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Monday, May 31, 2010

Courts - More on: "Judge probes possible rogue jury in cockfighting case: Juror admits surfing Internet in defiance of judge’s orders"

One really can't top the story posted here May 27, 2010, about the federal court juror in a recent South Carolina cockfighting trial who defied the judge's orders and "brought pages of Internet research from the Wikipedia Web site into the jury room and held a private discussion about the case with three other jurors." But take a look at the beginning of this story today in USA Today:

WASHINGTON (AP) — A federal judge warned jurors in a death penalty trial 41 times not to discuss the case with anyone, not even each other, until they were sent off to deliberate on a verdict.

That didn't stop Cynthia Wilson, the jury foreman, from calling five news organizations and placing 71 other telephone calls to two fellow jurors.

U.S. District Judge Joseph F. Anderson Jr. of South Carolina found Wilson's behavior so outrageous that he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. Anderson said he would have put Wilson in jail for six months if she did not have four children at home.

The balance of the story deals with the issue of whether the death sentence of the defendant in the case should be thrown out as a result of the juror's conduct.

Posted by Marcia Oddi on Monday, May 31, 2010
Posted to Courts in general

Courts - The new Slap Suit? When Online Grievances Are Met With a Lawsuit"

Dan Frosch reports today in the NY Times in a long story that begins:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the towing company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said it was justified in towing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page is costing them business and had unfairly damaged the company’s reputation.

Some first amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when confronted with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file a Slapp. The bill, sponsored by Representatives Steve Cohen, Democrat of Tennessee, and Charles Gonzalez, Democrat of Texas, would create a federal anti-Slapp law, modeled largely on California’s statute.

Because state laws vary in scope, many suits are still filed every year, according to legal experts. Now, with people musing publicly online and businesses feeling defenseless against these critics, the debate over Slapps is shifting to the Web.

“We are beyond the low-tech era of people getting Slapped because of letters they wrote to politicians or testimony they gave at a city council meeting,” said George W. Pring, a University of Denver law professor who co-wrote the 1996 book, “Slapps: Getting Sued For Speaking Out.”

Posted by Marcia Oddi on Monday, May 31, 2010
Posted to Courts in general

Ind. Law - More on "Ethics bill is hailed as a starting point"

Updating this ILB entry from March 3, 210, about the ethics reform bill passed in the 2010 session, HEA 1001, Mary Beth Schneider of the Indianapolis Star has a long, front-page story today headed "Loopholes threaten to undermine Indiana's lobby reform law: Legislators say they might need to revise law to match intent for fuller disclosure." Some quotes:

Its passage was hailed as a step toward better government, but fears are growing that a new law regulating lobbying has whopping loopholes that could let much of the wining and dining go unreported.

At least two sections of House Enrolled Act 1001, the lobbying and legislative ethics overhaul that unanimously passed the Indiana House and Senate in March, are getting new scrutiny that lawmakers say could require them to go back to the drawing board when they return to session.

The biggest concern: a section of the bill that says lobbying-activity reports "may not report expenditures or gifts relating to the performance of a legislative person's official duties."

"That seems to be the exception that essentially eviscerates the entire law," said Ed Feigenbaum, a Noblesville attorney who publishes the Indiana Legislative Insight newsletter. "It's extremely troublesome."

The intent was to allow committees, including the State Budget Committee, which travels the state frequently, to accept such things as a bus ride, lunch or informational materials as they explore issues. But the broad language, Feigenbaum said, doesn't match the intent.

Even lobbyists are raising alarms.

"The concern is that (that section) guts the law," said Anne Doran, a lobbyist with Ice Miller LLP who is chairwoman of the lobby law committee for the Governmental Affairs Society of Indiana, the trade association for lobbyists. "I know very well that that was in no way the intent of the legislators involved. I think that somewhere in the process a word or two was dropped. But that's the one that troubles me."

Sarah Nagy, executive director of the Indiana Lobby Registration Commission, said it's not her job to decide whether a law is troubling, merely to enforce it.

But, Nagy said in an e-mail, "most if not all lobbying is done at the committee level. This provision appears to exempt any and all reporting of expenditures if the lobbying is done at the committee level." * * *

Another section that has raised eyebrows defines groups that are not considered lobbyists. It lists various legislative support organizations, including the National Conference of State Legislatures, the National Conference of Insurance Legislators, and the National Black Caucus of State Legislatures.

But the law broadens the circle of those exempted from lobbying requirements by including "any other national organization established for the education and support of legislative leadership, legislators, legislative staff or related government employees."

That, Nagy said, could allow a lot of lobbying to go on under the radar.

"Essentially all major industries which lobby in Indiana have such national organizations; therefore, if lobbying were conducted through those entities for those industries, there is no statutory duty of registration in Indiana, much less a duty to report expenditures," she said.

Legislators, though, disagree, saying the law specifically refers to legislative groups, not trade organizations such as those that represent pharmaceutical companies or casinos. And they doubted that trade groups could hide lobbying by pretending to be simply an educational legislative tool.

Where is the "may not report expenditures or gifts" language? In the final version of the bill, it is found in SECTION 19, which adds a new IC 2-7-3-3.5 to the Indiana Code. On p. 11 of the PDF version of the Enrolled Act, it is subsection (h), 5 lines down from the top.

There is no such language in the introduced bill, or the bill as it passed the House. It appears for the first time, as far as I can tell, in the bill as it came out of Senate committee.

Posted by Marcia Oddi on Monday, May 31, 2010
Posted to Indiana Law

Environment - Indiana is a leader in wind turbines, but the pace is slowing

Bruce C. Smith of the Indianapolis Star writes today:

his year, construction of about 300 megawatts of new wind power electricity -- mostly expansions of the Meadow Lake and Fowler Ridge wind farms in White and Benton counties -- has been approved by the Indiana Utility Regulatory Commission.

However, looking beyond 2010, the IURC has just one application for a wind farm under review. If approved, the Spartan Wind Farm phase 1 by Duke Energy Generation Services would generate 101 megawatts of power on a Newton County site due to open in early 2011.

One megawatt of power is enough electricity for 225 to 300 households for a year.* * *

The state has been attractive for wind development because the towering turbines are welcomed in many communities, access to connect with the regional power grid is relatively easy, and the state has suitable, windy areas, according to a study.

"We sort of started from near zero, so the increase seems pretty great," said Eric Burch of the Indiana Office of Energy Development. "It will continue to be a robust development."

About $2.1 billion has been invested in Indiana wind power, which includes at least $271 million in local spending, according to Travis Murphy, program manager for renewable energy for the state energy development office. The state now has about 616 utility-sized wind turbines.

