court appearances. * * *

Respect is also shown through use of traditional words and phrases, which may sound as if lawyers and judges are speaking their own language. Words and phrases like "sustained" and "permission to approach the bench," "may it please the Court" are not heard in every day conversation. These are used to show respect for the court, respect for opposing counsel, and respect for our system of justice.

The presentation of a case is governed by a detailed and extensive set of rules to ensure reliable information is presented in an orderly fashion. For example, rules of evidence establish what the judge or jury is permitted to consider, and rules of procedure ensure each party to the lawsuit has an adequate opportunity to present its case. * * *

The American legal system even requires that courts show respect for each other, by honoring the prior decisions of higher courts.

This idea is called stare decisis, part of a Latin phrase meaning "maintain what has been decided," which means that the decision of a higher court is binding on a lower court in the same jurisdiction.

For example, a judge in the Vanderburgh County Superior Court is bound by a decision of the Indiana Court of Appeals, which is bound by a decision of the Indiana Supreme Court, and each of those courts would be bound by an applicable decision of the United States Supreme Court.

If a higher court has previously spoken on the issue at hand, a lower court has no power to decide differently. In fact, the lower court's decision, if it is not in accordance with the higher court, is in error and can be appealed.

Stare decisis helps create consistency within a jurisdiction. Without it, courts on the same level could reach different decisions on the same issue.

However, the use of stare decisis has certain limitations. The facts of one court case are rarely identical to the facts of another, even if they are similar types of cases.

Differences, often seemingly insignificant ones, may allow a party to argue that a previous ruling is not binding on his case because, as the argument goes, the higher court in the prior case would have reached a different conclusion if they were ruling on the facts of the pending case.

Thus, one of the challenges the courts have always faced, and will continue to face, is showing respect for a previous decision, while avoiding application of that decision where it was not intended.

[More] The Indiana Supreme Court is hosting an interactive re-enactment of a U.S. Supreme Court case with Indiana students to mark Law Day. “The Stories Behind Brown v. Board of Education” will be performed with approximately 200 Indiana students during two performances at the Indiana State House, Friday, April 30th, 10:00 a.m. EST and 12:30 p.m. EST. More information here.

Posted by Marcia Oddi on Tuesday, April 27, 2010
Posted to Indiana Law

Monday, April 26, 2010

Ind. Decisions - Transfer list for week ending April 23, 2010

Here is the Clerk's transfer list for the week ending April 23, 2010. It is 1 page long.

No transfers were granted last week.

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the April 16, 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, April 26, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Transfer lists searchable back to Feb. 2, 2004

The ILB's unique feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2, 2004. I've just updated the search feature and it is current through the April 16, 2010 list.

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Indiana Transfer Lists

Courts - "Should Supreme Court Opinions Be Anonymous?"

Interesting post and comments at Above the Law.

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Courts in general

Courts - "Justices Take Case on Video Game Law"

The NY Times has just posted an AP story reporting:

WASHINGTON (AP) -- The Supreme Court, wading into a thicket of free-speech and children's rights issues, agreed Monday to decide whether California can ban the sale or rental of violent video games to minors.

The court will review a federal court's decision to throw out California's ban. The 9th U.S. Circuit Court of Appeals in Sacramento said the law violated minors' constitutional rights under the First and Fourteenth amendments.

California's law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation.

The law never took effect, and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued the state, citing constitutional concerns.

Opponents of the law note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play. They also argue that the video games are protected forms of expression under the First Amendment.

The high court's action Monday was surprising, given that justices just last week voted 8-1 to strike down a federal law that banned videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue that affect the high court's consideration.

California lawmakers approved the law, in part, by relying on several studies suggesting violent games can be linked to aggression, anti-social behavior and desensitization to violence in children. But federal judges have dismissed that research. * * *

But courts in other states have struck down similar laws. * * *

The case is Schwarzenegger v. Video Software Dealers Association, 08-1448.

ILB: Surprising indeed. The 7th Circuit in 2001 threw out an Indianapolis ordinance that regulated violent video games. For background, check these ILB entries:

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Rocky River Farms Inc. v. Loretta Porter, a 6-page opinion, Judge Robb writes:

Rocky River Farms, Inc., appeals the decision of the Full Worker’s Compensation Board (“the Board”) affirming the decision of a hearing member, who concluded that Rocky River’s employee, Loretta Porter, was eligible for worker’s compensation benefits. On appeal, Rocky River raises one issue, which we restate as whether the hearing member properly found that Porter was not a farm or agricultural employee within the meaning of Indiana Code section 22-3-2-9(a). Concluding that the evidence presented to the hearing member establishes that Porter was not working as a farm or agricultural employee at the time of her injury, we affirm.
In Frank Chiprean v. Brody & Lacy Stock , an 11-page opinion, Judge Barnes concludes:
Chiprean has waived his argument that the trial court was required to dispose of his interest in the Stocks' property through foreclosure proceedings. Waiver notwithstanding, Chiprean did not have an equitable interest in the property, and the trial court did not err in evicting him from the property and holding him liable for payments he failed to make to the Stocks under the possession agreement. It also did not err in denying Chiprean's counterclaim. We affirm.
NFP civil opinions today (3):

Melvin D. Ford and Debbie Ford v. Larry G. Jones and Sharon F. Jones (NFP) - "Melvin Dean Ford and Debbie Ford sued Larry Jones and Sharon Jones over an oral land purchase agreement. The trial court entered judgment for the Fords against Larry Jones only, in the amount of $400,000 plus interest. The Fords appeal the judgment, raising one issue, which we restate as whether the trial court properly denied them equitable relief. Concluding the Fords are entitled to relief in the form of an equitable lien on the Joneses' real property, we reverse and remand that part of the trial court's judgment denying them equitable relief, and affirm the remainder of the judgment."

Spine, Sports, and Pain Medicine, P.C. v. Daniel H. Nolan, M.D. (NFP) - "Subject to the clarification set forth above, we otherwise deny Spine's petition for rehearing and affirm our original decision in all other respects."

Jason Curtis, et al. v. National Mutual Insurance Co. and Celina Insurance Group (NFP) - "Appellants-defendants-cross-claimants Jason, Brad, and Rhonda Curtis appeal the trial court's order denying their motion to amend their declaratory counterclaim against appellees-cross-defendants The National Mutual Insurance Company and Celina Insurance Group (collectively, National). Finding that there was no claim left to amend, inasmuch as the counterclaim had already been adjudicated to completion in the Curtises' favor, we affirm."

NFP criminal opinions today (8):

Nathan Foutch v. State of Indiana (NFP)

Joshua Brazzel v. State of Indiana (NFP)

Maurice Smith v. State of Indiana (NFP)

James Y. Harris v. State of Indiana (NFP)

Jerry E. Pelfree v. State of Indiana (NFP)

Kohl Shallenberger v. State of Indiana (NFP)

Darcel Graham v. State of Indiana (NFP)

James John Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana cases decided by 7th Circuit today

In U.S. v. Shaaban Hafiz Ahmad Ali Shaaban (SD Ind., McKinney), a 5-page per curiam decision, the panel affirms the decisions of the district court.

In U.S. v. Chapa (SD Ind., McKinney), an 8-page opinion, Theresa L. Springmann, District Judge for the United States District Court, Northern District of Indiana, sitting by designation, writes:

This is a direct appeal from a criminal conviction in the United States District Court, Southern District of Indiana, following the entry of a guilty plea by the Appellant, Jacinto Chapa, on April 24, 2009. Chapa pled guilty and was convicted on one count of conspiracy to possess with the intent to distribute 1,000 or more kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Defendant asks this Court to vacate his conviction and remand this case to the District Court for trial because his guilty plea was invalid. Because we conclude that the Defendant waived his right to appeal his conviction, we dismiss the appeal.

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

Courts - "Pressure Grows to Pick a Nonjudge for the High Court: All nine justices on the current U.S. Supreme Court hail from the federal appellate bench"

Tony Mauro has an interesting report this morning in The National Law Journal, that concludes:

Yale Law School professor Stephen Carter, author of a book on confirmations, said he does not favor an all-judge Supreme Court, but did say, "Judging is a skill, and in theory, one should get better at it the longer one does it."

If Obama does pick a nonjudge, Carter urged him not to pick an academic. "Professors who have not been judges are often poor justices. Take [William O.] Douglas and [Felix] Frankfurter. Nobody denies their brilliance, but they were iconoclasts, always writing for themselves, never caring if they were able to change the law, as long as their own opinions were pure. ... In the long run, Douglas and Frankfurter were irrelevant."

Instead, Carter said Warren, the former governor of California who had never been a judge, would be a model for Obama to aim for. "Earl Warren might not have been the greatest legal mind of the century, but he knew how to negotiate and build coalitions," Carter said.

Holland & Knight partner William Sessions, a former federal appellate and trial judge and former director of the FBI, also can understand the call for a nonjudge on the Court. Warren "changed our whole view of the Constitution," Sessions said, and Kagan, another nonjudge, revised Harvard Law's curriculum. Both were "persons of change" without judicial experience, Sessions said.

"There are other views and other visions that relate directly to how our nation runs itself," Sessions said. "I want a person to have that vision, and it can be served by someone other than a judge."

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Courts in general

Environment - Again failure: "Asian carp debates heads to Supreme Court"

Updating this ILB entry from April 23, 2010, Tina Lam of the Detroit Free Press reports this morning in a story that begins:

The U.S. Supreme Court said today it would not take up a legal case Michigan and five neighboring states filed seeking to permanently close off the Mississippi River from the Great Lakes to keep out Asian carp. The court had already twice rejected requests for temporary closures of the locks and canals around Chicago.

Michigan, other states, or environmental groups could still file lawsuits over the issue in state or federal court in Illinois, said Nick Schroeck, executive director of the Great Lakes Environmental Law Center in Detroit. “Now we know the Supreme Court is not going to reopen this case, I wouldn’t be surprised to see other legal actions,” he said.

However, any court case could take a long time. Schroeck said the more practical solution would be to push Congress for action.

Separating the two watersheds, the Mississippi and Great Lakes, from each other is expensive. “Somebody has to pay for that long-term solution,” he said. “This is a national problem. It shouldn’t be left to the states to figure it all out.”

Posted by Marcia Oddi on Monday, April 26, 2010
Posted to Environment

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, April 25, 2010:

From Saturday, April 24, 2010:

Posted by Marcia Oddi on Monday, April 26, 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 4/26/10):

Thursday, April 29th

Next week's oral arguments before the Supreme Court (week of 5/3/10):


This week's oral arguments before the Court of Appeals (week of 4/26/10):

Tuesday, April 27th

Friday, April 30th

Next week's oral arguments before the Court of Appeals (week of 5/3/10):

Next Tuesday, May 4th

Next Wednesday, May 5th

Next Thursday, May 6th

Next Friday, May 7th

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, April 26, 2010
Posted to Upcoming Oral Arguments

Sunday, April 25, 2010

Law - "Learning How to Fight the Debt Collector" [Updated]

That is the headline to this lengthy story from the Saturday NY Times. A few quotes:

Even as collectors try to recoup debts from millions of Americans struggling to pay their bills, a small but growing number of lawyers and consumers are fighting back against what they describe as harassment, unscrupulous practices — and, most important to their litigiousness, violations of the Fair Debt Collection Practices Act.

In fact, 8,287 federal lawsuits were filed citing violations of the act in 2009, a 60 percent rise over the previous year, according to WebRecon, a site that tracks collection-related litigation and the most litigious consumers and lawyers on behalf of debt collectors.

On Wednesday, the Supreme Court made it even easier for consumers to use the courts to fight debt collectors, ruling that collectors cannot be shielded from suits by claiming they made a mistake in interpreting the law. [ILB - see update, below]

When a consumer stops paying a bill, creditors often try to collect on their own for a few months. In many instances, the creditor hires another company to collect the debt. In other cases, they may dispose of the debt by selling it to a debt buyer for a steep discount.

Debt collectors and debt buyers are the targets of litigious consumers, since the debt collection law primarily applies to third-party collectors.

Peter Barry, a Minneapolis trial lawyer, is so bullish on the future of debt collection litigation that he holds several “boot camps” each year to share his secrets with other lawyers who want in on the action. If the debtor wins a court case under the act, the debt collector must pay the lawyer’s fees.

The next boot camp is being held in early May in San Francisco, at a cost of $2,495 a person for two and a half days of instruction.

“I can’t sue every illegal debt collector in America, although I’d like to try,” Mr. Barry said.

Mr. Katz can also claim some credit for the increase in lawsuits. For six years, he has run a free Web site called Debtorboards.com, where people share tips on topics like keeping a paper trail and recording calls from collectors.

[Updated 4/26/10] See SCOTUSblog's "Debt collectors and 'ignorance of the law'”, an opinion recap of Jerman v. Carlisle, here.

Posted by Marcia Oddi on Sunday, April 25, 2010
Posted to General Law Related

Courts - "Honoring the Legacies of Justice William J. Brennan, Jr., and Justice Thurgood Marshall" transcript

The most recent issue of the Indiana Law Review contains the transcript of a Feb. 23, 2010 panel discussion presented by the Indianapolis Lawyer Chapter of the American Constitution Society "Honoring the Legacies of Justice William J. Brennan, Jr., and Justice Thurgood Marshall." The panelists are Professor Rosalie Berger Levinson, Moderator, Phyllis and Richard Duesenberg Professor of Law, Valparaiso University School of Law; Professor Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School; Professor Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, University of Chicago Law School; The Honorable Theodore R. Boehm, Associate Justice, Indiana Supreme Court.

There are a lot of interesting things in the piece, including for instance the negative mail after Roe (and which justice read it all--and which read none of it), and this disucssion from Professor Stone:

Now, let me say a word about the piece I wrote about Gonzalez. Six years before Gonzalez, the Court, in a 5-4 decision, struck down a Nebraska statute prohibiting partial birth abortions, because the law did not have an exception for the life or the health of the mother. In Gonzalez, the Court considered a federal law prohibiting partial birth abortions that also did not include an exception for the life or the health of the mother. But this time, the Court, in a 5-4 decision, upheld the law. In my view, the opinion in Gonzalez was completely disingenuous in its effort to distinguish the earlier decision. The only real change, as far as I was concerned, was that Justice O’Connor had been replaced by Justice Alito. O’Connor had been the fifth vote in the first case. Alito was the fifth vote for the opposite result in Gonzalez.

In the op-ed you’ve referred to, I asked, what is it about this issue that would drive these Justices to feel such a powerful need to produce so disingenuous an opinion? Why couldn’t they just either follow the clearly controlling precedent or, if need be, be honest about it and take up the challenge of directly overruling it (which I didn’t think it could justify in any principled way)?

I noticed that all five Justices in the majority in Gonzalez were Catholic. That led me to write the piece, wondering whether the religion of the Justices had affected their conduct. As I’ve already noted, I do believe that Justices are affected by their personal experiences and values, and this is true of conservative Justices as well as of liberals. So I posed the question whether these Justices might have been unwilling to follow the precedent because they so despised the idea of partial birth abortion that they just could not “morally” bring themselves to do so. I contrasted this scenario with how I had seen Justice Brennan struggle with this challenge in Roe.

This piece received much more attention on the Internet than I had expected, but the most interesting response was from Justice Scalia. He had been my colleague on the faculty at the University of Chicago in the 1970s, and we were friends. A student came to me about six months after this piece was published, and said, “Did you know that Justice Scalia said that he would not set foot in the University of Chicago Law School again as long as you’re on the faculty?” I said, “Not possible. That’s ridiculous.”

Then about six months ago Joan Biskupic, a very fine reporter and author, called me to say she was writing a biography of Scalia and wanted to discuss his reaction to my piece on Gonzalez. She said that during one of her interviews of Scalia, she’d asked him about my piece, and he had jumped up from his chair and exclaimed, among other things, “I’m never going to set foot in the University of Chicago Law School again as long as Stone is on the faculty.” In effect, he accused me of being bigoted against Catholics, although that missed my point entirely. To get the full account of this incident, you should read Biskupic’s book, An American Original, which is actually quite good. The point is simply that these issues touch nerves.

[ILB - footnotes omitted]

Thanks to Prof. Joel Schumm of IU Law-Indy for the pointer.

Posted by Marcia Oddi on Sunday, April 25, 2010
Posted to Courts in general

Ind. Laws - ILB's Legislative Research Shortcuts updated

The Indiana Law Blog's Legislative Research Shortcuts page has been updated.

Posted by Marcia Oddi on Sunday, April 25, 2010
Posted to Indiana Law

About the ILB - ILB entries now listed on Twitter

All ILB entries will now be listed on the ILB's Twitter account (previously used solely for ILB twits about the General Assembly).

Once the kinks are worked out, you should be seeming the postings listed on Twitter within a half-hour of their appearance on the ILB. Of course, Twitter entries are limited to 140 words, so you will need to use the link to go to the ILB to read an entry if it looks interesting (as most are).

Posted by Marcia Oddi on Sunday, April 25, 2010
Posted to About the Indiana Law Blog

Courts - "Supreme Court takes up Wash. case involving disclosure of petition signatures: The case could decide whether signing a petition for a ballot measure is private or whether the names of signers can be made public"

Next Wednesday, April 28, 2010, the SCOTUS will heard oral arguments in the case of Doe v. Reed. Here is the SCOTUSlaw WIKI page on the case, including dozens of amicus briefs, and the issues statement:

The heading for this entry comes from the headline to this story today in the Seattle Times, reported by Janet I. Tu. Some quotes:
The U.S. Supreme Court this week will hear a Washington state case that could decide whether signing a petition for a ballot measure is a private, political act or whether the names of those signers can be made public.

The case stems from the contentious battles over Referendum 71, in which traditional-marriage supporters sought to overturn an expanded state domestic-partnership law that grants "everything but marriage" benefits to gay and lesbian couples. The referendum passed at the ballot last fall.

Those who backed the repeal effort are trying to shield the petitioners' names from disclosure, saying they could be harassed if their identities are revealed. * * *

If the court rules it does, that would likely keep private not only Referendum 71 petitions but all referendum and initiative petitions in this state — and potentially those in two dozen other states that allow citizens to put measures on the ballot.

Across the country, legal scholars, governments and interest groups are watching the case closely.

About 25 friend-of-the-court briefs have been filed, representing dozens of organizations. Those supporting disclosure of petitioner names include 23 states, media organizations (including The Seattle Times and most of the state's daily newspapers) and gay-rights groups. Those against disclosure include traditional-values organizations, think tanks and individual-rights groups. * * *

The Supreme Court has never ruled on what it means to sign a ballot-measure petition: Is it core political speech that can be anonymous, or is it a public process akin to legislators making law?

Representing those who want to keep the names secret is James Bopp Jr., an Indiana attorney who has filed about 100 lawsuits across the country challenging campaign-finance or disclosure rules. Bopp is working on behalf of Protect Marriage Washington, the group that sought to put Ref. 71 on the ballot and brought the case now before the Supreme Court.

"When public disclosure laws like those in Washington force people to reveal themselves, individuals cannot speak without worrying about threats to themselves, their families, or their jobs," he said.

Representing the state is Attorney General Rob McKenna, who calls the lawsuit a direct challenge to the transparency needed for people to trust their government.

The state's disclosure laws impose a "modest burden" on petition signers, compared with the "very compelling, very strong government and public interest in transparency, accountability and fraud protection," he said.

There is much more in the lengthy story. Also today, Les Blumenthal of McClatchy Newspapers has this story, headed "Supreme Court to hear case on releasing referendum petition signatures."

The ILB had an earlier entry on this case on Jan. 16, 2010 - scroll half-way down the page to the heading: "Making anti-same-sex petition signers' names secret."

Posted by Marcia Oddi on Sunday, April 25, 2010
Posted to Courts in general

Saturday, April 24, 2010

Environment - Potential regulation of emissions from wood-fired outdoor boiler continues to "shock and surprise" some legislators

The ILB has a very long list of entries on outdoor wood-fired boilers and efforts to regulate them so that the smoke does not harm the immediate neighborhood and the environment as a whole.

This ILB entry from Jan. 7, 2010, summarized the history of IDEM's regulatory efforts. If you are interested in this topic, I urge you in particular to read it and this ILB Dec. 29, 2005 entry.

Here are some recent news stories on the topic:

As noted in the earlier ILB entries cited above, Indiana's IDEM rulemaking on this issue has been in process since 2005, with numerous public hearings, meetings, and opportunities for comment. Normally the rulemaking process takes about one-year. This one is in its fifth year.

Nonetheless, some legislators, who should be following the process (that the legislature itself devised) and keeping their constituents informed, instead continue to be "shocked and surprised" that regulation of wood-fired outdoor boilers is under consideration.

In Dec. of 2005 Bedford's WBIW reported:

Cities like Los Angeles might require air-quality control, however for environmentalists to claim [outdoor] wood-burning furnaces are a health problem in Indiana is ridiculous. State regulators asked for comments from Hoosiers on the subject, and they are on the receiving end from citizens that don't want the IDEM meddling in what method they use to heat their homes. Until State Senator Brent Steele became aware of the public comment period that ends January 3rd, the IDEM had more or less kept their comment period a secret [emphasis added].
And the Bedford Times-Mail wrote:
The proposal also lit up the concerns of state Sen. Brent Steele, R-Bedford, who said he had a hard time tracking down information on the proposal.

“I don't know, really, what's up,” Steele said. “I just noticed they were in a rule-making process, and I couldn't figure out what they were trying to do. ... It dawned on me if it was that hard for me as a senator to find out what was going on, the average person probably didn't know about it.”

Four years, many public notices, hearings and comment periods later, on March 9,2010, the Brookville News had this article, writen by John Estridge, editor, showing nothing had changed insofar as legislative awareness is concerned. Some quotes:
Restrictive changes are being mandated by the Indiana Department of Environmental Management for outdoor heaters.

State Senator Jean Leising (R-Oldenburg) found out about the changes in late February. This caused the rural legislative caucus to meet with IDEM Commissioner Thomas Easterly. In the meeting, Easterly informed the legislators of the changes and told them the public comment part of the process was at an end. It ended on Feb. 22, about one day after the meeting.

According to Leising, the rules had been published in the Indiana Register but were not well known. She found out about the rule change from a constituent. Leising asked that the comment section be extended, but Easterly said IDEM had enough comments.

New pollution controls on heaters being manufactured will increase costs by $2,000-4,000 per unit. Existing units that do not meet the new standards will not be allowed to operate between May 1 and Sept. 30 of each year. Also, units within 150 feet of a structure on another property will have to put an exhaust pipe on the unit that is five feet above the roof line of the structure.

These changes go into effect in December of this year.

Leising was very upset by the changes. She said many of the people using the outdoor heaters also use the heaters to heat their water. With the new rules, they will not be able to have hot water for five months out of the year. Also, the rule about the pipe having to be five feet above the structure's roof is not well thought out, she said.

She asked Easterly how an exhaust pipe could be stable if the structure in question is a large two-story structure and the pipe has to extend five feet above that. He did not have an answer for her.

According to Leising, Easterly told the legislators IDEM received complaints about the outdoor burning units. When pressed on how many complaints IDEM has received, he replied the state agency received 41 complaints and there are an estimated 7,000 outdoor units in use in Indiana.

“That's not many complaints at all,” Leising said. “I've never had a complaint about one, and I receive complaints about everything. It's part of the job.”

Some legislators from more urban areas said they have received complaints. Leising said she and other rural legislators told their fellow legislators those areas should take care of the problem with local ordinances instead of a state agency like IDEM making restrictive rules that will affect residents in the entire state.

According to an IDEM fact sheet, the rule changes are being done to protect air quality. The outdoor heaters it is targeting are designed to use suppressed combustion to save wood.

“Suppressed combustion creates large amounts of particulate air pollution,” the fact sheet states.

When Leising discovered IDEM was forcing manufacturers to make changes that will increase a per-unit cost by several thousand dollars, she asked Easterly if he understood what the Indiana economy is like. She said he apparently did not. She asked him if he knew the price of a gallon of LP gas. He did not.

“They (officials in Indianapolis) don't get it,” Leising said. “People are just happy to have a job. People are just getting by. With record prices LP gas, this is the worst time to do this”

Another constituent informed Leising that while IDEM is trying to price the outdoor heaters out of the reach of Hoosiers, the federal government is giving tax credits for their purchases. Leising went back to the legislature and spoke with a fellow state senator who works with tax law. He agreed with the constituent. Outdoor heaters qualify for a $1,500 federal tax credit if purchased between Jan. 1, 2009 and Dec. 31, 2010.

“It is very discouraging because it is a classic example of the right hand not knowing what left hand doing,” Leising said.

According to the fact sheet, the next step in the process is to review and respond to the comments, republish the rulemaking package and have a pulbic hearing at the Air Pollution Control Board. This would occur in June at the earliest.

After that, there will be a second public notice and hearing before the final adoption. The Attorney General will have a 45-day review period followed by a 15-day review period by Gov. Mitch Daniels.

Apparently letter-writing is the only avenue left open for those upset by the changes. * * *

Unfortunately, according to Leising, this is an example of a bureaucratic agency that is not accountable to the voters having the ability to create rules that affect all Hoosiers. It is able to create these rules without any input from the legislature.

Here is the 2nd Notice and text of the proposed new rule to regulate emissions from outdoor boilers, as published Jan. 6, 2010. It includes a long list of public comments and responses.

Posted by Marcia Oddi on Saturday, April 24, 2010
Posted to Environment

Friday, April 23, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Farmers Elevator Co., et al. v. John A. Hamilton , a 23-page opinion, Judge Vaidik writes:

The plaintiff farmer and defendant cooperative executed four hedge-to-arrive contracts for the sale of grain. Each contract stated a price, type, and quantity of grain to be delivered. None of the contracts specified a delivery date. The contracts also omitted rolling fees, but the farmer extended his delivery periods several times and was charged for each extension. The farmer ultimately did not deliver, and the contracts were cancelled. The farmer executed a series of promissory notes agreeing to compensate the co-op. He tendered a series of payments thereafter. The farmer then brought this action alleging, among other things, that the grain purchase agreements were unlawful and void "futures contracts." A jury found in his favor, and the co-op now appeals. We hold as a matter of law that the grain purchase agreements were valid and enforceable ―forward contracts.‖ We also hold that the applicable statutes of limitations barred the farmer‘s claim for breach of fiduciary duty and partially barred his claim for money had and received. We further clarify that the co-op did not waive its motions for judgment on the evidence by calling additional witnesses after the motions were denied by the trial court. We reverse and remand.
Michael S. Deiss, et al. v. Board of Zoning Appeals, et al. - "We find that taken as a whole, the ordinances do not prohibit a vehicular lane allowing access to the drive-up window of a business building – with such constituting a means of accessing a retail use. Therefore, we find no error here."

NFP civil opinions today (1):

Mary E. Wilson v. United Farm Family Life Ins., et al. (NFP) - "The trial court's findings of fact, conclusions of law, and order adjudging that life insurance coverage was not in force because the policy was not delivered while Ronald was of sound health are not clearly erroneous. Affirmed."

NFP criminal opinions today (3):

Allan Guerrier v. State of Indiana (NFP)

Billy Freeman v. State of Indiana (NFP)

Herman P. Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 23, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One tax court opinion posted today

In Carol Bean, et al. v. Indiana Department of Revenue, a 9-page opinion, Judge Fisher writes:

The Estate of Forrest W. Quackenbush (Estate) appeals the Tippecanoe Circuit Court‟s (probate court) order determining its inheritance tax liability. The Court restates the issue for review in this case as whether, for inheritance tax purposes, the beneficiary should be classified as a Class A or as a Class C transferee, given that she was adopted pre-emancipation during the lifetime of her biological grandfather. * * *

Forrest‟s trust plainly evidences that Pamela‟s adoption had no effect on him; in his eyes, she was family. The Court, however, cannot legitimize that familial relationship for inheritance tax purposes, as doing so would be the equivalent of restoring that which the law has already severed: namely, that Pamela is the legal child of Forrest‟s daughter and thus, the legal grandchild of Forrest. Consequently, the probate court‟s order is AFFIRMED.

Posted by Marcia Oddi on Friday, April 23, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Chief Justice Shepard: Indiana court filings on the rise

So reports Maureen Hayden (the statehouse bureau chief for CNHI’s Indiana newspapers) in the April 22, 2010 New Albany News & Tribune. Some quotes:

INDIANAPOLIS — A new effort by Indiana’s top court to stem the number of mortgage foreclosures in Indiana reflects a larger trend in the state’s legal system: An explosion of civil and criminal cases brought on by the recession.

The increase in foreclosures — up 50 percent in five years — triggered a new state law last year that gave homeowners facing foreclosure the right to a settlement conference with their lender to explore alternatives. But so few homeowners took advantage of the new law that the Indiana Supreme Court has had to step in, training more than 1,000 lawyers and judges in both the new law and the financial mechanics of foreclosure.

On Tuesday, the Indiana Supreme Court and the Indiana Foreclosure Prevention Network announced an expansion of that program throughout the state.

It’s not the only place where the top court has intervened in response to an overburdened court system. More than 2 million civil and criminal cases were filed in the Indiana courts in 2008, according to the most recent report on the state’s court system. The numbers for 2009, due soon, are expected to meet or exceed that record number of cases.

As Indiana Chief Justice Randall Shepard noted to lawmakers earlier this year: “It’s a tangible marker of a society under stress.”

The rising caseloads prompted Shepard to ask state lawmakers to let him bring senior magistrates out of retirement to help alleviate the caseload. Those retired magistrates — authorized to preside over some civil and criminal matters — will return to the benches in county courthouses around the state this summer. * * *

The numbers show up in the recently published annual report of the Indiana Supreme Court. In the three-volume report, available online at the court’s website, is a county-by-county accounting of the kinds of civil and criminal cases filed.

One potential piece of good news: murder cases, which reached a decade’s peak of 279 in 2002, are trending down, with 209 murder cases filed in Indiana courts in 2008.

A side-bar provides this information from "the 2008-09 Indiana Supreme Court Annual Report [revealing] changes in case filings over the last decade", including:ILB: Here is the 2008-09 Indiana Supreme Court Annual Report. However, this only shows "Fiscal 2009 case inventories and disposition summary" of cases that reached the Supreme Court.

Okay, I now have located the latest (2008) 3-volume county-by-county report. Access it here.

Posted by Marcia Oddi on Friday, April 23, 2010
Posted to Indiana Courts

Ind. Courts - Notice of Proposed Rule Amendments by the Indiana Supreme Court Committee on Rules of Practice and Procedure

A number of rules changes are proposed in the trial, criminal, appellate and small claims rules. However, they mostly boil down to this:

The Committee was asked to address confusion that has arisen concerning when the time limits for filing appeals begin to run; whether it is the date that the trial court renders its judgment or the date that the clerk enters judgment into the Chronological Case Summary (CCS).

The case law acknowledges that it is not entirely clear when the time limits begin to run.

Because a mistake in calculating time deadlines has such a serious impact on the litigants and their attorneys, the Rules Committee is proposing that the Trial Rules, Criminal Rules, Rules of Appellate Procedure, Small Claims Rules and Rules of Procedure for Post-Conviction Remedies be changed to consistently utilize the date of the entry of the order or judgment in the CCS as the operative date.

Thus, while at first blush these amendments seem substantial, the amendments accomplish the goal of consistency and clarity in identifying the CCS date as the date from which the deadlines are triggered.

An excellent discussion of the case law and an excellent example of the confusion that has arisen is contained in the matter of Smith v. Deem, 834 N.E.2d 1100 (Ind. App. 2005), transfer denied.

ILB: Access the opinion in Smith v. Deem here. Also, observe from this ILB entry of Feb. 12, 2008 that this same (or similar) set of CCS-related amendments was posted for public comment over two years ago.

Posted by Marcia Oddi on Friday, April 23, 2010
Posted to Indiana Courts

Environment - Again: "Asian carp debates heads to Supreme Court"

Nathan Hurst reports today in the Detroit News:

The court has twice rejected -- in January, and last month -- emergency injunction requests to force the closure of the locks and canals. A court spokesman confirmed Thursday justices are scheduled to conference on the matter today behind closed doors. A decision on the case likely wouldn't be issued until Monday at the earliest.

Patricia McCabe, public information officer for the court, said the justices could decide to appoint a so-called "special master" to look at the case's merits.

"Cases between states are one of the few areas where the Supreme Court has original jurisdiction," she said. Supreme masters issue recommendations to the justices after collecting evidence on their behalf.

The filing takes an interesting tack in approaching the carp issue. The case -- structured by Attorney General Mike Cox, also a Republican gubernatorial candidate -- seeks to reopen a 1922 case in which Illinois was asked by other Great Lakes states to not open canals and locks that would allow waste and navigational water to mix into Lake Michigan.

Other states have joined in the case, including Indiana, which opposed the initial calls for an immediate closure of the locks. In February, Indiana Attorney General Greg Zoeller joined the appeal for the High Court to look at the case.

The showdown over the Asian carp escalated late last year when federal authorities announced they discovered conclusive DNA evidence that the invasive fish had reached Chicago-area waters connected to Lake Michigan.

Earlier Asian carp entries here.

Posted by Marcia Oddi on Friday, April 23, 2010
Posted to Environment

Thursday, April 22, 2010

Ind. Courts - "Senate confirms Capp as U.S. attorney"

Dan Hinkel of the NWI Times reports in a story that begins:

U.S. senators have confirmed veteran federal prosecutor David Capp to the post of U.S. attorney for the Northern District of Indiana.

Capp was confirmed Thursday by unanimous consent, said Brian Weiss, a spokesman for Sen. Evan Bayh, D-Indiana.

Capp thanked President Barack Obama for the nomination and Indiana U.S. senators Bayh and Dick Lugar, a Republican, for their support.

"I am honored and very thrilled. I look forward to continuing to serve the citizens of Northwest Indiana."

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Indiana Courts

Courts - 7th Circuit Judge Diane P. Wood and her colleagues, Judges Posner and Easterbrook

"Judicial Bouts Reveal Power of Persuasion" is the heading to this long article by Sheryl Gay Stolberg in today's NY Times. It begins:

WASHINGTON — There were few liberals and just one woman on the federal appeals court in Chicago when Diane P. Wood, an antitrust expert with a flair for foreign language and an ear for playing the oboe, showed up in the summer of 1995. The chief judge, a scholarly conservative named Richard A. Posner, promptly gave her some advice.

The appeals bench, Judge Posner warned, was like “a system of arranged marriage with no divorce.” His message to his junior colleague was clear: Pick your battles carefully. Compromise when you can.

In the 15 years since, Judge Wood, 59, has done just that, playing the role of philosophical outlier, a left-leaning woman in a world of right-leaning men, including Judge Posner and Judge Frank H. Easterbrook, a sharp-tongued intellectual who is now the court’s chief. The three have a long history together; all are former law professors at the University of Chicago, where an ambitious young state senator named Barack Obama made a name for himself lecturing on constitutional jurisprudence.

Now President Obama is considering Judge Wood as a possible Supreme Court nominee. With conservatives attacking her as too liberal, her long relationship with Judges Posner and Easterbrook — sometimes yielding surprising consensus, at other times spirited dissent — offers hints into just what kind of justice she might be.

“Essentially, she’s a controlled fighter who likes to counterpunch,” said Richard A. Epstein, a Chicago professor and prominent libertarian thinker who knows all three.

Those counterpunches are often in evidence on the United States Court of Appeals for the Seventh Circuit in Chicago. Off the bench, the three judges maintain friendly relations. Judge Posner officiated at Judge Wood’s third wedding, and Judge Easterbrook and Judge Wood run into each other regularly at the symphony. On the bench, they conduct a regular three-way legal boxing match.

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Courts in general

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

The 63-page en banc opinion is Indiana Protection and Advocacy Services v. Indiana FSSA. It was heard before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, and HAMILTON, Circuit Judges. Judge Tinder did not participate in the consideration of this appeal.

This ILB entry from Feb. 24, 2010 presents the background to this case. Here is part of the entry:

[On July 28, 2009] the 7th Circuit panel, consisting of Chief Judge Easterbrook, Judge Sykes, and Northern District of Illinois Judge Kendall, sitting by designation, ruled: "This suit, between one state agency and another, is outside the scope of §1983 and blocked by the eleventh amendment."

But that was not the end, the Court later voted to hear the case en banc and vacated the July 28th opinion.

The federal government filed an amicus on the side of IPAS, and the Indiana Attorney General [argued] the other side. This is a 11th Amendment issue pertaining to the question of when and if a state can sue itself.

Judge Hamilton writes the majority opinion. Judge Posner joins, but writes separately, beginning on p. 38. CJ Easterbrook dissents, beginning on p. 49.

Judge Hamilton's opinion for the majority begins:

HAMILTON, Circuit Judge. Pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“the PAIMI Act”), 42 U.S.C. § 10801 et seq., the district court ordered Indiana state officials and a state agency to give plaintiff Indiana Protection and Advocacy Services (“IPAS”) access to records of two mentally ill patients in a state hospital. On appeal, a panel of this court reversed, finding that the Eleventh Amendment and the lack of a statutory cause of action barred the action. Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 573 F.3d 548, 550-52 (7th Cir. 2009). We granted rehearing en banc and hold: (1) the Eleventh Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against named state officials; (2) the PAIMI Act itself provides a cause of action for injunctive and declaratory relief to enforce the Act; and (3) plaintiff is entitled to access to peer review records of treatment of covered mentally ill patients. Accordingly, we affirm the judgment of the district court as modified to direct that the relief runs only against the named state officials in their official capacities.

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

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

For publication opinions today (0):

In Vicky Tisdial v. Christine Young , a 7-page opinion, Judge Robb writes:

Vicky Tisdial, pro se, appeals the trial court’s issuance of an order for protection in favor of Christine Young. Tisdial raises multiple issues, but we find the following restated issue dispositive: whether sufficient evidence supports the order. Concluding there is no evidence of domestic or family violence, stalking, or a sex offense as required to support the order under Indiana Code chapter 34-26-5, we reverse.
In L.W. v. State of Indiana , an 18-page, 2-1 opinion, Judge Najam writes:
L.W. appeals his adjudications as a delinquent child for committing Burglary, as a Class B felony when committed by an adult, and Theft, as a Class D felony when committed by an adult. L.W. raises several issues on appeal, but we address a single dispositive issue, namely, whether police had reasonable suspicion to conduct an investigatory stop of him under the Fourth Amendment to the United States Constitution. We reverse. * * *

[O]n the record before us, the State has not demonstrated that based on specific and articulable facts Officer Cantrell had a particularized and objective basis to suspect that L.W. had committed, was committing, or was about to commit legal wrongdoing. See Glass at 644. Accordingly, we must reverse L.W.'s adjudications as a delinquent child. Reversed.

FRIEDLANDER, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins, at p. 14] Believing, as I do, that ample reasonable suspicion existed to stop and frisk L.W., I would not reverse L.W.‟s delinquency adjudications on the basis that reasonable suspicion did not exist. I would first like to take this opportunity to include a few words on the general nature of reasonable suspicion.

NFP civil opinions today (0):

Rhonda Cary v. Duane R. Berry, et al. (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Ind. App.Ct. Decisions

Environment - "Earth Day: Activists recall area horrors"

Gitte Laasby of the Gary Post-Tribune has a great story today, Earth Day, recalling what "The Region's" environment was like, back in the day. Some quotes from the lengthy story:

Before Earth Day started in 1970, Northwest Indiana's environment was like the Wild West. * * *

[I]ndustrial smoke routinely rolled in and spread on downtown Gary like a heavy fog. Open hearths at U.S. Steel operated without pollution controls, pumping out 7.5 pounds of dust for every ton of capacity. Other units emitted up to 20 pounds of dust per ton. * * *

Back in the 1960s, pollution was so bad, people avoided driving through Gary or rolled up their windows because of the pollution, said Lee Botts, founder of the Lake Michigan Federation and also a veteran environmentalist.

"The sun might even be blocked out in the daytime by levels of pollution," Botts said.

Algae was thick along the beaches.

"The water quality in the Grand Calumet was immensely worse than it is now," Botts said. "1967, that had been the year in which there was a massive summer-long dieoff of alewives in Lake Michigan. It was horror all day long with beaches covered with dead fish. And dead birds. Later it was realized the birds had gotten botulism from eating the ale wives."

At the time, there was no Clean Water Act to protect the lake. Congress passed that legislation in 1972 -- two years after the U.S. Environmental Protection Agency was created.