The timing of the investments gave a boost to communities in Northern Indiana during the national economic downturn, developers said.

An additional $1.1 billion in projects have state approval, according to state figures, and about 16 Indiana counties have reported interest from wind farm developers in erecting additional turbines in their areas, state officials said.

Yet Indiana lawmakers have not adopted a renewable energy goal. Brown said neighboring Ohio has a goal of 12.5 percent by 2025, and Illinois set 25 percent by 2025.

"That lack of policy is, in part, why we are seeing a slowdown" in more wind farms, he said.

From an editorial in the April 25, 2010 Fort Wayne Journal Gazette:
Indiana’s lack of laws regulating renewable energy standards and net metering puts Hoosiers at a distinct disadvantage, especially for wind power. Net metering laws require power companies to buy renewably generated power and give discounts to customers who generate their own electricity.

Most of the wind farms being built in Indiana are going up near the state lines because neighboring states encourage alternative energy production and make it easier for alternative energy companies to connect to electric grids. The [U.S.] Senate bill will likely include a national renewable energy standard requiring utilities to get at least 25 percent of their power from renewable sources (wind, solar, biomass) by 2025 and invest in energy conservation projects.

Posted by Marcia Oddi on Monday, May 31, 2010
Posted to Environment

Sunday, May 30, 2010

Ind. Courts - Walkerton town judge bids farewell

Alicia Gallegos of the South Bend Tribune has a feature today on Judge Roger Huizenga. Some quotes:

WALKERTON — Driving along U.S. 6 between LaPorte and Bremen, motorists might miss the tiny courthouse nestled between the Corner Cup Cafe and the former Shady Lane Bowling.

Perched near the town's single stoplight, the court is marked only by a small sign on its front door, reading, "Walkerton Courthouse."

But although the building and its activities might be considered "small-time," most anyone in town will tell you quite the opposite is true for the judge who has ruled here for 15 years.

The effect of Judge Roger Huizenga has been large in this small town, Walkerton residents say, and his message powerful. * * *

The town court primarily deals with traffic infractions, along with some lesser drug offenses. In the years since Huizenga has been judge, he says the caseload has grown from 50 violations a month to 300.

Filtering the lower level cases takes a significant burden off South Bend courts, Huizenga says, and also brings revenue to Walkerton. In addition to the town, tickets come from North Liberty, Lakeville, the Department of Natural Resources and New Carlisle.

Although Huizenga is modest when asked about his accomplishments, residents say the court has improved beyond measure.

"He has transformed it to a system of defendants that are quickly brought in," new judge Dan Chamberlin says. "His court runs very smoothly."

Town council vice president Gene Reese adds that the judge has been instrumental in growing the town's general fund and building relationships with local police departments.

"We did not have a positive balance in the budget before," Reese says. "He's spent a lot of time developing relationships with other entities. He's worked hard to build up this court. * * *

Huizenga says being a small-town judge means being familiar with most of the violators who pass through the court and making time to speak to each individually.

"We're different from South Bend because we know all the kids," the judge says. "We can talk to these kids much more one on one."

Huizenga shakes his head as he recalls preventable accidents or deaths that have affected Walkerton residents.

"Sometimes I wonder, maybe if they would have gotten a ticket and we would have gotten the opportunity to talk to them ..." the judge trails off.

Posted by Marcia Oddi on Sunday, May 30, 2010
Posted to Indiana Courts

Ind. Gov't. - "Harper fights precinct secrecy: Publishes list of officials picking Souder stand-in"

The weekly "Political Notebook" column by Niki Kelly and Benjamin Lanka of the Fort Wayne Journal Gazette begins today with this item:

It’s clear that the hundreds of precinct committee men and women who will select the GOP nominee to replace Rep. Mark Souder in Congress have immense power in their hands.

But it isn’t clear exactly who these people are. That’s because their names are not public.

State law does not require political parties to release the lists of precinct chairmen and chairwomen even though taxpayers finance the elections to choose them. The chairs have power to fill ballot vacancies and even some elected positions.

One Fort Wayne city councilman and former state legislator is trying to change that. Councilman Mitch Harper, R-4th, said he opposed making the records private while he was in the legislature and tried to have Allen County make its list public.

“The change to the by-laws was opposed by several persons concerned with the public making contact with them and other persons who were concerned with the public being able to identify law enforcement officials who were precinct committeepersons,” Harper wrote on his blog, Fort Wayne Observed.

He has since published a list of all Allen precinct officials in the 3rd Congressional District and linked to a list of those precinct officials in Noble County.

Other county lists have popped up on other local blogs.

Here is Harper's original Fort Wayne Observed entry on the issue, from May 24, 2010. It concludes:
The trouble with that is that the precinct committeepersons are charged by state statute with a very public function - choosing persons to fill vacancies in public offices caused the death, incapacity or resignation of an officeholder of the same political party.

In the present case of the 3rd District, the precinct committeepersons will be performing a party function - that is, the Republican precinct committeepersons will be selecting the nominees to be on the Special Election and General Election Ballot for Congress. The Democratic caucus will be selecting the nominee for the Special Election.

However, in many other cases involving county, township, municipal and legislative offices, the precinct committeepersons don't just pick party nominees - they pick persons to fill the remainder of unexpired terms.

That is a public function.

And the public deserves a right to contact those who will be making a profound decision on the citizenry's behalf. Period.

And here, from the following day, May 25th, is the the list of Allen County 3rd District Republican precinct committee persons.

Posted by Marcia Oddi on Sunday, May 30, 2010
Posted to Indiana Government

Ind. Gov't. - "But I'm convinced that Daniels could make this health care law work for Indiana - even if he hates doing it every step of the way"

Great opinion column today by Lesley Stedman Weidenbener of the Louisville Courier Journal. After noting that cost estimate for the new program range from the Kaiser Family Foundation's $478 million--$899 million to Daniel's original estimate of $3.6 billion a year, Weidenbener continues:

I think there's little doubt there will be increased cost to the state. Over time, I think it will be fairly substantial, although I wouldn't want to try to put a number on it.

Still, I'm surprised that Daniels has spent as much time as he has carping about it.

Certainly, the law is nothing Daniels would ever support. It just doesn't match up with his philosophy about government. And so, since the health care law passed, and even before, Daniels has been quite vocal in his opposition.

But it's time to move on. It's time to figure out how to make the law work in Indiana.

Granted, the most dramatic of the provisions - particularly the expansion of Medicaid - won't occur until after Daniels has left office. But that's no reason to not try to position the state to best work within the new system. * * *

[W]here's the progressive governor that dreamed up and then implemented HIP? Where's the guy who launched a record amount of road construction by implementing a controversial lease of the Indiana Toll Road? What happened to the public official who boldly moved Indiana into daylight saving time, dragging Hoosiers kicking and screaming all the way?

Now, Daniels seems relegated to simply complaining about the new federal health care law, rather than trying to figure out how the state can work within the new structure to give Hoosiers better coverage.

Daniels' opposition to the health care law has garnered him some national political attention. And certainly, the talk about his running for president has to be flattering.

But I'm convinced that Daniels could make this health care law work for Indiana - even if he hates doing it every step of the way.

Daniels has more than two years before he leaves office. It will be interesting to see whether he uses it to put Indiana's next governor in a better position to deal with the upcoming health care changes or just leaves the situation untouched for the next leader to sort out.

Posted by Marcia Oddi on Sunday, May 30, 2010
Posted to Indiana Government

Saturday, May 29, 2010

Ind. Courts - Details on the list of Supreme Court potential applicants

Because of interest in the list of "potentials" for the vacancy posted by the ILB yesterday, the ILB has received permission from Indiana Legislative Insight (the subscription-only weekly newsletter that developed and first published the list in its 5/31/10 issue) to post the biographical summaries it prepared to accompany each "potential's" name.

BTW, in case you are new to Indiana Legislative Insight, it has had a good track record on appellate appointments over the years, going back as far as the 1990s. Here, from its writeup on the potential applicants for Justice Boehm's seat.

Indiana Legislative Insight: We've heard a few names of female attorneys and judges mentioned that seem to fit most of the criteria that we think the Guv will be looking for. In no particular order, some of the names on this list – which is certainly not intended nor expected to be exclusive – include:

There is also a former U.S. Attorney and U.S. Department of Justice official who is a partner with a prominent Indianapolis law firm who would ordinarily gain some attention as a potential pick, but given that Deborah Daniels is the Governor's sister (and the Daniels ain't the Kennedys), you can likely rule out the Krieg DeVault LLP attorney as a potential pick in this administration.

Predicting twists and turns of judicial politics is more difficult than doing so with plain old partisan politics, but we couldn't resist noting names that may be in the mix, if they so choose. However, the handful of applicants who are ultimately invited back for a second interview is probably more likely to consist of names not noted here than this group. The decision to apply and potentially relinquish a lucrative and rewarding legal practice or spot on a trial bench outside of the metro is intensely personal . . . and many who are highly qualified simply do not want to be judges.

(See a list of all the ILB's related entries via the category, "Vacancy on the Supreme Court.")

Posted by Marcia Oddi on Saturday, May 29, 2010
Posted to Indiana Courts | Indiana Government | Vacancy on Supreme Ct

Ind. Courts - "Lake judge hyped for Ind. Supreme Court"; More

That is the headline to this story by Susan Brown in today's NWI Times. Some quotes:

CROWN POINT | The word was buzzing through legal circles Friday, but Lake Juvenile Court Judge Mary Beth Bonaventura said interest in her as a potential candidate to replace retiring Indiana Supreme Court Justice Theodore Boehm came as a surprise.

Having just learned her name is circulating on a legal blog, Bonaventura said she believed it to be speculative, probably prompted by a newspaper editorial urging a woman be selected.

Her professional life engulfed with her current duties in juvenile court, Bonaventura said she herself had not given any thought to a career move.

"I'm very flattered my name is out there, that I'm found qualified and competent," she said.

Bonaventura said she's not ruling out making application, but it will be a family decision considering their ties to Lake County.

"We'd be relocating to some degree," she said. "My husband is a practicing attorney. My son just got married."

Then there's her other family, some 200 employees in juvenile court.

More on the upcoming vacancy:

Posted by Marcia Oddi on Saturday, May 29, 2010
Posted to Indiana Courts | Indiana Government | Vacancy on Supreme Ct

Ind. Law - Still more on "Physician ordinance adopted by Allen County"

Updating yesterday's ILB entry, Amanda Iacone's lengthy story today in the Fort Wayne Journal Gazette is headed "Abortion doctor sues to overturn county law." Some quotes:

FORT WAYNE – Fort Wayne’s lone surgical abortion provider is suing to stop a new county ordinance from being enforced.

Dr. George Klopfer, operator of Fort Wayne Women’s Health, is challenging a county law that requires doctors who don’t live in Allen County or surrounding counties or who don’t have admitting privileges to area hospitals to provide contact information to area emergency rooms and the local health department.

Klopfer lives in Illinois but is based out of South Bend. He also performs abortions in Fort Wayne and Gary.

The lawsuit has not been formally filed. Although the lawsuit was mailed Thursday, it was believed to be sitting in a pile of unopened mail Friday in the Allen County clerk’s office.

In a copy obtained by The Journal Gazette, the suit names the Fort Wayne-Allen County Department of Health and the county health commissioner as defendants and seeks an injunction halting the enforcement of the ordinance and that it be declared unlawful and unconstitutional. * * *

“These additional rules do nothing to protect patients’ safety and only serve to compromise Dr. Klopfer’s ability to provide his patients with quality medical care,” said Ken Falk, legal director at the ACLU of Indiana, in a written statement released Friday.

In April, the Allen County commissioners passed the new law, known as the patient safety ordinance, with input from area doctors. The law is set to take affect Tuesday. Three doctors, including Klopfer, have registered so far with the health department to comply with the ordinance, according to health department records.

Although he is challenging the ordinance, Klopfer intends to comply with it in the meantime. He does not want to risk paying the maximum $1,000 fine for violating the ordinance, he said during a phone interview Friday.

Klopfer believes that only the state of Indiana has jurisdiction to regulate doctors and medical facilities. His medical license allows him to practice anywhere in the state, he said, and the county shouldn’t be able to interfere.

His clinic is also licensed by the state and operates under state regulations, Klopfer said

Those regulations require him to provide emergency contact information to patients and keep a written procedure for providing emergency medical care and contact numbers, according to the copy of the lawsuit.

The suit also argues that the county’s ordinance is unconstitutionally vague, that it discriminates against certain classes of doctors, that it violates patients’ privacy rights and represents an undue burden on the patients to obtain an abortion.

The lawsuit states there are no provisions in the ordinance to protect the privacy or the names of the patients seeking medical care from these doctors, which could keep women from seeking services.

“That this information will remain confidential is crucial to their decision to seek these medical services,” the lawsuit states.

If Klopfer’s clinic were shut down for not complying with the ordinance, that would force women to travel long distances to seek similar services, the suit said.