Before that, people and businesses dumped almost whenever and wherever they wanted, including in rivers and pristine wetlands. Pollution control was left to individual cities, such as Gary, Hammond and East Chicago.

In the 50s my father worked in the Gary mills. The paint on cars parked in the mill lots was eaten through within a few months, leaving workers with pock-marked gray and rusty "mill cars". Dead fish and evil-smelling slag from the mills always littered Porter (Johnson's) Beach and the Dunes State Park beach. Trips to Chicago on the South Shore seriously necessitated your holding your breath through the Gary - East Chicago - Whiting stretch; the air was totally unbreathable.

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Environment

Ind. Decisions - Not everyone is happy with our Supreme Court's unauthorized practice decision

The Supreme Court decision April 14, 2010 in the case of State ex Rel. Indiana State Bar Association v. United Financial Systems Corporation, et al. (ILB summary here) is the subject of a long press release by United Financial Systems, headed "Supreme Court Ruling Reduces Options, Raises Costs For Indiana Residents." It begins:

Nonlawyer professionals now have extra cause to hesitate before, or avoid, helping their clients obtain legal services to address estate planning needs. That’s because, by doing so, they may be charged with practicing law without a license, according to a recent decision by Indiana’s highest court. The decision, supposedly designed to protect the state’s consumers, actually reduces their choices for estate planning, and increases the cost of these services.

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Focus on COA decision on the Right to Resist a Police Officer’s Unlawful Entry

The Court of Appeals decision April 15, 2010 in the case of Barnes v. State (see ILB summary here - 3rd case) was highlighted in this April 21st entry by Prof. Eugene Volokh of the blog, The Volokh Conspirary, along with a number of reader comments.

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Ind. App.Ct. Decisions

Courts - If only the SCOTUS would permit cameras at oral arguments, comedians wouldn't have to do reenactments using finger puppets

Updating this ILB entry from April 20, 2010, headed "Our 'tech-savvy' supreme court", New York Magazine has an item this morning, complete with don't miss video of the puppet show. A quote:

Earlier this week, during a case examining whether or not a California police department violated the rights of an employee when it inspected personal texts sent and received on the individual’s pager, the justices revealed a serious lack of understanding of, well, pretty much all aspects of technology.

Posted by Marcia Oddi on Thursday, April 22, 2010
Posted to Courts in general

Wednesday, April 21, 2010

Courts - "Can Texas court require litigants to file all documents through LexisNexis 'File and Serve?'"

Check out Law Librarian Blog entry and links.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Courts in general

Law - "McAfee antivirus program goes berserk, freezes PCs"

Entities hit appear to include much of Kentucky government. From an AP story by Peter Svensson:

Computers in companies, hospitals and schools around the world got stuck repeatedly rebooting themselves Wednesday after an antivirus program identified a normal Windows file as a virus.

McAfee Inc. confirmed that a software update it posted at 9 a.m. Eastern time caused its antivirus program for corporate customers to misidentify a harmless file. It has posted a replacement update for download.

"We are not aware of significant impact on consumers and believe we have effectively limited such occurrence," the company said in a statement.

Online posters begged to differ, saying thousands of computers running Windows XP with Service Pack 3 were rendered useless.

About a third of the hospitals in Rhode Island were forced to stop treating patients without traumas in emergency rooms. The hospitals also postponed some elective surgeries, said Nancy Jean, a spokeswoman for the Lifespan system of hospitals. The system includes Rhode Island Hospital, the state's largest, and Newport Hospital, the only hospital on Aquidneck Island. * * *

In Kentucky, state police were told to shut down the computers in their patrol cars as technicians tried to fix the problem. The National Science Foundation headquarters in Arlington, Va., also lost computer access.

Peter Juvinall, systems administrator at Illinois State University in Normal, said that when the first computer started rebooting it quickly became evident that it was a major problem, affecting dozens of computers at the College of Business alone.

"I originally thought it was a virus," he said. When the tech support people concluded McAfee's update was to blame, they stopped further downloads of the faulty software update and started shuttling from computer to computer to get them working again.

Such personal attention to each PC from a technician appeared to be the only way to fix the problem because the computers weren't receptive to remote software updates when stuck in the reboot cycle. That slowed the recovery.

From 14 WFIE.com:
Kentucky government offices, schools and law enforcement are having to do things the old fashioned away after a computer glitch shut down their systems Wednesday.

State officials said the problem was caused by a faulty anti-virus program.

Kentucky State Police said dispatchers are having to use pen and paper, and troopers are having a hard time running license plates and are having to use an old radio system.

They're not sure when the problem will be fixed.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to General Law Related

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

In this ILB entry from March 31st, the ILB found it notable that the Indianapolis Star reported: "Brizzi's office would not divulge his [Mario Massillamany's] salary."

Today Star reporter Jon Murray reports under the headline: "After spokesman resigned, Brizzi hired PR firm." Some quotes:

Faced with the arrest and resignation of his spokesman, Marion County Prosecutor Carl Brizzi looked outside the office for his replacement.

Instead of hiring a full-time spokesperson, he hired an Indianapolis public relations firm April 1. The decision came just as scrutiny of his business interests and decisions in office was mounting.
Advertisement

Brizzi said the brewing PR crisis -- which soon included calls for his resignation by members of his own party -- didn't influence the deal with Hirons & Company, which also does work for the city.

It also appears that hiring the outside firm might save taxpayers money, according to a review of the contract by The Indianapolis Star.

Brizzi said his main concern was the difficulty of hiring a new public information officer to replace Mario Massillamany, since time is running short on Brizzi's final year in office.

Massillamany was arrested March 27 in Hamilton County on suspicion of drunken driving after police stopped him for excessive speed. He resigned a few days later. * * *

The agreement with Hirons says the prosecutor's office will pay a $6,500 monthly retainer, based on the time Hirons expects to devote to the account.

That is the equivalent of $78,000 a year -- just shy of Massillamany's $80,000 salary, and without the need to pay for benefits for an employee.

The agreement outlines two kinds of tasks: media relations, including writing news releases, fielding inquiries and advising the prosecutor on strategy; and developing a campaign to educate the public about online sex crimes -- long a focus for the office -- and "sexting," the exchange by children of sexual images via cell phones.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Indiana Government

Ind. Decisions - "Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation "

Yesterday's Supreme Court decision in Gloria A. Murray, et al. v. The City of Lawrenceburg, et al. (ILB summary here) is the subject of an entry today in the Inverse Condemnation Blog. The entry begins:

A new opinion from the Indiana Supreme Court that reminds us somewhat of the "bizarre condemnation" case now awaiting decision in the New Jersey Supreme Court. In Murray v. City of Lawrenceburg, No. 15S04-0907-CV-310 (Apr. 20, 2010), the court held the claims of a property owner who asserted that the government wrongly occupied her land and leased it to another are subject to Indiana's six year statute of limitations for inverse condemnation claims.
and ends:
The result strikes us as a bit odd, since it is hard to square a six year statute of limitations for inverse condemnation or trespass with Indiana's ten year statute of limitations for adverse possession. See Indiana Code § 34-11-2-11 ("An action upon contracts in writing other than those for the payment of money, and including all mortgages other than chattel mortgages, deeds of trust, judgments of courts of record, and for the recovery of possession of real estate, must be commenced within ten (10) years after the cause of action accrues."). If the plaintiffs had ten years to bring an action to confirm their ownership and eject the city, then the property had not yet been permanently "taken" as the court assumed, even if the city has purported to act as owner by leasing it to the casino.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (2):

In James E. and Janiece Pardue v. Perdue Farms Incorporated, a 12-page opinion, Judge Crone writes:

James E. Pardue and Janiece V. Pardue (“the Pardues”) appeal the trial court’s judgment in favor of Perdue Farms Incorporated (“Perdue Farms”) on the Pardues’ nuisance claims. We affirm.

On May 9, 2002, the Pardues filed a nuisance complaint against Perdue Farms, alleging that they had “been devastated by the sickness and death of horses caused by groundwater contamination from unlawfully stockpiled manure from a Perdue Turkey Farm.” Appellants’ App. at 20. A three-day bench trial concluded on January 22, 2009. On June 30, 2009, the trial court issued its findings of fact, conclusions, and judgment, which reads in pertinent part as follows: [ILB - next follows 8 pages of the trial court's findings and conclusions] * * *

Although the Pardues may well have feared that manure from the Turkey Farm was harming their horses, their failure to prove that the presence of the manure on the Turkey Farm and the deaths of their horses was anything more than a temporal coincidence is fatal to their claim that their fear was reasonably justified. To be reasonably justified, a plaintiff’s fear must be based on more than speculation. See Hays v. Hartfield L-P Gas, 159 Ind. App. 297, 302, 306 N.E.2d 373, 376 (1974) (holding that “mere fear or apprehension of danger caused by the presence of fuel storage tanks, without more, is not a sufficient basis to establish a nuisance.”). At the very least, the Pardues have failed to establish that the evidence is uncontroverted in their favor on this issue. Based on the foregoing, we affirm the trial court’s judgment in favor of Perdue Farms. Affirmed.

In Darmon D. Bond v. State of Indiana , a 16-page opinion, Judge Vaidik writes:
Darmon D. Bond appeals his convictions for Class C felony altering an original identification number and Class D felony auto theft. We hold that (I) the absence of African-Americans from the jury venire did not violate Bond‟s Sixth Amendment jury trial rights, (II) the admission of expert fingerprint analysis did not violate Bond‟s Sixth Amendment confrontation rights, even though the verifying print examiner did not testify at trial, and (III) there is sufficient evidence to sustain Bond‟s convictions. We affirm.
NFP civil opinions today (3):

Gene Joiner v. U.S. Steel Corporation (NFP) - "Appellant-petitioner Gene A. Joiner appeals the decision of the Indiana Worker’s Compensation Board (the Board) denying his claim for worker’s compensation for medical difficulties he has experienced as a result of exposure to asbestos in the course of his employment for appellee-respondent United States Steel Corporation (U.S. Steel). Joiner argues that the Board erred by finding that his claim was barred by res judicata, law of the case, and the applicable statute of limitations. Finding no error, we affirm."

John L. Christos v. Alexia Christos (NFP) - "The trial court abused its discretion by failing to include John’s commercial liability to his father in the marital estate."

T.C. v. Review Board (NFP)

NFP criminal opinions today (3):

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

Charles A. Boswell, Jr. v. State of Indiana (NFP)

Oliver Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Pastor-lawyer facing theft trial: Accused of raids on trust funds for group homes"

Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

Accused of taking money from the trust fund accounts of residents with disabilities in his group homes, Ernest M. Beal Jr. stood trial Tuesday in Allen Superior Court.

Beal, 56, is chief operating officer of Your Friends and Neighbors, a company that runs group homes in Indiana and Georgia for adults with developmental impairments. Last June, he was charged with felony theft, accused of ordering company officials to take money from the clients’ trust funds to make payroll and other operating expenses.

The trust fund holds money from clients’ Social Security benefit checks, paychecks and other income and is meant to pay for the expenses and care of the residents, according to court documents.

Beal, a lawyer, is also pastor of Faith United Church of Christ in Fort Wayne.

During opening statements, Allen County Deputy Prosecutor Tim McCaulay said Beal “borrowed” from the clients multiple times over a 3 1/2 -year period. Beal and his ex-wife, the company’s chief executive officer, each drew a salary of more than $300,000, he said.

McCaulay characterized the case as one of arrogance, greed and the avoidance of truth.

When employees brought their concerns about the practice to Beal’s attention, Beal warned one in an e-mail that she “needn’t be quite so cautious,” McCaulay said.

But defense attorney Frank Gray said Beal’s actions were not criminal.

“This isn’t stolen money,” Gray said, adding Beal paid the money back with interest.

Even the federal Social Security Administration investigators who were asked to look into Beal’s actions found that it was not a violation of the law and didn’t pursue the matter, Gray said.

“The decisions made were proper,” Gray said. “The employees who didn’t think it was right are not lawyers or experts.”

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Indiana Courts

Ind. Gov't. - More on: "How the 50 States Rate in Providing Online Access to Government Spending Data"

Updating this ILB entry from April 16, 2010, which reported that Indiana was among those rated "F" by the U.S. Public Interest Research Group, for budget accountability and accessibility -- whether or not states allow citizens to see government expenditures online, Dan Carlen of the NWI Times reports today that:

Indiana's state website -- in.gov -- has been recognized for providing transparent government information.

Sunshine Review, a nonprofit organization focused on government transparency, gave Indiana's site an A grade based on its 10-point transparency checklist.

The state received high marks for publishing all state contracts, the state budget, tax information, ethics rules, and contact information for state officials.

I've just looked at the Sunshine Review's wiki ("anyone can edit") and it states: "Indiana currently has no statewide, official spending database online. Although Indiana House Bill 1280 would have placed spending information online, the bill died during the 2009 regular session." The Sunshine evaluation of the Indiana Active Contracts DB gives it three checkmarks indicating approval and three indicating disapproval.

Here is the State of Indiana contracts database.

Give it a test by click "attorney" in the first column, and then "search." Once you get the list, you can sort by agency, start or end date, amount, etc. If you sort by vendor name, you now can see both the original contract and any subsequent amendments or renewals, and access all the documents.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Indiana Government

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

Updating these ILB entries from March 25 and March 29, 2010, Heather Gillers of the Indianapolis Star reports today:

Washington Township was correct in denying a local woman $758 in poverty aid, a judge ruled Tuesday in a case that raised some eyebrows because the township spent about $20,000 to defend the denial.

But for Township Trustee Frank Short, it was less about money and more about principle. He believes the expense was justified. * * *

The case -- which came at a time when lawmakers and others were questioning whether townships are effective stewards of public funds -- drew attention because of the sum that Washington Township spent fighting it. Short said the amount troubled him as well.

"I wish it didn't cost so much to defend her false claim," his statement said, "and I am working with the township's attorneys to hold down these costs in the future should another false claim be filed."

Short said Washington Township cannot recover legal fees from Cooper.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to Indiana Government

Law - More on Health Care Law from David Orentlicher

David Orentlicher (Samuel R. Rosen Professor of Law and Co-Director, Center for Law and Health, Indiana
University School of Law-Indianapolis. M.D., Harvard Medical School, J.D., Harvard Law School), has published "Health Care Law: A Field of Gaps ," in the Annals of Health Law, Vol. 19, No. 1, 2010. Access it here. The abstract:

During the past 25 years, a number of issues in health care law have illustrated an important paradox. As Tocqueville observed more than 150 years ago in his classic study of the United States, we regularly turn to the courts to resolve our political differences. Yet, many issues that seem to have been settled by the courts turn out not to be very settled. The continuing debates over abortion provide a prominent illustration. Decisions at the end of life offer important examples as well. Although courts have concluded that withdrawing life-sustaining treatment is the same as withholding such treatment and that withdrawing artificial nutrition and hydration is no different than withdrawing artificial ventilation, many people continue to hew to those distinctions.

Because critical issues may be judicially decided but publicly unsettled, health care law is very much a field of gaps - gaps between law on the books and law in practice, gaps between perceptions of law and its actual impact, and gaps between rhetoric and reality. As a result, developments in the law often outpace public sentiments and preferences. Perhaps these gaps are not surprising. Health care law deals with many difficult and controversial issues, issues that really can mean the difference between life and death. An important task for the next 25 years will be to understand better the nature of the gaps between health care law and the public’s views and to figure out how to bridge those gaps.

Posted by Marcia Oddi on Wednesday, April 21, 2010
Posted to General Law Related

Tuesday, April 20, 2010

Ind. Courts - COA posts another opinion

Paternity of B.R.; L.K. v. E.R. (NFP) - In this 17-page, 201 opinion the majority writes:

L.K. (“Mother”) appeals the trial court's order granting custody of B.R. to E.R. (“Father”). Mother raises two issues, which we revise and restate as whether the trial court abused its discretion in denying her motion to continue. We reverse and remand. * * *

The dissenting opinion begins: I respectfully dissent from the majority's conclusion that the trial court abused its discretion by denying Mother's request for a continuance of the April 30, 2009 hearing.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Mortgage forclosures

Indiana Courts has created a "website is for borrowers, attorneys, housing counselors, and anyone else who would like to learn more about mortgage foreclosure settlement conferences." Access it here.

In addition, a website for judicial officers and other court personnel who would like more information about the structure and functions of the Mortgage Foreclosure Trial Court Assistance Project, as well as instructions on requesting assistance for current or proposed trial court settlement conference programs.

The Indiana Lieutenant Governor today has issued a press release headed: "Lt. Governor Becky Skillman Announces Partnership with Indiana Supreme Court aimed at Assisting Hoosiers in Foreclosure." It begins:

Fort Wayne, IN - Lt. Governor Becky Skillman announced a partnership between the Indiana Foreclosure Prevention Network (IFPN) and the Indiana Supreme Court to create a program that will increase the number of eligible Hoosiers taking advantage of mortgage foreclosure settlement conferences and the number of successful outcomes in which foreclosure is avoided. The program involves a system for coordinating all settlement conferences on a county or district-wide basis and connects troubled borrowers to local resources.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one today

In Gloria A. Murray, et al. v. The City of Lawrenceburg, et al., an 8-page, 5-0 opinion on an interlocutory appeal, Justice Boehm writes:

We hold that inverse condemnation is the sole remedy for a governmental act that purports to exercise all rights of ownership over a parcel of land. We also hold that the six year statute of limitations for trespass applies to such a claim. As a result, the statute of limitations bars the plaintiffs’ suit in 2005 seeking to claim ownership of land leased in 1997 by the City of Lawrenceburg to a private party. * * *

Plaintiffs argue as a threshold contention that inverse condemnation is inappropriate because the title to the parcel is clouded. They claim that a quiet title action is therefore the appropriate means to establish the rightful owner. We disagree. Ownership of an interest in the property is an element of a claim for inverse condemnation. If plaintiffs did not own the parcel, they had no claim at all. If they did own it, then the remedy was inverse condemnation. * * *

Plaintiffs also argue that inverse condemnation is inapplicable here because the taking was not for a public use. Defendants respond that providing public routes of access to a private business is a public use. Plaintiffs are correct that, if there were no public use, neither eminent domain nor inverse condemnation would apply. But we readily find a public use here. Whether a particular use is a public use is a question for the courts to determine. 11A Ind. L. Enc. Eminent Domain § 10, at 254 (2007). Specifically, in Indiana, the taking of private land to develop public access to private casinos has been held to be a public use. * * *

Defendants argue that this case is barred by the six year limitation period for “Actions for injuries to property other than personal property.” I.C. § 34-11-2-7(3). Plaintiffs contend the residual ten-year limitation period applies. I.C. § 34-11-1-2(a).

No limitation period applies to an eminent domain proceeding by the state. To the extent plaintiffs have a claim, it is an inverse condemnation claim by the alleged owners. Acts constituting unlawful occupation of land by a public agency would be a trespass if committed by a private entity. In both cases, a party without an interest in the property physically disturbs and injures the property. A trespass action has long been held to be governed by the six year limitations period. * * *

Plaintiffs’ action accrued when they could have brought a claim for inverse condemnation. 18 Ind. L. Enc. Limitation of Actions § 30, at 622–24 (2003). Giving plaintiffs the benefit of the doubt, the last possible date the action could have accrued was December 1997, when Indiana Gaming began operations at the site. Plaintiffs did not file this suit until November 21, 2005, almost eight years after the action accrued. Accordingly, plaintiffs’ claim is barred by I.C. § 34-11-2-7.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Standard Investments Corp. v. Amco Ins. Co., Merritt Hall Enterprises, Inc., et al. (NFP) - "To successfully allege that an insurer had the duty to advise him, the insured must demonstrate the existence of an intimate long-term relationship between the parties or some other special circumstance."

In K.J. v. C.J. (NFP), a 6-page opinion, Judge Friedlander concludes:

In the present situation, Father's counsel was not allowed to object to portions of Daughter's argument, which could be considered evidence, as she appeared pro se. Father did not testify, nor was he afforded the opportunity to agree or disagree about the accuracy of the factual account in his counsel's argument. Indeed, we cannot pass on the sufficiency of the evidence here because no evidence was formally introduced.

One definition of a hearing is “a proceeding of relative formality held in order to determine issues of fact or law in which evidence is presented and witnesses are heard.” Hunt v. Shettle, 452 N.E.2d 1045, 1050 (Ind. Ct. App. 1983). In Essany, we noted that I.C. §34-26-5-16 (West, Westlaw current through 2009 1st Special Sess.), a statute addressing the fees and costs associated with protection orders, provides that fees for filing, service of process, witnesses, or subpoenas may not be charged for a proceeding seeking relief from or enforcement of a protection order. Consequently, the Act contemplates a hearing at which witnesses may be compelled to testify on the subject of a protective order and prohibits the assessment of fees and costs for those things in order to achieve that end. We conclude that the hearing in this case was not the type of fair hearing provided for by the Act and remand to the trial court for a new hearing.

Judgment reversed and remanded.

NFP criminal opinions today (6):

Maurice McClung v. State of Indiana (NFP)

Mark R. Fish v. State of Indiana (NFP)

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

Lucio Hernandez Hinojosa v. State of Indiana (NFP)

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

Michael K. Collins v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Ind. App.Ct. Decisions

Law - "Nearly every digital copier built since 2002 contains a hard drive - like the one on your personal computer - storing an image of every document copied, scanned, or emailed by the machine"

The title of the report by Armen Keteyian of CBS News is "Digital Photocopiers Loaded With Secrets: Your Office Copy Machine Might Digitally Store Thousands of Documents That Get Passed on at Resale." It begins:

At a warehouse in New Jersey, 6,000 used copy machines sit ready to be sold. CBS News chief investigative correspondent Armen Keteyian reports almost every one of them holds a secret.

Nearly every digital copier built since 2002 contains a hard drive - like the one on your personal computer - storing an image of every document copied, scanned, or emailed by the machine.

In the process, it's turned an office staple into a digital time-bomb packed with highly-personal or sensitive data.

If you're in the identity theft business it seems this would be a pot of gold.

"The type of information we see on these machines with the social security numbers, birth certificates, bank records, income tax forms," John Juntunen said, "that information would be very valuable."

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to General Law Related

Ind. Decisoins - 7th Circuit rules in labor case involving Indiana concrete construction business

In Sheehy Enterprizes v. NLRB (NLRB), a 12-page opinion, Judge Manion writes:

Without first reading the document he was signing, James Sheehy, the president of Sheehy Enterprizes, Inc., entered a collective bargaining agreement with the Laborers’ International Union of North America, State of Indiana District Council. Under the terms of that agreement, Sheehy Enterprizes became obliged to pay its employees union wages and make union benefit fund contributions on their behalf for all work it performed in Indiana and four counties in Kentucky. In 2007, when confronted by a union representative, Sheehy claimed that the company was not bound by the agreement, prompting the union to file an unfair labor practice charge with the National Labor Relations Board. The Board’s general counsel then filed a complaint against the company. An administrative law judge held a hearing and found that Sheehy Enterprizes had committed an unfair labor practice by repudiating the collective bargaining agreement, and the Board issued an order affirming that decision. The company petitions for review of the Board’s order, and the Board crosspetitions for enforcement of the same. For the reasons that follow, we deny the company’s petition for review and grant the Board’s cross-petition for enforcement.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - More on: "Families Say Schools Snoop in Their Homes With District-Issued Laptops & Webcams"

Updating this ILB entry from Feb. 19, 2010, Marha Neil has a report in the ABA Journal re a federal court filing, headed "Filing: School District Took Thousands of Pics of Students at Home Via Laptop Webcams." A few quotes:

When news broke in February that an upscale suburban Philadelphia school district had been accused of spying on students at home via remotely activated webcams on their district-issued laptop computers, officials said the webcams were only activated if a computer had been reported missing or stolen.

But that wasn't true, attorneys for the plaintiffs in the February suit, parents Michael and Holly Robbins, say in a federal court filing last Thursday, reports the Threat Level blog of Wired.

“Discovery to date has now revealed that thousands of webcam pictures and screen shots ... have been taken from numerous other students in their homes, many of which never reported their laptops lost or missing,” writes their attorney, Mark Haltzman.

The computers took photos of students in bed, even partially dressed, and captured their online chats and kept a records of the websites they visited, the filing contends.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Courts in general

Ind. Courts - Seeking comments on the Parenting Time Guidelines

From a news release:

The Domestic Relations Committee of the Judicial Conference of Indiana is seeking comments from judicial officers, attorneys, parents, professionals who work with children and members of the public as it reviews Indiana’s Parenting Time Guidelines.

The Parenting Time Guidelines help judicial officers make decisions about the time each parent spends with their child or children if the parents are unable to agree. The Domestic Relations Committee is composed of judicial officers from across the state. The committee will review submitted comments to assist it in recommending changes to the Indiana Supreme Court.

The committee encourages written comments and will accept them until May 21, 2010. * * *

The Domestic Relations Committee will also conduct a public hearing on May 21, 2010 to gather comments about the Parenting Time Guidelines.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Indiana Courts

Ind. Courts - More on: Court of Appeals decision appealed to SCOTUS

This ILB entry from March 5, 2010 called attention to the fact that the COA decision in the case of Jaskolski v. Daniels was highlighted as among "the noteworthy petitions currently filed" before the SCOTUS.

A reader writes to the ILB this morning:

On March 5, you had an ILB entry noting that a petition for certiorari to the SCOTUS had been filed for the Indiana Court of Appeals' decision in Jaskolski v. Daniels. Yesterday, that petition was denied. Here is the link to the Court's order list. Jaskolski is number 09-946 on page 3.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Indiana Courts

Ind. Gov't. - More on: "Federal prosecutors: inmate ran Indiana drug ring from prison

Updating this ILB entry from April 15th, Lisa Trigg reports today in the Terre Haute Tribune Star in a story that begins:

TERRE HAUTE — Seventeen of 19 people indicted in a drug distribution ring in the Wabash Valley remain in federal custody following their initial appearances Monday at the U.S. District Court in Terre Haute.

The drug ring allegedly led by Wesley S. “Fe Fe” Hammond, an inmate at the New Castle Correctional Facility in eastern Indiana, included Hammond’s girlfriend, Jennifer L. Poltrock, and his mother, Susie Annette Smith.

Smith and defendant Raeanna J. Johnson have both been released from federal custody pending future court proceedings. Magistrate Judge Craig McKee set detention hearings for April 26 to hear requests from the other 17 defendants for release pending their trial dates. He also set June 14 trial dates for all defendants in the case.

While the 19 arrests have put a kink in the local supply chain of methamphetamine and marijuana, the police investigation is not finished.

“The investigation is still going on in three key areas,” said Assistant U.S. Attorney Brad Blackington. “We’re looking at other drug customers and people they were dealing with as distributors. There’s the out-of-state connection for the drug supply. And third, how Hammond got a cell phone in prison.”

The General Assembly this year enacted HEA 1100-2010: "Inmate possession of a cellular device prohibited. Makes it a Class A misdemeanor for a person incarcerated in a county jail to possess a cellular telephone or other wireless or cellular communications device."

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Indiana Government

Courts - "Our ''Tech-Savvy Supreme Court"

I found these entries yesterday from the WSJ Law Blog and DC Dicta to be seriously scarey, given the age in which we live and the prime technology issues with enormous implications that the SCOTUS will be asked to decide over the upcoming few years.

This article today by Marcia Coyle of The National Law Journal is a little more reassuring, beginning:

The U.S. Supreme Court on Monday wrestled with the privacy expectations of public employees in a case involving workplace monitoring of text messages.

By the end of arguments in City of Ontario, Calif. v. Quon, some justices, unfamiliar at first with the ins and outs of text technology, appeared better informed, but Jeffrey Quon's expectation of victory appeared to decline.

Posted by Marcia Oddi on Tuesday, April 20, 2010
Posted to Courts in general

Monday, April 19, 2010

Ind. Decisions - Transfer list for week ending April 16, 2010

Here is the Clerk's transfer list for the week ending April 16, 2010. It is 1 page long.

No transfers were granted last week.

__________

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

Six years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Indiana Transfer Lists

Law - Valpo Law professor named 'Champion of Consumer Rights'

From a news release today:

The National Association of Consumer Bankruptcy Attorneys (NACBA) this week named Alan White a recipient of its 2010 Champion of Consumer Rights award.

White is widely recognized as an expert on predatory mortgage lending and mortgage foreclosures and in recent years has both organized and spoken at workshops and conferences focused on the issue nationwide. He is serving a three-year term as a member of the Federal Reserve Board of Governors Consumer Advisory Committee and has testified to the U.S. House Committee on Financial Services on the government's response to the foreclosure crisis.

Also of interest today is this WSJ article by Amir Efrati that begins:
A Florida state-court judge, in a rare ruling, said a major national bank perpetrated a "fraud" in a foreclosure lawsuit, raising questions about how banks are attempting to claim homes from borrowers in default.

The ruling, made last month in Pasco County, Fla., comes amid increased scrutiny of foreclosures by the prosecutors and judges in regions hurt by the recession. Judges have said in hearings they are increasingly concerned that banks are attempting to seize properties they don't own.
The Florida case began in December 2007 when U.S. Bank N.A. sued a homeowner, Ernest E. Harpster, after he defaulted on a $190,000 loan he received in January of that year.

The Law Offices of David J. Stern, which represented the bank, prepared a document called an "assignment of mortgage" showing that the bank received ownership of the mortgage in December 2007. The document was dated December 2007.

But after investigating the matter, Circuit Court Judge Lynn Tepper ruled that the document couldn't have been prepared until 2008. Thus, she ruled, the bank couldn't prove it owned the mortgage at the time the suit was filed.

The document filed by the plaintiff, Judge Tepper wrote last month, "did not exist at the time of the filing of this action…was subsequently created and…fraudulently backdated, in a purposeful, intentional effort to mislead." She dismissed the case.

The story includes links to the case documents.

For more, see this WSJ Law Blog entry by the same writer.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to General Law Related

Courts - "Supreme Court still resists pressure to televise proceedings"

Not only that, but, according to C-Span:

[F]or the seventh and final time this term, the Supreme Court has turned down a request from the media for same-day access to the audio of its oral arguments.
The TV cameras story is by Robert Barnes, in today's Washington Post. And Tony Mauro of The National Law Journal reports today:
With the Court's oral argument season ending April 28, that means the entire current term will end with none of the arguments being given same-day treatment -- the first term since 2004-2005 in which no arguments were approved for immediate release. The Court first allowed for such release in high-interest cases with Bush v. Gore in 2000, to enable the press and the public to hear the arguments while they were still fresh and newsworthy. Without expedited release, the audio of oral arguments is not usually available to the public until several months after the end of the term, after processing at the National Archives -- long after their news value has expired.
For some background re cameras in state supreme courts, Prof. Joel Schumm at IU Law sent me this information last week:
I just did a search and found an article from 2007 at 9 J. App. Practice & Process 1. An Arkansas Supreme Court justice summarizes the number of states broadcasting oral arguments and notes:
Indiana has been a bright beacon in using video of its Supreme Court's proceedings as an outreach tool and a platform [*15] for enhanced public education about the judiciary. At a time when courts are criticized as insular and unnecessarily mysterious, Indiana and other state supreme courts have opened up the appellate process for students and the public by using technology and innovation.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Courts in general

Ind. Courts - "Judge leaves East Chicago, Second Century settlement intact, for now"

Dan Carden of the NWI Times is reporting this afternoon:

A Marion County judge on Monday declined to immediately rule on the state's request to set aside a partial settlement of a long-running dispute over East Chicago casino revenues.

Following an occasionally heated 45-minute hearing featuring 12 different attorneys representing six parties to the lawsuit, Judge David A. Shaheed ordered everyone involved to file written briefs explaining their position. Another hearing is expected to be held in May.

On April 8, the court approved an agreement between the City of East Chicago and East Chicago Second Century Inc. that resolved a battle over casino funds going back to 2005.

Under the settlement, some $1.5 million a year paid by Ameristar Casino to Second Century for economic development purposes would instead go to the city. Second Century, a for-profit foundation, would get a portion of the money Ameristar has kept while the dispute has been in court.

Attorney General Greg Zoeller asked the court to set aside the settlement because the state was not a part of settlement discussions.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Marshall County to raise the fee for commercial wind farm permits from $50 to $20,000

Virginia Rainsbottom reports in the South Bend Tribune:


PLYMOUTH — Wind farms have begun appearing in Benton and White counties in northwest Indiana, and Marshall County could be next.

Looking ahead to that possibility, the Marshall County Planning Commission will conduct a public hearing at 7:30 p.m. Thursday on proposed ordinance changes for wind energy conversion systems and to raise the fee for commercial wind farm permits from $50 to $20,000.

Marshall County planning director Ralph Booker said wind farms have shown interest in locating in both northern and southern Marshall County.

"Meetings have already taken place with a wind farm company actively pursuing locations," Booker said of the northern Marshall County location. "They've met with farmers four times in the area to talk about signing acreage over for two years on a temporary basis." * * *

The significant rise in the permit fee is not to deter a wind farm from locating in the county but to make sure county expenses are covered.

"Our fee is totally inadequate and it would be a steal right now with the county going through a lot of expenses and not getting reimbursed," Booker said.

For instance, the highway department would be required to prepare road assessments because roads could be damaged in the transportation, construction or decommission process.

Surveys for crop or tile damage must be conducted and additional staff, lawyer fees and financial experts would be needed. * * *

Marshall County's wind farm ordinance has been redesigned to better facilitate wind energy systems while minimizing visual impacts, providing setback regulations, encouraging location in nonresidential settings and avoiding potential environmental damage.

The fee for noncommercial wind energy conversion systems (WECS) would only rise from $30 to $40.

A hike in the fee structure for commercial and residential building permits, communication towers and Planning Commission and BZA fees is also proposed.

Proposed changes range from $5 to $100. For instance, a permit for an in-ground pool would rise from $50 to $100. Roof permits would rise from $25 to $30.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Environment | Indiana Government

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

In U.S. v. Coopman (ND Ind., Lozano), a 10-page opinion, Judge Kanne writes:

Brad Coopman was charged with possession of child pornography and receipt of child pornography. He pled guilty to the receipt charge without the benefit of a plea agreement. At the outset of Coopman’s sentencing hearing, the district court adopted the factual findings in the pre-sentence investigation report (PSR) without objection from the parties. After the government presented its witness, Coopman offered expert witness testimony in an effort to mitigate his sentence.

At the conclusion of Coopman’s evidence, the district court calculated a sentencing range of 151 to 188 months’ imprisonment. The court then sentenced Coopman to 151 months’ incarceration and 10 years’ supervised release. Coopman now challenges his sentence by alleging that the district court improperly placed presumptive weight on the guidelines, failed to consider non-frivolous arguments, and misapplied 18 U.S.C. § 3553. Coopman also argues that the district court imposed an unreasonable sentence. We affirm.

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

Law - Point, counterpoint on constitutionality of health care law [Updated]

Attorney David Orentlicher cites precedents addressing any constitutional concerns; AG Greg Zoeller says Supreme Court must specifically rule on this case.

The Indianapolis Star on Sunday had side-by-side opinion pieces by Indiana Attorney General Greg Zoeller and Indiana University School of Law Professor David Orentlicher.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Hubert L. Dunithan,et al. v. Dominion Ventures, et al. (NFP) - "As we have noted, no separate consideration is required when a guaranty is executed contemporaneously with the contract that the guaranty is intended to support. Therefore, the Land Contract supports the Personal Guarantee, and the Personal Guarantee is not, based on the facts currently before this Court, invalid for lack of consideration. We conclude that the face of the Dunithans' Complaint states claims against Cochran and Luchs upon which, if the claims were meritorious, the trial court could grant relief. Consequently, the trial court erred by dismissing Counts II and III of the Dunithans' Complaint."

NFP criminal opinions today (3):

Jesse L. Troxell v. State of Indiana (NFP)

Sabah Kashkoul v. State of Indiana (NFP)

Norman L. White v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Ind. App.Ct. Decisions

Law - More on: New Michigan law permits vintners inside and outside the state to ship their products directly to consumers

That was the heading to this ILB entry from Dec. 16, 2005. A quote from an AP story at the time:

With out-of-state wineries allowed to sell directly to Michigan residents for the first time, Michigan wineries will get the same access to buyers in other states, said Coe, managing partner of Black Star Farms in Suttons Bay.
On April 13, 2010, the 9th Circuit decided the case of Black Hill Farms v. Jerry Oliver, in his official capacity as Director of the State of Arizona Department of Liquor License and Control. (The ILB has posted a copy here. Note: James A. Tanford, Indiana University School of Law, Bloomington, Indiana, for the plaintiffs-appellants.)

From the 18-page opinion:

This case involves a Michigan winery’s claim that certain provisions of Arizona’s statutory scheme regulating the direct shipment of wine from wineries — whether located in-state or out-of-state — to Arizona consumers violate the dormant Commerce Clause. The Plaintiffs-Appellants (collectively “Black Star Farms”) claim that those provisions, in practical effect, unlawfully discriminate against out-of-state wineries.

Arizona generally requires all alcoholic beverages sold to consumers in the state to pass through a three-tier distribution system comprised of producers, wholesalers, and retailers. However, Arizona has carved out two exceptions to its system that allow wineries under specified circumstances to bypass the three-tier distribution system. First, all wineries that produce less than 20,000 gallons of wine per year — whether located in-state or out-of-state — are allowed to ship an unlimited amount of wine directly to consumers, regardless of how the order is placed, and to sell directly to retailers. Second, all wineries — whether located in-state or out-of-state — are allowed to ship two cases of wine per year directly to consumers who purchase wine while they are physically present at the winery. Relying on Granholm v. Heald, 544 U.S. 460 (2005), which held that States may mandate a three-tier distribution scheme regulating the sale of wine so long as the scheme does not unlawfully discriminate against out-of-state wineries, Black Star Farms contends that these challenged exceptions to the three-tier system violate the dormant Commerce Clause.

We conclude that Arizona’s statutory exceptions to its three-tier distribution system, which treat similarly situated in-state and out-of-state wineries the same and impose no new impermissible burdens on out-of-state wineries, do not have the practical effect of “favor[ing] in-state economic interests over out-of-state interests.” Id. at 487. Therefore, we affirm the district court’s order granting summary judgment in favor of the State.

Beginning on p. 16, the opinion discusses the "in-person" exception, concluding:
In addition, Black Star Farms adduced no evidence that the in-person exception causes wine produced by Arizona wineries to constitute a larger share of the total sales in the market. “[T]he mere fact that a statutory regime has a discriminatory potential is not enough to trigger strict scrutiny under the dormant commerce clause.” Id. at 37. A de minimis benefit to instate wineries is also insufficient to trigger strict scrutiny. See id. at 38-39; Brown & Williamson Tobacco Corp. v. Pataki, 320 F.3d 200, 216 (2d Cir. 2003); see also Baude v. Heath, 538 F.3d 608, 612 (7th Cir. 2008), cert. denied, 129 S. Ct. 2382 (2009) (upholding an Indiana statute that required consumers who wanted to receive direct shipments of wine from a winery — whether located in state or out of state — to visit the winery and supply proof of age). We must affirm the district court’s order granting summary judgment to the defendants. But see Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 432-33 (6th Cir. 2008) (holding that Kentucky’s inperson purchase requirement for direct shipment of wine discriminated against interstate commerce because the plaintiffs presented evidence that the requirement favored in-state wineries and burdened out-of-state wineries).
A circuit split. Finally, the opinion concludes:
Black Star Farms attempts to raise a new argument on appeal. Black Star Farms contends the Arizona statutes are unconstitutional because they directly regulate interstate commerce. See NCAA v. Miller, 10 F.3d 633, 638-39 (9th Cir. 1993) (holding unconstitutional a Nevada statute that had the effect of directly regulating interstate commerce). Because Black Star Farms did not raise this issue before the district court, we decline to address it here. See AlohaCare v. Hawaii Dep’t of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009).
Here is a list of earlier ILB entries on wine shipping.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to General Law Related

Law - Missouri Governor uses "signing statement" to strike part of budget bill

Fascinating story from the April 18, 2010 St. Louis Post-Dispatch by David A. Lieb of the AP - some quotes:

JEFFERSON CITY, Mo. (AP) -- Gov. Jay Nixon delivered a swift verdict when presented with a recent budget bill by legislators. He signed it into law, then he immediately judged a section on school funding to be unconstitutional and declared he would not follow it.

Nixon's action appears to be unprecedented among recent Missouri governors. But it followed a centuries' old practice of U.S. presidents, who have cited constitutional grounds for ignoring portions of legislation that they sign.