“This ordinance is really just a duplicitous attempt to deeply limit or eliminate access to abortion in the Fort Wayne area,” said Suzanne Novak, senior staff attorney at the Center for Reproductive Rights.

Posted by Marcia Oddi on Saturday, May 29, 2010
Posted to Indiana Law

Ind. Courts - Even more on "Backlog of cases extends toxicology test results: Toxicology tests often take weeks, months to complete"

Updating these May 13 and May 14, 2010 ILB entry, the Indianapolis Star has another story today, this one headed "State's troubled toxicology legacy remains: Ex-director's decisions are still costing state money." Mark Alesia and Tim Evans are the reporters. Some quotes [emphases by ILB]:

In October, the director of the Indiana State Department of Toxicology spent $1.5 million of taxpayer money to purchase new breath alcohol testing equipment.

Eight months later, that director has resigned, and the equipment remains in storage. It is unclear when, or even if, it will ever be used.

Typically, before such purchases have been made in the past, the devices have been tested in the field by officers or at the law enforcement academy, said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Association.

But law enforcement was kept in the dark when Michael Wagner made the purchase, Johnson said. Wagner resigned as director of the toxicology department May 13 amid an investigation into complaints about his performance.

Not only was law enforcement not consulted, Johnson said, but Wagner also made little or no progress on the months-long process to implement the machines. That includes adopting new testing protocol into the administrative code and training officers.

"We're not even close to rolling out the new instruments," Johnson said. * * *

The machines, unlike roadside breath tests, are used in police facilities to take readings for evidence in court.

D. Craig Brater, dean of the Indiana University School of Medicine, which runs the state toxicology department, said the department will work with consultants to write the new administrative code. * * *

There also are questions on the bidding process and whether the machines were vetted properly.

Wagner purchased the equipment from St. Louis-based Intoximeters Inc. But a 28-year supplier to the state of alcohol breath testing machines -- including those currently in use -- said his company wasn't invited to bid. IU chose two companies that met certain specifications. * * *

"We were shut out without having a chance," said John Fusco, CEO of the company that makes the DataMaster device. "They basically told our sales rep, 'Too bad.' "

A spokeswoman for the IU Medical Center said the school's purchasing agent told her it was a "clean bidding process."

Then there is the issue of vetting. Assuming the machines eventually are put in the field, Johnson expects defense attorneys to challenge them from all angles.

"This is one of the reasons we wanted to find out more," he said. "What can we expect? I don't know what its track record is around the country." * * *

A committee chaired by a former judge, and with two state legislators as members, is expected to make recommendations June 11 about reforming the state toxicology department.

ILB Note: Yesterday's Court of Appeals decision in Francisco Javier Ramirez v. State of Indiana (ILB summary here, 2nd case) dealt in detail with, to quote from the concurring opinion, the admissibility of:
the State's Certificate of Inspection and Compliance of Breath Test Instruments (“Certificate”), which was used in this case to prove that the DataMaster was in compliance with the Department of Toxicology's accuracy requirements.

Posted by Marcia Oddi on Saturday, May 29, 2010
Posted to Indiana Courts

Friday, May 28, 2010

Ind. Gov't. - Daniels sets 3rd district special election for same day as general election

No surprises here. In a press release just issed Gov. Daniels announces:

INDIANAPOLIS (May 28, 2010) – Governor Mitch Daniels said today that a special election to replace the vacancy in Indiana’s Third Congressional District created by the resignation of Congressman Mark Souder will occur on the same day as the general election in November. Souder’s resignation was effective on May 21.

“After a week of reflection and gathering the views of others, I conclude that the public interest can best be served by a special election held simultaneously with the general election on November 2.

“The grounds for this decision are: the cost to taxpayers, the convenience of the voting public, and the involvement of the largest possible number of citizens in the selection of a new Congressman.

“It seems to me that these interests outweigh any gains from having a member of Congress present for what would amount to no more than 20 voting days.”

According to state and federal law, the governor is required to set a date for a special election. The governor issued Executive Order 10-03, which establishes the date of the special election. The writ of election is being delivered to the county clerks in the eight counties comprising the Third Congressional District.

Here is a copy of the executive order.

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Indiana Government

Ind. Law - More on "Physician ordinance adopted by Allen County"

This ILB entry from April 4, 2010, gives the history of this requirement.

On May 26, 2010, Amanda Iacone had a story in the Fort Wayne Journal Gazette headed "Docs registering under safety law: Itinerant providers must give county contact information." Some quotes:

Doctors can now register with the health department to comply with Allen County’s new patient safety law that takes effect next week.

The Fort Wayne-Allen County Department of Health released the official registration form Tuesday and asked doctors to complete and return it along with a $250 check as soon as possible. The health department also released a list of 14 area medical facilities that doctors must provide with their emergency contact information in order to comply with the new ordinance.

Doctors who do not live in Allen County or in surrounding counties and do not have admitting privileges at hospitals in Allen County or surrounding counties must provide their phone numbers to those hospitals and urgent-care facilities and tell patients where to go for emergency care after surgeries or medical procedures. They can designate alternative doctors to contact.

The Allen County commissioners approved the ordinance in April as a way 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 providing that care. * * *

Allen County’s 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 passed ordinance applies to a range of doctors and procedures and is not limited to surgeries or abortions. Doctors with the board of health and the Fort Wayne Medical Society helped the county commissioners draft the final version.

Around noon today, Niki Kelly reported on the JG site under the heading "Clinic owner filing suit against doctor-registration law." From the story:
Dr. Ulrich George Klopfer – owner of abortion clinic Fort Wayne Women's Health – is filing suit Friday against a county ordinance that imposes stringent new requirements on out-of-town doctors who practice in Allen County.

He argues the county has no authority under Indiana law to regulate an area that the state has already regulated. In addition, the suit alleges the ordinance is unconstitutionally vague and nearly impossible with which to comply.

As a result, Klopfer's practice – the only provider of surgical abortions in Allen County or within 100 miles of here – may be forced to shut down.

He is represented by ACLU Indiana and the Center for Reproductive Rights, which sent out a news release about the suit Friday morning.

"This law poses a serious threat to patients' privacy," said Suzanne Novak, senior staff attorney at the Center for Reproductive Rights. "The ordinance is really just a duplicitous attempt to deeply limit, or eliminate, access to abortion in the Fort Wayne area."

The Allen County commissioners passed the law in April after numerous revisions. It originally targeted abortion providers and was drafted by Allen County Right to Life, which said it was needed to help women suffering from botched abortions.

The final ordinance, which goes into effect next week, applies to a range of doctors and procedures, and is not limited to surgeries or abortions.

It requires doctors who do not live in Allen County or in surrounding counties, and do not have admitting privileges at hospitals in Allen County or surrounding counties, to provide their phone numbers to those hospitals and urgent-care facilities. It also requires doctors to tell patients where to go for emergency care after surgeries or medical procedures. They can designate alternative doctors to contact.

Klopfer lives in Illinois and travels to Fort Wayne during the week to perform abortions in Allen County.

The suit said under the ordinance, doctors also must allow unjustified and unlimited review of their patients' medical records by health department officials, yet there are no protections to ensure that any of the information remains confidential.

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Indiana Courts | Indiana Government | Indiana Law

Courts - "Circuit Split Widens on Copyright Registration Timing"

Amanda Bronstad has the story today in The National Law Journal. Interesting article. It begins:

When does a copyright get registered? Once an application is submitted to the U.S. Copyright Office, according to the latest federal appeals court to weigh in on an increasing divisive issue.

A panel of the 9th U.S. Circuit Court of Appeals ruled on Tuesday that the submission of the application, rather than the U.S. Copyright Office's grant of registration, dictates when a copyright is officially registered.

With the ruling, the 9th Circuit joined the 5th and 7th circuits in deciding for the application approach. The 10th and 11th circuits concluded otherwise.

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Brent Carey, et al. v. Indiana Physical Therapy Inc., et al. , a 7-page opinion, Judge May writes:

Brent Carey sued his physical therapist for malpractice arising out of his treatment after an auto accident. The trial court granted summary judgment for the therapist, and we affirm because Carey did not designate evidence the therapy was a proximate cause of his injury. * * *

Dr. Neer’s testimony does not provide a causal link between Connelly’s alleged negligence and Carey’s RSD. * * * Dr. Neer’s testimony did not show the necessary “causative nexus” in the form of “facts as to the actual existence of causation.” Id. He did not explicitly opine that causation could not be determined, but he stated he did not know what the physical therapy involved, he could not say with certainty that Carey would not have developed RSD without physical therapy manipulation, and that “something changed with the physical therapy, but I don’t know with certainty whether that has caused his chronic condition.” This testimony was insufficient to establish a factual issue as to proximate cause. As Connelly negated that element of Carey’s negligence claim, summary judgment for Connelly was not error. Affirmed.

In Francisco Javier Ramirez v. State of Indiana , a 16-page opinion (with a separate concurring opinion), Judge Vaidik writes [emphases by ILB]:
Francisco J. Ramirez appeals his conviction for Class A misdemeanor operating a vehicle while intoxicated. Ramirez was arrested for drunk driving and failed a chemical breath test. At trial, the State introduced Ramirez's breath test results as well as a certificate of compliance verifying routine inspection of the breath test equipment. The official who had inspected the equipment and prepared the inspection certificate did not testify. Ramirez argues that the admission of the State's evidence violated his Sixth Amendment right to confrontation because he was unable to cross-examine the equipment certifier. We hold that the introduction of the State's exhibits did not offend Ramirez's confrontation rights, as the inspection certificate was not testimonial evidence within the purview of Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). We affirm the judgment of the trial court. * * *

RILEY, J., concurs.
BARTEAU, S.J., concurs in result with separate opinion ]beginning at p. 12]: I would also affirm the judgment of the trial court, but I respectfully disagree with the majority's conclusion that the State's Certificate of Inspection and Compliance of Breath Test Instruments (“Certificate”), which was used in this case to prove that the DataMaster was in compliance with the Department of Toxicology's accuracy requirements, is nontestimonial in nature. I therefore conclude that admission of that document violated Ramirez's Sixth Amendment right to confront witnesses against him.

I read the Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), as leading to a result opposite from the result reached by the majority * * *

Although I would hold that the trial court erred by admitting the Certificate and the DataMaster test results, I conclude that in this case the error was harmless. A denial of the right of confrontation is harmless error where the evidence supporting the conviction is so convincing that a jury could not have found otherwise.

In Robert L. Gosha v. State of Indiana , a 6-page opinion, Judge Najam writes:
Robert L. Gosha appeals the trial court’s denial of his motion to correct error. Gosha presents a single issue for our review, namely, whether he was denied the right to due process when his participation in a Drug Court Program was terminated without the court first affording him notice of a hearing and the right to present evidence and cross-examine witnesses at that hearing. The State concedes that Gosha was denied his right to due process and requests that we remand for a new hearing. We reverse and remand with instructions.* * *

We agree with Gosha and the State that Gosha was denied his right to due process. We remand to the trial court with instructions to conduct an evidentiary hearing, with written notice to Gosha of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and to present evidence, and the right to confront and cross-examine witnesses.

NFP civil opinions today (3):

John M. Farrell v. Nicole T. Farrell (NFP)

S.D. v. Review Board (NFP)

Quality Leasing Co., Inc. v. Dealer Services Corporation (NFP)

NFP criminal opinions today (4):

Christopher A. Gibson v. State of Indiana (NFP)

Andrew W. Bork v. State of Indiana (NFP)

Francisco Javier Ramon, Jr. v. State of Indiana (NFP)

Santana Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - First list of potentials for upcoming Supreme Court vacancy

The upcoming 5/31/10 issue of Indiana Legislative Insight ($$) contains a long article headed "Courting century's first new justice. Consensus: Look for Justice Boehm to be replaced by a woman." Some quotes:

This particular cadre of five justices has been intact since 1999, the longest that one group of five has served together in state history, and under the leadership of Chief Justice Randall Shepard, as we described for you in some detail a few years back, the Court has been marked by collegiality and comity, devoid of personal and partisan splits, even on issues that were highly politically charged. Any observer would be hard-pressed to identify any case in which there was a split along party lines for partisan reasons.

The newest justice will step into a situation in which the table has been set by the five men who have served on the Court over the past decade, and the two justices who served on the bench for briefer periods in the 1990s, Jon Krahulik and Myra Selby. Partisanship and personal pettiness is simply not a part of the institution (following some rough spots in the late 1980s), and we've even seen the same values inculcated in the intermediate appellate court.

The Governor, an attorney himself who is personally close to some top appellate advocates, is certainly well-schooled in this recent history, and his Court of Appeals appointments and avoidance of so-called "wedge" issues in his own tenure suggests that he does not intend to appoint a divisive figure.