The presidential practice has sparked outrage among some members of Congress. Nixon's action has caused similar alarm from some in the Missouri Capitol.

"It rocks the very nature of our foundation of a state, and I don't think I'm speaking in hyperbole," said Sen. Jason Crowell, R-Cape Girardeau.

That foundation to which Crowell refers is the constitutional separation of powers among the three branches of government. It is a basic principle of American civics that the legislative branch makes laws, the executive branch enforces laws and the judicial branch interprets laws.

"We now have a governor who thinks he's the judiciary as well," Crowell said.

Others are also miffed. * * *

If he objected to that approach, Nixon could have vetoed the bill and asked lawmakers to pass a new version. But Nixon instead signed the bill, directed the department to ignore the Legislature's instructions for dealing with the shortfall and sent legislators a message saying they had gone beyond their constitutional authority.

Nixon said the Legislature's directives violated a constitutional prohibition against changing laws through appropriations bills.

When The Associated Press inquired, Nixon's office cited two court cases as precedent.

In 1926, the Missouri Supreme Court struck down a provision in an appropriations bill barring state employees from being paid more than they had been during the previous two years. The court cited a constitutional provision prohibiting bills from containing more than one subject.

"To inject general legislation of any sort into an appropriation act is repugnant to the constitution," the court said in its written opinion.

In a 1999 case about where to locate a new state prison, a state appeals court again said that it would be unconstitutional for lawmakers to use an appropriations bill to change a state law.

Although not relying on presidents for his precedent, Nixon's action is nonetheless similar to what presidents have done throughout much of U.S. history.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to General Law Related

Ind. Law - Confusion continues about the local and state Indiana sex offender registries and the updates required by Wallace v. State

This ILB entry from Feb. 26, 2010 included quotes from a story by Jeff Neumeyer, posted Feb. 25th on the Fort Wayne Indiana News Center's website re the sex offender registry:

Indiana's attorney general says a uniform computer system would aid Hoosier officials in the big task of removing hundreds of names from the state's sex offender registry list.

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

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

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

The decision impacts somewhere around two-thousand offenders statewide. * * *

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

This weekend, numerous papers around Indiana carried an AP story that reported:
The Indiana Sheriff's Association is looking for new software to help it keep better track of the state's registered sex offenders, including those who are homeless.

The registry's Web site is updated daily, but new data doesn't always appear on the site immediately. That means some offenders are erroneously listed as failed to register, while others might not appear in the system yet after arriving in a county.

Sheriff's Association executive director Steve Luce says the software purchased in 2006 is no longer adequate.

"It was a good solution then, in 2006. That's kind of what we're trying to fix now, four years later," he said.

The association hopes to decide on a new software in the next few months that will help law enforcement agencies and the Department of Correction communicate with each other while providing real-time updates on the Web site.

"It's going to help track them better and give them better reminders" of when to check in with local law enforcement or attend scheduled appointments, Luce said.

Registered sex offenders, including those who are homeless, have 72 hours to report to local law enforcement when they arrive in a new county. Those who don't have a primary or temporary residence must notify law enforcement where they are staying at least once every seven days.

"If they're living under a bridge, and that's their address, they need to tell us that exact location," Luce said.

Police say it can be more difficult to keep information on homeless offenders current.

"Sometimes, it's hard to find them because they are transient," said Sgt. Jeff Canada of the Bloomington Police Department.

Failure to register as a sex offender is a Class D felony; it is charged as a Class C felony in subsequent offenses.

Oddly, the Feb. story quoting the attorney general made no mention of the legislation, SB 224, then pending (and since enacted), aimed at addressing some procedural aspects of implementing the Supreme Court's ruling in Wallace v. State. (Here is a list of ILB "Wallace" entries.)

Compounding that, yesterday's story quoting the Sheriff's Association makes no mention either of updating the registry to reflect the April 30, 2009 Wallace ruling, or of reconciling or synchronizing the sheriff's registry and the IDOC registry.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Indiana Law

Ind. Courts - Marion County Juvenile Court

The Indianapolis Star's lead story on the front page of yesterday's paper focused on the Marion County Juvenile Court. Unfortunately, the paper apparently elected not to make the lengthy story by Robert King available online.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Indiana Courts

Ind. Courts - "It's the public's business: Prosecutor must go now"

That is the headline to this editorial that appeared in the Sunday, April 18, 2010 Indianapolis Star. Some quotes:

Carl Brizzi admits he has been arrogant. He also claims that he was naïve. But the Marion County prosecutor has been guilty of something far worse: judgment so poor that it's broken the public trust and erased his credibility, to the point he can no longer effectively do the job to which he was elected.

Given that reality, there's only one honorable thing left for Brizzi to do: resign from his post. * * *

At the end of the day, and at what should be the end of his tenure in office, Carl Brizzi is a very damaged prosecutor.

He willingly accepted the trust voters placed in him to defend them from murderers, drug dealers and others who prey on the weak and the innocent. But Brizzi has exchanged that trust for opportunities to gain wealth -- opportunities that came his way not because of his business savvy but because of his position in public office.

Carl Brizzi had a choice to make. Serve the public faithfully and accept the necessary sacrifices, including financial; or make money through inappropriate outside entanglements. Brizzi chose the money.

Posted by Marcia Oddi on Monday, April 19, 2010
Posted to Indiana Courts

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

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

From Sunday, April 18, 2010:

From Saturday, April 17, 2010: From Friday afternoon, April 16, 2010:

Posted by Marcia Oddi on Monday, April 19, 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 4/19/10):

Next week's oral arguments before the Supreme Court (week of 4/26/10):

Next Thursday, April 29th


This week's oral arguments before the Court of Appeals (week of 4/19/10):

Monday, April 19th

Tuesday, April 20th

Wednesday, April 21st

Friday, April 23rd

Next week's oral arguments before the Court of Appeals (week of 4/26/10):

Next Tuesday, April 27th

Next Friday, April 30th

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, April 19, 2010
Posted to Upcoming Oral Arguments

Sunday, April 18, 2010

Ind. Law - More on: New law establishes procedures for AG to seize, secure, store, and destroy abandoned or at risk health records and other records containing personally identifying information

This ILB entry from yesterday, April 17, 2010, reports on three laws passed over the past several years relating to both dealing with those who abandon medical records, and what to do with sensitive documents that are abandoned. In South Bend...

Meanwhile, in Evansville, Courtney Gousman reported on April 15, 2010, via ABC News25:

EVANSVILLE - With the help of a tip, Evansville police make an interesting discovery that identity thieves would treasure.

Patient records, billing statements and even prescription pads all found inside a vacant medical building, owned by an area doctor. NEWS 25 talked to officers and found out the county prosecutor is now involved.

Boxes of medical records left behind.

Evansville police says Wednesday they were called to a old cancer center on North Burkhardt, after a worker from a nearby business, tipped them off to the medical records that were inside. * * *

NEWS 25 searched through the boxes and found everything from patient names, to addresses, and social security numbers, but officers tell us, the most disturbing find out of all this, were the doctor's prescription pads.

"Those are always subject to abuse by people with substance abuse issues," says DeYoung.

NEWS 25 learned the building where the documents were found, is owned by Evansville Dr. Lotfi Hadad who used to run Evansville Cancer Care there.

He now practices just steps away on Columbia. NEWS 25 tracked down Dr. Hadad, but he didn't want to comment about EPD's find.

"We don't know if there's actually a law violation or if it's strictly some type of HIPA thing, which will be dealt with through the licensing board," says DeYoung.

Hadad's office workers tell us, the building has been vacant for at least two years.

Anyone can just walk inside because there are no doors or windows. The city says it will soon be demolished to make room for more retail space. * * *

"Now we're awaiting a decision from the Vanderburgh County Prosecutor as to how we're going to proceed next," says DeYoung.

The county prosecutor tells NEWS 25, his office is still researching this case.

On April 16th News25 had a follow-up, by Marx Pyle:
EVANSVILLE - We have new information on the story we reported Thursday of patient files and prescription pads confiscated by police from an open, vacant medical building.

NEWS 25 learns no charges will filed against the Evansville doctor who owns the building.

Vanderburgh County prosecutors tell us they talked to the Indiana attorney general about the case, but could find no criminal wrongdoing.

Evansville police now tell us circumstances behind the find are suspicious.

Dr. Lotfi Hadad sent us a statement saying he is considering trespassing charges against the person who reported the files to police.

Posted by Marcia Oddi on Sunday, April 18, 2010
Posted to Indiana Law

Saturday, April 17, 2010

Ind. Gov't. - Yet more on "Porter County cannot leave RDA "

Updating this ILB entry from April 15, 2010, Bob Kasarda reported yesterday in the NWI Times in a story that begins:

VALPARAISO | The Porter County Council voted 5-2 Friday to appeal a court ruling from last week and push ahead with its attempts to withdraw as a member of the Northwest Indiana Regional Development Authority.

The group also voted by the same margin to hire Merrillville attorney Mitch Peters, who serves on the Porter County tourism board, to handle the appeal at a cost of $15,000 and related fees, such as filing costs.

"This issue is bigger than just the RDA," said Council President Dan Whitten, who supported the appeal along with members Laura Blaney, Sylvia Graham, Rita Stevenson and Marylyn Johns.

The question is whether state lawmakers have the power to force a county to come up with funding to take part in a regional group, he said.

Blaney said the legislation creating the RDA is unconstitutional in that it targets a specific county.

"They singled us out," she said. "It's just fundamentally wrong."

Posted by Marcia Oddi on Saturday, April 17, 2010
Posted to Indiana Government

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

Updating this ILB entry from March 25, 2010, supplemented by this ILB entry from April 1, 2010, Jason Moon of the Brazil Times reported yesterday under the heading "FSSA appeals decision in Chadwell case." Some quotes:

Despite a recent court ruling, a local resident isn't out of the woods yet.

In 2008, Clay County resident Edna Chadwell, along with seven others, waged a legal battle against the Indiana Family and Social Services Administration (FSSA).

The suit specifically targeted the FSSA's Aged and Disabled Waiver Program.

In early March, a decision by Clay County Superior Court Judge J. Blaine Akers ruled that caps on services through the program were "permanently enjoined."

The Aged and Disabled Waiver Program permits Medicaid recipients who "otherwise required institutionalization for their conditions -- whether that be in a nursing home, a hospital or another facility -- to receive services in their homes or a community-based setting," according to American Civil Liberties Union Of Indiana Attorney Gavin Rose, who represents Chadwell.

According to Rose, the waiver program had to be renewed by the FSSA every five years and the renewal then goes through an approval process by the United States Department of Health and Human Services.

However, Rose said when the renewal process came up in 2008, the FSSA included a limitation on the number of "attendant care" hours that enrollees may receive.

Following Akers' court ruling, Rose told The Brazil Times the state of Indiana had 30 days to file an appeal or file a Motion to Correct Errors. If neither was filed, the court decision would be declared final.

But earlier this week, the state filed an appeal to the ruling. * * *

Rose [said] the appeal process can take a while.

"I hate to guess at how long any appeal will take because it varies so much between cases," he said. "I think somewhere between six and eight months is usually a good guess for the time between the filing of an appeal and a decision by the Court of Appeals, but it is just a guess."

In late 2008, Rose said the FSSA received a preliminary injunction, which stated it had to continue providing the maximum amount of care hours for those in the program. Since the injunction, FSSA has complied with the order.

He said trial court orders remain in "full force-and-effect," pending appeals. But the party appealing could seek what Rose called a "stay" from the trial court, which is an order stating the trial court's decision will not be in effect during the pendency of the appeal.

Rose said the state asked for a "stay" in this case, which has been denied.

Posted by Marcia Oddi on Saturday, April 17, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Law - New law establishes procedures for AG to seize, secure, store, and destroy abandoned or at risk health records and other records containing personally identifying information

Remember this ILB entry from Nov. 14, 2009, headed "Boxes of medical files found abandoned in South Bend"? It was followed by this ILB entry from Dec. 11, 2009, quoting a representative of the Indiana Attorney General explaining that a 2006 and a 2009 law gave the office authority to deal with those that caused these problems.

Today Kevin Allen of the South Bend Tribune has a story headlined "Abandoned medical records led to new law: Attorney General says Tribune article alerted his office to problem." Some quotes:

SOUTH BEND — Abandoned medical records discovered last fall in a downtown office building were the impetus for a change in state law, Attorney General Greg Zoeller said Friday.

Senate Enrolled Act 356, which the General Assembly approved during its session this year, established procedures for the attorney general to obtain and secure records with personal-identity information and return them to their owners or destroy them.

Zoeller said a Tribune article, which reported that 21 boxes of records were found in a former doctor's office at 328 N. Michigan St., made his office aware of the potentially larger issue of what to do with sensitive documents that are abandoned.

Such situations could become more common as more offices transfer paper documents to digital systems, he said.

"It will become more of a problem if we don't get out in front of it," Zoeller said during a news conference at the St. Joseph County Public Library downtown.

Posted by Marcia Oddi on Saturday, April 17, 2010
Posted to Indiana Law

Friday, April 16, 2010

Ind. Gov't. - "How the 50 States Rate in Providing Online Access to Government Spending Data"

Indiana Legislative Insight's upcoming issue includes this item:

In Following The Money: How The 50 States Rate In Providing Online Access To Government Spending Data, the U.S. Public Interest Research Group examines whether or not states allow citizens to see government expenditures online and grades them from A to F The budget accountability and accessibility report finds Indiana in a 14-way tie for last place with an F grade for "No transparency Web site." Two [sic.] of our neighbors, Kentucky, Ohio, and Illinois, rank 1-2-3 nationally.
See the report's executive summary here. The full report, which I haven't had a chance to read yet, looks very useful.

This trumps a Ralph Nadar study, reported by the ILB on April 3, 2009, of which the ILB was critical.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today, including very interesting post-Wallace sex offender opinion (and 9 NFP)

For publication opinions today (4):

In Walter T. Yoost, et al. v. Irwin Zalcberg , a 15-page opinion, Judge Crone concludes:

In sum, the trial court properly entered summary judgment in favor of Zalcberg on his mortgage foreclosure claim against Yoost and in favor of Zalcberg on Yoost’s second amended counterclaim to the extent the counterclaim asserts that there was an oral release of the mortgage. Any purported oral release of the mortgage is in contravention of the Indiana Statute of Frauds. The trial court properly entered partial judgment on the pleadings in favor of Yoost and against Zalcberg on Zalcberg's abuse of process claim and, consequently, his conspiracy to commit abuse of process claim. Zalcberg’s abuse of process claim is barred by the two-year statute of limitations. The judgment of the trial court is affirmed in all respects.
In Howard Regional Heatlh System, et al. v. Jacob Z. Gordon, et al. , a 26-page opinion, Judge May writes:
Jacob Gordon suffers from a number of serious disorders that could have been caused by substandard medical care at the time of his birth. After Jacob’s mother (hereinafter “Gordon”) commenced a medical malpractice action, evidence was requested from Howard Community Hospital, where Jacob was born. A year and a half after Gordon’s request, the Hospital responded with an affidavit stating some of the evidence was missing. Gordon filed a motion for partial summary judgment against the Hospital for spoliation of evidence, and the trial court granted that motion. We affirm. * * *

Gordon alleged sufficient facts to support her motion for summary judgment on the issues of liability and proximate causation, and she was not obliged to proceed with the underlying medical malpractice action in order to show the potential amount of damages before bringing a spoliation action. We affirm the trial court.

In Steven Craig Allen v. State of Indiana , a 25-page opinion, Judge Barnes concludes:
The trial court did not abuse its discretion by admitting photographs of the building and fire damage that had captions or by admitting evidence of Allen‟s extramarital affair as proof of motive. Further, no fundamental error occurred by the lack of a limiting instruction regarding the extramarital affair. We conclude that the evidence was sufficient to sustain Allen‟s convictions, and his 220-year sentence is not inappropriate in light of the nature of the offense and the character of the offender. We affirm.
In Oscar L. Blakemore v. State of Indiana , a 6-page opinion, Judge May writes:
The trial court found Oscar Blakemore guilty of failure to register as a sex offender, a Class D felony, even though there was no such registration requirement when he committed the underlying offense or when he was convicted of it. That retroactive application of the sex offender registry requirement violated the Indiana constitutional prohibition of ex post facto laws, and we accordingly must reverse. * * *

The State does not explicitly argue the registration requirement may be imposed on Blakemore without subjecting him to an ex post facto law in violation of the constitution. Rather, it asserts, the Wallace Court’s ex post facto analysis “may be ignored” because “Blackmore agreed to follow the statutory guidelines for sex offender registration and must therefore obey the statutes.” (Appellee’s Br. at 12.) However, the “statutory guidelines for sex offender registration” to which the State asserts Blackmore “agreed” did not apply to Blakemore at the time of his conviction. We therefore decline the State’s invitation to ignore the Wallace analysis.

The State urges us to affirm on the grounds Blakemore waived his constitutional argument or abandoned any such claim when he entered into his plea agreement. “Blakemore did something Wallace did not do . . . Blakemore agreed, explicitly and pursuant to the terms of his plea agreement, to comply with whatever the Indiana Code required of him, in the way of sex offender registration.” (Id. at 10) (emphasis supplied).

We decline to hold Blakemore “agreed” to requirements the Code did not impose when he entered into that agreement. A plea agreement is contractual in nature, binding the defendant, the state, and the trial court. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied 915 N.E.2d 984 (Ind. 2009). The prosecutor and the defendant are the contracting parties, and if the trial court accepts the plea agreement, it is bound by its terms. Id. We look to principles of contract law when construing plea agreements to determine what is reasonably due the defendant. Id. The primary goal of contract interpretation is to give effect to the parties’ intent. Id. It has long been established that we cannot enlarge the terms of the contract or read into it additional provisions, Thomas v. Troxel, 26 Ind. App. 322, 59 N.E. 683, 685 (1901), and we decline the State’s invitation to so enlarge Blakemore’s plea agreement by reading into it an agreement to predict any changes in the law the legislature might subsequently enact, and to comply with any such changes.

The State next asserts Blakemore waived the ex post facto argument he now asserts on appeal because he “failed to raise any constitutional concerns when pleading guilty.” (Br. of Appellee at 7.) As explained above, the “constitutional concern” now before us did not exist when Blakemore entered into his plea agreement. Rather, his plea agreement contained a clause that by its very language did not apply to Blakemore, and neither he nor his counsel could be expected to predict what amendments our legislature might make to the sex offender registration act. His failure to raise that non-existent “concern” does not now preclude his ex post facto challenge.

Blakemore, like Wallace, was subjected to an ex post facto law in violation of the Indiana Constitution. When he was convicted in 1999 of Class C felony sexual misconduct with a minor, no statute required him to register as a sex offender. Therefore, application of the current version of the Sex Offender Registration Act to Blakemore “imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed,” Wallace, 905 N.E.2d at 384, and is unconstitutional.

For all these reasons, we reject the State’s assertion that a defendant’s agreement to “comply with the statutory requirements in registering” as a sex offender, (Ex. 1 at 7), subjects him to subsequent punishment under laws not in existence when he entered into the agreement. We accordingly reverse Blakemore’s conviction of failure to register as a sex offender. Reversed.
___________
ILB - From note 3 on p. 2 - We do not address whether a trial court may, as a condition of probation, impose a registration requirement on a defendant who is not within the statutory definition of “sex offender.”

NFP civil opinions today (2):

Kevin and Valerie Madison v. Jerry and Peggy Gies (NFP)

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

NFP criminal opinions today (7):

Reginald Sanders v. State of Indiana (NFP)

Joseph B. Temple v. State of Indiana (NFP)

Michael Lloyd Lindsey v. State of Indiana (NFP)

Larry Crittenden (a/k/a Larry Crittender) v. State of Indiana (NFP)

Accie Smith v. State of Indiana (NFP)

Julian D. Grady v. State of Indiana (NFP)

Donald S. Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana case decided today by the 7th Circuit

In a ruling today, Chief Judge Easterbrook reverses a decision by then-district court judge David Hamilton, recently elevated to the 7th Circuit.

In Evans v. Poslon (SD Ind., Hamilton), a 5-page opinion, CJ Easterbrook writes:

Police burst into the home of Ty Evans to stop what they reasonably believed was his attempt to strangle someone to death. According to the officers, Evans resisted arrest and had to be subdued; according to Evans, he offered no resistance and was beaten mercilessly both before and after the officers gained custody of him. A state court convicted Evans of attempted murder and resisting arrest; he is serving a term of 71 years’ imprisonment. See Evans v. State, 855 N.E.2d 378 (Ind. App. 2006).

In this suit under 42 U.S.C. §1983, Evans accuses the officers of violating the fourth amendment by using excessive force during and after his arrest. The district court granted summary judgment for the defendants, concluding that Heck v. Humphrey, 512 U.S. 477 (1994), bars this claim because Evans’s assertion that he did not oppose being taken into custody contradicts his conviction. Unless the resisting-arrest conviction is set aside, the district court concluded, Evans has no claim under §1983. 2009 U.S. Dist. LEXIS 66067 (S.D. Ind. July 28, 2009).

The district court did not discuss Wallace v. Kato, 549 U.S. 384 (2007), doubtless because neither side cited it. But Wallace holds that a claim that accrues before a criminal conviction may and usually must be filed without regard to the conviction’s validity. The Court held that a claim asserting that a search or seizure violated the fourth amendment—and excessive force during an arrest is such a claim, see Graham v. Connor, 490 U.S. 386 (1989)—accrues immediately. The prospect that charges will be filed, and a conviction ensue, does not postpone the claim’s accrual. Wallace added that a conviction does not un-accrue the claim, even if the arguments advanced to show a violation of the fourth amendment also imply the invalidity of the conviction. 549 U.S. at 392–93. Instead of dismissing the §1983 suit, the district judge should stay proceedings if the same issue may be resolved in the criminal prosecution (including a collateral attack). 549 U.S. at 393–94; see also Heck, 512 U.S. at 487 n.8. * * *

Evans’s situation illustrates how a fourth-amendment claim can coexist with a valid conviction. He contends three things: (1) that he did not resist being taken into custody; (2) that the police used excessive force to effect custody; and (3) that the police beat him severely even after reducing him to custody. * * * Proposition (1) is incompatible with his conviction; any proceedings based on this contention must be stayed or dismissed under Wallace or Heck. But propositions (2) and (3) are entirely consistent with a conviction for resisting arrest. * * *

Evans, a prisoner proceeding without counsel, struggled to articulate his contentions in a way that would avoid problems under Heck. But this sort of difficulty, which was evident in Gilbert too, must not be confused with a desire to abandon propositions (2) and (3) if the court concludes (as it must) that proposition (1) cannot be maintained while the conviction stands.

Evans is entitled to an opportunity to prove that the defendants used unreasonable force during and after his arrest. The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Indiana family's drug case spawns huge auction of confiscated items"

Pam Tharp of the Richmond PalladiumItem reported this long story, today carried in the Louisville Courier Journal. It begins:

BROOKVILLE, Ind. — The auction of items confiscated from a family accused of drug trafficking is expected to draw thousands of people to the Franklin County Fairgrounds on Saturday.

Everything from meat saws and miter boxes to a Ford Mustang will go on the auction block to settle income and sales taxes owed to the state of Indiana.

“We've never had an auction like this,” said Brookville auctioneer Dave White, whose family has been in the auction business since 1922. “We've had huge sales before, but this is unusual. It's going to be an event.”

The sale by Franklin County Sheriff Dale Maxie will settle tax warrants issued by the Indiana Department of Revenue in January against Bill and Darlene Conn of Laurel. The state issued 10 warrants totaling about $800,000 against the couple for unpaid income and sales taxes dating to 2004, court documents show.

Indiana law allows the Department of Revenue to assess taxes on controlled substances that are delivered, possessed or manufactured. The total includes penalties and interest.

After the civil warrants are filed with the county clerk, the law gives the county sheriff 120 days to collect on tax warrants on behalf of the state, said Stephanie McFarland, Department of Revenue spokeswoman.

The sheriff has the legal authority to sell property at auction to collect on the warrants, McFarland said.

When authorities raided the Conns' property on Smokey Hollow Road in April 2009, they reported recovering hundreds of tools and other items believed to be stolen. State revenue agents catalogued items removed from the property, McFarland said. The department has made no estimate of their value, she said.

“The auction does that,” McFarland said.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Indiana Law

Ind. Law - Continuing series on: "The politics of trash" in Lake County

Updating this ILB entry from yesterday, Christine Kraly of the NWI Times today has the paper's story, this one titled "Ethanol contract can't protect everything ." It begins:

For years, proponents of the waste-to-ethanol plant slated for Schneider have touted its ability to turn the county's trash into energy, all without a dime from taxpayers.

"We have absolutely no downside," said Jeffrey Langbehn, executive director of the Lake County Solid Waste Management District. "There's no great next scandal on this thing."

Langbehn and district legal counsel Clifford Duggan say they are confident the county is fully protected in its contract with Powers Energy One to host the plant.

But a legal expert's look at the contract shows some costs to the county could be unavoidable.

Who's liable for contamination?

The Times provided a copy of the Powers Energy contract to Jeremy Telman, a Valparaiso University Law School professor specializing in contract law.

Telman called the agreement "well drafted" to protect the county's interests, but he said he doesn't think it's possible to contract against all potential future problems.

"It seems like they've done everything to protect themselves through contractual means," Telman said. "My concern is that it is not really possible to insulate a public entity from liabilities that might arise under statutes."

ILB: The NWI Times has not, as far as I know, posted a copy of the Powers Energy One contract.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Indiana Law

Ind. Courts - "Supreme Court says no deal in place with McKinney"

From the teaser to The Walker/Roysdon Report, "exclusively in Friday's print edition of The Star Press":

While Delaware County Prosecutor Mark McKinney announced this week he'd learned that any suspension of his law license stemming from the DTF/forfeiture scandal would not exceed 180 days, he cited the Indiana Supreme Court as his source.

Not so fast, a spokesman for the five Supreme Court justices told The W/R Report on Thursday.

"The Supreme Court has not determined any final resolution to the McKinney case," she maintained, while McKinney, now 18 days away from a contested Democratic primary race, said he was sticking to his story.

See also this Sept. 14, 2009 ILB entry.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Indiana Courts

Ind. Decisions - "Chesterton lawyer hit with reprimand"

Teresa Auch Schultz has this story in today's Gary Post Tribune:

A Chesterton lawyer is being publicly reprimanded by the Indiana Supreme Court for not being clear with a client about payment on an overdue bill.

According to a filing from the court's Disciplinary Commission from March, George Livarchik had agreed to represent a client for an hourly fee, with the client making monthly payments.

Continuing, from the Order itself:
When the client fell behind in her payments, the trial court entered a stipulated order requiring the client and her husband to turn over their tax refunds to Respondent's trust account. The client and her husband failed to comply with the order. Three days prior to the final hearing in the matter, Respondent presented to the client, and the client signed, a promissory note for the amount of fees owing secured by a mortgage on her real estate. Respondent entered into this transaction without giving the client a copy of the document prior to the time it was executed, without giving her a reasonable opportunity to seek independent counsel, and without obtaining her written informed consent to the essential terms of the transaction.

The parties cite no facts in aggravation. Facts in mitigation are: (1) Respondent's lack of disciplinary history; and (2) his cooperation with the Commission.

Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.8(a), which prohibits entering into a business transaction with a client unless the terms are fair and reasonable, the terms are fully and clearly disclosed, the client is given reasonable opportunity to seek independent counsel, and the client consents in writing to the transaction.

Discipline: The parties propose the appropriate discipline is a public reprimand.

Posted by Marcia Oddi on Friday, April 16, 2010
Posted to Ind. Sup.Ct. Decisions

Thursday, April 15, 2010

Ind. Decisions - Supreme Court posts another today

In Jimmie C. Smith v. Champion Trucking Company, Inc., a 9-page, 5-0 opinion in an appeal where the Trial Lawyers and Defense Trial Counsel have submitted amicus briefs for the opposing parties, Justice Boehm writes:

We hold that under Indiana’s Worker’s Compensation Act, an employer’s worker’s compensation liability for an employee’s benefits terminates if the employee settles a claim against a third party for the same injury without first obtaining the employer’s consent to the settlement. The Board’s decision dismissing Smith’s Application for Adjustment of Claim is affirmed. * * *

For at least twenty years the Court of Appeals has held that if an employee settles with a third party without first obtaining employer’s consent, the employer’s sole avenue for reimbursement of worker’s compensation payments is through the employee, and the employer may not continue to pursue the third party. State v. Mileff, 520 N.E.2d 123 (Ind. Ct. App. 1988). Although some other jurisdictions do not adhere to the same interpretation of similar provisions,6 the Court of Appeals, citing the interest of finality from the point of view of the third party, has long held that once an employee releases the third party from liability related to the injury-causing accident, the employer may not continue to pursue the third party. Given this longstanding precedent on an issue of statutory interpretation, we believe it is up to the legislature to implement any change. DePuy, 847 N.E.2d at 168; Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005).

Conclusion. The finding of the Full Worker’s Compensation Board dismissing Smith’s Application for Adjustment of Claim is affirmed.

Shepard, C.J., and Sullivan and Rucker, JJ., concur.
Dickson, J., concurs in result.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Federal prosecutors: inmate ran Indiana drug ring from prison

Charles Wilson of the AP has a brief story, which I expect will be expanded later:

INDIANAPOLIS — Nineteen people have been indicted in what federal prosecutors say was a drug ring that was run from a state prison by an inmate using a cell phone.

The federal indictment unsealed Thursday names 39-year-old Wesley S. Hammond as the ringleader. Hammond is in the New Castle state prison serving a 15-year sentence for drug dealing.

Federal agents reported seizing more than a pound of methamphetamine, more than 200 pounds of marijuana and nearly $81,000 in cash during raids in the Terre Haute area.

U.S. Attorney Tim Morrison says all of the suspects are in custody and are expected to seek lawyers before court hearings scheduled for Monday.

The arrests resulted from a five-month investigation by federal, state and local agencies.

Here is more, from the Terre Haute Trib-Star:
The arrests resulted from a five-month investigation directed by the Evansville office of the Drug Enforcement Administration, the Vigo County Drug Task Force, Vigo County Prosecutor’s Office, the Indiana State Police, and the Vincennes Police Department. Other law enforcement agencies that participated in the investigation included the Bureau of Alcohol, Tobacco, & Firearms, Federal Bureau of Investigation, Clay County Sheriff’s Department, and other federal, state and local law enforcement agencies. * * *

All 19 defendants are charged with conspiracy to distribute methamphetamine. In addition, Shelton is charged with a separate count of distribution of methamphetamine. The indictment charges that Wesley Hammond, an inmate at the New Castle (Indiana) Correctional Institution, maintained a cellular telephone while in prison and used the cellular telephone to coordinate the activities of a methamphetamine trafficking organization operating in Terre Haute. Hammond’s girlfriend, Jennifer Poltrock, allegedly served as Hammond’s lieutenant in Terre Haute and distributed methamphetamine and marijuana to drug dealers who worked for Hammond.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Government

Ind. Decisions - Supreme Court posts one today (so far ...)

In David A. Shotts v. State of Indiana, an 11-page opinion, Justice Boehm writes:

David Shotts was arrested in Indiana by local law enforcement officers who had been advised of an outstanding Alabama warrant for his arrest. In the course of the arrest, Shotts was found in possession of an unlicensed handgun, which resulted in charges of violations of Indiana law. We hold that the Indiana arrest in reliance on information from Alabama law enforcement officers and the National Crime Information Computer did not violate either the Fourth Amendment or the Indiana Constitution. The evidence of his possession of a handgun is therefore admissible in this Indiana prosecution. * * *

Shotts appealed, contending that the Alabama warrant was defective and therefore the trial court erred in denying his motion to suppress and admitting the evidence of his weapon possession. The Court of Appeals agreed, reasoning that the affidavit supporting the Alabama warrant ―merely alleged that Shotts had committed a crime‖ and "did not provide any facts from which a neutral magistrate could have drawn his own conclusion as to the existence of probable cause." Shotts, 907 N.E.2d at 137. Based on this shortcoming, the Court of Appeals reasoned that although the Indiana officers acted in good faith, the Alabama officer who obtained the warrant on the basis of a facially defective affidavit did not. Id. at 138–39. As a result, the good-faith exception was inapplicable. Id. We granted transfer. * * *

Much of the debate in [Herring v. United States, 129 S. Ct. 695, 698 (2009)] between the five Justices in the majority and the four dissenters focused on the extent to which the exclusionary rule was grounded in "a more majestic conception" than simple deterrence of improper law enforcement. * * * As Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, noted in dissent in Herring, applying the exclusionary rule to negligent as well as intentional police errors may have the salutary effect of encouraging monitoring of systems and procedures to avoid mistakes. Id. at 708 (Ginsburg, J., dissenting). And as Justice Breyer noted, errors by some agency other than the police may provide less reason to exclude erroneously seized evidence. Id. at 710–11 (Breyer, J., dissenting). Under the Indiana Constitution we need not resolve these issues today. If any flaw existed in the Alabama warrants, it was the product of an agency—whether Alabama law enforcement or Alabama judiciary—over which Indiana police have no control.

Conclusion. Shotts‘s convictions for violations of Indiana firearms laws are affirmed.

Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., concurs in result with separate opinion [that concludes]: I vote to affirm Shotts‘s conviction without resorting to the recent United States Supreme Court exclusionary rule decision, Herring v. United States, 129 S. Ct. 695 (2009). In my view, the Court‘s lengthy discussion of Herring is unnecessary. Herring assumed that the defendant had been the victim of an unconstitutional arrest. Id. at 699. The question in Herring was whether the evidence seized during an unconstitutional arrest needed to be suppressed. Id. In contrast, the question here is whether Shotts‘s arrest was constitutional. Because the Court concludes that the arrest was valid, the handgun was validly seized without implicating the exclusionary rule.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In GIW Industries, Inc. v. Patriot Materials, Inc., et al. , a 10-page opinion, Judge Riley writes:

GIW raises one issue on appeal, which we restate as: Whether the trial court improperly declared a valid and certified judgment from the State of Georgia void for lack of personal jurisdiction due to defective service of process. * * *

GIW contends that the trial court abused its discretion when it denied full faith and credit to the judgment rendered by the Georgia court on the basis that the Georgia judgment was void for lack of personal jurisdiction and failure to properly serve notice. * * *

[In order to prevail], the Appellees were required to establish that the Georgia court lacked jurisdiction in rendering its verdict under Georgia law. * * *

In light of these decisions, we find that personal jurisdiction was established over Appellees under Georgia's Long Arm Statute. The facts are undisputed that Hartman submitted a credit application to GIW through GIW's website. After checking Hartman's references, GIW accepted the application and thereafter, Hartman placed an order with GIW. In connection with this order, Hartman discussed by telephone the technical specifications with GIW's technician, who was located in Georgia. When the order was ready, GIW shipped the parts from Georgia to Indiana as directed by Hartman.

By filling out an application on GIW's website, and thereafter seeking telephonic contact with GIW to finalize and place the order, Hartman purposefully consummated a transaction in Georgia. Even if Appellees did not regularly conduct business in Georgia, no doubt exists that Appellees sought to derive some economic benefit from its interstate business activity with GIW. As a result, we conclude that intangible Georgia contacts suffice to bring Appellees within the purview of Georgia's Long Arm Statute.

With respect to service of process under Georgia law, we note that Georgia's Long Arm Statute allows service outside the state in the same manner as in Georgia for defendants who are subject to personal jurisdiction under the statute. * * *

Here, the process server stated in his return of service that he had personally served a summons and complaint on Hartman on December 27, 2007, at Hartman's Indiana address. As such, we conclude that GIW made a prima facie showing of reversible error and thus, we find that the trial court abused its discretion when it refused to grant full faith and credit to the Georgia judgment and declared it to be void.

Based on the foregoing, we find that the trial court improperly denied full faith and credit to a judgment from the State of Georgia. Reversed.

In Brett Melton v. James Ousley , relating to a dispute between two professional golfers. In a 19-page opinion, Judge Najam writes:
Brett Melton appeals the trial court's order granting summary judgment in favor of James Ousley on Melton's complaint alleging defamation and tortious interference with a contractual employment relationship. * * *

Melton has not shown that the trial court erred when it granted summary judgment in favor of Ousley on the claim of tortuous interference with a contractual business relationship. Affirmed.

In Richard L. Barnes v. State of Indiana , a 16-page opinion, Judge Mathias writes:
On appeal, Barnes challenges the trial court's refusal to give his tendered jury instruction regarding the right of a citizen to resist unlawful entry into his home and the sufficiency of the evidence to support his convictions. We reverse and remand for proceedings consistent with this opinion. * * *

We reverse Barnes's disorderly conduct conviction because the State failed to prove that Barnes's noisy political expression was an abuse of his right to free speech. We also reverse Barnes's convictions for battery on a law enforcement officer and resisting law enforcement, but we remand for a new trial on those convictions because the jury was not properly instructed on Barnes's defense of the right to reasonably resist unlawful entry into his home.

In Russell A. DeHahn v. CSX Transportation, Inc. , a 19-page opinion, Judge Mathias concludes:
DeHahn's FELA claim against CSX is not precluded by FRSA regulations regarding ballast. Considering the designated evidence in the light most favorable to DeHahn as the non-moving party, and given the liberal interpretation of FELA, we conclude that there is a genuine issue of material fact with regard to whether CSX was negligent in failing to remove the ballast from the crossties. We therefore do not address DeHahn's argument that the trial court erred in failing to consider his expert's report as designated evidence. The trial court's entry of summary judgment in favor of CSX is reversed, and the cause is remanded for proceedings consistent with this opinion.
NFP civil opinions today (1):

D.J., et al., Alleged to be CHINS; J.A., et al. v. IDCS (NFP)

NFP criminal opinions today (7):

Brandon Ingram v. State of Indiana (NFP)

Brandon Ingram v. State of Indiana (NFP)

Randall Shipp, Jr. v. State of Indiana (NFP)

James Wilson v. State of Indiana (NFP)

Kevin Chrisman v. State of Indiana (NFP)

Michael N. Newsom v. State of Indiana (NFP)

Vaughn Reeves, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Dana Kenworthy to serve as Grant County Superior Court 2 judge

From the Supreme Court press liaison:

The Indiana Supreme Court has received a petition (case number 27S00-1004-MS-177) from Grant County Judge Randall Johnson stating that because of illness he is unable to perform the duties associated with Superior Court 2. Under Trial Rule 63 (B) (1), the Supreme Court has granted the petition. The Court has appointed a full time judge pro tempore. Effective Monday, April 19th, attorney Dana Kenworthy will serve as the judge of the court until further order of the Supreme Court.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Courts

Ind. Law - Law school rankings out

Here here Indiana's four law schools, side-by-side.

Notre Dame is ranked 22, IU-Mauer is 27, IU-Indy is 86, Valpo is not ranked.

[More]
Here is a 7-page PDF, via WSJ Law Blog.

For comparison, here is last year's ILB entry.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Law

Law - "With Cars as Meth Labs, Evidence Litters Roads"

A long story today in the New York Times, by Susan Saulny. The dateline, unfortunately: ELKHART, Ind. The story begins:

ELKHART, Ind. — The toxic garbage, often in clumps, blends in easily with the more mundane litter along rural roads and highways here: used plastic water bottles, old tubing, dirty gloves, empty packs of medicine. But it is a nuisance with truly explosive potential, and evidence of something more than simply a disregard for keeping the streets clean.

“The way to get rid of your meth lab these days is to put it in a plastic bag, then throw it out the car window,” said William V. Wargo, the chief investigator for the prosecuting attorney’s office in Elkhart County.

In the last few weeks, as the snow that had obscured the sides of roads, fields and parks has melted, law enforcement officials here have found at least a dozen so-called trash labs, the latest public safety hazard to emerge from the ever-shifting methods of producing methamphetamine.

Each trash lab becomes a crime scene and is proof, officials said, that a new and ever more popular way of making meth does not demand a lot of space or a lot of pseudoephedrine, an essential ingredient. The new method is a quick, mobile, one-pot recipe that requires only a few pills, a two-liter bottle and some common household chemicals.

Law enforcement officials in several states say that addicts and dealers have become expert at making methamphetamine on the move, often in their cars, and they discard their garbage and chemical byproducts as they go, in an effort to destroy evidence and evade the police.

Just as some states had reported progress in stamping out home-based meth labs, this transportable process has presented a new challenge: 65 percent of meth lab seizures in Tennessee, for instance, are now the one-pot, or “shake-and-bake,” variety. The number of meth labs seized in Oklahoma last year increased to 743 from 148 just four years ago, largely because of the prevalence of moving labs. In Indiana, the state police reported that meth lab seizures rose nearly 27 percent from 2008 to 2009.

Mr. Wargo attributed at least half of the new meth activity in Elkhart County to the easier one-pot arrangements. He began seeing the switch in 2008.

“We are so under water on this thing,” he said.


Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Law

Law - "The Office of Legal Counsel, still in limbo"

Excellent editorial today in the Washington Post.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to General Law Related

Ind. Gov't. - "Batesville City Council Says No To Golf Carts On Streets"

WRBI Country 103.9 reported yesterday:

You won’t be seeing golf carts on city streets in Batesville. Batesville City Council had asked Chief Stan Holt to research the possibility of allowing golf carts on city streets. It came up at the time as a means for citizens to save on gas.

However, the Batesville police chief said he researched the state law, talked with the fire chief, state police and city attorney, and looked at ordinances for other communities, but his biggest concern is in regard to safety. "I think one of the things we have to take into consideration is the population of Batesville," he said.

Indiana law was redefined to categorize golf carts as a motorized cart, which would exclude it from vehicle requirements such as lights, seat belts. While the state is allowing it, an ordinance has to be enacted by communities before they can be on local roads. Holt mentioned the McDonald's area gets congested at certain times of day and this would add to it.

Oldenburg passed a law to allow golf carts in the town streets. Osgood passed a similar ordinance last June.

Holt thinks Batesville might be too big for golf cart usage on the streets. He mentioned the industrial traffic the town gets, as well as some blind spots on Huntersville and Delaware roads.

The state law allows 16 year olds with a license to operate the vehicle, but there are no seat belts, lights, and how many passengers are allowed, he asked. Do you allow a 2 year old on the lap of someone, he asked. "Will they pile their buddies pile onto a car that seats four people...those are some things I perceive happening," Holt said.

Council member Ham Streuwing said without a lot of safety restrictions in the ordinance, they’re asking for trouble. Bob Narwold said initially he was for it, but after hearing from the police chief he didn’t support the idea. Ed Hunter, a former state police officer, said it would be a nightmare to enforce.
One citizen at the meeting said he didn’t see the difference between that and scooters in town.

City attorney Lynn Fledderman said she could draft an ordinance, but it would be complicated considering speed, equipment and age restrictions, enforcement, hours of operation.

After Holt's presentation, the council told Holt he doesn’t need to pursue the matter.

As regular ILB readers know, the ILB has followed the "golf cart on city streets" issue for years (since March 2006). See the list of entries here.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Government

Ind. Courts - More on "Attorney quits practice, leaving clients in lurch"

Updating this ILB entry from Dec. 16, 2009, Alicia Gallegos reported yesterday in the South Bend Tribune under the heading "South Bend attorney to serve home detention in resisting case."

A South Bend attorney will head to community corrections after being sentenced for becoming violent with police officers last year.

Patrick Boulac of Granger was originally charged with felony resisting law enforcement and misdemeanor counts of possessing marijuana and paraphernalia in the October incident.

Police initially were called to Boulac's home on a report that he was despondent and found Boulac smoking from what appeared to be a marijuana pipe, according to past reports. Boulac resisted when they tried to arrest him, putting one officer in a headlock. Boulac was stunned with a Taser and arrested.

The attorney eventually pleaded guilty to the resisting charge. As part of a plea agreement, the other three counts were dismissed.

Boulac was sentenced Tuesday to 18 months in prison, with 12 months suspended, and ordered to serve the remaining six months in home detention at DuComb Center.

The Indiana Supreme Court also recently suspended Boulac's license for at least six months, with no automatic reinstatement, meaning he will have to reapply for his law license if he ever wants to resume practice.

Former clients of Boulac previously had complained that he had left his practice without telling them and left their cases and payments unresolved.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Courts

Ind. Gov't. - Still more on "Porter County cannot leave RDA "

Updating this ILB entry from April 10th, Jeff Schultz reported yesterday in the Chesterton Tribune:

The Porter County Council has announced it will hold a special meeting at 5:00 p.m. on Friday to discuss pending litigation regarding whether it will decide to appeal last week’s ruling that the county does not have the legal grounds to withdraw from the Northwest Indiana Regional Development Authority.

Several council members expressed disappointment in Jasper County Circuit Court Judge John Potter’s ruling last week against the council which sought a legal declaration since filing at lawsuit on Aug. 28, 2009. The council has said the legislation that forced them into the RDA is “unconstitutional” since it voted 4-3 to leave the RDA a year ago. Potter ruled the 2005 legislation to create the RDA had already included Porter County as a member. * * *

The council may also decide on Friday, depending on whether a consensus to appeal is reached, to choose a new law firm to represent the council in subsequent proceedings which may save the county additional money. The county to date has retained the Hall Render firm of Indianapolis for its legal arguments against the RDA and has paid the firm about $65,000 in service fees.

Council member Rita Stevenson, D-2nd, told the Tribune earlier this week the costs for appeal proceedings will be much lower since the research work portion of the legal process has already been done.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Indiana Government

Ind. Courts - COA holds oral argument at Floyd Central High School

Panels of the Court of Appeals conduct many of their oral arguments outside their Statehouse courtroom, in locations throughout the State. This happens so frequently now that there is little press coverage. Yesterday, April 14th, however, reporters from two different southern Indiana papers covered an argument in Floyd County and wrote stories that went beyond the Court's press release.

Howard J. Adams of the Louisville Courier Journal wrote this story, that begins:

When three Indiana Court of Appeals judges reached for their robes before listening to arguments Wednesday, they did so in the boys’ bathroom at Floyd Central High School instead of their usual anteroom in the Indiana Statehouse.

The “all rise” command was given in the Floyd Central auditorium before Judges James Kirsch, Carr Darden and L. Mark Bailey walked onto the stage to hear arguments in the case of Jeffrey Boggs v. State of Indiana.

Boggs’ appeal of his drug conviction and sentencing in Jennings Circuit Court was heard at the school as part of the court’s “Appeals on Wheels” program intended to make it easier for people outside of the state’s capital to see the court at work.

Tara Hettinger of the New Albany News & Tribune had this report, accompanied by several photos. Some quotes:
FLOYD COUNTY — FLOYDS KNOBS — Students and community members watched the stage intently at Floyd Central High School to see not a play, but a real-life court hearing in action.

The Court of Appeals of Indiana stopped by Wednesday to have the appeals hearing of Jeffrey Boggs v. State of Indiana at the school, as part of the court traveling the state to allow Hoosiers to learn more about the judicial branch.

“It’s a great opportunity for our students to actually see a court presiding over a case,” FCHS Principal Louis Jensen said. “It’s hard to duplicate that in the classroom.” * * *

After the hearing the three as well as the attorneys answered questions from the audience.

Judge Mark Bailey told the audience that the job of the appeals court is to determine if an error made in trial was harmless or not.

“We’re always striving to give people fair trials, not perfect trials,” he said.

Judge James Kirsch said oftentimes deciding isn’t as easy as figuring out what is right and wrong.

“The law is nothing less than what is right and what is right,” he said. “It’s those rights that’s the challenge and we have to balance it every day.”

He said incarcerating a person costs about $27,000 to $28,000 a year, so a 40-year sentence means $1 million to taxpayers. He said that is an issue to be considered as well.

Judge Carr Darden said the average death penalty case ends up costing $2.5 million before the person is executed.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to Ind. App.Ct. Decisions

About this blog - 7th birthday of ILB; how to become a supporter

7th Birthday. The Indiana Law Blog had its 7th Birthday on March 16th, 2010! To see the first entry you'd have to go back to March 2003 on the Old Blog Site. Starting on January 29, 2004, the ILB moved to the NewBlog Site - the one you are reading now.

High Stats. The ILB made its SiteMeter stats accessible in 2008. In addition, check Justia, a site that ranks around 2,000 law blogs.

Supporters. Many thanks to the Indiana State Bar Association, which signed on as an annual supporter July 1st, 2007 and has been renewing every year. And to Doxpop, LLC, which has been an ILB supporter since April 1, 2008 and just signed on again for another year, with Mr. Ontko writing:

We'd be delighted to continue for another year. Thanks for all you do to bring light to the important public policy questions that affect our courts and the people of our state.
What about you and your firm or company?

Then please sign on as annual ILB supporter -- pay quarterly, the next quarter starts July 1st, but the ILB can prorate and you can start your listing today.

Check the Law Firm Supporters page. Your firm could join this list of ILB supporters:

Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

Or, better still, become a Front Page ILB Supporter, like the Indiana State Bar Association and Doxpop.

Posted by Marcia Oddi on Thursday, April 15, 2010
Posted to About the Indiana Law Blog

Wednesday, April 14, 2010

Ind. Decisions - Supreme Court posts a second decision today, this one on unauthorized practice of law

Inn State ex Rel. Indiana State Bar Association v. United Financial Systems Corporation, et al., a 17-page per curiam opinion, the Court writes:

This is an original action brought by the Indiana State Bar Association (“ISBA”) in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24, alleging that United Financial Systems Corporation and numerous individual respondents (collectively, “UFSC”) have engaged in the unauthorized practice of law in Indiana. The ISBA seeks an order (1) enjoining UFSC from the unauthorized practice of law, (2) requiring UFSC to disgorge fees collected for unauthorized legal services, and (3) compelling UFSC to pay various fees, costs and expenses, including reasonable attorney fees.

This Court has exclusive jurisdiction over matters involving the unauthorized practice of law. See Ind. Const. art. 7, § 4; see also Ind. Code § 33-24-1-2. As set forth in more detail below, we find that UFSC has engaged in the unauthorized practice of law and that an injunction prohibiting such conduct should issue. Although the phrase “costs and expenses” under Rule 24 does not include attorney fees, the ISBA nevertheless is entitled to certain statutory attorney fees. Finally, disgorgement of fees is warranted to the extent described below. * * *

V. Conclusion

The evidence establishes that the respondents have engaged in the unauthorized practice of law. Respondents, including any parent or subsidiary company of UFSC, hereby are ORDERED not to engage in acts that would constitute the unauthorized practice of law. Such acts include, but are not limited to, the practices described in this opinion as well as the revised practices in which UFSC now claims to engage, as described in paragraph 24 of the Commissioner's report. This injunction does not prevent the respondents from performing non-legal services for their clients.

In addition, Respondents are ORDERED to provide a copy of this opinion to all reasonably identifiable persons to whom they have sold estate plans since 1995. This notice is intended to allow each purchaser the opportunity to make an informed decision regarding their estate planning needs and take any other action that may be appropriate, including consultation with a duly licensed attorney of his or her choosing. Respondents also are ORDERED, in a manner that shall be determined by the Commissioner on remand, to notify all reasonably identifiable persons to whom estate plans were sold following the date of the Northouse decision in 2006 that they are entitled to a refund, upon request, of sums paid for the purchase of an estate plan.

It is further ORDERED that Respondents are jointly and severally responsible for the refund of fees paid by those to whom estate plans were sold, as may be requested by those to whom estate plans were sold. On remand, the Commissioner shall issue a restitutionary order consistent with this opinion which, if appropriate, also may be made applicable to all parent and subsidiary companies of UFSC and their principals individually.

It is additionally ORDERED that Respondents are jointly and severally responsible for the reasonable attorney fees, in an amount that shall be determined by the Commissioner on remand, incurred by the ISBA as a direct result of the respondents' baseless arguments with respect to the ISBA's past settlement practices.

It is finally ORDERED that Respondents are jointly and severally responsible for the payment of costs and expenses to the ISBA in the amount of $36,974.87, and for the payment of costs and expenses associated with the Commissioner's services in this matter, which shall be fixed by separate order of this Court following the Commissioner's submission of his statements of costs and expenses to this Court.

This matter is remanded to the Commissioner for further proceedings consistent with this opinion.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., concurs in all respects save the decision on attorney fees, Part IV-A, believing that Relator's request for fees incurred in prosecution should be granted.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One opinion today from the Supreme Court

In Robert E. Carter, Jr., et al. (IDNR) v. Nugent Sand Co., et al., an 8-page, 5-0 opinion, Chief Justice Shepard writes:

Landowners and lessees obtained state approval a decade ago to dig a channel from the Ohio River to a nearby lake so that they could use the lake for a sand and gravel operation. They now seek judicial relief from conditions imposed within their 1999 permits. We conclude that that the present action should be dismissed for failure to exhaust administrative remedies. * * *

Nugent sought and acquired a permit from the Department of the Army, Corps of Engineers, because the excavation would connect the lake to the Ohio River, a navigable waterway. It also obtained certificates of regulatory approval from the Indiana Department of Natural Resources because the construction would take place in a floodway and involved construction of an access channel. Among the conditions contained in DNR‟s granted certificates were provisions mandated by a section of the Indiana Code: “If a channel will: (A) connect to a navigable river or stream; and (B) create additional water areas that will be connected to the navigable river or stream; dedicate any water created to general public use.” Ind. Code § 14-29-4-5(2) (2008); (App. at 95.) * * *

Around 2005, boaters began entering the lake for recreational purposes through the excavated channel. Many of the boaters created traffic and barge obstructions for Nugent Sand‟s operations by tying boats together, swimming in the lake, and engaging in various forms of raucous behavior. Nugent Sand posted and attempted to enforce “No Trespassing” and “Danger Barge Operations” signs at the entrance of the channel. The efforts to remove these unauthorized persons were largely unsuccessful. Third-party harbor boats subsequently began to decline to work in the lake, and a number of Nugent‟s own employees became apprehensive because of the heightened risk of property damage and serious bodily injury. * * *

Nugent Sand moved for summary judgment, arguing essentially that the lake and the channel were private property from which they could exclude the public and that any attempt to force them to dedicate the property for public use without compensation would be an unconstitutional taking. (App. at 245–276.) DNR‟s response contended that Nugent exchanged providing public access to the lake and channel as a condition for digging the channel, and the public gained access to the property by virtue of Indiana statute as well as various common law principles. (App. at 290–313.) On October 28, 2008, the trial court agreed with Nugent Sand and entered a permanent injunction.

As the trial court held unconstitutional one of the statutes under which DNR had acted during the permitting process, DNR filed an appeal directly with this Court. Ind. Appellate Rule 4(A)(1)(b).

The Takings Claim. Whether there is a winning takings claim at the heart of Nugent Sand‟s situation is doubtful. * * *

Doubtful as the takings claim may be, we conclude that the constitutional question need not be adjudicated in light of DNR‟s contention that it was entitled to a dismissal.

Exhaustion of Administrative Remedies. The Department urges that it was entitled to a dismissal because Nugent Sand failed to exhaust available administrative remedies.

The basis of this argument is that remedies have existed and that the permits themselves informed Nugent Sand of the processes by which it could appeal any condition contained in the two permits. * * *

DNR maintains that instead of filing the present court action, Nugent should have undertaken these remedies for an interpretation of the dedication to public use requirement of Ind. Code § 14-29-4-5(2) and the application of this statue to the property at issue. * * *

By contrast, Nugent Sand had an administrative remedy. Indeed, each permit contained information about how to appeal. (See App. at 91–102.) Moreover, the terms imposed by DNR, “requiring all additional waters created by this project be dedicated to the public as required under IC-14-29-4,” were explicitly set forth in the “Special Conditions” section of the approval documents. (See App. at 94–95, 100–101.) As for whether this language was adequate to alert Nugent to the fact that it was giving up exclusive use by virtue of obtaining the permits, there might have been some basis for debating whether the statute and the permit conditions applied to the channel and the lake or just to the channel. But Nugent has forcefully insisted that it gave up nothing at all (“even a single boater getting „in the way‟. . . is an unacceptable interference,” Appellees‟ Br. at 26) when the statute is plain that at least the channel (“all additional waters”) were being dedicated to public use. DNR gave plain enough notice. * * *

Conclusion. We reverse the trial court and remand with directions to grant the Department‟s motion to dismiss.

Sullivan, Boehm, and Rucker, JJ., concur. Dickson, J., concurring in result.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "Several States Look to Boost Retirement Age for Judges"

Marcia Coyle of The National Law Journal reports today:

As Justice John Paul Stevens is so ably about to prove, "90" may be the new "70," at least for judges, and state lawmakers are taking note.

Stevens announced last week that he would retire when the current Supreme Court term ends. He will turn 90 on April 20. If Stevens were a state Supreme Court justice, he would not have had the option of choosing when to retire because most states require those judges to step down after age 70, according to the National Center for State Courts in a recent study. But nine states this year have legislation pending that would either eliminate or raise the retirement age.

The Center noted that 20 states require retirement at age 70; four at 72; two at 74, and six at 75. Vermont is the only state with a mandatory retirement age of 90 for a state Supreme Court justice.

If applied to the U.S. Supreme Court, those states' retirement rules would force from the bench not only Justice Stevens, but also Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer.

In 2009, the Center reported, Kansas increased the age at which their justices must retire from 70 to 75, and South Dakota's House of Representatives also approved an increase from 70 to 75.

The nine states that have recently considered or are considering legislation to increase or eliminate mandatory retirement ages for state judges are: Alabama (from 70 to 72); Arizona (70 to 75); Massachusetts (70 to 76); New Hampshire (70 to none); New Jersey (70 to 75); New York (70 to none); Virginia (70 to 73); Washington (75 to none) and Wyoming (70 to none).

ILB: Indiana's retirement age for appellate judges, set by statute, is 75.

For more on Indiana , see this ILB entry from Sept. 4, 2006, headed "Means, 77, to continue as judge: He says age is no barrier to doing his job." It touches on the retirement age for trial court judges in Indiana, and near the end of the entry, appellate judges.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 6 today (and 27 NFP)

For publication opinions today (6):

In Eric D. Smith v. Jeff Wrigley and Lt. Gard, a 7-page pro se appeal, Judge Crone writes:

Prison inmate Eric D. Smith appeals a trial court order denying his motion for waiver of filing fees in connection with his complaint against prison superintendent Jeff Wrigley and Lt. Gard. The sole issue for review is whether the statute requiring him to pay filing fees violates Article 1, Sections 12 and 23 of the Indiana Constitution. We affirm. * * *

Having found that the filing fee requirement advances the State's legitimate interest of preservation of judicial resources and is applied to all similarly situated offenders with the requisite history of filing frivolous claims, we defer to legislative discretion in requiring such plaintiffs to prepay such fees. In sum, Smith has failed to demonstrate that Indiana Code Section 34-10-1-3 is unconstitutional.

In White Rodgers, et al. v. Lonnie Kindle, et al., a 29-page, 2-1 opinion, Chief Judge Baker writes:
In 2004, an apartment explosion in Morgan County claimed the life of one individual and seriously injured several others. In 2005, the victims of the explosion filed a complaint against several defendants, including White-Rodgers, the company that had manufactured the gas control on the water heater in the residence where the explosion occurred. Unfortunately, this case has gotten mired in fervently-contested discovery disputes. The most recent is the subject of this interlocutory appeal and stems from the trial court's decision to award attorneys' fees as a discovery sanction against White-Rodgers for its failure to produce expert materials from a settled case in which White-Rodgers was also a defendant. * * *

Inasmuch as the materials produced by nontestifying experts are protected from discovery not only in the litigation for which they were hired, but also in subsequent litigation, White-Rodgers has already produced all that it was required to produce under the discovery orders at issue herein. Thus, we reverse the award for sanctions and remand for the continuation of the underlying litigation. * * *

FRIEDLANDER, J., concurs.
CRONE, J., dissents with opinion [that begins at p. 20, and that concludes:] In my view, the majority's undue emphasis on the economic impact of expert disclosures is based on an outmoded concept of jurisprudence that often valued a party's financial resources more highly than fundamental fairness and the search for truth. As we recently noted in Sinks v. Caughey, “The purpose behind discovery and pretrial procedures is to „make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'” 890 N.E.2d 34, 44 n.9 (Ind. Ct. App. 2008) (quoting U.S. v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)). The modern discovery process is a balance weighted more heavily in favor of disclosure, and I believe that the mere economic value of expert materials—especially from terminated litigation—is an insufficient justification for nondisclosure.

In sum, I would hold that the trial court did not abuse its discretion in imposing sanctions on White-Rodgers, and I would grant the Plaintiffs' request for expenses for defending the order for sanctions on appeal. See Georgetown Steel Corp.

In Gibraltar Financial Corp. v. Prestige Equipment Corp., et al. , a 14-page opinion, Cheif Judge Baker writes:
To paraphrase Sigmund Freud, sometimes a lease is just a lease. The appellant herein argues that a lease entered into between two businesses was actually a disguised sale subject to an unofficial security interest. After applying the relevant statute and examining the underlying circumstances of the transaction, we find that the lease was just that—a lease.

Appellant-plaintiff Gibraltar Financial Corp. (Gibraltar) appeals the trial court’s order granting summary judgment in favor of appellees-defendants Prestige Equipment Corp. (Prestige), National Machinery Exchange, Inc. (NME), Key Equipment Finance, Inc. f/k/a Key Corporate Capital, Inc. (Key), and Chikol Equities, Inc. (Chikol) on Gibraltar’s complaint for conversion, replevin, and a money judgment. Gibraltar argues that there are genuine issues of material fact rendering summary judgment inappropriate at this juncture. Finding no error, we affirm.

In Constance Renee Nasser v. St. Vincent Hospital and Health Services , a 17-page opinion, Judge Vaidik writes:
Constance Renee Nasser appeals the trial court's entry of summary judgment in favor of St. Vincent Hospital and Health Services on her complaint for medical malpractice. Specifically, she contends that while she was a patient at St. Vincent Hospital in 2001, the hospital committed malpractice when the nursing staff did not respond to her repeated calls for help and allowed her to deliver two eighteen-week stillborn fetuses alone in her hospital bed. The trial court entered summary judgment in favor of St. Vincent because it believed that Nasser was required to designate physician expert testimony on causation. Nasser appeals, arguing that the lone medical review panel member who found in her favor, a registered nurse, was qualified to render an expert opinion on causation.

Although the Medical Malpractice Act allows health care providers, such as registered nurses, to serve on medical review panels and provides that the panel's opinion is admissible in court, we conclude that Indiana Evidence Rule 702, which trumps any statute, may prohibit such non-physician health care providers' opinions as to medical causation from being admitted in court to create a genuine issue of material fact in a summary judgment proceeding or to serve as substantive evidence at trial. This is because the health care providers may not be qualified by knowledge, skill, experience, training, or education to give opinions as to medical causation. In this case, we conclude that the nurse's opinion is not admissible to prove causation. Because Nasser conceded that expert testimony was required but did not designate any other evidence to establish that St. Vincent Hospital's failure to respond to her repeated calls caused her increased emotional distress when she miscarried her twins alone in her hospital bed, we affirm the trial court's entry of summary judgment in favor of St. Vincent.

In State of Indiana v. Ollie H. Dixon, Sr. , an 8-page opinion, Judge Bradford writes:
Appellant-Plaintiff, the State of Indiana, appeals the trial court's order granting Appellee-Defendant Ollie Dixon, Sr., his motion to dismiss a criminal recklessness indictment on the grounds that it was barred under Indiana's successive prosecution statute, Indiana Code section 35-41-4-4 (2008). Upon appeal, the State argues that section 35-41-4-4 does not operate to bar prosecution under these facts. We reverse and remand. * * *

At issue is whether Dixon's offenses were part of a “single scheme or plan” such that they should have been joined in the initial prosecution. * * *

In the absence of connection by a distinctive nature, and without a common modus operandi or motive, we cannot conclude that Dixon's offenses constituted a single scheme or plan.

In Michael Sheperd v. State of Indiana , a 23-page opinion, Judge Crone writes:
Michael Shepherd appeals the denial of his petition for post-conviction relief (“PCR”). We affirm in part, reverse in part, and remand with instructions to vacate Shepherd's conviction for possession of cocaine.
NFP civil opinions today (13):

Doris Duffy v. Stanley J. Duffy (NFP)

George Sheffer v. Gayle Sheffer (NFP)

Stephanie Campbell v. Steven Phillip Kelso (NFP)

James A. Sherck v. Ronald G. Sherck (NFP)

Elizabeth Howell v. Tisa-Total Interior Systems America LLC (NFP)

Speedway Woods Community Association v. Ronald McVey (NFP)

David W. Garrett, et al. v. Fifth Third Mortgage Company (NFP)

Jeanette West, Personal Rep. of the Estate of Daniel Cullison v. Indiana Farmers Mutual Insurance Co. (NFP)

Term. of Parent-Child Rel. of K.C., A.C., and Z.C.; S.C. v. IDCS (NFP)

The Paternity of D.M.; K.M. v. B.M. (NFP)

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

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

Paternity of X.M.; A.M. & B.B. v. S.M. & S.M. (NFP)

NFP criminal opinions today (14):

Michael Kohues v. State of Indiana (NFP)

Kendrick Bates v. State of Indiana (NFP)

Danny Smith v. State of Indiana (NFP)

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

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

Todd Luttenegger v. State of Indiana (NFP)

Curtis E. Hester v. State of Indiana (NFP)

Adam E. Cameron v. State of Indiana (NFP)

Alphonzo Griffin v. State of Indiana (NFP)

Maria Chavarria v. State of Indiana (NFP)

James Roberts v. State of Indiana (NFP)

Regina Jackson v. State of Indiana (NFP)

Steven D. Halcomb v. State of Indiana (NFP)

Jesse Chabes v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - Opinions of the Indiana Attorney General

I happened onto this site while looking for recent opinions of the Indiana Attorney General. Called IUPUI Scholar Works, when completed it will contain the Opinions from 1921-1976.

At random, I selected 1940, and immediately found this interesting opinion from Oct. 5, 1940 that begins:

Dear Mr. Stiver:

This wil acknowledge your request of October 1, 1940 for an offcial opinion concerning the use by your Department of the device known as the drunkometer. Without setting out the burden of your letter," it is only necessary to point out that your request really embodies only two specific questions, namely:

"1. Is evidence obtained by the use of the drunkometer admissible in court?

"2. To what extent may the State Police use force in compellng arrested persons to submit to the drunkometer test?"

We understand that the drunkometer is a machine for calculating the degree of intoxication by a chemical test employing the breath. In recent years there have been several methods evolved for making tests of intoxication. These tests have been based variously upon examining the content of the blood, the urine, the breath, the saliva and the cerebro-spinal fluid. We have been fortunate in Indiana in having in Dr. Harger of Indiana University, a leading expert and experimenter in this field, and more especially in the field of breath tests for alcoholic content. Dr. Harger, in collaboration with other scholars, has proved the almost exact correlation which exists between the alcoholic content in the blood stream and that to be found in the breath. (See a recent chemical test for intoxication employing breath (1938), 110 Journal of. the American Medical Assoc. 779).

As for current opinions of the Attorney General, it appears there were relatively few in the past decade. Here are the most recent, from 2009.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Indiana Law

Law - "Dusk for Dawn Johnsen: Why Obama Backed Down on a Nominee"

That is the heading to a Time story today by Theo Emery. Some quotes:

And a recess appointment, which some liberals urged, was out of the question, according to the White House official. Such an appointment sidestepping an up-or-down floor vote would have made Johnsen's goal to depoliticize the Office of Legal Counsel impossible "and would have led to partisan debates over its legal opinions regardless of their quality," the White House official says. * * *

Some liberals who hoped Johnsen would be Obama's tonic to the office under Bush are bitterly disappointed by her withdrawal, and some accuse the White House of not backing their own candidate. But Lee Casey, a Washington attorney who was an attorney adviser in the Office of Legal Counsel in 1992 and 1993, says that her nomination may have been abandoned because of a bigger confirmation fight that is now taking shape: the one for Justice Stevens' seat. "My guess is that it became a question of where do we want to spend the political capital," he says, "and the fact is political capital is always in short supply, no matter who the President is."

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to General Law Related

Ind. Law - Still more on: "The politics of trash" in Lake County

Updating this ILB entry from yesterday, Marc Chase and Christine Kraly of the NWI Times today have a third long story, this one titled "Vetting the Lake County trash bidders." It begins:

Lake County waste management leaders tout the level of scrutiny incorporated into analyzing bids to consolidate county trash disposal, but one former board member said the agency failed in its responsibility to taxpayers.

After a year of vetting three trash processing companies -- with the help of an out-of-state engineering firm, a financial consultant and a multistate law firm -- the Lake County Solid Waste Management District inked a public-private contract with Powers Energy One of Indiana LLC in November 2008. The company plans to use a commercially unproven method of converting organic trash into ethanol, consolidating all of the county's trash disposal.

But not all district board members voted in favor of the deal. Hamilton Carmouche, a region attorney and one of Gary's three district board members at the time of the vote, said he believed the county failed to cast a wide enough net for potential bidders for the eventual 20-year contract -- particularly given that trash-to-ethanol processing currently exists only in laboratory and pilot plant settings.

Proponents of the Powers contract contend all players who would have come to the table in response to the county's calls for trash consolidation bids participated in the process.

But the district board opted -- early in the bid-vetting process -- to disregard at least two interested companies. And the district advertised for the bids through local media, not nationally.

District Executive Director Jeff Langbehn believes the agency found the bidder with the best, most innovative technology at the right price. And he said he is not concerned about past liens and a bankruptcy associated with the owner of the company that won the contract.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Indiana Government | Indiana Law

Ind. Gov't. - "Trial court rules Jeffersonville owes sewer plant operator $584,000"

Updating this most recent ILB entry, from Jan. 27, 2009, headed "City water and sewer contracts to be put up for bid", which included links to earlier entries on disputes in Evansville, Jeffersonville, and New Albany, here are two stories on a court decision Monday:

"Jeffersonville breached EMC contract" is the heading to this story by David A. Mann in the Jeffersonville/New Albany News & Tribune. Some quotes:

The city of Jeffersonville breached a contract in 2008 when it seized control of its sewer treatment plant and booted the contractor it had hired to run the place, Environmental Management Corp., commonly called EMC.

As a result, it now has to pay the company about $584,114 in lost profits and attorney fees.

That’s according to a judgement issued by Clark Superior Court No. 1 Judge Vicki L. Carmichael on Monday. The bench trial ruling marks the end of a more than two-year legal dispute between the company and the city.

“I would consider it a victory,” said Greg Fifer, one of the two attorneys who represented the company during a trial last summer and fall. He noted that Carmichael gave the company the substantial part of what it had been asking for, about $982,000. Taken out of Carmichael’s judgement, were damages that the company had claimed as corporate overhead losses, he said.

“From a damages standpoint, it is a substantial victory.”

The judgement affirmed the major findings that EMC had made in its legal complaint. It states that a contested April 18, 2008 letter from Jeffersonville Sanitary Sewer Board Attorney Scott Lewis did not provide EMC with written notice of any specific performance issues that were considered by the city to be a material breach of contract.

It does say that an Aug. 7 letter from Lewis notified the company that the city was terminating the contract. However, the board never conducted a formal vote authorizing Lewis to write the letter.

Furthermore, it says, the board never conducted a formal vote authorizing the city to seize the plant from the company, which Galligan did alongside two police officers in December 2008.

The city’s complaint against the company was that it failed to maintain the plant and the collection system under the terms of the contract.

From a story by Ben Zion Hershberg of the Louisville Courier Journal:
The city of Jeffersonville violated its contract with Environmental Management Corp. by taking over the city’s sewage plant from the company in December 2008 and must pay EMC $584,114, Clark County Superior Court Judge Vicki Carmichael ruled Monday.

“The critical fact in this case is that the City and Sewer Board did not give EMC written notice of any alleged breach” of contract requirements to operate the plant or any chance to fix problems, Carmichael said in her ruling.

Greg Fifer, a lawyer for EMC, hailed the decision as a powerful victory for his client in its breach of contract lawsuit against the city.

“She has found affirmatively for all the allegations EMC made,” Fifer said.

Jeffersonville Mayor Tom Galligan said he was “very disappointed” and that the city would likely appeal. But he added, “Even at $500,000 it’s cheap to get rid of them.”

Galligan noted that EMC had been seeking nearly $1 million. He said he believes EMC was operating the sewage plant poorly and leaving the city open to possible penalties from the U.S. Environmental Protection Agency for federal Clean Water Act violations.

EMC operated Jeffersonville’s sewer system from 1994 until the city took it over, receiving about $1.4 million a year in later years.

The last contract was to expire at the end of this month. But at a meeting of the city Sewer Board two years ago, Galligan told EMC officials he was concerned about the way they were operating the plant, and the sewer board’s lawyer followed up on that discussion with a letter to EMC requesting records and reports about its performance.

On Aug. 7, 2008, the sewer board lawyer sent EMC a letter saying the agency was terminating the company’s contract. About two weeks later the city and EMC filed an agreement in Superior Court saying EMC would continue to operate the plant until a judge determined whether the city properly followed the requirements spelled out in the contract for early termination.

But Carmichael’s ruling said the city didn’t provide the required notice of specific problems it had with EMC’s operation. The ruling also said decisions to end the contract and take over plant operations weren’t conducted in public meetings as required by state law.

Because the city violated the Indiana Open Door Law and the August 2008 court agreement with EMC to let the company keep operating the plant pending a ruling on early contract termination, the judge ruled, the city must pay the company $268,560 in lost profits and $315,554 in legal fees.

The ILB would like to post a copy of this opinion - please contact me if you can help.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Environment | Ind. Trial Ct. Decisions | Indiana Government

Ind. Courts - More on "Life, Death and Insurance: Indiana's $15 Million Mystery "

Following up on Monday's entry quoting a WSJ story reported by Leslie Scism and Mark Maremont, the same team has an update in today's paper, that begins:

An Indianapolis entrepreneur who is trying to collect on a $15 million life-insurance policy for an elderly woman who drowned in her bathtub also sought to buy other big policies on the woman's life, according to court documents filed late Monday by a unit of American International Group Inc.

JB Carlson, 36 years old, never took out the other policies, but AIG's American General unit maintains in its filing they are additional evidence of alleged "illegal wagering" under Indiana law on the life of an unrelated person.

The matter involves Germaine "Suzy" Tomlinson, the mother-in-law of former Conseco Inc. Chief Executive Stephen Hilbert. She died in September 2008, in what the coroner ruled was an accidental drowning. Mr. Carlson, who had escorted her home from a bar, was the last person to see her alive and has called her death a tragic accident.

A civil-lawsuit fight in U.S. District Court in Indianapolis over the potential $15 million in proceeds from the policy was the focus of a Page One article in The Wall Street Journal on Monday. AIG is asking the court to declare the policy void, while Mr. Hilbert and his wife Tomisue are seeking to wrest control of the policy from Mr. Carlson.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to Indiana Courts

Law - More on: "In N.C.A.A., Question of Bias Over a Test for a Genetic Trait"

Updating this ILB entry from Monday, April 12th, the NYT's Kate Thomas reports today under the headline "N.C.A.A. Council Approves Testing for Sickle-Cell Trait" in a story that begins:

Members of the N.C.A.A.’s Division I Legislative Council have approved a measure that requires all athletes to be screened for the sickle-cell trait unless they can show results of a previous test or they sign a release to decline testing.

The measure, announced Tuesday after two days of meetings in Indianapolis, was intended to help prevent the sudden death of athletes who carry the trait, a genetic disorder that is present in about 8 percent of African-Americans and less than 1 percent of white Americans. People with the sickle-cell trait are believed to be at a higher risk for death brought on by intense exercise.

At least eight college football players who carried the trait have died as a result of intense training since 2000.

“It’s a step forward,” said Scott Anderson, the head athletic trainer at the University of Oklahoma and a leading advocate for testing. Anderson preferred an earlier proposal that would have allowed athletes to decline testing only if they could show proof of a previous test.

Tuesday’s proposal was seen as a compromise. It needed a 50 percent majority to pass, and it received 34.5 points in support, 11.1 in opposition and 4.2 abstentions. The legislative council is made up of member conferences whose votes are weighted depending on their size.

The measure, which must still be reviewed by the Division I board of directors, would go into effect in August.

Posted by Marcia Oddi on Wednesday, April 14, 2010
Posted to General Law Related

Tuesday, April 13, 2010

Ind. Gov't. - "Chicken Underground" has not yet reached the City of Washington Indiana

As these ILB entries attest, 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 permit urban chicken farming.

Today, WAMW News out of Washington has this report:

RESIDENT DENIED PERMISSION TO KEEP CHICKENS

The Washington City Council further discussed and considered a request from Amy Ferran at Monday night's meeting.

Ferran was asking to continue to raise chickens on her property at 808 Greenwood Avenue. Animal control officer Michael Babrick talked with four out of six neighbors. He says one complained of the smell. Others did not notice a smell but were concerned there would be an odor when the weather turns warmer. Another neighbor asked for the chickens to be moved to the opposite side of a garage away from his property.

Ferran said she had gotten rid of her roosters and had only 10 laying hens and said she would move them.

The council's consensus was that there is an ordinance against farm type animals in city limits. They felt if they granted Farran a variance it would set a precedence [sic.] and denied her permission to keep the chickens.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Environment | Indiana Government

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

In Whittington v. Indpls Motor Speedway Foundation (SD Ind. McKinney), a 10-page opinion, Judge Kanne writes:

Reginald Whittington sued the Indianapolis Motor Speedway Foundation, Inc. (“Foundation”) for tortious conversion and replevin of a 1979 Kremer Racing Porsche 935 K3 automobile, which is on display at the Foundation’s Hall of Fame Museum. Whittington delivered the racing car to the Foundation in the early 1980s and sought its return in 2004. Whittington claimed that he loaned rather than donated the car to the Foundation, and thus is entitled to have it returned. The Foundation refused to return the car because it says the car was a donation in kind from Whittington and his brother. The district court found that Whittington’s posttransaction behavior was more consistent with the car being a gift rather than a loan, and that he failed to prove that he had a possessory interest in the car in 2004. Accordingly, the court held that his claims for tortious conversion and replevin failed. We affirm.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In Nevin Tew v. Beverly Tew , a 13-page opinion, Judge Bradford concludes:

In sum, the trial court did not err in determining that M.T. is not emancipated under Indiana Code section 30-16-6-6(a)(3) or (b)(3), in denying Father's request to modify his child support obligation, and in further determining that M.T. has not repudiated her relationship with Father.
In Stephen M. Lehman v. State of Indiana , a 15-page decisions with two opinions, Judge Riley writes:
Lehman raises one issue on appeal, which we restate as: Whether the trial court properly admitted the deceased confidential informant's statement at trial. * * *

First, we turn to Lehman's claim that Howard's statements constituted inadmissible hearsay and therefore were inadmissible at trial. * * *

[W]e find that Howard's statements were not introduced for the truth of the matter asserted and are therefore not hearsay. See Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997), reh’g denied. Moreover, even if Howard's statements amounted to hearsay, their admission would still result in harmless error. * * *

Next, Lehman objects to the trial court's admission of Howard's audiotaped statements because it violated his right to confront and cross-examine Howard under the United States Constitution. * * *

[W]e conclude that the admission of these testimonial statements was harmless error. * * *

Based on the foregoing, we conclude that the trial court properly admitted the deceased confidential informant's statements. Affirmed.

CRONE, J., concurs.
VAIDIK, J., concurs in result with separate opinion [that begins at p. 12] * * * I write only to point out that Williams was decided before Crawford, and that there is perhaps a stronger explanation as to why the informant's remarks are not hearsay. Howard's statements constituted legally operative conduct. * * The statements were thus not hearsay, and since they were admissible for a purpose other than establishing their truth, their admission did not violate Lehman's confrontation rights. For the foregoing reasons, I concur in the result reached by the majority.

NFP civil opinions today (6):

N.G. v. E.L. (NFP) - "The trial court’s custody decision was not against the logic and effect of the facts and circumstances before the trial court. Therefore, the trial court did not abuse its discretion when it granted custody of B.G. to Mother or when it denied Father’s motion to correct error."

Term. of Parent-Child Rel. of R.V., et al., C.V. v. IDCS (NFP) - "Clear and convincing evidence supports the trial court’s judgment terminating Mother’s parental rights to R.V. and O.V. Accordingly, we affirm."