The article notes that: "You don't have to go too far out on a limb to predict that the Governor will have his mind set on appointing a woman to the Court. Indiana and Idaho are the only two states which currently do not have a female member of their respective high courts, and Indiana has gone longer than any other state without a female justice." The article continues:
We've heard a few names of female attorneys and judges mentioned that seem to fit most of the criteria that we think the Guv will be looking for. In no particular order, some of the names on this list – which is certainly not intended nor expected to be exclusive – include (should they choose to apply):
  • Court of Appeals Judge Elaine B. Brown
  • MaryEllen Kiley Bishop, with Cohen, Garelick and Glazier in Indianapolis
  • Maggie L. Smith,counsel with Frost Brown Todd LLC (formerly Locke Reynolds LLP)
  • Melissa Proffitt Reese, at Ice Miller
  • Debra F. Minott, now senior legal counsel at Hill-Rom
  • Susan W. Brooks, now general counsel and senior vice president for Ivy Tech
  • Boone Superior Court II Judge Rebecca S. McClure
  • Lake County Superior Court - Juvenile Division Judge Mary Beth Bonaventura
  • Morgan Superior Court III Judge Jane Spencer Craney

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Decisions - "What’s a high-stakes patent case without a fierce discovery dispute and cries of an unfair 'fishing expedition'?"

That is the lede to this "Order on Plaintiff's Motion to Compel" filed yesterday in the case of Eli Lilly v. Wockhardt Ltd. Tim A. Baker, Magistrate Judge, Southern District of Indiana, writes in the 9 -age order (in which the final 3 of the 9 pages are consumed by listing the names of the attorneys "copied" in this dispute):

I. Introduction. What’s a high-stakes patent case without a fierce discovery dispute and cries of an unfair “fishing expedition”? This case does not disappoint. Defendants Wockhardt Limited and Wockhardt USA, LLC (together, “Wockhardt”) claim that Plaintiff Eli Lilly and Company has caught its fair share of discovery documents and needs to return to shore. Lilly wants to fish a little deeper. Fortunately, the parties have done a superior job briefing this discovery dispute. After considering these submissions, the Court decides that Lilly’s discovery requests are largely permissible, and grants Lilly’s motion to compel in part. * * *

IV. Conclusion. This case bring to mind Eli Lilly and Company v. InvaGen Pharmaceuticals, Inc., 1:09- cv-87-WTL-TAB (S.D. Ind. Sept. 17, 2009), in which cries of a “fishing expedition” also were made. In addressing this concern, the Court observed that the Federal Rules of Civil Procedure allow courts to “determine the pond, the type of lure, and how long the parties can leave their lines in the water.” The determination here is to grant in part Lilly’s motion to compel. [Docket No. 186.] Wockhardt shall supplement its discovery responses within 28 days of this order as explained above.

Additionally, after a thorough review of the parties’ submissions, the Court questions the necessity of sealing Wockhardt’s response brief and exhibits. [Docket Nos. 195–97.] Wockhardt’s response contains only legal argument, and only portions of the exhibits appear confidential under the protective order. Wockhardt shall show cause within 28 days why its response and exhibits should remain sealed.

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Transfer in certified phlebotomist "loophole" case ruled "improvidently granted"

Supreme Court oral argument in the case of Roger Brown v. State was held Jan. 14, 2010. The posted description:

At trial on charges of operating a vehicle while intoxicated, the Clinton Superior Court admitted the results of a blood alcohol test that had been performed by a certified lab technician. The Court of Appeals held this was error because certified lab technicians are not "certified phlebotomists" or otherwise persons who are trained in obtaining bodily substance samples for purposes of Indiana Code Section 9-30-6-6(j). See Brown v. State, 911 N.E.2d 668 (Ind. Ct. App. Aug. 21, 2009), vacated. The Supreme Court has granted the State’s petition to transfer the case and has assumed jurisdiction over the appeal. [Here is the Aug. 21, 2009 COA opinion.]
On March 12, 2010, the Governor signed HEA 342, which, according to a Herald-Times story quoted in this March 16th ILB entry, closed a "loophole" in drunken driving law. According to the story, the new law clarified that the state law that blood draws must be conducted by a certified phlebotomist did not apply to blood draws conducted in a hospital setting.

Also of interest are two ILB entries from March 21, 2010 and April 5, 2010.

Now, in a May 26, 2010 "Order vacating prior order granting transfer" re the Brown case, posted yesterday, the Court writes:

By order dated December 17, 2009, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer was improvidently granted.

Accordingly, the order granting transfer is VACATED. The Court of Appeals' opinion is no longer vacated under Appellate Rule 58(A) and is REINSTATED. The transfer petition filed by the Appellee is DENIED.

Pursuant to Appellate Rule 58(B), this appeal is at an end. The Clerk is directed to certify this appeal as final and to send copies of the order to the parties or their attorneys. The Clerk is also directed to post this order on the Court's website.

Posted by Marcia Oddi on Friday, May 28, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Thursday, May 27, 2010

Ind. Courts - More on "Two states — Idaho and Indiana — have no women on their highest courts"

The headline to this ILB entry from May 25, 2010 was correct. However, the body says:

Idaho did end up with a woman justice, but Nevada more recently has joined Indiana.
Well, that is no longer right. As of now, Idaho has five justices, all male. Nevada, as this photo shows, has seven justices, two of whom are women.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - Still more on: Criminal charges filed against Plymouth attorney

Updating this May 21, 2010 ILB entry that reported that Marshall Superior Court 1 Judge Robert Bowen had rejected a plea bargain in the case of suspended attorney Ronald Gifford, 59, of Plymouth, Virginia Ransbottom of the South Bend Tribune reports this afternoon:

PLYMOUTH — A judge accepted a plea bargain Thursday in the case of suspended attorney Ronald Gifford of Plymouth.

Pleading guilty to felony theft, two years of a three-year sentence were suspended with Gifford to serve the remaining year on monitored home detention.

The Plymouth attorney’s license was suspended in 2008 for forging IRS confirmations of tax-exempt status for Fairfield and Mentone Garden Court facilities, two low-income HUD housing projects. The projects incurred $17,000 in out-of-pocket expenses because of the deception.

Last year, Gifford was charged with felony theft from the account of the Wyland, Humphrey, Wagner and Clevenger law firm, where Gifford had been a partner. The theft involved checks written for about $100,000, which were eventually repaid.

Gifford, 59, must also serve 200 hours of community service and two years on probation.

Pleading guilty to misdemeanor deception, a one-year jail sentence was suspended with Gifford to serve one year of reporting probation and one year of non-reporting probation if community service and $17,000 in restitution are met in the first year.

Gifford cannot seek to reinstate his license as a practicing attorney until probation is served.

Marshall County Superior Court 1 Judge Robert Bowen rejected a plea agreement last week that would have dropped the felony theft charge to a misdemeanor, saying the lesser charge was not justifiable.