Wendy G. Thomas v. Carol Sparks Drake, et al. (NFP) - "Estate cannot establish that William suffered any damages, which it must do to recover under the claim of legal malpractice as set forth in the complaint. William spent money and used assets during his lifetime without any resulting loss to himself. Therefore, the trial court did not err in granting summary judgment for the Appellees because Estate failed to show any damages caused by Appellees’ alleged malpractice. See Van Kirk, 869 N.E.2d at 541 (stating that as long as appellees negate at least one element of appellant’s legal malpractice claim, trial court’s grant of summary judgment will be upheld)." [ILB: Interesting dicta on p. 6 including: "The situation might have been different if the beneficiaries, dissatisfied with the reduced value of the estate assets, had brought a claim against William’s estate for his alleged breach of the couple’s joint and contractual wills."]

Ralph E. & Sandra S. Dalzell v. The Bank of New York, et al. (NFP) - Pro se case. "Here, The Bank's designated evidence included the promissory note and mortgage executed between the Dalzells and Ameriquest, Ameriquest's assignment of the mortgage to The Bank, and an affidavit verifying the authenticity of The Bank's records. While the Dalzells dispute the reliability of The Bank's records, they submitted no designated evidence in support of their position. To the extent they rely upon their claims in their “Motion to Object,” unsworn statements and unverified exhibits do not qualify as proper Rule 56 evidence. Id. Without designated evidence in support of their claims, the Dalzells cannot demonstrate the existence of a genuine issue of material fact regarding the validity of The Bank's designated evidence. Accordingly, the trial court did not err in granting summary judgment.

James Pressler v. County of Elkhart, Debra Pressler (NFP) - "Despite these ominous sounding statements, Father fails to provide us with any evidence supporting his arguments, citations to authorities, or even references to the record. Instead, Father’s Brief is a compilation of rambling claims which are baseless, repetitious, and utterly devoid of any adherence to the rules of appellate procedure. * * *

"We will not consider an appellant’s assertion when he or she has failed to present a cogent argument supported by authority and references to the record as required by the rules. Id. If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties. This, we clearly cannot do.

"Moreover, Father cannot take refuge in the sanctuary of his amateur status. As we have noted many times before, a litigant who chooses to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of his action. Id. Accordingly, any challenge to the trial court’s Order is waived."

M.D. v. Review Board (NFP) - "M.D. appeals the decision of the Unemployment Insurance Review Board (“the Review Board”) affirming the suspension of his unemployment benefits. We affirm."

NFP criminal opinions today (12):

State of Indiana v. Corey J. Buehner (NFP) - "The trial court did not err when it granted Buehner’s motion to suppress the results of the blood test because the State failed to prove a valid exception to the warrant requirement existed at the time of the search. Affirmed."

Antonio T. Walker v. State of Indiana (NFP)

Patin E. Harris v. State of Indiana (NFP)

Ashaunti Webb v. State of Indiana (NFP)

Dominick D. Walker v. State of Indiana (NFP)

Jason Dixson v. State of Indiana (NFP)

Christopher Cousins v. State of Indiana (NFP)

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

Glenn L. Gibson v. State of Indiana (NFP)

Terry Pounds v. State of Indiana (NFP)

Jared Pine v. State of Indiana (NFP)

Dominique Chatman v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Ind. App.Ct. Decisions

Law - "The Future of Legal Education: Get Real"

Here is a sample from a story by Irene Plagianos of The American Lawyer re a conference called "Future Ed: New Business Models for U.S. and Global Legal Education":

Chester Paul Beach, associate general counsel of United Technologies Corp., hammered home the need for more real-world training. To cut down on legal costs, Beach said, his company absolutely will not pay for first- or second-year associates because "they're worthless." Lawyers need more "skill development" in school because, especially amid the current economic downturn, businesses are "not going to pay for people who can't add value."

Perhaps to inject a greater sense of urgency, Beach added, "We're actively trying to destroy the current model." Among other failings, he said, law school doesn't teach lawyers such practical business management skills as financial literacy and effective executive communication.

The divide between legal education and legal practice emerged as the central problem that needs to be tackled. As Vielka Holness, director of the Pre-Law Institute at the John Jay College of Criminal Justice said, the problem is that "we're teaching all our students as if they want to be professors" -- not the route the vast majority of those students wind up pursuing.

It wasn't all law school bashing. Morrison & Foerster's managing partner Keith Wetmore pointed out that the current approach to legal education in the United States does foster creative thinking. Switching to a heavy focus on skills, Wetmore said, will "take away thoughts untethered to the particular needs of a client on a particular day."

Panelists also discussed alternative law school models that might be worth exploring: accelerated programs, experiential learning and distance learning. The consensus among conference attendees appeared to be that there should be "multiple futures" to legal education. Every school can't be Harvard, and every school shouldn't follow the same system, said Joseph Altonji, from consulting firm Hildebrant Baker Robbins. Schools should specialize, he said, "because we need different kinds of practitioners."

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to General Law Related

Ind. Law - "Heather's Law" - new abuse education law

Mary Beth Schneider of the Indianapolis Star reports today that Gov. Daniels held a ceremonial signing yesterday for SEA 316:

Heather's Law -- that requires the state Department of Education to develop and distribute materials to alert young Hoosiers, their families and teachers on how to spot, and end, dating relationships that turn abusive.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Indiana Law

Ind. Courts - Ready Mixed Concrete Settlements in Price Fixing Litigation will Total $59 Million

From a press release:

On March 31, 2010, United States District Judge Sarah Evans Barker granted final approval to the $29 million dollar settlement with defendant Irving Materials, Inc. in the ready mixed concrete antitrust litigation. Judge Barker previously granted the Plaintiffs’ motion to certify a class of purchasers of ready mixed concrete in the Indianapolis area during the 2000-2004 time period, and the Seventh Circuit Court of Appeals rejected the defendants’ request to appeal that ruling prior to trial.

The recent $29 million settlement with IMI, when combined with the earlier settlements with Prairie Materials and other defendants, brings the total amount of the court-approved settlements up to $55 million. Settlements with the remaining defendants, which are now being submitted to the Court for approval, will bring the final settlement amount up to $59 million.

Cohen & Malad managing partner Irwin Levin, explains that the settlements in this price fixing litigation are among the largest class action settlements ever to be approved in Indiana and, more important, provide for the purchasers to receive approximately 100% of their actual overcharges, even after payment of attorneys’ fees.

See earlier ILB entries here.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Indiana Courts

Ind. Law - More on: "The politics of trash" in Lake County

Updating yesterday's ILB entry, today Marc Chase and Christine Kraly of the NWI Times have a story that begins:

Lake County waste management officials claim they don't know and don't care where an Evansville businessman is getting the money to build a trash-to-ethanol facility that will be privately run but owned by taxpayers.

For more than three years, the businessman, Earl H. Powers, has declined to name investors or firms he has lined up to bankroll the lion's share of what reportedly will be a $280 million facility.

Meanwhile, some county officials worry a clause in the public-private contract between Powers and the county will allow the businessman to use what will become county-owned land and property as collateral for financing, potentially putting taxpayers on the hook.

And the lack of information on who ultimately will provide the funding has left many questions in the minds of some government leaders and taxpayers.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Indiana Law

Ind. Gov't. - "The State of America's Libraries"

Just released, a 66-page report by the Amercian Library Association on the state of America's libraries. A quote from the executive summary:

Hard times bring libraries’ value into sharper focus. As the recession that took hold in December 2007 drags on into 2010, Americans are turning to their libraries in ever larger numbers for access to resources for employment, continuing education, and government services. The local library, a traditional source of free access to books, magazines, CDs, and DVDs, has become a lifeline, offering technology training and workshops on topics that ranged from résumé-writing to job-interview skills. * * *

And with more businesses and government agencies requiring applicants to apply on line, job-seeking resources are among the most critical and most in demand among the technology resources available in U.S. public libraries. Two-thirds of public libraries help patrons complete online job applications; provide access to job databases and other online resources (88 percent) and civil service exam materials (75 percent); and offer software or other resources (69 percent) to help patrons create resumes and other employment materials.

Funding for libraries did not follow suit. In fact, research conducted in 2009 by the American Library
Association (ALA) and the Center for Library and Information Innovation at the University of Maryland
suggests a “perfect storm” of growing community demand for library services and shrinking resources to meet that demand. The study found that while library use soared, a majority of states reported cuts in state funding to public libraries and to the state library agencies that support libraries and statewide library programs. * * *

Furthermore, cuts at the state level frequently were compounded by cuts at the local level and cuts in the state library agency budget, and there was a significant increase in the number of libraries reporting that they are open fewer hours each week.

Meanwhile, the Internet thrives at public libraries, which have seen double-digit growth since 2007 in the on-line services they make available to their patrons. More than 71 percent of public libraries provide their community’s only free public access to computers and the Internet.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Indiana Government

Ind. Courts - Wayne County Prosecutor sued for defamation by coroner

Bill Engle reports today in the Richmond Palladium-Item:

The pathologist who performed the autopsy on the body of Erin Stanley of Centerville in 2007 has sued Wayne County Prosecutor Mike Shipman for defamation.

Dr. Joseph Czaja, [now] a resident of Smith County, Texas, alleged in a lawsuit that Shipman defamed him with his comments after the dismissal of a murder charge against Stanley's boyfriend, James McFarland, in February 2009.

The suit was filed Friday in the Delaware County Clerk's office in Muncie.

Czaja said Shipman made comments to members of the victim's family, other prosecutors, and to print, radio and television media after the case was dismissed that placed the blame for the dismissal on Czaja and attacked his integrity and professional qualifications. * * *

In the suit, Czaja said Shipman, after the charge against McFarland was dismissed, wrote a letter to Allen County Prosecutor Karen Richards "littered with misleading and false information" that caused Czaja to lose pathology work in that county and other counties in Indiana.

He also alleges he was delayed in becoming a partner in Pathology and Forensic Consultants in Fort Wayne, Ind., because of the incident.

The Pal-Item story includes a link to the 8-page complaint.

Posted by Marcia Oddi on Tuesday, April 13, 2010
Posted to Indiana Courts

Monday, April 12, 2010

Ind. Decisions - Transfer list for week ending April 9, 2010

Here is the Clerk's transfer list for the week ending April 9, 2010. It is 1 page long.

No transfers were granted last week.

[Note that Bradley J. Love v. Robert Rehfus, et al, which was granted transfer April 1st (see ILB entry here), was for some reason was not entered either on either the transfer list dated 4/1/10 or the list dated 4/9/10 issued today.]

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the 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, April 12, 2010
Posted to Indiana Transfer Lists

Law - "In N.C.A.A., Question of Bias Over a Test for a Genetic Trait"

A number of issues may occur to you while reading this lengthy story today in the NY Times, reported by Kate Thomas and Brett Zarda. The report begins:

Twenty-one college football players have collapsed and died as a result of training over the past decade. At least eight were carriers of the sickle-cell trait, a genetic disorder that can unpredictably turn deadly during rigorous exercise.

A blood test to screen for the trait costs about $5, and many university team doctors and athletic trainers support compulsory testing, arguing that it could save lives.

Yet a proposal to make such testing mandatory for all N.C.A.A. Division I athletes is not a sure bet to pass when it comes up for a vote by member conferences as early as Monday in Indianapolis.

The measure is questioned by the Sickle Cell Disease Association of America, which argues that athletes should know their own status but raises concerns that those with the trait could be denied the chance to compete. Leading sickle-cell researchers have also resisted calls for mandatory testing, saying that changing training practices for everyone would minimize the risks to athletes with the trait.

“There’s not any data that shows that screening can save lives,” said Dr. William Roberts, who co-edited a set of recommendations by six medical organizations on preseason physicals. “A lot of the kids who have died, they’ve known they have sickle-cell trait and they still run them to death. It should just be a change in the training program to protect everyone and not just the kids with sickle.”

A vote on the issue in January failed to gain a necessary two-thirds majority, with some of the most influential football conferences — including the Pacific-10 and the Big East — opposing it. Concerns include the cost of testing athletes less likely to carry the trait and those competing in lower-intensity sports, as well as whether the test would lead the N.C.A.A. to require other, more-costly tests for other characteristics. One proposed amendment would allow athletes to opt out of testing, an idea that some opponents said they supported.

People with sickle-cell trait have one abnormal hemoglobin gene and typically lead normal lives — many do not even know they are carriers. The trait is found in about 8 percent of African-Americans, but in less than 1 percent of white Americans. Those with two mutated genes are said to have sickle-cell disease, which can cause a lifetime of health problems like severe pain, anemia, stroke and damage to tissue and organs.

During extreme exercise, some blood cells in an athlete with sickle-cell trait elongate into sickle shapes that can disrupt blood flow to parts of the body, potentially causing damage. Heat, altitude and dehydration increase the risk of sickling, according to the National Athletic Trainers’ Association, which recommends easing athletes into workouts, giving them regular breaks and modifying intense conditioning tests.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to General Law Related

Ind. Gov't. - More on: Who's on your ballot?

Updating this ILB entry from April 11, 2010, Nick Fankhauser, Chair of the Union Co. Election Board, writes re this Indiana Election Division webpage:

Nice idea, but they've got Union County in two Federal Rep. districts. We're in 6, but not in 9. I sent a note to the IEC about it, but in the meantime, you might want to warn your readers that in at least one county, it's wrong. (I didn't take the time to check counties I'm less familiar with.)

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana Government

Ind. Law - Carmel assault, bullying, sexual assault case deserves continued attention"

Kent Sterling's (former director of news and programming for WIBC Radio) Indy sports blog has a long entry dated April 11, 2010 that begins:

There are passionate comments responding to posts and other comments every couple of day on this site. These comments point out the absolute outrage that exists from parents and virtually anyone with a conscience.

Outrage is not in short supply, but new information is. Without new information or victim willing to share their story (I’m guessing the attackers will remain closed-mouthed), there is little to write or talk about. That seems to be the game for the prosecutors and school officials to play at this point. They don’t want hysterical parents driving the punishment phase of this investigation – which is preposterous given it was the school officials’ apathy that has caused the actions that prompted the hysteria.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana Law

Environment - "IDEM map called 'deceptive'"

From a long story today in the Gary Post-Tribune, reported by Gitte Laasby, continue the controversy about "Easterly's Pile." The Post-Tribune reports that IDEM says the waste pile does not exist:

Top state environmental officials continue to refuse the existence of massive piles of toxic waste at ArcelorMittal Burns Harbor dumped for years only a few hundred feet from Lake Michigan and the Indiana Dunes National Lakeshore.

The Indiana Department of Environmental Management has launched an interactive map with photos of ArcelorMittal Burns Harbor sites that state and federal officials have investigated.

But a third of the 43 investigation sites don't contain actual photos of each site as it looks now. They are signified by the same photo, taken in 1999, even though they're located up to 3,500 feet apart.

Another area of investigation -- large, dark gray waste piles named after Tom Easterly, the head of IDEM -- are depicted on the map as a green meadow. A Post-Tribune aerial photo from late summer 2009 shows waste piles in the area about 700 feet long and 35 feet tall. * * *

The Post-Tribune asked IDEM what the waste in the newspaper's 2009 photo is.

"Post-Tribune would be best suited to comment on 2009 Post-Tribune photo," IDEM spokeswoman Amy Hartsock responded in an e-mail. * * *

Two other top IDEM managers recently refused to acknowledge the existence of "Easterly's Pile" when the Post-Tribune pointed it out on a map at an interview.

"It's a hole!" said Kent Abernathy, IDEM's chief of staff. Scott Nally, assistant commissioner of IDEM's office of external affairs, echoed the statement.

IDEM's map is supposed to show areas that the EPA investigated in 1999. But of 43 locations, 14 feature an identical photo even though several of the sites are at least 0.66 miles apart. Two other locations also feature identical photos.

"The same photo is sometimes used as representative for multiple areas of interest as noted in the caption," Hartsock explained in an e-mail.

The disclaimer under the map online states: "This map is intended to serve as an aid in graphic representation only. This information is not warranted for accuracy or other purpose."

IDEM did not answer questions about what the purpose of the map was.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Environment

Ind. Law - "Hendricks sheriff to host sexting forum tonight"

Josh Duke reports in the Indianapolis Star:

DANVILLE -- Hendricks County Sheriff David Galloway will host a free public forum tonight on the dangers of sexting.

Sexting, the act of sending sexually explicit messages or photos electronically primarily between cell phones, has become an issue for teenagers throughout the nation, he said. * * *

Galloway invited students and parents of teenagers to attend the event. Parents often do not realize their child is sending or receiving these messages, he said. He also hopes to have students there to hear the message before they get involved.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana Law

Ind. Law - "The politics of trash" in Lake County

A long, long story today in the NWI Times, reported by March Chase. Some quotes:

Enmeshed in the process of bringing a trash-to-ethanol facility to Lake County is a tangled web of political and business connections linking what some describe as a political rainmaker, top county government officials and a multistate law firm.

The law firm, which was the longtime legal counsel of the winning private bidder set to build and operate the plant, also represented the county waste management board when it approved the contract to build what is to be a privately run by publicly owned facility.

Political proponents of the proposed biorefinery hail the plan as a cheaper and more environmentally friendly alternative to landfilling Lake County's trash.

Local government officials opposed to the plan believe the county is launching into a public-private partnership based on an unproven process not fully vetted by the people championing the plant.

Some political detractors of the plant, to which all municipal waste in the county would be routed, believe enough unanswered questions have existed throughout the process for the county to put the brakes on its partnership with Powers Energy One of Indiana LLC, the company set to build and operate what will become a taxpayer-owned facility in Schneider.

But backers of the concept said the private operation and financing ensure taxpayers will not be financially liable if the trash-to-ethanol business fails. Once made aware of a business connection between the political insider and the company set to build and operate the plant, government officials said they immediately demanded the company sever ties with the insider. * * *

Through months of committee meetings, presentations and debates on the trash proposals, the waste management district used the Indianapolis office of Barnes & Thornburg to help analyze the companies proposing to consolidate county trash processing.

Powers, the winning bidder, acknowledges that same law firm represented his business interests for about 18 years prior to making his Lake County trash processing bid, including work to incorporate his financial firm, World Net Capital 1 LLC.

Langbehn said the county used Barnes & Thornburg as an additional set of legal eyes to complement the waste district's own attorney, Clifford Duggan. The county also hired a Wisconsin-based engineering firm and a separate consultant to analyze the financial plans and proposals of the three bidding companies.

"We stayed away from any conflict that anybody might have by not hiring anybody locally who might lean towards different people," Langbehn said. "We told Earl (Powers) this had to be the most honest thing he has ever done because this is Lake County, Ind. We set the standards right away."

During his second presentation to the full Lake County Solid Waste Management District board, Powers divulged that Barnes & Thornburg had served as his attorney.

Because the relationship was disclosed, no state ethics rules were violated, said Seth Pruden, interim executive secretary for the Indiana Supreme Court Disciplinary Commission.

Representatives from Barnes & Thornburg did not return calls from The Times seeking comment on the matter.

In a recent interview with The Times, Powers said he severed ties with the law firm six or seven months prior to signing a contract with the county. That contract was approved by the waste management district board in November 2008, more than a year after Powers disclosed his connection to Barnes & Thornburg to the board.

Both Powers and Langbehn deny that Powers Energy received any preferential treatment in the bidding process because of the connection between the district and Powers' company to Barnes & Thornburg.

Langbehn noted that Powers' specific attorney -- though within the same firm -- did not perform any of the legal work for the county.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana economic development

Ind. Courts - "Life, Death and Insurance: Indiana's $15 Million Mystery "

That is the headline to this long story today in the WS Journal, reported by Leslie Scism and Mark Maremont. It begins:

INDIANAPOLIS—It is a tale worthy of an airport-kiosk thriller.

The mother-in-law of a nationally known executive is found dead in her bathtub. She is fully clothed from an evening out at a martini bar, high heels still on her feet. The authorities rule she accidentally drowned.

Months later, her family learns that the last person to see the woman alive—a local businessman half her age—had a $15 million insurance policy on her life, payable to his company.

The scenario is playing out in real life in a civil lawsuit in federal court here. The mother-in-law, Germaine "Suzy" Tomlinson, died in September 2008 at age 74. The son-in-law is Stephen Hilbert, who co-founded insurance company Conseco Inc. and now runs an investment fund. His family is seeking to wrest control of the $15 million policy from its beneficial owner, a company controlled by entrepreneur JB Carlson. The Hilbert family maintains that the 36-year-old Mr. Carlson, who was a social companion to the older woman for several years and had some business dealings with her, had no legitimate reason to obtain the policy.

Mr. Hilbert says: "I'm not accusing anybody of anything. There's still incredible suspicion from the family as far as her demise."

Mr. Carlson says suggesting the death is anything but a tragic accident "is just ridiculous." He says the loss of a friend has been "tremendously painful."

He says that he drove a tipsy Ms. Tomlinson home from the bar about 1 a.m., escorted her inside and left her—alive—in her living room. Mr. Carlson maintains that he legitimately bought the insurance on Ms. Tomlinson as a "key man" policy, sometimes taken out by a business to protect itself from financial damage if a top executive dies. Ms. Tomlinson introduced him to potential investors and told people she was a board member of his company.

The long story continues and covers the issue of "stranger-originated policies." A sample:
In recent years, insurance agents, hedge funds and other investors have induced thousands of elderly people to take out giant policies. Investors then buy these policies, pay the premiums, and collect when the insured dies.

Insurers argue the practice violates "insurable interest" laws that require a buyer to be a relative, employer or someone else more interested in having the insured person alive than dead. U.S. courts long have supported this concept, including a 1911 ruling in which Supreme Court Justice Oliver Wendell Holmes Jr. wrote: "A contract of insurance upon a life in which the insured has no interest is a pure wager that gives the insured a sinister counter interest in having the life come to an end."

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana Courts

Ind. Courts - "Changes coming for Tippecanoe County Drug Court"

Sophia Voravong reports today in the Lafayette Journal Courier:

Nonviolent offenders charged in Tippecanoe County with narcotics-related offenses will no longer be offered Drug Court as an alternative to incarceration.

The program will be phased out beginning in January from Tippecanoe County's Forensic Diversion Drug Court because of a lack of participants.

Forensic Diversion, which more narrowly focuses on nonviolent drug offenders with coexisting mental illnesses, will continue. The supervisory team also will stay in place. * * *

[T]he Forensic Diversion is coordinated through Community Corrections and funded by the Indiana Department of Correction. Drug Courtis coordinated through Court Services and supervised by the Indiana Judicial Center.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Indiana Courts

Courts - How Stevens leaving will change the SCOTUS internal dynamics

The knowledgeable Lyle Denniston SCOTUSBlog has of valuable insights on how Justice Steven's leaving will affect the role played by Justice Anthony M. Kennedy.

Posted by Marcia Oddi on Monday, April 12, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Donnell Jones v. State of Indiana , a 6-page opinion, Judge Kirsch writes:

Donnell Jones (“Jones”) appeals his conviction for carrying a handgun without a license1 as a Class C felony. Jones raises the following issue, which we restate as: whether the evidence is sufficient to establish beyond a reasonable doubt that Jones had the requisite intent to constructively possess the handgun at issue. We reverse. * * *

Although Jones testified that he had no knowledge of the handgun and that he was trying to hide the alcohol from the officer, the trial court discredited Jones’s testimony about his actions based on Jones’s inability to recall being pulled over the first time. The owner of the vehicle did not testify at trial.

We find that while the evidence is sufficient to establish that Jones was guilty of operating a vehicle while intoxicated, the evidence is insufficient to establish beyond a reasonable doubt that Jones had the requisite intent to constructively possess the handgun at issue. We find that the circumstantial evidence is inadequate to support an inference of intent to carry a handgun without a license beyond a reasonable doubt.

NFP civil opinions today (2):

Kathleen Kleeman, et al. v. Marlene Decker (NFP)

Adoption of A.W.; A.W. v. D.L. (NFP)

NFP criminal opinions today (4):

Christopher A. Mendez v. State of Indiana (NFP)

Ramiro P. Bautista v. State of Indiana (NFP)

William L. Schmitt, Jr. v. State of Indiana (NFP)

Michael Emerick v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 12, 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, April 11, 2010:

From Saturday, April 10, 2010: From Friday afternoon, April 9, 2010:

Posted by Marcia Oddi on Monday, April 12, 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 4/12/10):

Next week's oral arguments before the Supreme Court (week of 4/19/10):


This week's oral arguments before the Court of Appeals (week of 4/12/10):

Monday, April 12th

Tuesday, April 13th

Wednesday, April 14th

Next week's oral arguments before the Court of Appeals (week of 4/19/10):

Next Monday, April 19th

Next Tuesday, April 20th

Next Wednesday, April 21st

Next Friday, April 23rd

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, April 12, 2010
Posted to Upcoming Oral Arguments

Sunday, April 11, 2010

Law - "Dawn Johnsen secret keeps David Hamilton appointment festive"

More from Prof. Johnsen's "home town" paper, the Bloomington Herald Times, today -- reporter Mike Leonard has a long commentary ($$) that begins:

At the reception following the lengthy and elaborate swearing-in ceremony making his appointment to the U.S. Court of Appeals official, David Hamilton stood before a more casual and festive audience and confessed that he felt like he’d just watched his own funeral.

It probably did feel like an out-of-body experience, watching speaker after speaker saying the kindest and most flattering things a person could say about another human being.

The odd thing is that the affair might well have included some of the sadder and more somber aspects of a funeral, had it been generally known that Hamilton’s sister-in-law, Dawn Johnsen, had withdrawn her name for consideration to head the Justice Department’s Office of Legal Counsel.

Some of the people at the swearing-in ceremony and Columbia Club reception knew, but didn’t let on. I didn’t know, and in my conversations with people close to the situation, and with Hamilton, it was never divulged. I even said to Hamilton and to his former law clerk, Allison R. Brown, that I wished that President Obama would have made Johnsen a recess nomination.

Both seemed a bit fidgety at the suggestion, but that would have been normal, even if Johnsen hadn’t withdrawn. Since Johnsen was first nominated by the president in January 2009, people close to Johnsen and the Hamilton family have politely declined to comment on the dispiriting political controversy surrounding her candidacy.

Perhaps I should have been more curious about the absence of three people I expected to be there: Johnsen; her husband, John; and John and David’s uncle Lee, the former congressman.

I had left the reception and was standing outside of the Columbia Club on Monument Circle when I pulled out my iPhone and picked up two messages from my managing editor that the AP news wire had delivered the news from Washington that Johnsen had withdrawn — and that the paper wanted comments from the family. Hamilton and his father, Richard, both declined, but David pointed me toward his cousin, Doug Schmidt.

Schmidt decried the ugly politics and unfair characterizations of Johnsen’s record and called her an example of a person of the highest possible integrity, speaking out against the country’s use of torture when it is now abundantly clear her definitive stance was morally right but politically costly.

The delicate dance around the looming sad news worked. The day rightly belonged to David Hamilton.

Posted by Marcia Oddi on Sunday, April 11, 2010
Posted to General Law Related

Ind. Courts - "Gary City Court in session, barely: Deal keeps City Court open, but more cost-cutting, closure possible"

Jon Seidel has a long story in today's Gary Post Tribune that begins:

GARY -- Judge Pro Tem J. Maurice Patton took the bench around 9:30 Friday morning, facing a city courtroom filled with about 50 people.

Soon he was presiding over the day's traffic trials, listening as defendants argued against citations for crimes like failing to stop for a stop sign, parking where prohibited and driving without insurance.

This was a typical Friday morning for the Gary City Court. Judge Deidre Monroe said it sees 500 to 800 people every week, funded by a shrinking budget, now set at $1.5 million. It hears traffic, domestic violence, drug-court cases and others. Defendants are left to sit on broken chairs as maintenance is deferred.

Gary City Court continues to be a cost-cutting target as cash dries up for city government. In a report last year, Gary's fiscal monitor suggested the city close the court, putting a new burden on the county court system and county taxpayers.

If it closes, Lake Superior Court Chief Judge John Pera said the county would be obligated to take on the extra work.

"Those cases have to be heard," Pera said. "They have to be filed somewhere. Where else are they going to turn but the Lake Superior Court system?"

Posted by Marcia Oddi on Sunday, April 11, 2010
Posted to Indiana Courts

Ind. Courts - More on "Supreme Court hears card counting case"

Updating this ILB entry from April 7th, the Louisville Courier Journal has an editorial today headed "Who's counting?" A quote:

Mr. Donovan's lawsuit challenges a common practice of casinos to exercise their “common law right” to ban card counters, and though casinos usually win these cases in the courts, several casino operators reportedly are taking no chances and have asked Indiana's gaming commission to create a rule that will allow them specifically to ban card counters.

In the meantime, however, Indiana's Court of Appeals has ruled that the Grand Victoria can't ban Mr. Donovan from playing blackjack there. So now the Indiana Supreme Court will decide. In arguing the other day for the appellate court's decision to be overturned, casino attorney Peter Rusthoven compared such bannings to a bartender's right to stop serving drinks. He also argued that casinos should have the right to act if they believe a customer is acting “a little shady.”

However, the casino has not alleged that Mr. Donovan acted illegally or broke rules. Moreover, Justice Frank Sullivan Jr. interrupted the lawyer to offer his opinion that casinos cannot offer games in which skill can be a factor, and then turn around and say to skilled people, ‘Sorry, you can't play.'”

Posted by Marcia Oddi on Sunday, April 11, 2010
Posted to Indiana Courts

Ind. Gov't. - Who's on your ballot?

Use this Indiana Election Division webpage to find out who is on your ballot for the May primary, and what public questions that will be on your ballot. No need to declare your party, to see all candidates, select "All" re "Party type."

Posted by Marcia Oddi on Sunday, April 11, 2010
Posted to Indiana Government

Saturday, April 10, 2010

Ind. Gov't. - More on "Porter County cannot leave RDA "

Bob Kasarda expands his NWI Times story from yesterday, and includes a link to the April 9, 2010 11-page order by Judge John D. Potter, Jasper Circuit Court.

Posted by Marcia Oddi on Saturday, April 10, 2010
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Courts - Newton County prosecutor unlicensed

Updating this ILB entry from July 19, 2009, which quoted a story by the AP's Charles Wilson that began "Hundreds of criminal convictions, including that of a man found guilty of a crash that killed three people, could return to court because the Indiana prosecutor who oversaw the cases had an inactive law license for more than three years," Sophia Voravong reports today in the Lafayette Journal Courier:

Newton County Prosecutor J. Edward Barce admitted Friday that he submitted paperwork that rendered his Indiana law license inactive after closing a Kentland-based civil practice in 2005 to instead open a restaurant.

But Barce, 50, contends he did not know that choosing "inactive" on documents for annual registration fees for Indiana attorneys meant he could no longer prosecute cases.

The three-term elected prosecutor submitted such paperwork again in 2006, 2007 and 2008.

"I thought because I had closed my civil practice ... . I had no idea I was practicing without a license," Barce said during a disciplinary hearing Friday in Tippecanoe Superior Court 2.

"It's just an assumption I made -- I can't explain why. I had no idea my status was what it was."

The Indiana Supreme Court Disciplinary Commission filed a complaint against Barce in April 2009 for prosecuting felonies and misdemeanors in Newton County without an active license.

Barce could be disbarred, reprimanded or suspended.

Friday's hearing was held in Lafayette because the Indiana Supreme Court appointed Tippecanoe Superior Court 2 Judge Thomas Busch to preside over the case.

Busch on Friday gave Barce's attorney, Kevin McGoff, and disciplinary commission attorney Dennis McKinney until May 10 to turn in any related briefs.

He'll then give his decision to the Indiana Supreme Court. * * *

Though Barce's status has been challenged by two defendants, McKinney, the disciplinary commission attorney, argued that Barce's actions could be far reaching.

"We're not saying that it opens the floodgates for every criminal convicted during that time to have his conviction reversed," McKinney said.

"All we're saying is, there is a potential for it to be raised and burden the judicial system."

But McKinney said Barce has been cooperative. He admitted to all factual allegations against him but denied that it amounted to misconduct.

"I'm sorry that it came to having to involve the court in this case," Barce told Busch. "I wasn't trying to do anything crooked ... or benefit from it."

See also this ILB entry from April 7, 2010 re the Indiana Supreme Court's order that the general counsel of Indiana-based Celadon Group, Inc. stop practicing law in Indiana.

Posted by Marcia Oddi on Saturday, April 10, 2010
Posted to Indiana Courts

Law - More on "Dawn Johnsen withdraws"

From the "home town" paper, the Bloomington Herald Times ($$), some quotes:

Many of Johnsen’s family members were in Indianapolis Friday for a formal swearing in ceremony for her brother-in law, David F. Hamilton of Bloomington, as a circuit judge on U.S. Court of Appeals for the 7th District. Attendees included other members of the 7th U.S. Court of Appeals and Ind. Sen. Evan Bayh.

During his remarks, David Hamilton made a cryptic reference to his sister-in-law, saying “she deserved a vote.” At that time, only political and family insiders knew that Johnsen had withdrawn.

After the ceremony ended and word of the withdrawal became public, people close to the situation declined to comment, citing the conflict with the celebratory nature of the swearing-in event.

Doug Schmidt of Bethesda, Md., a cousin of Dawn’s husband and David’s brother, John Hamilton, expanded upon David’s remark in speaking for the family, saying, “She deserved an up or down vote. We are deeply disappointed.

“Dawn Johnsen is one of the bravest people I know," Schmidt said. "At a time when our country is wrestling with serious issues regarding torture and the legitimate use of the Justice Department, she spoke clearly and bravely about American values and principles.

“I personally am more disappointed for our country.”

Richard Hamilton, the first minister at Bloomington’s St. Marks’s United Methodist Church and the father of David and John, also said he felt it was inappropriate to comment at this time.

The decision about who should lead the little-known office became a political flashpoint because of the controversies surrounding Bush-era interrogations of terror suspects.

From Charlie Savage of the NY Times:
It was not clear whether Ms. Johnsen or the White House had made the decision to pull her nomination. The news was overshadowed by the announcement, earlier in the day, that Justice John Paul Stevens was retiring from the Supreme Court at the end of this term.

Ms. Johnsen’s nomination had been closely watched because the Office of Legal Counsel has the power to tell the president and other executive officials whether actions would be lawful. Officials who rely on its secret opinions are essentially safe from prosecution — even if the office’s legal pronouncements are later deemed to be incorrect.

Once obscure, the office became controversial in the administration of President George W. Bush when its political appointees, citing sweeping theories of presidential power, secretly signed off on interrogation and surveillance policies that bypassed statutory and treaty restraints. Ms. Johnsen was an outspoken critic of those claims after they came to light.

An Indiana University law professor, Ms. Johnsen had also served as acting head of the Office of Legal Counsel during the Clinton administration. During the Bush administration, she helped lead a coalition of Clinton-era alumni of the office in proposing changes to restore its reputation and independence.

In a 2008 essay titled “Restoring Our Nation’s Honor,” Ms. Johnsen wrote: “We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.”

Ms. Johnsen was among the first nominees Mr. Obama announced for the Justice Department in early January 2009. But while she was approved by the Senate Judiciary Committee in March 2009, she never received a floor vote.

Ms. Johnsen was singled out by conservatives as too liberal, in part because of her work for an abortion rights group two decades ago. And while one Republican senator, Richard G. Lugar of Indiana, supported her, at least two Democrats — Ben Nelson of Nebraska and Arlen Specter of Pennsylvania — said they opposed her.

Mr. Specter, facing a primary challenge from the left, later said he would not try to block her confirmation after all. And it was not clear whether Mr. Nelson would join Republicans in trying to block a vote on Ms. Johnsen with a filibuster. But the Senate majority leader, Harry Reid of Nevada, did not bring the nomination up for a floor vote.

Late last month, Mr. Obama bypassed the Senate confirmation process to install 15 long-stalled nominees as recess appointees, but Ms. Johnsen was not among them. A White House official said Mr. Obama did not give her a recess appointment because that would have undermined the effort to put the Office of Legal Counsel’s work above the partisan fray.

[More] Here, via Main Justice, are Ms. Johnsen's withdrawal letter and the White House response.

Posted by Marcia Oddi on Saturday, April 10, 2010
Posted to General Law Related

Friday, April 09, 2010

Law - "Dawn Johnsen Withdraws"

Not surprising by now, but still very bad news, IMHO.

Andrew Ramonas has the story at Main Justice:

President Barack Obama’s Justice Department Office of Legal Counsel nominee Dawn Johnsen withdrew her nomination Friday.

Johnsen has faced immense criticism from Republicans because of her pro-abortion views and her opposition to Bush administration terrorism policies.

“Restoring OLC to its best nonpartisan traditions was my primary objective for my anticipated service in this administration,” Johnsen said in a statement. “Unfortunately, my nomination has met with lengthy delays and political opposition that threaten that objective and prevent OLC from functioning at full strength. I hope that the withdrawal of my nomination will allow this important office to be filled promptly.”

White House spokesman Ben LaBolt praised Johnsen for her credentials as a law professor at University of Indiana and her time spent in the OLC during the Clinton administration. But he said it was “clear that Senate Republicans will not allow her to be confirmed.”

“After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to – to provide impartial legal advice and constitutional analysis to the executive branch,” LaBolt said in a statement. “He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals.”

ILB: The writing was on the wall when Johnsen was not included in the recess appointments Obama made last week. Here is a list of earlier ILB entries.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to General Law Related

Courts - Fascinating account of alleged ticket hacking

Mary Pat Flaherty of the Washington Post has a lengthy account of how, according to federal investigators, "a ring of hackers working for Wiseguy Tickets Inc. cracked security measures at Ticketmaster and other major vendors. They gained control of 1.5 million tickets to popular and coveted concerts and sporting events nationwide between 2002 and 2009."

Here is the 60-page indictment.

More from the very long story:

While thousands of adoring fans perched patiently at computers hoping to score good seats to everything from the Hannah Montana tour to Wrestlemania, the Wiseguys hired cheap Bulgarian programmers and began registering as many as 100,000 Internet addresses to jump the cyber-line at electronic ticket booths and make a fortune, federal prosecutors say.

Legions who tried, but failed, to get face-value tickets for the July 2007 appearance of televangelist Joel Osteen at Verizon Center or the October 2008 Redskins-Eagles game in Philadelphia or the three-day Phish reunion in March 2009 in Hampton, Va., can blame the Wiseguys, say prosecutors in Newark, who contend that the company flourished due to criminal fraud and conspiracy.

If only for the audacious corporate name, the Wiseguys case was bound to stand out. Yet the sweep and speed of its buying jags sets the Wiseguys operation apart from other court disputes and fan protests over the past three years. As Internet ticket sales have grown -- in some cases, the Web is the only place to get tickets to the most popular shows -- so, too, have struggles to control them. Ticket companies haven't been able to thwart every programmer who would pluck them clean, and the regular guy is left without tickets to his favorite band's one local appearance.

As prosecutors tell it, the Wiseguys knew exactly what they were doing:

They used the Bulgarian hackers hired at $1,000 a month to create automated programs known as bots that flood vendor sites and buy hundreds of choice tickets in split-second transactions.

They targeted seats set aside for patrons with limited vision because those spots were closest to a stage.

They posed as tweens in a Miley Cyrus fan club to draw a bead on pre-sales.

Major vendors, including Ticketmaster, the world's largest ticketing company, spent more than $1 million to combat automated attacks. But they were bested by a company with 15 employees, according to federal agents.

On gross annual revenues, the Wiseguys were turning a 20 percent profit, court records show.

See also this timeline.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Courts in general

Ind. Gov't. - "Porter County cannot leave RDA "

Bob Kasarda is reporting in the NWI Times:

RENSSELAER | A Jasper County judge ruled Friday that the Porter County Council overstepped its legal rights when it voted a year ago to withdraw from the Northwest Indiana Regional Development Authority.

The county could not vote to leave the regional group because it did not elect to join in the first place, said Jasper County Circuit Court Judge John Potter.

The state law creating the RDA automatically made the county a member, he said.

"The only option Porter County had was whether or not to utilize the option of a CEDIT tax increase to fund their financial requirements to the RDA," Potter said.

The judge ordered the county to resume paying its $3.5 million in annual dues and turn over by May 1 all due payments that have been held in an escrow account since the county initiated the legal challenge on Aug. 28.

County attorney Gwenn Rinkenberger said she was shocked to learn the county did not have the option to join the RDA considering that is not how it was presented at the time of the council's favorable vote in May 2005.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Ind. Trial Ct. Decisions

Courts - "The plain terms of the statute prohibit Sec. 1927 sanctions from being imposed against a law firm."

That was the ruling of a federal judge in Nevada in the case of Montgomery v. eTreppid Technologies, LLC. From a story in the Los Angeles Metropolitan News Enterprise headed "Judge Reverses Sanctions Against Law Firm, Attorneys":

A U.S. District Judge in the District of Nevada has rejected a $200,000 sanctions award recommended by a magistrate judge against a California firm and two of its former attorneys.

Judge Philip M. Pro on Monday affirmed the objections of Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP and Los Angeles attorneys Deborah Klar and Teri Pham to U.S. Magistrate Judge Valerie P. Cooke’s ruling, without prejudice. * * *

Cooke found that Klar and Pham had acted in bad faith in their efforts to secure Montgomery’s files from his former attorneys and Cooke ordered sanctions of $204,411 against Klar, Pham, the firm and Montgomery, in addition to $201,990 in fees and costs.

The magistrate further ordered the attorneys to perform a combined total of 300 hours of pro bono work, and barred them from applying to practice pro hac vice in the District of Nevada for five years.

She also referred potential Rules of Professional Conduct violations by Klar and Pham to the Nevada and California State Bar Associations.

Pro, however, said that Cooke’s order as to the firm was contrary to law because she purported to impose sanctions against Liner Grode pursuant to 28 U.S.C. § 1927, which applies only to an “attorney or other person admitted to conduct cases in any court of the United States.”

Because a law firm is not an attorney or a person admitted to conduct cases in federal courts, Pro reasoned that the plain terms of the statute prohibit Sec. 1927 sanctions from being imposed against a law firm.

The judge also concluded that the sanctions against Klar and Pham violated the attorneys’ due process rights since they had not been given adequate notice.

He noted that the magistrate judge’s order setting the evidentiary hearing on the issue of sanctions compelled both attorneys to attend, but their names were listed along with Flynn’s name as parties whose presence was required. Pro reasoned that this would not have alerted Klar or Pham to the possibility that they were personally facing the possibility of sanctions.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Courts in general

Law - "Sex offender housing restrictions may lead to more crimes"

From the Chicago Tribune today, a story by Megan Twohey - some quotes:

A Tribune review has found that the state's sex offender housing laws, enacted over the past decade with the goal of protecting the public, may be having the opposite effect.

Thousands of sex offenders have remained in prison for parole and then been returned to the streets without oversight or treatment. These offenders are less likely to register their addresses than those serving tightly monitored paroles in the community. They also are more likely to reoffend, sometimes repeating the same sex crimes, the review found. * * *

Sex offender housing restrictions have long been criticized by civil liberties advocates, who argue that it's unjust to banish any segment of society, and by criminal justice experts, who say it's more productive and cost-effective for most offenders to undergo parole supervision and treatment in the community.

Now some victims' advocates and members of law enforcement are echoing the calls for reform.

"There's a growing awareness that these housing restrictions make politicians feel good, but don't protect victims or prevent crime," said Kaethe Morris Hoffer, a legal director at the Chicago Alliance Against Sexual Exploitation.

The restrictions were prompted by several high-profile attacks on children in the 1990s, among them the abduction, rape and murder of 7-year-old Megan Kanka of New Jersey by a convicted sex offender who was the family's neighbor.

The first wave of laws required that convicted offenders register their addresses or face arrest. They were followed by actual prohibitions on where offenders could reside.

In 2000, Illinois passed a law that prohibited child sex offenders from residing within 500 feet of schools, parks and day care centers. Some municipalities went further, setting the distance at 1,000 feet or more.

Illinois Attorney General Lisa Madigan's office pushed for a 2004 law that, among other things, allowed parole officers to prevent all sex offenders, not just those who targeted children, from living in such areas.

One year later, lawmakers from Chicago championed legislation that made it illegal for more than one sex offender to live in the same apartment complex unless it was a transitional housing facility that met strict state licensing requirements, such as 24-hour-a-day security. They were upset that offenders from across the state were landing in high concentrations on the city's South and West sides after prison. * * *

Since then, the number of transitional housing beds for sex offenders in Illinois has dropped from more than 200 to 26. Today, there is only one halfway house licensed by the state. The facility, in East St. Louis, has a waiting list of more than 1,300 inmates.

The Illinois Department of Corrections has stopped releasing offenders for parole who do not have an acceptable place to live.

There are as many as 1,800 of these refusals to release each year, according to the department. In many cases, inmates have been walked to the prison door on the day of their scheduled release, only to be turned around and reprocessed all over again.

"We won't release them if they don't have a place to live," said Alyssa Williams-Schafer, the department's coordinator of sex offender services.

This turnaround policy has come under fire from civil rights advocates, including a team of Chicago attorneys who filed a federal lawsuit against the Department of Corrections alleging that the offenders' constitutional rights to due process and equal protection are violated when they are forced to remain behind bars because they can't afford a place to live.

Other critics question the one-size-fits-all application of housing restrictions, seeing a significant difference in the small percentage of sex offenders who target strangers, for example, and the so-called "Romeo and Juliet" cases, in which older boyfriends are convicted of criminal sexual abuse for having consensual sex with their younger girlfriends.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Courts in general

Courts - "Regulatory failure? Blame the D.C. Circuit"

An interesting opinion piece today in the Washington Post, written by business columnist Steven Pearlstein. A sample:

Unfortunately, it often takes a global financial crisis or a deadly coal mine explosion to remind us of the serious consequences of regulatory failure.

Much of the blame belongs with regulators who have been captured by the industries they are meant to oversee or have been swept up in the general political drift toward deregulation. But, as we were reminded by a case this week involving the Federal Communications Commission, another big culprit is the U.S. Court of Appeals for the District of Columbia Circuit, which over the past decade has intimidated, undermined and demoralized the regulatory apparatus.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Courts in general

Ind. Courts - "Lake County judge race pits Paras vs. Dominguez"

Updating this ILB entry from April 5, 2010, here is another story today from Andy Grimm of the Gary Post Tribune on the Lake C. Circuit Court race. Some quotes:

Lake County attorneys rate George Paras as more qualified than Alex Dominguez to be Circuit Court judge, according to a survey by the Lake County Bar Association.

In a survey of 248 attorneys who responded to an on-line poll, Paras received an overall rating of 5.89 on a 10-point scale, with 10 the highest rating. Dominguez received a rating of 4.13.

A candidate with a rating of 7 or higher is considered "well qualified," a rating of "5 to 6 is "qualified," and 4 or lower is "less than qualified."

When asked to select a candidate for the post, Paras received 105 votes to Dominguez's 35, a 3-to-1 margin. However, 108 respondents made no selection between the two candidates.

"There's a lot of ambivalence about this election out there," said one area attorney who asked not to be named.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Indiana Courts

Ind. Courts - "Girls convicted in 1997 Jeffersonville stabbing seek reduced sentence: Prosecutor wants judge Fleece removed after comments at hearing"

So reports Matt Thacker in this story in the Jeffersonville News & Tribune. Some quotes:

Two teenage girls convicted in the 1997 gang-related stabbing of a pizza delivery man are seeking a new sentencing hearing, but the Indiana Supreme Court may first be asked to decide whether a judge should be removed from the case for remarks he made in chambers.

Shayla L. Shackleford, then 14, and Devonna T. McDonald, then 15, lured a 41-year-old pizza delivery man to a Jeffersonville home to steal his car and drive to Alabama, according to court records. The girls each stabbed the man twice with butcher knives before driving off with his car.

The victim, Albert Yeager Jr., survived the wounds.

Investigators said at the time that the girls were trying to impress members of the Lady Thugs gang that they wanted to join.

They were tried as adults and convicted by a jury of class A felony attempted murder, class A felony conspiracy to commit murder and class A felony robbery.

Former Clark County Superior Court No. 1 Judge Jerry Jacobi sentenced them to 60 years in prison — 30 for attempted murder and 30 for robbery. After exhausting their appeals, a petition for post-conviction relief was filed in February 2009.

In the petition, Chicago-based attorneys for the girls argued the consecutive 30-year sentences violated Indiana’s common law double-jeopardy principles since both were enhanced by the same act of the stabbing.

The attorneys also argue that the judge failed to consider any mitigating factors, such as the defendants’ youth, remorsefulness and lack of prior criminal history.

“The original trial court only paid lip service to the fact that these girls were among the youngest girls in the country to receive such harsh sentences,” said Steven Drizin, a professor at Northwestern University School of Law in Chicago, who is part of a team representing Shackleford and McDonald pro bono.

Presiding Judge Vicki Carmichael recused herself from the case because she had represented McDonald on appeal. She appointed Senior Judge Steven Fleece to preside over the post-conviction relief proceedings.

During a status conference in judge’s chambers in May, Fleece reportedly made comments about the case that prosecutors believed showed bias. Prosecutors filed a motion to change judges, asserting that Fleece described the trial is “divisive” and said the girls had to be released from prison in order to accomplish “healing” in the community. He also was accused of saying the girls had spent enough time in prison and that “everybody” believed the sentences were too harsh.

Fleece denied the motion, responding that the prosecutors had mischaracterized his statements and took them out of context.

“The state has correctly inferred that the judge now views sentence-modification as desirable,” Fleece stated in his ruling. “This is a preliminary conclusion not based on any bias or prejudice or outside influence, but upon analysis of the pleadings and undisputed facts of the case.”

Also at issue was a discussion between Jacobi and Fleece that was described by Fleece as being brief and by accident at a funeral visitation both attended. Fleece said Jacobi told him he would not be “personally offended” if the sentence was modified, according to court records. Fleece reported that conversation, but said it would not affect his objectivity.

The attorneys for the girls opposed the motion to change judges, and the Indiana Court of Appeals agreed in a decision published last month, stating that Fleece had not shown bias or prejudice.

Although what went on in chambers was not recorded, the Court of Appeals found that prosecutors has misconstrued Fleece’s statements.

“In short, Judge Fleece should not have initiated the conversation or entertained Judge Jacobi’s opinions on the matter ... (but) we cannot conclude that the conversation with Judge Jacobi renders a fair judgment impossible,” the opinion states.

Prosecutors filed a motion this week notifying the court of its intention to seek a rehearing from the Court of Appeals and a transfer to the Supreme Court if that rehearing is denied.

“I think it’s astounding anyone could conclude the state is going to receive a fair hearing,” Clark County Prosecutor Steve Stewart said. “It is admitted that [Fleece] told both parties the girls deserve to be released from prison.”

He compared Fleece’s statements to a judge saying before a trial concludes that he believes the defendant is guilty.

“Both a trial court and Court of Appeals have already ruled on the state’s motion and both courts have rejected its claims,” Drizin said. “We’re very disappointed by what appears to be the state’s decision to prolong this case further and to prevent a hearing on the merits.”

If post-conviction relief is granted, Stewart said the judge would order a new sentencing hearing.

“It would be like going back in time and having the sentencing hearing all over again,” Stewart said.

He said he believes the 60-year sentence was fair. Drizin said there is enough evidence to support the defendants’ immediate release.

Fleece said he would let the Court of Appeals opinion speak for itself, but added, “I was a little surprised the state wants to try to refer this to the Supreme Court.”

The March 10, 2010 Court of Appeals decision is summarized in this ILB entry, 2nd case.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Indiana Courts

Ind. Gov't. - "State PAC may be asked to sort out South Bend school board fight"

Joseph Dits and Margaret Fosmoe have this story in the South Bend Tribune:

Should the South Bend Community School Corp. board have let the public know which positions were being cut in its vote Wednesday?

Bill Sniadecki believes so. The board vice president said he plans to file a complaint with Indiana's Public Access Counselor, a state office that helps with open records and meeting laws.

"The positions were lumped together for a vote and (board President Marcia Hummel) did not read for the public what positions we were voting on," he said. "They hid the positions from the public."

Hummel said she didn't announce the positions at Wednesday's meeting out of "professional courtesy," because the individuals hadn't been notified yet that their positions were being cut.

She also said that any board member could have announced the positions in the meeting.

Time may have been a factor. On March 29, some board members asked Superintendent James Kapsa to come back Wednesday with ideas for trimming the central-office staff.

Kapsa sent the list of potential staff cuts — a total of six — to all of the trustees about noon Wednesday. Hummel said that, in the course of that afternoon, four trustees asked to pull two positions from the list, saying they had questions about job duties and accreditation.

The board then met at 5 p.m. to discuss and vote on the cuts.

The Tribune asked Kapsa after the meeting for details about who and what were being cut. He held off, saying he still needed to inform the individuals whose jobs were affected.

Did state law require the board to disclose those positions publicly?

In general, the state's open meeting laws don't require that every detail be disclosed when the board of a public agency votes, said Andrew Kossack, Indiana's public access counselor .

The board does have to give at least some information. But Kossack added, "There's not anything in the law about how much detail a governing body has to go into."

To get that information, he advises that the public's and the news media's best route is to request the document on which a board votes. That, he said, triggers the state's open-records law. Otherwise, he said, the law may not back up a person who's simply requesting information.

Sniadecki said he also wants to file a complaint about the way the two other proposed cuts were removed from the original list.

He claims that Hummel had taken a "vote" by telephone to remove the two cuts from the list.

Hummel said it's her and Kapsa's prerogative to remove items from a board meeting's tentative agenda.

At the start of the meeting, Hummel and Kapsa announced that items No. 2 and 6 would be removed from the list, and the board quickly adopted the agenda. When it came time for discussion, Sniadecki and trustee Roger Parent argued the items should have been left on the list of staff cuts.

Kossack said this doesn't sound like an issue regarding Indiana's open-meeting laws. It could be more of a question about the school corporation's own policies, he said.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Indiana Government

Ind. Decisions - One Indiana case decided today by 7th Circuit

In U.S. v. DeWayne Hall and Calvin Key (ND Ind., Moody), a 12-page opinion, Judge Stykes writes:

DeWayne Hall and Calvin Key appeal the district court’s denial of their motions for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive crack-cocaine amendments to the Sentencing Guidelines. We reject their arguments and affirm. The district court was well within its discretion in finding each defendant responsible for distributing over 4.5 kilograms of crack cocaine, making them ineligible for a sentence reduction under the amended guidelines. The court’s findings were not inconsistent with its original sentencing findings and were therefore properly within the scope of a § 3582(c)(2) proceeding.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (0):

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

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Ind. App.Ct. Decisions

Courts - Justice Stevens to Step Down [Updated]

The WSJ Law Blog has some initial coverage.

See this entry from from SCOTUSblog, by Lyle Denniston, headed "Stevens’ era is ending". See also this entry speculating on the timeline.

[Updated 4/10/10] In today's Washington Post, a tribute to Justice Stevens titled "Goodbye to the 'rule of law' justice," by Cliff Sloan,who clerked for Justice Stevens in the 1985-86 term. It includes a number of links to Stevens' opinions.

Posted by Marcia Oddi on Friday, April 09, 2010
Posted to Courts in general

Thursday, April 08, 2010

Ind. Decisions - 7th Circuit issues opinion on internet jurisdiction

On April 5th the ILB posted this entry headed "Indiana's Legal Precedent Regarding Personal Jurisdiction in Online Auction Cases."

Today the 7th Circuit has issued a 32-page opinion in an Illinois case, Tamburo v. Dworkin, where Judge Stykes writes:

John Tamburo, an Illinois resident who operates a dog-breeding software business in Illinois, filed suit in the Northern District of Illinois alleging federal and state antitrust violations and several intentional tort claims under Illinois law. His claims arise out of a dispute over the contents of a dog-pedigree software program he developed by lifting data from the defendants’ websites. He alleges the defendants used the Internet to retaliate against him for copying their online data, which he contends was in the public domain. The defendants are a Canadian proprietor of a dog-pedigree website who has never visited or transacted business in Illinois; three Americans who likewise maintain dogpedigree websites and are residents of Colorado, Michigan, and Ohio with only sporadic contacts with Illinois; and an Australian software company with insignificant sales in Illinois. This appeal requires us to apply long-established rules for asserting personal jurisdiction over foreign defendants to the relatively new setting of torts committed over the Internet.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Two opinions issued today by Supreme Court

In Jeffrey Treadway v. State of Indiana, a 27-page, 5-0 opinion, Justuce Rucker writes:

After a trial by jury Jeffrey Treadway was found guilty of murder, felony murder, robbery, and battery. Alleging two statutory aggravating circumstances, the State sought life imprisonment without parole. The jury recommended life imprisonment and the trial court sentenced Treadway accordingly. Rephrased and reordered Treadway raises the following issues: (1) did the trial court err in failing to dismiss the State‟s request for life imprisonment without parole; (2) did the trial court abuse its discretion in failing to grant a mistrial; (3) did the trial court abuse its discretion by admitting into evidence the testimony of two inmate witnesses; (4) did the trial court err in admitting into evidence Treadway‟s pretrial statement; (5) did the trial court err in instructing the jury; (5) was the evidence sufficient to sustain the verdicts; (6) did the State prove the existence of the statutory aggravators beyond a reasonable doubt; (7) is the trial court‟s sentencing order inadequate; and (8) is the life without parole sentence inappropriate based on Treadway‟s character and the nature of the offense. We affirm the judgment of the trial court.
In Shewanda Beattie v. State of Indiana, a 9-page, 5-0 opinion, Justice Dickson writes:
When a jury returns logically inconsistent verdicts in the same case, must Indiana courts accept the inconsistency as insulated from judicial review, or are such verdicts subject to review and, if so, on what basis? To address variations in Indiana case law on this issue, we granted transfer. Adhering to the historically prevailing rule of Indiana jurisprudence and of the United States Supreme Court, holding that inconsistent verdicts are permissible and not subject to appel-late review, we affirm the judgment of the trial court.

During the defendant's jury trial on charges of Dealing in Cocaine, Possession of Cocaine Within 1,000 Feet of a Family Housing Complex, and Possession of Marijuana, the jury was also instructed on and provided a verdict form for Possession of Cocaine as a lesser-included offense of Dealing in Cocaine. The jury returned verdicts finding the defendant not guilty of both Deal-ing in Cocaine and Possession of Cocaine, but guilty of Possession of Cocaine Within 1,000 Feet of a Family Housing Complex and Possession of Marijuana. The defendant appealed, presenting two claims: (1) irreconcilable verdicts and (2) erroneous admission of evidence resulting from an unconstitutional search and seizure. Rejecting the defendant's assertion of an improper search and a resulting error in admission of evidence, the Court of Appeals nevertheless reversed be-cause "the inconsistency in the jury's verdicts leaves us unable to determine what evidence the jury believed." Beattie v. State, 903 N.E.2d 1050, 1057 (Ind. Ct. App. 2009). We granted trans-fer to address the appellate review of claims of inconsistent verdicts. * * *

Concluding that inconsistent jury verdicts are not subject to appellate review, and sum-marily affirming the Court of Appeals as to the other issue presented by the defendant, we affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - Still more on: Chief Justice Roberts at Indy Law Tuesday

Two more takes on Justice Roberts' appearance yesterday:


Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Courts in general

Ind. Decisions - One Indiana case decided today by 7th Circuit

In U.S. v. Barnes (ND Ind., Springmann), a 13-page opinion, Judge Flaum writes:

On May 24, 2006, defendantappellant, Marlyn Barnes, was indicted, along with Melvin Taylor, Michael Alexander, Theodis Armstead, Herbert Hightower, and Vernell Brown, for conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Barnes was also indicted for carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In February of 2008, a jury found Barnes guilty on both counts. For the purpose of sentencing, the district court found that the conspiracy involved forty kilograms of cocaine, making Barnes’s base offense level 34. Barnes appeals the district court’s sentence on the grounds that the district court improperly rejected a stipulation by the parties that the conspiracy involved five-to-fifteen kilograms of cocaine, which would have resulted in a base offense level of 32, and that the evidence the district court relied on in rejecting that stipulation was unreliable. For the reasons set forth below, we vacate the district court’s sentence and remand for re-sentencing. * * *

Before we reach the issue of clear error, we must first decide the legal question of whether a district court may disregard a post-trial factual stipulation between the defendant and the government regarding the amount of drugs for sentencing purposes. Because of the rarity of this situation, this specific question is a matter of first impression for this court. * * *

While it is rare for the district court to reject a post-trial stipulation between the parties, it is not a legal error to do so. The district court in this case found that the stipulation was not supported by the evidence from the trial. That factual determination is an issue we review for clear error, as we would review any factual predicate for determining a sentencing range. * * *

[Here] the district court never questioned the stipulations between the government and Armstead, Alexander, Brown, and Hightower that the conspiracy involved fiveto- fifteen kilograms. Then, on the same factual record, the district court rejected an identical stipulation between the government and Barnes without explaining why it was treating the defendants differently with regard to this finding. * * * Such a finding is incongruous with the district court’s decisions to accept the factual stipulations in the cases of the cooperating co-defendants and to reject the factual stipulation in this case. Without any justification for why one co-conspirator is responsible for a greater quantity of drugs than his fellow co-conspirators, such a discrepancy in factual findings is clearly erroneous.

For the reasons discussed above, we VACATE the district court’s sentence of 292 months, and REMAND for re-sentencing.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (4):

Adrian Howard v. State of Indiana (NFP)

Phillip A. Ferguson v. State of Indiana (NFP)

Toni L. Woods v. State of Indiana (NFP)

Ronald G. Mahon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Noxious fumes shut Steuben’s courthouse"

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

The Steuben County Courthouse has been closed for more than a day this week because of a chemical reaction involving drain cleaners. The building is expected to reopen today.

According to Mayo Sanders, president of the county commissioners, the building was evacuated Tuesday afternoon after two drain-cleaning chemicals came into contact with each other and reacted.

When crews were cleaning the building’s drains, they switched from one cleaner to another during the process, Sanders said.

“They got together, and they weren’t compatible,” he said.

The fumes from the chemicals’ reaction resulted in the fire department’s being summoned and the building’s evacuation. Hopes of reopening Wednesday morning proved futile when it became evident fumes were still trapped on the building’s third floor. So the building stayed closed, Sanders said.

And don't try this at home!

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Indiana Courts

Ind. Gov't. - "State Panels Prove Resilient to Budget Pruning"

Interesting article by William Yardley in the NY Times today, applicable to Indiana as well as other states. It begins:

Financially ailing states seeking to cut bureaucratic sprawl have zeroed in on what might seem a vulnerable target: the countless advisory, advocacy and regulatory boards and commissions that ripple out from their capitals into infinite niches of human need and pursuit.

Iowa’s Grape and Wine Development Commission? Gone. The Committee on Agency Officials’ Salaries in Washington State? Done. The Advisory Commission on American and Francophone Cultural Affairs in Connecticut? No more.

Yet for all the cutting, far more boards are surviving scrutiny than succumbing to it. Obscure but obstinate, they are proving a surprisingly hardy species within the mysterious ecosystem called government. The efforts can seem an endless loop of relearning the same lesson, with bold plans for streamlining colliding with the reality that cutting many boards saves little money but can exact a high political price.

While their arcane names often prompt dismissive jokes, many boards serve serious purposes and vocal constituencies. Appointing their members also gives governors and lawmakers a means to reward supporters.

“We as legislators love to create boards and commissions,” said State Senator Staci Appelof Iowa, a Democrat. “We just don’t like to decommission them.”

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Indiana Government

Ind. Courts - "Witness separation at heart of appeal"

The Supreme Court held oral arguments yesterday in three cases. One of them was the card-counting case, discussed in detail in other entries. Niki Kelly of the Fort Wayne Journal Gazette reports today on another of yesterday's arguments, this one in the case of Giavonni J. Williams v. State of Indiana (COA opinion here). Some quotes:

INDIANAPOLIS – The state’s five Supreme Court justices heard arguments Wednesday on whether a Fort Wayne man’s strangulation and battery convictions should be tossed out because an Allen County judge declined a motion to separate witnesses during his trial.

Giavonni J. Williams – also known as Michael Williams – was sentenced to 4 1/2 years after being convicted of beating and strangling his girlfriend in March 2008.

He claims in his appeal that Allen Superior Court Judge John Surbeck erred when he denied Williams’ motion to separate witnesses, which means removing witnesses from the courtroom while others are testifying.

Williams, 32, acted as his own lawyer at trial and before the first witness was called asked that several police officers be separated. Surbeck declined.

Attorneys for both sides conceded that Surbeck was required by law to grant the motion. But because he didn’t, the state attorney general has the burden of proving that the error did not affect the defendant’s right to a fair trial.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Indiana Courts

Ind. Law - "Brizzi says he won't heed calls to resign: Prosecutor's actions have hurt the office, fellow Republicans say"

Updating yesterday's ILB entry, Jon Murray of the Indianapolis Star has a lengthy story today that begins:

Carl Brizzi says he is confident he will serve out the remaining eight months of his second term as Marion County prosecutor, but a growing roster of his fellow Republicans and legal experts say his business dealings and perceptions of favoritism have compromised the office.

A defiant Brizzi dismissed calls for his resignation Wednesday by the Republican party chairman and Mark Massa, the Republican candidate for prosecutor, as a "political stunt."

Already on the defensive for six months, Brizzi disputed the importance of the latest hit, denying that he played favorites last year in a drug case handled by a defense attorney who also was Brizzi's business partner.

And the Star has this editorial, headed "Brizzi has lost our trust," that concludes:
[T]he entanglements Brizzi has indulged in should not exist in this critical office. Laws and rules, not just personal behavior, should skew toward credibility and independence at all costs. Massa's pledge of a batch of reforms, including eschewal of outside business dealings, sounds bold, if a bit self-serving, in the current atmosphere. It ought to be moot. The old temptations must go, and so must the man who has succumbed to them.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Indiana Law

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

Updating yesterday's ILB entry, Cleveland's WKYC has a report that begins:

Cuyahoga County Common Pleas Judge Shirley Strickland Saffold and her daughter, Sydney, filed a $50 million lawsuit Wednesday afternoon against the Plain Dealer and Advance Internet, according to attorney Brian D. Spitz. The lawsuit has been initially assigned to Judge Janet Burnside.

Spitz says the complaint alleges that "The Plain Dealer, its editor Susan Goldberg, and unknown reporters conspired with the entities that controlled the confidential registration information...to release information that was promised to be anonymous," stated a release from The Spitz Law Firm LLC.

Here is the complaint and press release posted by the law firm.

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Courts in general

Courts - More on: Chief Justice Roberts at Indy Law Tuesday

Coverage today of Chief Justice of the United States John Roberts appearance yesterday at Indiana University School of Law - Indianapolis:

Posted by Marcia Oddi on Thursday, April 08, 2010
Posted to Courts in general

Wednesday, April 07, 2010

Law - "Pittsburgh Law Firm Expands by Adding Family Law Boutique"

Interesting story today from Zack Needles of The Legal Intelligencer. Some quotes:

Lateral hires and law firm acquisitions are generally meant to achieve one of two goals: to bulk up a firm's existing practice or to add a new practice that the firm intends to expand later.

But Babst Calland Clements & Zomnir's recent addition of the Law Office of Jennifer Bierly, a two-attorney family law boutique, to its State College, Pa., office falls into neither category.

The Pittsburgh-based, 75-attorney firm doesn't have an existing family law practice and, according to managing shareholder Chester R. "Chip" Babst III, isn't looking to build one.

Instead, the move represented a pure example of seizing a unique business opportunity, Babst said.

"Jennifer is both well-established in the area and also very well-regarded," Babst said. "Even though her practice area is obviously very different from the practice areas we currently engage in, we felt that in the State College market ... it was a good idea from a business standpoint." * * *

Babst said the firm will give Bierly access to a whole new client base.

"We will give her an ability to service clients she previously would not have been able to service," he said.

But when asked whether he envisions building a firmwide family law practice, Babst said he didn't think so.

"We looked at this as really kind of a different opportunity," he said. "We used a different business model in State College than we would in Pittsburgh."

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to General Law Related

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

Interesting in light of the ILB entries re the Indiana Supreme Court's order that the general counsel of Indiana-based Celadon Group, Inc. stop practicing law in Indiana, where he is not a licensed attorney (paraphrasing from a story quoted in this entry from March 26, 2010), is this story today by the same writer, Sue Reisinger of Corporate Counsel -- some quotes:

An embarrassed Gucci America, Inc. has fired its director of legal affairs after discovering during a lawsuit that he wasn't properly licensed to practice law. Now the big question before the court: Can Gucci still claim attorney-client privilege?

The secret about then-legal chief Jonathan Moss came out during a trademark infringement suit brought by Gucci against competitor Guess?, Inc. in U.S. District Court in Manhattan.

Guess attorney Andrew Frackman, of O'Melveny & Myers in New York, argued that communications with Moss weren't privileged because he wasn't allowed to practice law.

Blindsided by the claim, Gucci placed Moss on administrative leave on Jan. 25 — and after an internal investigation — fired him on March 1, according to court documents filed last week. Moss could not be reached for comment. * * *

At first Moss analyzed real estate financials for Gucci. But he quickly started handling some legal affairs, including submitting court papers in a bankruptcy proceeding in federal court in late 2002.

In 2003, Gucci gave him the title of in-house counsel and had him report directly to the president of the company, who testified that she believed he was a lawyer. Moss represented the company in legal proceedings, filed documents with the U.S. trademark office, and worked with outside counsel.

Gucci was so pleased with his legal work, that in 2008 it promoted him to vice president and director of legal and real estate.

Along the way, no one bothered to ask Moss if he was properly licensed, and he didn't tell anyone about his inactive status.

It was a costly mistake for Moss, and perhaps more so for Gucci. Now U.S. Magistrate Judge James Cott has to decide whether to rub salt into Gucci's wound by forcing Moss to testify about his conversations with company executives and outside counsel.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Indiana Courts

Ind. Decisions - A second 7th Circuit opinion out of Indiana posted today

In U.S. v. Jones (SD Ind., Young), a 31-page opinion, Judge Williams concludes:

And given the scant evidence aside from the wiretap implicating Cook as part of the conspiracy, if the jury did not believe that it was his voice on the tapes, it could not have found him guilty beyond a reasonable doubt. * * *

Here, Cook was deprived of a fair trial when the jury heard critical, disputed testimony from Detective Simpson without Cook having had an opportunity to challenge it. We are compelled to vacate Cook’s conviction and remand his case for retrial.

For the foregoing reasons, Cook’s conviction is VACATED and his case is REMANDED to the district court for proceedings consistent with this opinion. The convictions and sentences of all other defendants are AFFIRMED.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Supreme Court hears card counting case" [Updated]

Dan Carden of the NWI Times has the first full story I've seen on this interesting appeal. Some quotes:

INDIANAPOLIS | The Indiana Supreme Court heard oral arguments Tuesday in a case that could affect the casino industry in Northwest Indiana.

At issue was the question of whether Indiana casinos are allowed to kick out card counting blackjack players.

Thomas P. Donovan, of Indianapolis, was booted from Grand Victoria Casino in Rising Sun in 2006 for card counting: keeping track in his mind the cards that had already been played at the blackjack table and adjusting his bets based on which cards remained to be dealt.

Card counting is not illegal, but casinos don't like it. In this case, Grand Victoria Casino says so long as it isn't discriminating against a protected class of people, it should be allowed to kick out players like Donovan, or anyone else, just because it wants to.

"Common law says ... a proprietor can refuse to deal with anyone for any reason or no reason, so long as it is not a bad reason," said Peter Rusthoven, attorney for the casino.

But Donovan's attorney, Marc Sedwick, claimed that because the law establishing Indiana casinos says they were created to promote tourism and economic development, casinos are different from other businesses and should not be allowed to exclude skillful players who break no rules.

That argument seemed to resonate with Chief Justice Randall T. Shepard who admitted, like Donovan, he thinks through his bets when he plays blackjack.

"It seems to me that almost every player, in some way, on some basis, wants to do the same thing, just not as well as your client," Shepard said.

Grand Victoria's decision to exclude skillful players who win seemed to irk Justice Frank Sullivan Jr.

"Your casino could offer only games where nothing but pure chance governs, the slot machines, dice and the like," Sullivan said. "But your casino offers games where skill can be a factor, like blackjack and poker, in an effort to attract customers who think they have the requisite skill to win."

"But once you identify a customer who has the requisite skill to win, you pull the rug out from under them and say 'Sorry you can't play,' " Sullivan said. * * *

Several casinos asked the Indiana Gaming Commission to formally prohibit card counting in state casinos after the Indiana Court of Appeals ruled in favor of Donovan in October 2009.

Executive Director Ernie Yelton said the gaming commission will wait to see what the Indiana Supreme Court decides before considering those requests.

See this entry from earlier today for background, and note the call for the briefs in the case.

[Updated at 6:35 PM] Newsweek has now posted a story by Charles Wilson of the AP. Some quotes re the arguments of Marc Sedwick, Tom Donovan's attorney, and casino attorney Peter Rusthoven:

The core of the dispute comes down to which set of rules should apply: the common law that predates legalized gambling or the state regulations governing gaming. Sedwick pointed to a New Jersey Supreme Court ruling that cited that state's regulations in siding with a card counter who had been banned from a casino there.

"Gaming is a statutory creature" that didn't exist in common-law times, Sedwick argued, so state regulations should apply. Those regulations don't bar card counting, and the casino never asked the state gaming commission to enact a rule forbidding it, he said.

"The issue this court faces," Rusthoven said, "is whether the common-law right to exclude anybody for any reason or no reason has been abrogated by the commission's silence."

He argued it hadn't, and the commission couldn't be expected to anticipate every possible circumstance in its rules.

"Everybody who watches movies knows if somebody tries to count cards, casinos don't like it sometimes," Rusthoven said.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Indiana Courts

Courts - "Supreme Court May Soon Lack Protestant Justices"

That is the headline to this story by Nina Totenberg today on NPR's Morning Edition. The lengthy (5min 23 sec, if you listen rather than read) story begins:

With U.S. Supreme Court Justice John Paul Stevens talking openly about retirement, attention has focused on the "who" — as in who is on President Obama's short list of potential nominees. But almost nobody has noticed that when Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the court for the first time ever.

Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

In fact, six of the nine justices on the current court are Roman Catholic. That's half of the 12 Catholics who have ever served on the court. Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Courts in general

Ind. Law - More on: "Marion County Prosecutor Carl Brizzi ordered lenient deal for business partner's client"

Updating this ILB entry from April 4th, Jon Murray is reporting in his Indianapolis Star blog, Justice Watch:

During a news conference this morning on his ethics plan for the Marion County prosecutor's office, Republican candidate Mark Massa called on outgoing Prosecutor Carl Brizzi -- a fellow Republican -- to step down early. He cited a growing scandal involving business deals and questions over Brizzi's decisions on a handful of plea deals and sentence modifications. "I believe the prosecuting attorney should inspire public confidence," Massa said, "and not cynicism." * * *

Massa, a former federal prosecutor and chief of staff to Brizzi's predecessor, Scott Newman, said he didn't give Brizzi a heads-up about his call for resignation. He is the first candidate to make that call from either party. He told me after the news conference that the last time he spoke to Brizzi was on the eve of announcing his candidacy, about two months ago. Massa stepped down as Gov. Mitch Daniels' chief counsel to run.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Kenneth Felder v. United States Steel Corporation (NFP) - "Appellant/Plaintiff Kenneth Felder appeals from a November 3, 2009 order of the Full Worker's Compensation Board (the “Board”), denying his claim for worker's compensation benefits. Specifically, Felder claims that the Board erroneously determined that he had failed to prove that he was mentally incompetent, which would have tolled the statute of limitations relating to his otherwise untimely worker's compensation claim. We affirm."

Term. of Parent-Child Rel. of S.S., A.S., and C.S.; J.S. v. IDCS (NFP)

NFP criminal opinions today (0):

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

Maria L. Williams v. State of Indiana (NFP)

George Patrick v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Milbourn (SD Ind. Tinder), an 8-page opinion where Milbourn was involved in a cross burning, Judge Evans writes:

Milbourn’s primary argument on appeal is that the evidence was insufficient to support the jury finding (1) that he was motivated by the racial makeup of the people who lived in the Thrash home and (2) that the cross was burned to intimidate (or interfere), on account of race, with the Thrash family’s right to occupy their home. Prevailing, of course, on an insufficiency of the evidence claim is a tall order for any defendant. Before getting to the evidence, however, we pause for a brief word about cross burning.* * *

For these reasons, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Police lawsuit in ’05 death OK’d: Officers broke inside, shot suicidal man; family claims excessive force"

The 7th Circuit decision April 5th in the case of Estate of Rudy Escobedo v. Binder (see ILB entry here) is the focus of a long story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. The story begins:

A lawsuit connected to the fatal police shooting of a Fort Wayne man inside his apartment will proceed to a jury – at least the part about how police entered Rudy Escobedo’s home in July 2005.

A federal appeals court upheld a decision by U.S. District Court Judge Theresa Springmann to allow the excessive-force portion of a multipronged lawsuit to proceed.

The lawsuit, filed in late 2005 by Escobedo’s family, alleges police violated Escobedo’s constitutional rights by using excessive force and causing his wrongful death. It named the police department, the city of Fort Wayne and a number of Fort Wayne police officers as defendants, including deputy chiefs Martin Bender and Douglas Lucker.

In 2008, Springmann dismissed the wrongful-death claims against the city of Fort Wayne, the police department and specific officers for their actions related directly to Escobedo’s shooting. But she allowed the excessive-force claims to continue against some of the officers individually.

Attorneys for the officers appealed to the 7th U.S. Circuit Court of Appeals in Chicago, which issued a ruling this week upholding Springmann’s decision to allow the excessive-force claims.

The higher court called into question the actions of the police officers, specifically those in command at the scene, and ruled a jury should have the opportunity to hear the case.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "New Institute for Justice Report on Asset Forfeiture"

The ILB has had many entries on asset forfeiture. Today Ilya Somin at The Volokh Conspiracy highlights "an important new report detailing the many abuses of property rights in the asset forfeiture system." A sample from the entry:

The authors also provide the first comprehensive survey of state asset forfeiture laws, giving each a “grade” on the A to F scale. They find that most of them provide little if any protection for innocent property owners:
Only three states—Maine, North Dakota and Vermont—receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.

• Most state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.

• Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+), Missouri (C+), North Carolina (C+) and Ohio (C-).

• The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia, Michigan, Texas, Virginia and West Virginia.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to General Law Related

Courts - Chief Justice Roberts at Indy Law today, not Thursday [Corrected]

From the Lafayette Journal Courier:

Chief Justice John Roberts will be the third member of the U.S. Supreme Court to give the James P. White Lecture on Legal Education at the Indiana University School of Law in Indianapolis.

Roberts will follow in the footsteps of Sandra Day O'Connor in 2002 and Ruth Bader Ginsburg in 2007 when he gives the lecture Thursday.

[Correction] Sorry. All the papers I saw this monring ran the AP story, which said "Thursday." The Indy Star has it right in its headline, but wrong in the (AP) story it ran.

Here is the real announcement
, from IU Law:
April 7, 2010
James P. White Lecture on Legal Education
A Conversation with Chief Justice Roberts

Speaker: Chief Justice John G. Roberts, Jr., Supreme Court of the United States
Time: 5:00 p.m.
Location: Wynne Courtroom (by invitation only)
Contact: Media who wish to attend contact Elizabeth Allington, Office of External Affairs, eallingt@iupui.edu

The James P. White Lecture on Legal Education will feature Chief Justice John G. Roberts, Jr., Supreme Court of the United States who will speak at 5:00 p.m. on April 7th in the Wynne Courtroom (by invitation only, tickets required). A live webcast of the lecture will be available through a link here at the time of the event.

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Courts in general

Ind. Decisions - Oral arguments this morning [Updated at 9:45 AM]

Three oral arguments this morning before the Supreme Court, starting with the blackjack card-counting case at 9 AM. Details here.

Here is the link to the Thomas P. Donovan v. Grand Victoria Casino & Resort, L.P. webcast, if you want to tune in at 9 AM. If you miss it, it will be available for on-demand viewing later in the day. For background on Donovan, start with this ILB entry from Dec. 28, 2009.

[Updated at 9:45 AM] Just watched the oral argument. Only four of the justices heard the case, Justice Rucker recused himself.

Justice Sullivan said the briefs present two different visions of the gaming industry: The Appellant argues that blackjack is a game of skill and that an individual ought to be able to exploit his skill to win. The Casino argues that gaming is a business and that to be successful the casino must have an economic advanage, which card counting undermines.