Bowen said Thursday in court that Gifford’s loss of standing in the community was not enough punishment.

"No matter his explanation, this was for a crime that boiled down to theft, dishonesty and a violation of trust over a long period of time for a lot of money," Bowen said. "It was not just once, it was a series of events covered up over time."

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Indiana Courts

Ind. Courts - Incoming Disciplinary Commission Executive Secretary, Michael Witte, subject of complaint by Dearborn County commissioner

This press release was sent out today on behalf of Jeffrey Hughes, Dearborn County Commissioner:


Concerns regard County Attorney G. Michael Witte's actions

(Lawrenceburg) Dearborn County Commissioner Jeff Hughes announced today that he is "deeply troubled" that County Attorney, G. Michael Witte accused two county employees of violating the Hatch Act.

"It appears that our Attorney acted completely on his own and without the authorization of his client, the Dearborn County Board of Commissioners. I feel that he may not have done an adequate job researching the issue before he acted on it," Hughes stated.

In a public meeting on May 17, 2010, Witte accused two county employees, Bryan Messmore, Victim Advocate Coordinator of the Dearborn-Ohio County prosecutor's Office and Detective Shane McHenry of the Dearborn County Sheriff's Department of violating the Hatch Act.

"I am bringing this issue forward because of my concern and the concerns expressed by the citizens of Dearborn County regarding our attorney's conduct. I heard this issue was even brought forward by several members of county Council at its May 25, 2010 meeting," Hughes continued.

Hughes further stated that he "believes Mr. Witte may have possibly engaged in behavior that is within the jurisdiction of the Disciplinary Commission of the Supreme Court. I have requested an investigation to be conducted by the Disciplinary Commission and understand that any final determination is up to the Supreme Court."

That may be a problem. This press release was sent out by the Supreme Court on May 10, 2010. It begins:
G. Michael Witte, former Dearborn County Judge, has been named the Indiana Disciplinary Commission Executive Secretary. The Disciplinary Commission is the agency that investigates and prosecutes alleged attorney misconduct. The Indiana Supreme Court approved naming Judge Witte as the agency head, confirming a recommendation from the nine-member Indiana Disciplinary Commission. * * *

The majority of Judge Witte’s career was spent serving the Dearborn Superior Court. He was elected to the bench in 1985 and served through 2008. He was the first Asian-American to serve as judge in the state of Indiana. In March 2009, the Supreme Court appointed him to serve as temporary judge of Wayne Superior Court 1. He currently serves as a Senior Judge and dedicates time to national professional associations. * * *

Mr. Witte is expected to begin working in mid-June. As Disciplinary Commission Executive Secretary he will work with agency staff and the nine-member Commission to ensure members of the Indiana bar uphold the Rules of Professional Conduct. He will lead the agency that investigates and prosecutes cases of alleged attorney misconduct. The Indiana Supreme Court has final authority over all attorney discipline cases.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In The Travelers Indemnity Company of America v. Jerry Jarrells, a 7-page, 5-0 opinion, Justice Boehm writes:

The Worker’s Compensation Act provides that if an employee has received worker’s compensation benefits and then recovers damages from a third party for the same injury, the employee is to reimburse the amount of benefits. The trial court held that under the instructions in this case the jury had already deducted the amount of worker’s compensation payments from its award and there was therefore no recovery for injuries previously covered by worker’s compensation. The Court of Appeals reversed, taking the view that the jury’s award included amounts to be repaid. We agree that both interpretations are plausible but hold that the trial court’s reading in this case should be affirmed. The employee is therefore not required to repay his employer’s worker’s compensation carrier after receiving a judgment against a third party tortfeasor. However, in future trials where the trier of fact finds that the evidence establishes that the plaintiff has received payment for some of the damages from other sources, the award should include those damages, but only to the extent that the evidence establishes an obligation to repay.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - " Judge probes possible rogue jury in cockfighting case: Juror admits surfing Internet in defiance of judge’s orders"

This is a pretty astonishing story from the Columbia, South Carolina paper, The State. Here is some of John Monk's report:

Choking back tears, a juror in the federal government’s recent cockfighting trial in which six defendants were found guilty took the stand herself Wednesday to reveal that one juror had defied the judge’s numerous orders not to surf the Internet to do independent research about the case.

That rogue juror then brought pages of Internet research from the Wikipedia Web site into the jury room and held a private discussion about the case with three other jurors, the whistleblower juror testified.

U.S. Judge Cam Currie convened Wednesday’s hearing after the woman, publicly identified only as Juror No. 1, called her office after the trial and told a law clerk about possible jury misconduct. Each of the 12 jurors in the cockfighting case, held in early May, were subpoenaed to appear in court Wednesday to be questioned by Currie.

When it was his turn on the stand, Juror No.177 admitted using outside resources not available in the courtroom; juries are supposed to only consider courtroom evidence.

Currie indicated she may not rule on the alleged jury misconduct until late July, at the earliest.

But jurors who violate the rules can go to prison. And, depending on the seriousness of the misconduct, Currie could declare a mistrial and overturn the guilty verdicts against six people government lawyers called key players in major cockfights in Swansea and Williamsburg County.

The six defense lawyers who represented the six cockfighting defendants found guilty indicated after Wednesday’s hearing that the revelations would prompt them to move for a mistrial — which would cause the government to decide whether to retry the expensive case.

Assistant U.S. Attorneys Nathan Williams and Debbie Barbier, who spent months preparing the government’s case and seven days trying it, declined comment.

None of the six defendants found guilty has been sentenced.

The trial, which climaxed more than two years of a secret probe targeting cockfighting rings, represented hundreds of thousands of dollars in court time, witness travel costs and undercover investigations that included video of cockfights in Swansea shot with a hidden camera.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Courts in general

Ind. Decisions - More on suit between one Indiana state agency and another

This Feb. 24, 2010 ILB entry was headed "7th Circuit to hear oral arguments in Indiana 11th amendment case today." It was an en banc sitting of the Court.

The parties are Indiana Protection and Advocacy Services and the Indiana FSSA.

This April 22, 2010 ILB entry gives the outcome:

(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.
Now, in a nonprecedential decision issued May 26, 2010, Circuit Judge Hamilton ordered:
On April 22, 2010, this court sitting en banc affirmed the judgment of the district court as modified. Indiana Protection and Advocacy Servs. v. Indiana Family and Social Services Admin., — F.3d —, 2010 WL 1610117 (7th Cir. Apr. 22, 2010) (“IPAS II”). The effect of this court’s mandate will be to affirm the district court’s order requiring the named state officials to make available to the plaintiff certain records regarding a mentally ill patient (identified in the court records and the court’s opinion as Patient 1) for inspection and copying.