The ILB is very interested in posting all the briefs in this case - please contact me if you can help

Posted by Marcia Oddi on Wednesday, April 07, 2010
Posted to Upcoming Oral Arguments

Tuesday, April 06, 2010

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

Updating this ILB entry from March 29, 2010, Patrick O'Donnell of The Plain Dealer reported April 5th:

The Cuyahoga County judge overseeing the case of suspected serial killer Anthony Sowell will wait at least one more week to decide whether to withdraw because defense lawyers question her impartiality.

But Common Pleas Judge Shirley Strickland Saffold on Monday rejected a request from the attorney, Rufus Sims, to step down from three of his other cases because someone using the judge's personal e-mail account posted online remarks disparaging him.

Sims later said he will consider asking the Ohio Supreme Court to remove Saffold from all of the cases.

The showdown between Saffold and Sims came 10 days after The Plain Dealer reported that more than 80 comments had been made on cleveland.com by a user named "lawmiss," who registered on the Web site using Saffold's AOL e-mail account. Judges are prohibited from discussing cases on their dockets.

Saffold has said that she had nothing to do with the comments. County records show that three of the comments were left at the same time someone using Saffold's courthouse computer was visiting cleveland.com.

The long story ends on this interesting note:
The newspaper's disclosure of the link between lawmiss and Saffold's e-mail account has been controversial with many cleveland.com commenters, who believed they were anonymous when posting on the Web site. A Plain Dealer online editor looked up lawmiss' e-mail address -- which was accessible through software used to post stories to the Web site - after lawmiss posted a comment about the mental state of a Plain Dealer reporter's relative.

Cleveland.com is operated by Advance Internet, which is owned by the newspaper's parent company. Advance Internet now blocks the newspaper from access to the e-mail addresses of commenters.

[More] Much more on the Plain Dealer's ethical controversy re seeking out and disclosing commenters' identities in NPR's On the Media interview dated April 2, 2010. A sample:
BOB GARFIELD: Now, I have to tell you, Susan, that if I were the editor of The Plain Dealer and I had been shown the evidence that this commenter lawmiss was a presiding judge over the very cases on which lawmiss was commenting, it would be all over my page one. I have no quibbles there. However, I might also say whoever got this information or their boss should be fired, including possibly me. This is quite a conundrum, but, you know, how do you, the editor who made that easy decision, deal with the editor who permitted her staff to dig into private information about commenters?

SUSAN GOLDBERG: I don't think it was a super easy decision. We didn't, in fact, publish the next day. We made sure we got lots of comment and we made sure the stories were fair. We also did a companion story that also ran on page one about our decision to do it and sort of the ethical firestorm that we knew that this was going to kick up.

But as far as the editor who looked at this, we didn't have a discussion ahead of time. It was just something he went ahead and did. Maybe it was a good decision, maybe it wasn't a good decision. To me, okay, the decision was made. That’s over. Now we've got to go forward, and what do we do?

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Courts

Ind. decisions - Supreme Court denies transfer to "birther" suit [Updated]

Thanks to 6News for pointing out that Steve Ankeny, et al. v. Governor of the State of Indiana was one of the cases for which the Supreme Court denied transfer on April 1, 2010. From the story:

The Indiana Supreme Court has refused to hear a case claiming Barack Obama is ineligible to be president because he is not a natural born citizen.

The court announced Tuesday that justices unanimously voted against hearing the appeal from two Indiana residents.

In the lawsuit, the pair claimed Obama was not eligible to serve as president because, when he was born, his father was a citizen of the United Kingdom.

Both a Marion County judge and the Indiana Court of Appeals have previously rejected the claim.

Courts around the country have dismissed dozens of lawsuits claiming Obama could not serve as president because he was born outside of the country.

For more on the COA opinion, start with this ILB entry from Nov. 20, 2009.

[Updated 4/7/10] Dan Carden of the NWI Times has a story this afternoon headed "State Supreme Court turns away birther lawsuit ."

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Governor Picks New Lawrenceburg Judge

Eagle Country 99.3 FM reports:

(Lawrenceburg, Ind.) - You will see a new judge the next time you get busted for a speeding or some other minor infraction in the City of Lawrenceburg.

On Monday, Governor Mitch Daniels appointed former Lawrenceburg Police officer C. William Myers to be Lawrenceburg City Court's new judge. Myers replaces former judge Thomas Bauer, who resigned Feb. 28.

Myers retired from the Lawrenceburg Police Department in 1993 after 20 years with the force. He then went to work as a sales consultant for E-One fire and emergency vehicle sales at Haag Ford. Since 2008 Myers has been in sales with Pierce Fire Apparatus.

His appointment is effective immediately.

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Courts

Courts - "Why Chicago's Diane Wood Should Replace Justice Stevens"

NBC Chicago's entertaining political blog, Ward Room, has posted this entry today by Edward McCLelland

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Courts in general

Ind. Courts - "Daniels appoints judge for Nappanee City Court "

From today's Elkhart Turth:

NAPPANEE -- On Monday Gov. Mitch Daniels announced the appointment of Christopher G. Walter as judge of the Nappanee City Court.

Walter succeeds Judge Timi S. Sloat who resigned March 31. Nappanee Clerk-Treasurer Kim Ingle said Sloat had purchased property outside of the city limits, disqualifying her from serving in the position. Walter's appointment will take effect April 12 and will last through 2011.

Walter has practiced law in Nappanee City Court since 1993 and has served as city court's public defender for the last seven yeas. He remains in private practice in Nappanee, handling real estate foreclosure, bankruptcy and personal injury cases, officials said in a press release.

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending April 1, 2010

Here is the Clerk's transfer list for the week ending April 1, 2010. It is 2 pages long.

Two transfers were granted last week; see this ILB entry from April 5, 2010 for details. [Note that one of them, Bradley J. Love v. Robert Rehfus, et al, is for some reason not on the transfer list dated 4/1/10 issued today.]

__________

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

Six years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Transfer Lists

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

For publication opinions today (1):

In Edward Killebrew v. State of Indiana , a 14-page, 2-1 opinion, Judge Barnes writes:

The sole issue before us is whether the trial court erred in denying Killebrew's objection to the State's use of peremptory challenges to strike all African-Americans from the jury venire. * * *

The parties here appear to be in agreement that: (1) Killebrew made a prima facie showing of discrimination in the State's exercise of peremptory challenges and (2) the State provided facially neutral reasons for those strikes. The issue here thus is whether Killebrew has established that those facially neutral reasons were merely pretextual and a mask for purposeful discrimination. Because the United States Constitution "forbids striking even a single prospective juror for a discriminatory purpose," we will focus our attention solely upon the striking of prospective juror L.S. * * *

Here, there is no meaningful distinction between how L.S. described his concept of the State's burden of proof and how B.B. and B.C. described it. If anything, they, and especially B.B., would appear to place an even greater burden of proof upon the State than L.S. Saying that one must be “one hundred percent” certain of guilt before convicting clearly is inconsistent with the concept of proof beyond a reasonable doubt. Nonetheless, both B.B. and B.C. were seated on the jury and L.S. was not.

Batson violations, hopefully, are and should be rare. It should not be impossible, however, for a defendant to prove a Batson violation. Neither trial courts nor appellate courts should simply blithely accept a facially neutral reason for striking African-Americans from a jury panel, especially when all African-Americans have been struck. * * *

Here, we conclude Killebrew has established that the peremptory strike of L.S. was the result of purposeful discrimination and a Batson violation, where there was no trial court finding regarding L.S.'s demeanor and the stated reason for striking him applied as much to B.B. and B.C. as it did to L.S.

Conclusion/ The trial court clearly erred in concluding that the State's strike of L.S. from the jury venire was not discriminatory. We reverse and remand for a new trial.

BROWN, J., concurs.
MATHIAS, J., dissents with opinion. [which begins, at p. 9, and concludes at p. 14:] Athough I admit that this is a very close call, under the standard of revie applicable to the issues before us, I cannot say that the trial court's decision to overrule Killebrew's Batson objection constitutes clear error. I would therefore affirm Killebrew's convictions.

NFP civil opinions today (1):

Alan McCook, et al. v. MMWCK & Associates, et al. (NFP) = "The McCooks raise two issues, which we consolidate and restate as whether the trial court abused its discretion by dismissing the McCooks’ case pursuant to Indiana Trial Rule 41(E) for failure to prosecute." Affirmed.

NFP criminal opinions today (4):

Daren Tomey v. State of Indiana (NFP)

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

Curtis Leflore v. State of Indiana (NFP)

Todd A. Whitmer v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Ind. App.Ct. Decisions

Environment - Still more on: "Is Tippecanoe County next for wind farms?"

Updating this ILB entry from Arpil 1, 2010, Max Showalter reports today in the Lafayette Journal Courier:

With some accommodations made for smaller, household turbines, Tippecanoe County opened the door Monday to industrial wind farms reportedly ready to be planted around Greater Lafayette.

Changes made to a pair of ordinances that deal with fees and requirements for wind energy turbines received unanimous approval on its final reading Monday from the county commissioners.

The amendments went a long way toward meeting concerns expressed by people who want to put small, personal wind turbines on their properties.

A fee to install micro wind energy conversion systems remains at $100. But the amended version of the ordinance eliminated payment of an additional, $50 annual fee and an inspection fee.

“This board actually has been a real team player,” said Cris Post, who has a small wind turbine on his property south of Lafayette and has started a company that sells the devices to homeowners. * * *

The majority of complaints Monday centered around a County Code requirement for commercial wind farms that turbines be at least 1,000 feet from the property line of nonparticipating land owners.

“We’re asking for some respect — a half-mile buffer from a house or property line,” said Kenny Byers, who lives in the West Point area, where a 125-turbine wind farm development has been discussed.

Robert Brooks, who lives in southern Tippecanoe County, also argued that a 1,000-foot setback is not enough.

“I don’t like to think my family’s health can be affected. Let’s work together to find a solution that makes everybody happy,” he said. “If I get sick I can’t sell my house. I bought this home nine months ago. I didn’t know anything about this. These things (would) just tower over us.”

The amended ordinance does change the sound levels that would be allowed for commercial wind turbines — reducing it from 50 decibels to 45 decibels.

From a sidebar:
Owners of commercial and noncommercial large turbines will be charged a $2,500 flat fee, plus $200 per tower when the turbines are constructed. There also will be an annual operational fee of $1,250, plus $100 per tower.

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Environment

Ind. Courts - Yet more on "Allen County judges pulling weekend jail shifts"; another take [Updated]

Updating this ILB entry from April 2, 2010, an editorial today in the Fort Wayne Journal Gazette states: "Other Indiana counties will likely have to follow Allen County’s lead." Here is the editorial:

A person arrested without a warrant for a crime shall be taken promptly before a judicial officer … for an initial hearing in court.

– Indiana Code 35-33-7-1

Allen County judges rightly and responsibly initiated a policy recently to make sure inmates arrested without warrants have a hearing within 48 hours. Inexplicably, it took a lawsuit for county officials to realize that a nearly 20-year-old U.S. Supreme Court decision determined that “promptly” meant within 48 hours.

The police routinely arrest people they believe have committed felony crimes before the police can go before a court to receive a warrant. Among the main reasons: to get them into the criminal justice system before they can flee, endanger others or hide evidence.

Many Indiana counties have long followed a portion of state law that gives prosecutors 72 hours to file formal charges after police make an initial arrest. That law does not include weekends and holidays within the 72 hours.

But case law has rightly required that a judge must agree that a police officer had probable cause to make an arrest for a suspect to stay in jail and that prisoners cannot be held a matter of days before that determination is made.

The lawsuit that prompted action was filed by a woman arrested about 5:30 p.m. on a Friday and held until after a probable cause hearing the following Monday morning.

Probable cause hearings are relatively informal and do not require a prosecutor and defense attorney. They merely give a judge the opportunity to review the facts of whether police have a reason to believe a suspect committed a crime.

Other Indiana counties will likely have to follow Allen County’s lead. Indeed, the same lawyer who filed the case in Allen County has filed similar cases in other counties.

Whether any of the suspects held over weekends are entitled to monetary damages is questionable. Courts could well determine they are not, or that only those who were arrested but never formally charged – with warrants – are eligible to even ask for damages.

The lawsuit was filed against Sheriff Ken Fries, who has custody over inmates. Another Indiana sheriff argued that he was the wrong defendant – he was just following court policy – but a federal judge refused to dismiss the case against that sheriff.

Still, it is the courts that are responsible for making sure suspects arrested without warrants appear before a judge promptly. Credit Allen County’s judges for quickly responding to the lawsuit, recognizing the importance of the Supreme Court decisions brought to their attention and enforcing the 48-hour policy.

[Updated at 12:52 PM] A distinguished reader has written to provide this information:
The case in point is County of Riverside v. McLaughlin, 500 U.S. 44; 111 S. Ct. 1661; 114 L.Ed. 2d 49 (US 1991).

Posted by Marcia Oddi on Tuesday, April 06, 2010
Posted to Indiana Courts

Monday, April 05, 2010

Ind. Decisions - Two transfers granted last week

The transfer list for last week is not yet available, but the ILB has learned that the following cases were granted transfer on April 1, 2010:

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "Indiana's Legal Precedent Regarding Personal Jurisdiction in Online Auction Cases"

The Indiana Court of Appeals March 13, 2009 decision in the case of Richard and Marlene Attaway v. Llexcyiss Omega and D. Dale York (ILB summary here) is the subject of an article today by Martha L. Arias on a site named Internet Business Law Services that looks at the question: "Can an online auction buyer be sued in other state although he/she has never been there? Can a state court assert personal jurisdiction over that buyer just because he/she bought from an eBay seller? This article provides information on personal jurisdiction in online auction cases and the Indiana"s legal precedent on this topic."

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "DWI repeat offender admits 2 charges in fatal crash"

On Dec. 3, 2009, the ILB quoted from a Fort Wayne Journal Gazette story by Michael Zennie headed "Allen County Judges OK’d license for DWI repeat." Here are some breif quotes from that story:

When Brian Mansfield asked to have his driver’s license reinstated so he could drive to and from work, the Allen County sheriff at that time sent a letter to a judge urging him not to let Mansfield get behind the wheel again.

“He has demonstrated that he is a substantial risk to the public at large and I see no reason to modify the terms of his suspension,” Sheriff Jim Herman said in a two-sentence letter dated Sept. 29, 1999.

After Mansfield’s appeal went through the civil process, a judge in March 2000 reduced his felony conviction to a misdemeanor and dropped his lifetime suspension to 10 years, allowing him to drive again.

Prosecutors on Wednesday formally charged Mansfield, 52, of Monroeville, with aggravated battery, two counts each of operating a vehicle while intoxicated and criminal recklessness. He is accused of running a stop sign with a blood-alcohol level of 0.37 percent, almost five times the legal limit of 0.08 percent, and slamming into a sport utility vehicle carrying 45-year-old Jacqueline K. Yenser and her teenage daughter.

On March 21, 2010, an interesting ILB entry headed "More on 'New drunken driving law quickens blood sample process'" included this quote from a story by Rebecca S. Green of the FWJG:
“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.

This morning Ms. Green reported under the heading "DWI repeat offender admits 2 charges in fatal crash" in a FWJG story that is to appear in an expanded version Tuesday, that:
A 52-year-old Monroeville man admitted Monday to driving drunk and killing a 45-year-old mother just days before Thanksgiving.

Brian P. Mansfield pleaded guilty to a Class B felony charge of operating a motor vehicle while intoxicated with a blood-alcohol concentration of 0.15 percent or greater causing a death. He also pleaded guilty to a Class D felony charge of criminal recklessness. * * *

According to the terms of a plea agreement with prosecutors, Mansfield faces a prison sentence of 16 years when he is sentenced in early May. Additional charges of aggravated battery, operating a motor vehicle while intoxicated causing death and an additional count of criminal recklessness will be dismissed at sentencing.

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Indiana Courts

Law - "Cocaine sentencing disparities may drop"

Dan Hinkel reports today in the NWI Times:

If you have a bag of cocaine and you want to add years to the prison sentence you will face if arrested and convicted, one quick way is to go to the stove with a box of baking soda and cook your cocaine into its smokable rock form, crack.

For decades, federal penalties for crack possession have far outweighed penalties for cocaine possession, and that disparity has galled lawyers and activists who say legislators relied on misinformation about crack cocaine's effects when they wrote sentencing laws that have disproportionately punished black drug defendants.

But the gap could be narrowed soon.

The U.S. Senate on March 17 approved a bill that would raise the amount of crack needed to trigger a five-year mandatory minimum sentence from a federal judge. Under current federal law, a person convicted of possessing 5 grams of crack with intent to distribute faces a mandatory minimum sentence of five years in prison. It takes 500 grams of powder cocaine to trigger that five-year mandatory minimum. The legislation, sponsored by Democratic Illinois Sen. Dick Durbin, would cut the sentencing disparity ratio from 100-1 down to 18-1, raising the amount of crack needed to trigger the mandatory minimum to 28 grams.

The bill similarly would adjust the ratio linked to the 10-year mandatory minimum, raising the amount of crack needed to trigger that sentence from 50 grams to 280 grams. The legislation would also eliminate the five-year mandatory minimum for simple possession of a small amount of crack.

Once a bill is passed, the U.S. Sentencing Commission could modify the sentencing guidelines that advise judges on the lengths of the sentences they hand out.

Local federal defense attorneys voiced support for a measure closing the gap.

"Five grams of crack cocaine weighs about (the same as) a nickel," said Jerry Flynn, executive director of the Federal Community Defenders program in Indiana's Northern District. "I've seen no rational explanation for the disparity."

Local attorney Stephen Scheele, who has represented many federal crack defendants, said he would like to see the disparity narrowed, but he thinks the crack-to-powder sentencing ratio should be 1-1. Flynn agreed.

Defense attorney Scott King, a former mayor of Gary, doesn't see the reasoning behind the proposed 18-1 ratio.

"I'm struck by the lack of logic. You're pulling a number out of a hat. What's your scientific or other basis for establishing a ratio?" he said.

Acting U.S. Attorney David Capp, whose Senate confirmation is pending, deferred comment to Attorney General Eric Holder. Holder has said he supports "eliminating" the gap, and he applauded the Senate's passage of Durbin's bill.

The idea of narrowing or eliminating the disparity has bipartisan support among federal legislators in Indiana and Illinois. Republican Indiana Sen. Dick Lugar supported the bill sponsored by Durbin and co-sponsored by Sen. Roland Burris, D-Ill. A spokesman for Sen. Evan Bayh, D-Ind., could not be reached for comment. The measure was approved by a voice vote, so there is no record of each senator's vote.

"Sen. Lugar recognizes the sentencing differential disproportionately affects African-American defendants, and he supported the Senate legislation," Lugar spokesman Mark Hayes wrote in an e-mail.

But the legislative scenario is not settled. U.S. Rep. Jesse Jackson Jr., D-Ill., has co-sponsored a pending bill that would eliminate the disparity by raising the amounts of crack needed to trigger the mandatory minimums to the current levels that apply to powder cocaine. That bill also would strike the mandatory minimum for simple possession of crack.

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to General Law Related

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

In Estate of Rudy Escobedo v. Binder (ND Ind., Springmann), a 42-page, 2-1 opinion, Judge Kendall (Hon. Virginia M. Kendall, District Judge for the ND of Illinois, isitting by designation) writes:

Raquel Hanic, the personal representative of the estate of Rudy Escobedo (“the Estate”), filed suit pursuant to 42 U.S.C. § 1983 and Indiana state law against the City of Fort Wayne and against individual members of the Fort Wayne Police Department. Hanic asserted that the individual officers used excessive force against Escobedo when they deployed tear gas into his apartment in an attempt to extricate him from the unit where he had isolated himself threatening to commit suicide. After refusing to come out, the officers used additional tear gas and flash bang grenades to enter the apartment, setting fire to the exterior room before throwing the flash bang grenades into the darkened bedroom inches from Escobedo’s head rendering him blind and deaf before shooting him to death. The Defendant Officers filed a motion for summary judgment asserting, among other things, that they were entitled to qualified immunity for their actions. The district court denied the motion, in part, finding that the officers were not entitled to qualified immunity for the entry with the tear gas and flash bang devices. The officers then filed this interlocutory appeal. For the following reasons, we affirm. * * *

The district court did not err in denying Defendants’ Motion for Summary Judgment based on qualified immunity. Accordingly, we AFFIRM the decision of the district court.

MANION, Circuit Judge, concurring in the judgment in part and dissenting in part. [starts at p. 33] * * *

I disagree, however, with the court’s conclusion that the defendants are not entitled to qualified immunity for their use of the flash-bang devices. The majority opinion holds that on the date of the incident it was clearly established that the defendants’ employment of the flash-bang devices was an excessive use of force. In reaching its conclusion, the court relies upon six cases that involved the use of such devices by law enforcement. But as explained below, those cases neither separately nor collectively clearly established that the defendants’ conduct was unconstitutional. And because the defendants’ use of the flash-bang devices—unlike their use of the tear gas—was not obviously in violation of the decedent’s constitutional rights, they are entitled to qualified immunity on this issue.

In U.S. v. Billian (ND Ind., Lee), an 8-page opinion, Chief Judge Easterbrook writes:
Larry Billian pleaded guilty to two marijuana offenses and to possessing a firearm in connection with those crimes. His conditional plea reserved the right to appeal from the district court’s order denying his motion to suppress evidence seized from his home. The seizure was authorized by a warrant issued by a state judge. Billian contended that the affidavit Detective Teresa Smith had tendered in support of the application failed to establish probable cause and contained material falsehoods and omissions. The district court held a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and found that, although Smith’s affidavit was inaccurate in some respects, Billian “failed to demonstrate by a preponderance of the evidence that the affidavit contained deliberate lies or a reckless disregard for the truth.” The judge concluded that the affidavit established probable cause—and that, even if it did not, suppression is inappropriate because Smith obtained a warrant in good faith. See United States v. Leon, 468 U.S. 897 (1984). * * *

No more need be said about the sentencing argument that Billian’s counsel made, but a few words are in order about a potential argument that counsel overlooked. When converting the cash to a drug equivalent, the presentence report treated 1 pound as 2.2 kilograms. That’s backward: 1 kilogram is 2.2 pounds. This error, which no one noticed, increased Billian’s relevant conduct from 370 kilograms of marijuana to 490, and his offense level from 23 to 25. The presentence report calculated a Guidelines range of 70 to 87 months; the correct range was 57 to 71 months. If the district court thought that Billian deserved a sentence toward the bottom of the range, then this error may have added a year to his imprisonment. But because 70 months is within the correct range—or the judge may have selected the 70- month term independent of the Guidelines—it may be that the computation would not affect the sentence. * * *

The judgment of conviction is affirmed. We order a limited remand under the Taylor–Paladino procedure so that the district judge can tell us whether the error in converting pounds to kilograms affected the exercise of discretion in sentencing. If the judge answers yes, we will remand for a full resentencing; if the judge answers no, we will affirm Billian’s sentence.

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - Paying your annual attorney fee from your escrow account -- priceless!

The Legal Profession Blog had this entry April 2nd:

From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:
Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel.[2] Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.
And footnote 2 itself is classic:
[2] The ethical equivalent of a 'Please kick me' sign.

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Courts in general

Ind. Courts - "Lake County judge race pits Paras vs. Dominguez"

Oh my! Andy Grimm of the Gary Post Tribune today continues his reporting on the race for Lake County Circuit Court judge. For background, start with this ILB entry from April 3rd. From today's story:

CROWN POINT -- Elections for Lake County Circuit Court judge usually are quiet, dignified affairs, and 2010 appeared no different as of 11 a.m. Feb. 19.

Judge Lorenzo Arredondo has held his seat for five six-year terms and had filed to run for a sixth on the opening day of election season a month earlier.

By noon that day, Arredondo had withdrawn his candidacy and his friend, Merrillville Town Judge George Paras, was on the ballot against Merrillville attorney and political newcomer Alex Dominguez.

And campaign paperwork filed in that fateful hour remains an issue a month later.

A Schererville man has filed a lawsuit to remove Dominguez from the ballot because he left blank a signature line on his candidate filing. No hearing has been set in the case-- which was filed in Circuit Court.

But Dominguez is not a no-name candidate. He shares the last name of his uncle and enthusiastic backer, Lake County Sheriff Roy Dominguez.

"I had always told my uncle of my intention to be a judge someday and he had advised me that it was a matter of timing, when there was an open seat," said Alex Dominguez, who said the sheriff had advised him the day before that he had heard rumors Arredondo might retire.

"Judge Arredondo's been there a long time, and maybe (Sheriff Dominguez's) suspicions were correct. (Arredondo's) name was still on when I filed and that's all I can say about that." * * *

The Dominguez camp also privately raised questions about whether Paras lives in the Merrillville home he has owned since 1983 and has listed as his voting address for decades, or in the Porter County community of Ogden Dunes, where he and his wife also own a home.

Until two weeks before the filing deadline, tax records show Paras claimed a homestead exemption on the Merrillville house (valued at $62,000), while his wife claimed an homestead exemption on the house in Ogden Dunes (valued at $362,000). State tax law allows homeowners to claim only one homestead exemption, on their primary residence.

On Feb. 10, Paras removed the homestead exemption on the Ogden Dunes house and also paid $7,000 in back taxes on a house deeded in his name in Hobart that also received a homestead exemption.

Paras said he bought the house for his sister, who was responsible for paying the taxes. His sister, an employee in the Lake County auditor's tax exemption department, said she gave the Hobart house a homestead exemption without her brother's knowledge, in order to reduce the tax bill.

One Lake County lawyer, who requested anonymity, said he is ambivalent about both candidates. Judicial ethics prevent the candidates from saying much about how they would do the job, and voters generally have no idea how to judge a good judge.

"This race is ugly either way, if you ask me," the attorney said. "I don't know why we vote for judges. The way this process works leaves room for all kinds of shenanigans and I don't know that we even see the best candidates on the ballot."

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Indiana Courts

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

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

From Sunday, April 4, 2010:

From Saturday, April 3, 2010: From Friday afternoon, April 2, 2010:

Posted by Marcia Oddi on Monday, April 05, 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 4/5/10):

Wednesday, April 7th

Next week's oral arguments before the Supreme Court (week of 4/12/10):


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

Wednesday, April 7th

Thursday, April 8th

Friday, April 9th

Next week's oral arguments before the Court of Appeals (week of 4/12/10):

Next Monday, April 12th

Next Tuesday, April 13th

Next Wednesday, April 14th

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

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


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, April 05, 2010
Posted to Upcoming Oral Arguments

Sunday, April 04, 2010

Ind. Law - "Physician ordinance adopted by Allen County"

Amanda Iacone reported April 3, 2010 in the Fort Wayne Journal Gazette:

The Allen County commissioners approved an ordinance Friday touted to protect patient safety despite some concerns the county has no legal authority to pass such a law.

The ordinance, which takes effect June 1, requires doctors who do not live in Allen County or in surrounding counties and do not have admitting privileges at a local hospital to provide their phone numbers to area hospitals and urgent care facilities. The ordinance is intended to provide patients experiencing surgical complications with better follow-up care by giving local doctors an easy way to contact physicians who leave town after surgeries.

The ordinance is a reincarnation of a similar law first urged in 2008 that focused solely on abortion-related procedures. Allen County Right to Life helped draft that version, saying it was needed to help women suffering from botched abortions.

The lone doctor who provides abortions in Allen County is based in South Bend and does not have admitting privileges at a local hospital.

While it will not be impossible for Dr. George Klopfer to comply with the ordinance, attorneys representing the Fort Wayne Women’s Health Organization where Klopfer works question whether the commissioners have the legal authority to pass such an ordinance.

Jordan Goldberg, state advocacy counsel for the Center for Reproductive Rights, said the commissioners don’t have the power to mandate such requirements on doctors. She said the law also endangers patient confidentiality because it gives the county the ability to walk into any medical facility and look at all of its patients’ records.

The Center for Reproductive Rights sent a lengthy letter to the commissioners last week outlining how the ordinance infringes on rights guaranteed by the U.S. Constitution and also violates the state’s home rule law. The state already regulates doctors and medical facilities, prohibiting the county from doing the same, the letter said. * * *

Commissioner Bill Brown said he supported the ordinance because local doctors, including Dr. Deborah McMahan, the county’s health commissioner, agreed it was needed.

McMahan along with Dr. Todd Rumsey, who sits on the board of health, and Dr. William Pond, a member of the Fort Wayne Medical Society, all said the ordinance was needed to close a gap and ensure proper follow-up care for various procedures, including liposuction and Lasik eye surgery.

Cathie Humbarger, executive director for Allen County Right to Life, was pleased with the commissioners’ vote, although she would have liked the county to pass a more aggressive law. But it will help her group know the true number of women suffering from botched abortions, she said.

“It’s a huge step in the right direction,” Humbarger said. “This will protect all patients in Allen County.”

The ILB has followed this issue since its inception. Here is the history of entries:

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to Indiana Government | Indiana Law

Environment - Indiana air enforcement efforts wane, reports say

"IDEM shuts down mercury monitors: Effort will save $285,000; no data will mean lack of urgency to comply" is the headline to an April 3, 2010 Gary Post Tribune story by Gitte Laasby that begins:

In its latest cost-cutting move, the Indiana Department of Environmental Management has shut down mercury monitors across the state, including at the Indiana Dunes.

The cut would save the agency about $285,000 annually. But critics say it would impact the state's ability to assess whether regulation to reduce mercury pollution is working.

The Indiana Dunes monitoring station has periodically registered one of the 10 highest mercury concentrations in the nation, said Martin Risch, a hydrologist and project chief with the U.S. Geological Survey in Indianapolis.

Dan Stockman reported in a lengthy story March 28th in the Fort Wayne Journal Gazette:
Government regulators have a list of more than 200 facilities in Indiana they say have broken air pollution laws in the past three years but, in most cases, have done little or nothing to stop them.

In fact, the majority of the Indiana companies that the U.S. Environmental Protection Agency says have violated the federal Clean Air Act since Jan. 1, 2007, were still in violation on Dec. 31, 2009. Yet in more than a third of those cases, state and federal regulators have taken no action.

A Journal Gazette analysis of a database of violations and enforcement actions maintained by the EPA shows that 210 of the 1,260 facilities in Indiana with permits to release air pollution have violated the Clean Air Act at least once in the past three years. But 140 of those violators – two-thirds – still had ongoing, unresolved violations as of Dec. 31.

Fifty-seven of the facilities have been breaking the law for at least three years, according to EPA data, but have been subject to no formal penalties or sanctions; 50 of those 57 haven’t been told of their alleged violations, the newspaper found. * * *

“(A lack of enforcement) creates a huge incentive not to fix the problem,” said Faith Bugel, a Clean Air Act attorney at the Environmental Law and Policy Center in Chicago. “Why should they? No one’s coming after them.”

Even the violations the EPA said are its highest priority – by repeat violators and those who pollute more than allowed – are getting little attention: Twelve of the 62 facilities with “high-priority violations” have been in violation for three years without any enforcement action. * * *

IDEM spokesman Robert Elstro said the EPA’s database, known as Enforcement & Compliance History Online is out of date. But the EPA says it is updated monthly; the last update was March 13.

“ECHO shouldn’t be used to get a snapshot of Indiana’s efforts to resolve enforcement cases, because the database often doesn’t get updated to reflect cases (that) have been resolved,” Elstro wrote in an e-mail response to a request for an interview.

“Five years ago, IDEM had a significant backlog of pending enforcement cases. Since then, the agency resolved the outstanding cases … and put a policy in place to resolve enforcement cases within one year of when the notice of violation is sent to a facility.”

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to Environment

Ind. Law - AG Zoeller challenging the new health care law

The Fort Wayne Journal Gazette had a Q & A yesterday on Indiana Attorney General Greg Zoeller’s decision to join a lawsuit challenging the controversial health care legislation. Niki Kelly had a story March 30, 2010 quoting Zoeller: “In this case it is unfortunate the entire subject matter has been politicized,” Zoeller said. “Everyone needs to know whether this is constitutional or not.”

The Indianapolis Star on April 2 had this editorial headed "Health-care suit tainted by politics." It concluded:

Zoeller hurt his credibility on this matter by recently blasting three school districts that sued the state over what they believe to be inequities in the school funding formula. Zoeller argued at the time that the districts shouldn't use tax dollars to sue the state government. Although there are significant differences in the two cases, his embrace of one and strong denunciation of the other makes it harder for Zoeller to persuade Hoosiers that his decision to join the health-care suit is more about the law than it is politics.

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to Indiana Law

Ind. Courts - Difficulty in correcting error in court record

Lydia McCoy reports in the Evansville Courier & Press about Greg Raleigh, now 49, who entered into a plea agreement at 23 where a felony charge was dismissed and he pleaded guilty and went on one year's probation for trespassing, a class A misdemeanor. From the story:

In January he moved back to Evansville, and that's when he began to run into problems.

Raleigh said he hasn't been able to get a job in his field and believes it's because his court record has a typo that says he was convicted of a felony.

"It's a bad economy and everything, but it seems like every time I start looking for a job it's a bad economy and nobody's hiring. So I keep lowering my salary expectations thinking I'm asking too much," he said. "Then when I went Downtown to get my records that's when I saw, yeah, they think I'm a liar."

The court record says that as part of a plea agreement, Raleigh pleaded guilty to the burglary charge, but then further in the line, it said that judgment was for the trespassing charge.

"The part where it says are you a convicted felon on the application, I always check 'no' because I'm not. Then I read that, and the first paragraph says I pleaded guilty to a felony," Raleigh said.

For the last several weeks he's been trying to get it fixed, but he said the process has been frustrating.

"I definitely have to get it fixed. I can't be a felon for the rest of my life when I didn't do it," he said. "I don't want somebody from my far future to look back and say, 'Yeah, Greg Raleigh was a felon.' I don't want that on my record."

Vanderburgh County Clerk Susan Kirk said after reviewing Raleigh's docket sheet that it definitely needs to be corrected, but the order to make the change must come from a judge. * * *

Chief Superior Court Judge Robert Pigman said after looking at Raleigh's docket that he would have to enter a "nunc pro tunc" judgement to correct the record. Pigman said it's possible he would have to recuse himself in Raleigh's case if he was prosecutor at the time, but a judge will have to rule on the change to get the record corrected.

Other ways someone can try to correct their court record is file a motion to correct erroneous judgment or a post conviction relief.

"It doesn't happen very often," Pigman said. "But occasionally it does."

Raleigh said he understands that it's not easy to fix a record, and he doesn't believe it should be.

"Then you'd have people coming back 25 years later that actually were convicted felons trying to change their record," he said.

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to Indiana Courts

Law - Is there a warranty on that new hip or new knee implant?

Barry Meier reported Saturday in the NY Times in a lengthy story that begins:

When a car breaks, a computer fails or a toaster flames out, the manufacturer is often liable under the product warranty. But that is not how the multibillion-dollar orthopedics industry tends to work, according to doctors, industry experts and three of the biggest device makers.

The million or so artificial hips and knees implanted each year in the United States, they say, are normally not guaranteed. Instead, the costs of replacing implants that fail early because of design or mechanical problems — devices that sell for as much as $15,000 each — are largely paid by Medicare, insurance companies and patients.

Implants can fail for many reasons, but if only a small percentage of them fail prematurely because they are substandard, the costs to taxpayers, policyholders and patients can run into the tens of millions of dollars each year, health care experts estimate.

Orthopedic producers may sometimes even profit from the failures because they sell the replacements at full price.

“Companies have dumped these costs into the health care system,” said Dr. Lawrence D. Dorr, an orthopedic surgeon in Los Angeles who two years ago took the unusual step of drawing attention to one problematic hip device. “They don’t have any skin in the game.”

The costs imposed by poorly performing medical devices were not dealt with in the landmark health care legislation that Congress passed last month. To pay for part of the overhaul, lawmakers mandated an excise tax on implant sales that is intended to bring in $20 billion over the next decade.

Patient advocates say an important opportunity was lost. Arthur Levin, the executive director of the Center for Medical Consumers, an advocacy group in New York, said it was appalling that the manufacturers did not provide warranties, given how critical such implants are for patients. By contrast, makers of another widely used and costly category of implants, heart devices like defibrillators, have issued warranties for more than 30 years and have provided free or discounted replacements when devices fail prematurely.

“Either they do not have faith in their products, or they are just saying tough luck to patients,” Mr. Levin said, referring to the makers of orthopedic implants. “It borders on unethical business behavior.”

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to General Law Related

Ind. Law - "Marion County Prosecutor Carl Brizzi ordered lenient deal for business partner's client"

That is the headline to a lengthy special report by Cory Schouten of the Indianapolis Business Journal. Some quotes from near the end of the story:

Allegations about Brizzi’s influence peddling may already have damaged the reputation of the Prosecutor’s Office.

During jury selection for a robbery case in February, defense attorney Patrick Stern brought up the Epperly case, telling potential jurors that those who donate to Brizzi can get a break on sentencing. He compared the donor-prosecutor relationships to that of a witness who had agreed to testify against his client in exchange for a lighter sentence.

On Stern’s next case, the Prosecutor’s Office asked Judge Bob Altice to ban Stern from discussing Brizzi’s political contributions. Altice sided with Stern. * * *

Repairing the reputation of the Prosecutor’s Office first would require “absolute and complete disclosure” of outside business dealings involving the prosecutor and staff, said [Gary L.] Miller, the former judge and prosecuting attorney.

The second step would be strict avoidance of any appearance of impropriety—recognizing that even one violation of the public trust taints both the office and the elected official.

“Prosecutors have a legitimate amount of discretion they can exercise and, if they use it improperly, it just taints everything else they do,” Miller said. “Unfortunately, you can’t read someone’s mind to tell if they were doing things for the right reasons. That’s the whole problem with one bad act.”

The FBI has been asking questions about Brizzi’s real estate and other business dealings while in office and how they might have influenced his official actions.

Areas of interest include Brizzi’s investment ventures with businessman Tim Durham, the target of a separate securities fraud investigation and a $108,000 donor to the prosecutor’s 2006 re-election campaign. Brizzi’s real estate investments, including stakes in the site of a Broad Ripple bank branch and the restaurant Harry & Izzy’s—a portfolio he has built without much in the way of cash or obvious assets—also have raised questions.

Many of the real estate deals were in partnership with John M. Bales, a principal in locally based Venture Real Estate who gave more than $10,000 for Brizzi’s 2006 campaign and represented the Prosecutor’s Office in its lease deal at 251 E. Ohio St.

Brizzi has resisted calls from former supporters to resign, and he has a personal interest in sticking around: Brizzi will be eligible for a public pension if he finishes his second term, which ends in December. With eight years of service, he will be entitled to earn 24 percent of his highest annual salary of $125,000, or about $30,000 per year once he reaches retirement age, by IBJ’s calculation.

Top local Republicans discouraged Brizzi from seeking re-election to a third term—a decision Brizzi announced in January—and later stepped in to push aside his chief of staff, Helen Marchal, after she announced plans to run. Marchal cited family reasons when she said she would not seek the office.

Instead, the party recruited Mark Massa, the former general counsel to Gov. Mitch Daniels.

Posted by Marcia Oddi on Sunday, April 04, 2010
Posted to Indiana Courts | Indiana Government | Indiana Law

Saturday, April 03, 2010

Law - "School Law Clinics Face a Backlash"

A long story today in the NY Times, reported by Ian Urbina, begins:

ANNAPOLIS, Md. — Law school students nationwide are facing growing attacks in the courts and legislatures as legal clinics at the schools increasingly take on powerful interests that few other nonprofit groups have the resources to challenge.

On Friday, lawmakers here debated a measure to cut money for the University of Maryland’s law clinic if it does not provide details to the legislature about its clients, finances and cases.

The measure, which is likely to be sent to the governor this week, comes in response to a suit filed in March by students accusing one of the state’s largest employers, Perdue, of environmental violations — the first effort in the state to hold a poultry company accountable for the environmental impact of its chicken suppliers.

Law clinics at other universities — from New Jersey to Michigan to Louisiana — are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.

“We’re seeing a very strong pushback from deep-pocket interests, and that pushback is creating a chilling effect on many clinics,” said Robert R. Kuehn, a law professor at Washington University in St. Louis, citing a recent survey he conducted that found that more than a third of faculty members at legal clinics expressed fears about university or state reaction to their casework and that a sixth said they had turned down unpopular clients because of these concerns.

But critics say law clinics are costly, unaccountable and often counterproductive to states’ interests, especially as they have broadened the scope of their work. The debate has raised larger questions about academic freedom at state-financed law schools and the role lawmakers should have over decisions at those schools.

There is much more in the story.

Posted by Marcia Oddi on Saturday, April 03, 2010
Posted to General Law Related

Ind. Courts - More on "Harrison sheriff indicted in lengthy sexual harassment probe"

Updating yesterday's story, Grace Schneider as another report today in the Louisville Courier Journal on the indictment, this one headed "Deatrick 'totally shocked' by indictment, lawyer says." From the long story:

Harrison County, Ind. Sheriff Mike Deatrick and his family were “totally shocked” by his indictment and arrest Thursday for criminal deviate conduct and other felony charges, his lawyer said.

The lawyer, Bart Betteau, said the 64-year-old sheriff was upbeat and eager to prove his innocence despite the stunning turn of events, which could send him to prison and land him on the state’s sex-offender registry.

The sheriff intends to remain in office and will mount a vigorous defense against what he says are baseless charges, Betteau said Friday.

Deatrick and his supporters believed the grand jury proceedings would quickly dispense with the allegations and clear the sheriff’s name, he said. Instead, the sheriff was handcuffed after the grand jury indicted him and a judge set a July 20 trial date. * * *

Even though he is now under indictment, Deatrick can’t be forced from office unless he is convicted of a felony.

Betteau said Deatrick, who earns nearly $85,000 a year, would stick to his routine, working each week day. He said that although the charges are serious, they arise from a grand jury proceeding that by law is heavily weighted against a suspect because there’s no opportunity to cross examine witnesses or respond to the evidence.

“The sheriff will go through trial and the sheriff will be acquitted,” he said. “This does not mean he did anything wrong.”

James Goldman, president of the county’s Board of Commissioners, said that even if Deatrick is ultimately exonerated, he would do the community a favor by stepping down now.

“I think it’s a disgrace. No matter where you go in the state of Indiana, people know about the sheriff of Harrison County,” Goldman said, adding that “I’m not surprised he was indicted.”

Posted by Marcia Oddi on Saturday, April 03, 2010
Posted to Indiana Courts

Ind. Courts - "Lawsuit alleges candidate for judge didn't sign paper"

Updating earlier ILB entries on this judicial race ("Judge hopes feds' probe of tax breaks will clear air" - 3/6/10 and "Gary P-T editorial on Lake County Circuit judgeship: Political deceit reaches on high" - 3/21/10), today Andy Grimm reports in the Gary Post-Tribune:

CROWN POINT -- A Lake County Circuit Court ruling could decide who will be the Democratic candidate for Lake County Circuit Court Judge.

In the latest twist in an unusually odd primary fight between Crown Point attorney Alex Dominguez and Merrillville Town Judge George Paras, a Schererville man has filed a court challenge claiming Dominguez should be removed from the ballot because he didn't sign his name on candidate paperwork.

The lawsuit names Dominguez, Secretary of State Todd Rokita and the Lake County Election Board as defendants.

"Every other candidate in the state has to sign in the box and verify their information. Why not (Dominguez), too?" said Robert Vann, the Merrill-ville attorney who filed the suit for Schererville resident John McGrath.

"(Dominguez) is a lawyer. He should know the law. If he was a judge, is he going to let litigants come before him and say 'I almost followed the law?' "

A copy of the form submitted by Dominguez with the Indiana Election Commission included with the lawsuit shows that a signature box at the bottom of an apparently two-sided form is blank. However, the other side of the document shows Dominguez's notarized signature on a line acknowledging Dominguez was aware of campaign finance rules, said John Kopack, Dominguez's lawyer.

The lawsuit comes almost a month after the deadline to file candidate challenges with the Election Commission, Kopack said.

"This is an attempt by the other candidate's camp to do what they apparently intended to do at the filing deadline," when sitting judge Lorenzo Arredondo filed to redraw his name as a candidate on Feb. 19, minutes before the filing deadline, and his friend Paras filed to enter the race.

That move that would have left Paras as the only candidate on the primary ballot. Dominguez has said his uncle, Lake County Sheriff Roy Dominguez, had heard rumors Arredondo would withdraw so Paras could run unopposed, and Alex Dominguez filed for the job about 30 minutes before Paras and Arredondo.

"They want their candidate to run with no opposition," Kopack said.

Kopack said state election laws require any candidate challenges be filed with state or local election officials three weeks ago, not in court the month before the election.

Vann said Dominguez was never a candidate because his filing paperwork is meaningless without proper signatures. Vann also said he had not discussed politics with his client McGrath, whom he described as "a concerned citizen."

"You can try to spin this any way you want," Vann said Friday. "I think (the signature) is very significant. This guy wants to be judge. He has to comply with the law. Signatures are important. There are all sorts of legal documents that must be signed."

Kopack said a court hearing could take place within two weeks.

Richard Winger of Ballot Access News notes:
Because the county probably wants to print the primary ballots very soon, this case will be decided quickly. Indiana does not permit write-ins in primaries, so if Dominguez is removed from the primary ballot, only one candidate will remain on the ballot, and he will be the nominee automatically.
Readers may recall this ILB entry from March 20, 2010, headed "Porter county judge orders trustee candidate removed from ballot." In that case, in the county adjoining Lake, 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. * * * "I think the Legislature wanted strict compliance," she said.

Posted by Marcia Oddi on Saturday, April 03, 2010
Posted to Indiana Courts

Friday, April 02, 2010

Ind. Law - More on: "Rethinking Sex Offender Laws for Teenage Texting"

Updating this ILB entry from March 20, 2010, which notes that legislation with differentiated sexting language re juveniles, SEA 224, was amended and passed instead as a sexting study committee bill in the recently ended session, Sentencing Law and Policy today, in an entry headed "Should sexting lead to sex offender registration?," quotes "from a segment on [ABC News] Nightline, which is headlined "'Sexting': Should Child Pornography Laws Apply?" including this, taken from observations by NYU law professor Amy Adler:

"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."
Now that I've looked at it, don't miss the whole ABC News piece, by Vicki Mabrey and David Perozzi.

Moving one step further along the continuum, if indeed it is one, thanks to Legal Theory Blog for pointing to this new law review article by Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law), titled "Disentangling Child Pornography from Child Sex Abuse."

[More] See also this March 29, 2010 Findlaw article by First Amendment attorney Julie Hilden, titled "The U.S. Court Of Appeals for the Third Circuit Issues an Encouraging Ruling in a First Amendment Case About Teen 'Sexting'".

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Courts in general | General Law Related | Indiana Law

Law - "Judging Former Judges Who Call Themselves Judge"

This is interesting, an entry in the WSJ Law Blog by Ashby Jones that asks:

To what degree is it proper for judges, after they’ve stepped down from the bench, to continue going by honorifics such as “The Honorable” or “Judge”?
Leah Ward Sears, the former chief justice of the Supreme Court of Georgia, has an interesting answer, delivered from a fairly unique perspective.

Also interesting are many of the comments.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to General Law Related

Ind. Decisions - "Ruling will release Elkhart man from prison" [Updated]

Wednesday's COA decision in Tyrus D. Coleman v. State of Indiana (ILB summary here - 3rd case) is the subject of a story today by Justin Leighty in the Elkhart Truth:

GOSHEN -- Tyrus Coleman of Elkhart will go free after a split panel of the Indiana Court of Appeals ruled that he shouldn't have been tried a second time and convicted of attempted murder.

Coleman had two trials in Elkhart Circuit Court. In one, he was acquitted on a murder charge related to the shooting death of Jermaine Jackson, but that jury couldn't agree whether Coleman was guilty of attempted murder for shooting Jackson's father, Anthony Dye.

Like that jury, the appeals court wasn't unanimous. Two justices ruled that the original jury, though it wasn't unanimous on attempted murder, apparently ruled the shooting of Dye was also justified, so Coleman shouldn't have been re-tried in that shooting, which happened in Elkhart on March 18, 2007.

The entire incident, which took place outside Coleman's recording studio, was captured on video. Jackson showed up and tried to force his way in to get revenge on Omar Sharpe, a recording artist in the studio. Sharpe had robbed Dye four months earlier.

Coleman forced Jackson out, but Jackson called Dye to come over.

When Dye walked into the yard with a gun in hand, he moved toward Sharpe. Coleman walked to Dye and shot him in the head, then shot him again as Dye dropped to the ground. Jackson drew his gun and the two men had a shoot-out, which left Jackson dead.

Two judges ruled in their opinion this week that in the first trial, "The jury must have necessarily decided that Coleman's use of force against Dye was also not a crime."

However, Judge Carr L. Darden wrote a dissent, saying, "After reviewing the video that the jury saw, I am of the opinion that the testimony at trial and the video evidence could support the reasonable inference that Coleman was not in fear for his life as Dye was walking past him, while also supporting the reasonable inference that Coleman was in fear for his life when facing Jermaine's drawn weapon." Darden said the second trial was proper.

The majority's ruling, though, ordered the case against Coleman dismissed, meaning he'll be released from his 45-year prison sentence.

[Updated almost immediately] A reader notes the opinion is not final until certified.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Harrison sheriff indicted in lengthy sexual harassment probe"

Updating earlier ILB entries headed "Prosecutor named in Harrison County case" (11/24/09) and "Justice Dept. settles lawsuit against Harrison County sheriff alleging sex discrimination" (6/15/09), Grace Schneider reports in the Louisville Courier Journal:

Harrison County Sheriff Mike Deatrick was indicted Thursday on multiple felony charges including criminal deviate conduct and obstruction of justice in a nearly two-year investigation that began after two women employees filed sexual harassment claims against him.

Deatrick also was indicted on six sexual battery counts and two intimidation counts. And his jail commander, Capt. Nathan Simpson, was indicted on obstruction of justice and false informing charges.

A former correction’s officer, Dee Walden, was indicted on an insurance fraud count.

“This is the beginning of the process,” special prosecutor Nancy Jacobs,said following the indictments. * * *

The grand jury was convened in late November to review evidence from an Indiana State Police investigation that began when two women dispatchers accused Deatrick of sexual harassment and intimidation. Deana Decker and Melissa Graham alleged in May 2008 that Deatrick had touched their breasts and made inappropriate sexual remarks to them. They later claimed that Deatrick attempted to threaten them after their harassment claims became public by displaying a pistol one night while they were working.

Investigators spent months examining whether, in an attempt to damage or destroy evidence of the alleged pistol incident, anyone tampered with the video surveillance system used at the county jail and police headquarters.

Decker and Graham filed separate criminal and employment discrimination complaints. A federal lawsuit involving the civil-rights claims was settled with the county and Deatrick a year ago, with the county’s insurance company paying the women $375,500.

But the criminal investigation continued, and Deatrick ignored calls by some county leaders that he step down until it was concluded. His term as sheriff is to end Dec. 31, and he is not eligible to seek re-election because of term limits.

The grand jury indicted Deatrick on six felony counts of sexual battery, two felony counts of criminal deviate conduct, one felony count of insurance fraud and one felony count of obstruction of justice. He also was charged with two misdemeanor counts of intimidation. * * *

He was placed in handcuffs by Indiana State Police Detective David Mitchell, who headed the investigation, and was led away when the proceeding ended by Mitchell and county Coroner Rusty Sizemore. Under Indiana law, the coroner must be present when a sheriff is arrested.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Indiana Courts

Ind. Decisions - 3 Indiana decisions today from 7th Circuit

State and local offices are closed today, but the feds are in operation. The 7th Circuit has issued three opinions today, all out of Indiana.

In US v. Doody (ND Ind., Miller), a 9-page opinion, Judge Flaum writes:

The defendant, Alduff Doody, was charged with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Unlike the defendants most commonly charged under § 924(c), Doody did not possess the firearm for protection. Instead, he accepted the gun as collateral to secure a drug debt. Thus, he argues, his conduct did not violate § 924(c). Because Doody took possession of a firearm in manner that facilitated a drug transaction, we affirm.
In Holmes v. Levenhagen (SD Ind., McKinney), a 15-page opinion, Judge Posner writes:
This is the latest stage in a protracted federal habeas corpus proceeding in which Eric Holmes (we shall continue to call him by that name even though he changed it to “Koor An Nur of Katie Mary Brown” after converting to Islam) challenges the death sentence that an Indiana court imposed on him in 1993 after a jury convicted him of two murders that he had been accused of committing in 1989. He sought federal habeas corpus in 2001, raising a number of colorable issues one of which was whether he was competent to assist his lawyers in that proceeding. * * *

A case in which the plaintiff (in habeas corpus cases the “petitioner”) pleads incompetence is of course unusual, since if the court rules that he is incompetent his case is suspended indefinitely and he gets no relief. But as we explained when last the case was here, “in a capital case the petitioner may prefer to languish in prison than to see his claims for postconviction relief denied, opening the way to his execution.” 506 F.3d at 578-79. Even if Holmes were to prevail in his habeas corpus proceeding, that would just get him a new trial, and if he were again convicted he might again be sentenced to death.

The question is not whether Holmes is insane—as he plainly is (the state does not deny that)—but whether he has sufficient mental competence to work with his lawyers in prosecuting a federal habeas corpus proceeding at both the district court and court of appeals levels. That depends on the nature of the decisions that he and his lawyers have to make in prosecuting the habeas corpus action. Some of the decisions are technical— the sort that only a lawyer could make because they turn on esoteric points of law. Others, however, are strategic, such as whether to argue mental incompetence or to go for broke by arguing the merits of the habeas corpus claim and so risk execution if the claim fails. There is also the question of which claims to emphasize— whether to give them all equal weight or not, and perhaps omit some altogether. Partly these are tactical issues to which a layperson would be unlikely to have anything to contribute; but not entirely. * * *

Holmes testified that his “mental state shouldn’t be an issue.” If he is competent, he has by that statement seemingly made a choice to go for broke—to obtain a determination from us of the merits of his habeas corpus action rather than allow the proceeding to be suspended until such time as he is restored to sanity (a time that no one expects ever to arrive). We do not think that he is competent to make such a decision. He is deeply confused, obsessed, and delusional. The evaluation by Dr. Olive and the remarks of the district judge that we have quoted cannot be reconciled with the evidence of the 64-page transcript of Holmes’s most recent testimony, along with the evidence of his earlier testimony. * * *

With reluctance, we reverse the judgment with instructions to suspend the habeas corpus proceeding unless and until the state provides substantial new evidence that Holmes’s psychiatric illness has abated, or its symptoms are sufficiently controlled, to justify the resumption of the proceeding. REVERSED AND REMANDED, WITH DIRECTIONS.

In Baily v. Pregis Innovative Packaging (ND Ind., Simon), an 8-page opinion, Judge Posner writes:
The district court granted summary judgment for the defendant in this suit under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. The appeal raises several issues, but only two warrant discussion; the others have no possible merit.

The defendant fired the plaintiff because she had received more than 8 “points” for absenteeism during a 12-month period—a firing offense under the defendant’s “no-fault attendance policy.” She would not have received so many points had she not taken two absences in July 2006. She contends that these absences were leaves to which the Act entitled her, and if this is correct the defendant could not lawfully penalize her for taking them. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(c); Phillips v. Quebecor World RAI, Inc., 450 F.3d 308, 310 (7th Cir. 2006); Novak v. MetroHealth Medical Center, 503 F.3d 572, 577-78 (6th Cir. 2007). But to be entitled to take leaves protected by the Act in July 2006, she had to have “been employed for at least 1,250 hours of service with [her] employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(ii). And she hadn’t been—unless, as she argues, she is entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave—that is, unless she is entitled to add, to the time she worked during those 12 months, the time she worked during the 56 days that preceded the 12 months. * * *

An employee must not be penalized by being deprived, just because he is on family leave, of a benefit that he has earned (i.e., that has accrued to him) by working. But by the same token he cannot, when on family leave, accrue benefits that accrue only by working. The statute is explicit that an employee does not accrue seniority by being on family leave, 29 U.S.C. § 2614(a)(3)(A), because seniority is a reward for working; and similarly we conclude that an employee does not accrue absenteeism forgiveness when on leave, because that too is a reward for working. The defendant’s no-fault attendance policy is a lawful method of determining whether an employee has, despite absences, a sufficiently strong commitment to working for his employer to wipe an absence off his record. The plaintiff failed to demonstrate that commitment. AFFIRMED.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Allen County judges pulling weekend jail shifts"; another take

Updating yesterday's ILB entry, here is another take on the story, from Jeff Neumeyer of the Indiana News Center. Some quotes:

FORT WAYNE, IN (Indiana's NewsCenter) --- The Allen County criminal court system undertakes a policy change that seeks to address allegations that several thousand jail inmates may have had their constitutional rights violated.

It requires that some judges put in extra time on the job reviewing arrest records.

Two weeks ago, a total of nine Allen County judges and magistrates began to work Saturdays on a rotating basis, to ensure that nobody arrested on a weekend has to sit in jail for more than 48 hours without their case being looked at, or getting a shot at bond.

This is in response to a lawsuit filed last September by a woman who was arrested on a Friday afternoon, and who sat in jail until Monday before being released.

The suit alleges she and other inmates are entitled to a review of their charging documents, and a shot at bond within 48 hours of their arrest.

Judge Ken Scheibenberger/Allen Superior Court: " And we believed that we were complying with the law. We thought that weekends might not count. We found out they do count, so, we are now changing our policies and how we do that, and going down there on Saturdays."

In the lawsuit in question, the plaintiff, LeTasha Myatt, wants the case to go forward as a class action suit.

She alleges as many as 3,000 people may have been wrongly detained during the years Sheriff Ken Fries has been in office.

The judges’ review of probable cause affidavits is a cheaper alternative to holding Saturday court.

County officials explored that possibility several years ago, but it was determined the need to pay bailiffs, court reporters and other staff would make that option cost prohibitive.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Indiana Courts

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

Updating this ILB entry from March 30th, re the 7th Circuit opinion of that date in Sandra T.E., et al. v. South Berwyn School District 100 and Sidley Austin LLP, Tresa Baldas reports today in The National Law Journal in a story that begins:

The attorney-client privilege protects notes and memorandums that Sidley Austin wrote while investigating alleged sexual abuse by a music teacher, a federal appeals court said on Tuesday.

In an opinion issued Tuesday, the 7th U.S. Circuit Court of Appeals ruled that handwritten notes and memorandums relating to interviews produced by Sidley Austin lawyers in the course of their investigation are protected by the attorney-client privilege and the work-product doctrine, even though the lawyers weren't handling the lawsuit that sparked the investigation.

The South Berwyn School District in Berwyn, Ill., had hired Sidley Austin in 2005 to offer advice and investigate allegations that the district failed to respond appropriately to claims that a teacher was molesting students for years. A civil lawsuit had been filed against the district for allegedly turning a blind eye to the alleged molestation, although Sidley Austin was not hired to represent the school in the litigation.

In the course of its investigation, the firm interviewed many school employees, took notes and reported that information to the school board. The plaintiffs sued to gain access to those notes, and a lower court agreed that they should have the notes because, it reasoned, the lawyers were acting as investigators, not lawyers.

A three-judge panel of the 7th Circuit disagreed. It issued its order on Feb. 25, one day after oral argument, and then followed up with a full opinion on Tuesday.

In Sandra T.E. v. South Berwyn School District 1000 and Sidley Austin, Judge Diane Sykes wrote that both the U.S. Supreme Court and other circuits have "concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."

Sykes also pointed to an engagement letter between the law firm and the school district that "spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response" to the sexual abuse allegations.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "High court disbars South Bend attorney: Sniadecki found to have committed ethical, criminal acts"

Updating yesterday's ILB entry, Jeff Parrott reports today in the South Bend Tribune:

The Indiana Supreme Court announced Thursday that it has disbarred a South Bend attorney for multiple ethical violations and criminal acts.

The court unanimously found that Rod Sniadecki engaged in attorney misconduct by violating the terms of a previous suspension from the practice of law; by entering into an improper business transaction with a client; and by committing crimes and engaging in dishonest conduct.

In addition to the attorney rule violations, the crimes included forgery, perjury and attempted obstruction of justice, the high court ruled. * * *

The Supreme Court's action follows a disciplinary commission investigation alleging that, among other things, Sniadecki continued to run his law office while his license was suspended; forced his secretary to falsify court records; tried bribing a witness in the attorney misconduct probe; and defrauded a longtime, trusting client. * * *

Sniadecki's disbarrment is permanent, meaning he can never again practice law in Indiana. It takes effect May 12, giving him about six weeks to wrap up work on cases he is now handling.

Sniadecki, 43, a lawyer since 1992, has not responded to The Tribune's previous interview requests. In court documents, he has denied the allegations.

Posted by Marcia Oddi on Friday, April 02, 2010
Posted to Indiana Courts

Thursday, April 01, 2010

Environment - The suspense is over, "As they deflated Thursday, the bubbles wrinkled like raisins in the sun."

The WSJ's Lauren Etter is reporting today:

WINCHESTER, Ind.—Several giant bubbles on a dairy farm manure lagoon were popped Thursday, emitting a pungent stench that wafted across fields on a warm spring breeze.

There were no explosions, as some neighbors had feared, when several engineers floated around farmer Tony Goltstein's manure-storage pond in a flat-bottomed boat and released gas from the bubbles. The bubbles, the size of small houses, were inflated with gas released by 21 million gallons of decomposing cow manure.

The bubbles were deflated with a device fitted with a tube and a valve that allowed for a controlled release of the gas. "The facility is venting," said Bruce Palin, an Indiana state environmental official. "So far, there have been no big booms or explosions." * * *

As they deflated Thursday, the bubbles wrinkled like raisins in the sun.

The men in the boat wore protective clothing and had respiratory gear on hand in case the emissions became too strong. They wore harnesses and ropes as a precaution against falling into the pond.

Area residents who have watched the bubbles grow for years were transfixed. Mr. Goltstein's next-door neighbor, Allen Hutchison, used binoculars to watch the deflations amid hay bales on the top floor of his barn.

"I'll be tickled to death when the bubbles are gone," Mr. Hutchison said. Local reporters set up shop in the barn and other neighbors stopped by for a look. * * *

Randolph County shut down some local roads and school buses used alternate routes to avoid potential danger. County sheriff Bud Harris patrolled the area at Mr. Goltstein's request.

"He told me we're going to start busting these on Thursday," the sheriff said. So far, "we had two news people that we had to run off."

See ILB entry from earlier today here.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Environment

Ind. Decisions - Supreme Court disbars South Bend attorney

In the Matter of Rodney P. Sniadecki, a per curiam opinion in an attorney disciplinary action, issued today, is unusal in that it is 16-pages long, much longer than most other such disciplinary opinions.And it is unusual in that the attorney is flatly disbarred. Period.

From the opinion:

We find that Respondent, Rodney P. Sniadecki, engaged in attorney misconduct by violating the terms of a previous suspension from the practice of law, by entering into an improper business transaction with a client, and by committing crimes and engaging in dishonest conduct that is incompatible with the privilege of practicing law in this state. For this misconduct, we find that Respondent should be disbarred. * * *

The hearing officer recommends that Respondent be disbarred. In Indiana, disbarment permanently strips an attorney from the privilege of practicing law in the state. Disbarment is reserved for the most serious misconduct. The American Bar Association's Standards for Imposing Lawyer Sanctions (as amended in 1992) ("Standards") provide the following examples of misconduct warranting disbarment: * * *

Respondent's misconduct fits within all of the above Standards. We therefore conclude that Respondent should be disbarred. * * *

Respondent's misconduct fits within all of the above Standards. We therefore conclude that Respondent should be disbarred.

Conclusion. The Court finds clear and convincing evidence that Respondent violated these rules prohibiting the following conduct:

Ind. Admission and Discipline Rule 23(26): Failing to comply with the obligations of a suspended attorney.

Ind. Professional Conduct Rules:
1.8(a): Entering into a business transaction with a client unless the terms are fair and reasonable, the terms are fully and clearly disclosed, the client is given reasonable opportunity to seek independent counsel, and the client consents in writing to the transaction.
3.3(a): Knowingly making a false statement of fact to a tribunal.
3.4(c): Knowingly disobeying an obligation under the rules of a tribunal.
8.4(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

For Respondent's professional misconduct, the Court disbars Respondent effective May 12, 2010. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).
The costs of this proceeding are assessed against Respondent.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "COA judges said the couple were not 'separated' under Indiana domestic relations law because they had never been married or living together"

Yesterday's Court of Appeals opinion in Franklin Electric Company, Inc. v. Lutheran Hospital of Indiana, et al. (ILB summary here) is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly:

The city of Fort Wayne could be on the hook for $150,000 in medical bills, an Indiana Court of Appeals ruling said Wednesday.

The appellate judges said Fort Wayne’s Employee Benefit Plan is the primary insurer responsible for the payment and sent the case back to Allen Superior Court for further proceedings.

The city of Fort Wayne is self-insured, meaning any payments come from tax dollars.

The case started in 2003 when Lori Brown and Robert Kirby had a baby. The two were never married and never lived together, according to court records. The baby was born prematurely and amassed about $150,000 in medical expenses at Lutheran Hospital and Bluffton Regional Medical Center.

The question in the case is which insurer is responsible for the child’s medical bills.

Brown worked for Franklin Electric Co. and Kirby for the city of Fort Wayne. The baby was covered under both plans, the ruling said.

Allen Superior Court Judge Dan Heath ruled that Franklin’s insurance coverage was primarily responsible and dismissed the city of Fort Wayne from the lawsuit about the bills.

But the Court of Appeals decided differently Wednesday.

The Franklin plan included a provision that said if parents are divorced or separated, the plan of the parent with custody pays first.

This was the provision Heath relied on, but the appellate judges said the couple were not “separated” under Indiana domestic relations law because they had never been married or living together. Therefore, the fallback provision calls for the plan that has covered a person longer to pay first. That plan is Kirby’s with the city of Fort Wayne.

The appellate court ordered that Franklin be dismissed from the suit and Fort Wayne be reinstated as a defendant in the lawsuit. The ruling can be appealed by the city to the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

Term. of Parent-Child Rel. of A.B.; D.B. & B.B. v. IDCS - Termination affirmed.

NFP civil opinions today (2):

Steven K. Like v. Jane E. Like (NFP) - "Steven K. Like (“Father”), pro se, appeals the trial court’s denial of his motion to modify his post-secondary educational support obligation for his daughter. Finding that the trial court’s order is against the logic and effect of the circumstances before the court, we reverse and remand."

Mark Valenti, et al. v. Louis Butcher, et al. (NFP)

NFP criminal opinions today (2):

David E. Wilson v. State of Indiana (NFP)

The Matter of S.W. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Ind. App.Ct. Decisions

Environment - More on "Manure Raises New Stink"

Updating this ILB entry from March 25, 2010, Seth Slabaugh of the Muncie Star-Press reports today under the headline "Winchester dairy farm to pop hazardous gas bubbles in manure lagoon." From the story:

WINCHESTER -- The state has given a dairy farm permission to deflate potentially toxic and flammable gas bubbles in a 20-million-gallon manure lagoon.

Union-Go Dairy, a concentrated animal feeding operation (CAFO) housing 1,600 cows, originally proposed to pop the bubbles without taking precautions.

"We indicated that was not an acceptable approach," said Bruce Palin, an assistant commissioner at the Indiana Department of Environmental Management. "They need to control the release of the gas."

IDEM believes the gas is trapped between two liners at the bottom of the lagoon. The top liner is synthetic. Beneath that is a two-foot-thick liner of compacted clay.

"We think manure has gotten underneath the synthetic liner and is trapped between that liner and the clay liner," Palin said. "That manure is biological material. When it breaks down, it creates gas."

The gas has pushed the synthetic liner up and out of the lagoon, creating 20 or so gigantic bubbles above the surface.

The bubbles contain methane gas, hydrogen sulfide, ammonia and probably carbon dioxide.

"It would certainly impact you to breathe it," Palin said. "It would knock you down, knock you out."

Neighbors took aerial photographs and began complaining about the bubbles a year ago.

The bubbles displaced some of the capacity of the lagoon, creating a threat to overflow, Palin said.

As the manure was being pumped out, land applied as fertilizer and transported to another lagoon in Henry County, there was less weight to hold down the bubbles, so more bubbles were created, Palin said. * * *

The current plan is to attach a valve or valves to the bubbles to control the release of the gases. That also will allow the dairy to measure the pressure and concentration of the gases.

"Releasing it in a controlled manner, hopefully there is no adverse impact on the air," Palin said.

If you don't count the very big stink!

And even though today is April Fool's Day, this is serious business. Here is a story by David Kirby, author of Animal Factory: The Looming Threat of Industrial Pig, Dairy and Poultry Farms to Humans and the Environment, writing today in the Huffington Post:

Despite the giggles that this story evokes (and the ick factor associated with exploding bubbles of poo), this is actually no laughing matter to neighbors who live nearby.

Methane is deadly, and even brief exposures to it can kill people. I wrote about the gas's lethal qualities in Animal Factory, describing a horrible tragedy at a dairy in Virginia:

Each year, grisly reports surface in the news about people working around manure pits who are instantly overcome by methane fumes. Victims often topple into the thick brown muck where, if they haven't stopped breathing already, they drown.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Environment

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

Prof. Douglas A. Berman of Sentencing Law and Policy has an interesting entry today on yesterday's SCOTUS ruling in Padilla. He writes that Alito's concurrence may be used the argue that:

Padilla is not merely a special rule for the special problem of deportation, but rather impacts how we view counsel's advice (or lack of advice) concerning any and all "serious" consequences that can follow a conviction.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Courts in general

Ind. Courts - "Disputed welfare practices don't hold up in court" [Updated]

Jon Murray of the Indianapolis Star has a long story today on recent state court challenges to welfare practices. His sidebar gives details about the rulings:

Three recent court rulings granted summary judgment to plaintiffs represented by the American Civil Liberties Union of Indiana on issues involving welfare services:
  • Medicaid disability appeals: Marion Superior Court Judge David Dreyer ruled March 1 against a change in January 2008 that made appeal hearings by telephone the default option for those denied Medicaid disability benefits. The rule applied to counties -- not including Marion and surrounding counties -- where contractors had taken over operation of welfare services. In-person hearings were still available by request.

    Dreyer found the automatic telephonic hearings ran afoul of an Indiana law requiring a "place" for such a hearing, and applicants weren't given the opportunity to knowingly waive that right. The Indiana Family and Social Services Administration disputes the ruling but reverted back to face-to-face hearings last fall.

  • Benefit denials: In another case, Dreyer issued a split decision March 1. He found that the agency failed to provide sufficient guidance to applicants when denying eligibility or recertification for food stamps. They received notices of "failure to cooperate" because of incomplete applications -- but federal law allows denials only when applicants refuse to supply proper documentation.

    But Dreyer rejected a similar claim for a larger group that includes applicants denied on similar grounds for Medicaid and Temporary Assistance for Needy Families. He found that the agency provided sufficient information and due process in those instances.

    The judge also ruled that the agency violated federal law, including the Americans with Disabilities Act, when Sheila Perdue, a Madison County woman who is mostly deaf, was denied recertification for food stamps and Medicaid. She was told she must participate in an interview by phone because caseworkers were no longer available to meet in person.

  • Cap on in-home care: Clay Superior Court Judge J. Blaine Akers ruled March 8 that a 40-hour-per-week cap on attendant care for disabled Medicaid recipients violated numerous state and federal laws. Recipients lived at home instead of in assisted-living facilities under the Aged and Disabled Waiver program; about 100, or 2 percent, exceeded the cap imposed in July 2008.

    Akers made permanent a preliminary injunction he had entered against the cap in December 2008.

What's next

The Indiana attorney general and the FSSA have moved to appeal the telephonic appeals ruling and are considering their options in the other cases. The ACLU already has filed a notice that it will appeal the part of the benefit denials ruling that found in the FSSA's favor, said ACLU attorney Gavin Rose. If the Marion County rulings stand, the FSSA may have to contact thousands of people affected by those policies.

Some quotes from the story itself:
When Gov. Mitch Daniels pulled the plug in October on a privatization contract that was the cornerstone of an aggressive welfare services modernization plan, he said it simply didn't work.

But the arrangement's inefficiency, lost paperwork and wrongly denied benefits weren't the only problems. A judge has ruled that parts of the modernization push also violated the law.

Two recent rulings from a Marion County judge and a third from Clay County delivered a new slap to the state's welfare services agency over several practices, including the handling of denials for some benefits and appeals for others.

The Indiana Family and Social Services Administration is forging ahead by testing a new "hybrid" plan in some places. In the meantime, dozens of counties still operate with vestiges of the aborted modernization attempt -- and with one of the two disputed practices. * * *

[L]ast month's rulings -- in class-action lawsuits brought by the American Civil Liberties Union of Indiana -- raised questions about the way the agency has denied some benefits in recent years.

One overruled the use, starting in 2008, of automatic appeals by telephone instead of in person for those denied Medicaid disability benefits in counties selected for the old modernization plan.

Another ruling targeted the vague denials issued for incomplete food stamp applications, ascribing a "failure to cooperate."

The notices, which provided little guidance on how to correct errors, became an issue particularly in modernizing areas because some paperwork was lost as documents were scanned into the new computerized file system.

The state denies those practices were unlawful.

In the food stamp denials case, the ACLU lost on another claim that targeted similar denials issued to a larger group of applicants for programs including Medicaid and Temporary Assistance for Needy Families. The judge ruled that different rules applied to those programs under federal law.

In the third ruling, the Clay County judge found unlawful on several fronts a 2008 cap on at-home attendant care services for disabled Medicaid recipients. That practice was not directly related to the modernization effort. * * *

In October, when Daniels cancelled the 10-year IBM deal, he called the error-prone system "a failed concept."

The same month, a U.S. District Court judge in Northern Indiana ordered the agency to speed up decisions on food stamp applications within a year. That lag, under the IBM team, also had brought pressure on the FSSA from federal food stamp officials. * * *

The FSSA has changed one practice at issue in the court cases, restoring face-to-face Medicaid appeal hearings in the 59 counties that were "modernized" under the IBM-overseen system.

Gavin Rose, an ACLU attorney, pointed out that hearings by phone made little sense when administrative law judges were tasked with evaluating a denied applicant's disability. But an applicant had to request one.

[Updated at 11:45 AM] The ILB has now received copies of all three decisions.

This ILB entry from March 25th was on the Chadwell (cap on in-home care) decision - and here is a copy of Clay County Superior Court Judge J. Blaine Akers' March 8, 2010, 39-page opinion.

Here is Terrell (telephonic hearings) and here is Perdue (benefit denials) - both issued March 1, 2010 by Marion County Superior Court Judge David J. Dreyer.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Indiana Courts | Indiana Government

Ind. Courts - "New law alters felons' 'credit' for time served"

Actually it is a 2008 law, but, according to a quote in Lydia X. McCoy's important story today in the Evansville Courier & Press, "We haven't seen a whole bunch of it up until this point because it only applies to offenses that occurred after July of '08, so some of that stuff hasn't winded itself through the system yet." From the story:

When Raymond Jeremy Wimber is sentenced next month to multiple charges of child molesting, the 40-year-old will have to serve about 85 percent of his 60-year sentence.

That's because Wimber is classified as a credit-restricted felon under new legislation that took effect July 1, 2008, which means instead of the customary day-for-day good time credit, he will get credit for every six days that he serves.

Prosecutors and defense attorneys are beginning to see more of these cases, which is causing them to look at the cases more carefully. A person is considered a credit-restricted felon if they have been convicted of one of the following:

  • Child molesting involving sexual intercourse or deviate sexual conduct if the offense is committed by a person at least 21 years of age and the victim is less than 12 years of age

  • Child molesting resulting in serious bodily injury or death

  • Murder if the person killed the victim while committing or attempting to commit child molesting, the victim was the victim of a sex crime or the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime and the murder was committed with the intent of preventing that person from testifying.
Susan Wilkie, a deputy prosecuting attorney for Vanderburgh County, handles child-related cases dealing with sexual and physical abuse and neglect for the prosecutor's office. Wilkie, who joined the office in November, said she first learned of the legislation from a police officer, so she began researching it.

"It's probably something all the attorneys heard about when it was passed, but it doesn't come up very often," she said. "... It's something I'll have to keep in mind charging things. If I was going to plea bargain with someone, I'd certainly keep that in mind."

Wilkie said most of the cases her office handles soon will fit under the new guidelines.

"Once it applies, the sentencing report is going to come back and say this is credit-restricted time." she said.

Somewhere along the line, legislators decided there were two things they weren't going to put up with — murder and child molesting, Wilke said.

"It underscores the importance we put on these particular types of crime," she said. "The Legislature has reinforced they mean business about it. That's the message I get."

Steve Owens, chief public defender in Vanderburgh County, has sent out a memorandum in the last few weeks to the attorneys in his office reminding them to look at the law and make sure they understand it.

"We haven't seen a whole bunch of it up until this point because it only applies to offenses that occurred after July of '08, so some of that stuff hasn't winded itself through the system yet," he said.

Owens said he understands the Legislature wants to take violent offenders off the street, but he doesn't know about the legislation's long-term effect.

"If you look at recent articles on prison populations throughout the country, there has been a decline ... except for Indiana which is up 5.3 percent," he said.

"So it ... concerns me. If we keep locking these people up, who's going to pay — you and me?"

The 2008 law is HEA 1271 (PL 80-2008).

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Indiana Courts | Indiana Government | Indiana Law

Environment - More on: "Is Tippecanoe County next for wind farms?"

Updating this ILB entry from March 26, 2010, Dorthy Schneider of the Lafayette Journal Courier reports today under the headline: "Rethinking wind energy: Petition raises concerns, questions on potential fees." Some quotes:

Even though he's organizing a petition against a wind energy ordinance being considered in Tippecanoe County, Cris Post is pro-windmill.

Post has a small wind turbine on his property on U.S. 52 South that's used to provide power to his pole barn.

But Post said fees Tippecanoe County officials are considering applying to windmill units would take away any financial benefits from his windmill. Plus, as the owner of a startup micro-turbine company -- Windcutter Systems LLC -- Post said the ordinance would cause him further setbacks.

"It dissuades the use of small turbines," Post said. "I'm trying to get the word out by way of petition to explain what this means."

The Tippecanoe County commissioners are scheduled to vote on final approval of a wind energy ordinance Monday.

County Attorney Dave Luhman said changes could still be made to the ordinance. He's reviewing the language after hearing from Post and other residents who have concerns.

The ordinance, as written, is meant to ensure safety regulations, especially for large commercial wind power developments being considered in parts of the county.

"We don't want to make it so expensive that somebody can't do a private wind project," Luhman said.

"We want to make sure fees are reasonable. They need to generate enough revenue to do whatever safety inspections are needed to make sure installations are safe for the public."

If approved as it's currently written, the ordinance would require developers to sign an economic development agreement with the county.

A separate decommissioning statement also would be required, if 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 were still in compliance.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Environment | Indiana Government

Ind. Courts - "Allen County judges pulling weekend jail shifts"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

Allen County’s criminal court judges now are working weekends.

Weeks after a Fort Wayne woman sued the Allen County sheriff, alleging she had been held in jail too long without appearing before a judge, the procedures at the jail have changed, bringing judges in to review arrests each weekend.

According to Allen Superior Court Judge Fran Gull, judges and magistrates in the criminal division as well as Allen Circuit Court are now rotating through the jail on weekends, reviewing charging documents on Friday evenings and Saturdays.

LeTasha Myatt was arrested without a warrant and booked into the Allen County Jail about 5:30 p.m. Sept. 18, 2009, a Friday. She had an initial probable cause hearing at 9 a.m. on Monday, Sept. 21, and was released about 10 hours later, according to a lawsuit filed in U.S. District Court in February.

Because she was not taken before a judge within 48 hours, or released after 48 hours, Myatt alleged the sheriff had violated her constitutional rights.

Federal law requires people who are arrested be presented before a judge or a magistrate within 48 hours for a determination whether there is probable cause for their arrest, according to the lawsuit.

While neither Allen County Sheriff Ken Fries nor Gull could comment specifically on the pending lawsuit, Gull said the recent changes stem from the suit.

Now all arrests made without warrants, often made at the scene of a crime, are reviewed by a judge or a magistrate within 24 to 36 hours. Arrests made Friday afternoon are reviewed Friday evening, arrests overnight Friday and into Saturday morning are reviewed Saturday afternoon, and Saturday arrests are held until Monday morning, Gull said.

The judge or magistrate goes to the jail, reviews the information surrounding the arrest and sets a bond amount, giving the defendant the opportunity to get out of jail over the weekend instead of waiting until Monday, Gull said.

Posted by Marcia Oddi on Thursday, April 01, 2010
Posted to Indiana Courts