The defendants intend to seek Supreme Court review and have moved to stay the mandate pending the conclusion of that Court’s review. The plaintiff opposes the motion. All participating judges agree that the motion should be denied.1 The district court has stayed its order pending resolution of this appeal. As I explain below as author of the merits opinion, this court sees no reason to delay the mandate or to prevent the district court from lifting its stay of its order pending possible Supreme Court review. * * *

The defendants argue there is good cause for a stay of the mandate because they will suffer irreparable harm in the form of an “invasion of privacy” if they are required to allow the plaintiff to inspect and copy the disputed peer review records regarding Patient 1. However, the defendants fail to specify their basis for any privacy right or interest in the records under dispute. Does it lie with Patient 1? With the state care‐giving institutions? With the doctors and other medical professionals who rendered treatment? In any case, to alleviate that concern, the plaintiff points out that if and when it is granted access to the records, it still will be required by law to maintain the confidentiality of those records. There is therefore little to no risk that the information the records contain would be publicly disclosed or that the information would be used for some purpose unrelated to the plaintiff’s mandate, severely undercutting the defendants’ argument. Also, this negligible risk is outweighed by the plaintiff’s interest in carrying out its obligation to protect and advocate on behalf of other mentally ill patients. That interest has been necessarily kept in suspense for the last several years of this litigation, and further delay is unwarranted.

In sum, the balance weighs against granting a stay of the mandate even if there is a reasonable possibility that certiorari may be granted. The disclosure of information would be to an independent government agency with its own legal obligations to maintain the confidentiality of the documents in question. The plaintiff has had to wait nearly four years after Patient 1’s death for access to the peer review documents, stymying its ability to effectively protect and advocate on behalf of other individuals with mental illness. There will be no invasion of Patient 1’s privacy, for Patient 1 is deceased. Whatever interests the caregiving entities or the doctors and other individual care‐givers might have in the privacy of information about their treatment of Patient 1 will be adequately protected by the plaintiff’s own legal obligations of confidentiality. Under these circumstances, a court order allowing the plaintiff access to the records but reserving the right to order the plaintiff to return all copies and derivative notes in the event that this court’s decision is reversed would give substantial protection to the defendants. Finally, as the defendants point out, that ongoing prospect for ordering return of documents would also prevent the case from becoming moot pending possible Supreme Court review. See Church of Scientology of California v. United States, 506 U.S. 9, 13 (1992). Accordingly, the motion to stay the mandate is denied.

In this case, the federal government filed an amicus on the side of IPAS. The Solicitor General of Indiana argued for FSSA. Morrison & Foerster served as pro bono co-counsel with IPAS.

Here are earlier ILB entries.

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

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Walter E. Starks v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "French Lick town council allows golf carts but no mules"

From the Bloomington Herald-Times today, this story ($$):

FRENCH LICK — The minutes of the May 3 French Lick town council meeting indicated the members decided to draft an ordinance “concerning the usage of mules and golf carts in the town.”

A call to town hall revealed that the reference to mules meant the small tractor-like vehicles sometimes used for short-distance hauling, not the four-legged donkey-horse mix.

Two weeks after proposing the ordinance, the town council passed it. The legislation allows golf carts on town roads if they have safety equipment such as a slow-moving-vehicle emblem, a rear view mirror and a red safety flag mounted on the back.

Mules and Gators — small utility vehicles made by John Deere — are not allowed to be driven on the streets.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Indiana Government

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

Darrell Poer v. Michael J. Astrue, Comm. of SS Adm. (SD Ind., Barker) - Affirmed

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

Ind. Decisions - More on "Appeals court sides with Greenfield homeowner"

Updating this ILB entry from Feb. 9, 2010, about the Feb. 3, 2010 COA opinion in the case of Marilyn Elliott and Michael Elliott v. JP Morgan Chase Bank, et al., Indy 6 News has a report yesterday, headed "Woman Celebrates End Of Foreclosure Fiasco: Loan Servicer Sought Foreclosure Despite Proof Mortgage Was Paid". Some quotes:

GREENFIELD, Ind. -- A woman who said she had no idea that her house had been put up for foreclosure even though the mortgage was paid off is relieved that a loan servicing company has backed off after years of struggle. * * *

The Army veteran said she didn't know that Florida-based Ocwen Bank had sought foreclosure.

The bank was given the deed to the home and asked a court to remove Elliott and her family in June 2007.

In November 2006, a court had sided with the bank, and the home was sold in a sheriff's sale in February 2007.

"How could it be sold? I said, 'Nobody even told us,'" Elliott said.

Elliott filed a complaint with the Indiana Attorney General's Office and the Comptroller of the Currency, which regulates national banks.

"She stay in the home and defended it," said Tom Williams, Elliott's lawyer.

Elliott's case advanced to the Indiana Court of Appeals, where the court gave a stinging response to the banks for their actions and questioned their motivation.

“The Kafkaesque character of this litigation is difficult to deny,” the judges said in their opinion.

The foreclosure remained on hold, and the case was sent back for a trial.

"They (banks) owned the house. I suppose they didn't want to … give up that deed," Williams said. "They'd make a great deal of money reselling this house."

Ocwen Bank dropped its lawsuit a couple of weeks ago.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Ind. App.Ct. Decisions

Law - Advice on going solo

"Advice for New Law Grads Who Want to Open a Solo Practice" is the title to this Texas Lawyer article by Scott K. Field. A quote:

A solo practice is difficult even for a seasoned legal veteran. No one else is responsible for bringing in business. There is no safety net. There is also no one down the hall to ask questions of or to provide ideas. Although I know lawyers do it all the time, I personally cannot imagine starting my career in that type of environment.
Ashby Jones of the WSJ Law Blog picks up on the topic here.

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to General News

Ind. Courts - More on: "Clark County Legal Self-Help Center has a green light, even if full judicial support is yet to be determined"

Updating this ILB entry from May 23, 2010, Braden Lammers today in the New Albany News & Tribune, who wrote the initial story, reports today under the heading "Help is on the way: Clark County Legal Self-Help Center to launch; Indiana Chief Justice pleased with programs." Some quotes:

CLARK COUNTY — Clark County is not unique in offering legal help to its residents, but the way it’s being done is fairly new to Indiana.

The launch of the Clark Legal Self-Help Center, which will officially open the first week in June, was announced at Clark County Circuit Court on Wednesday afternoon.

Being one of only three or four similar programs throughout the state, the goal has been to provide legal direction and assistance to residents with moderate to low incomes. The unique characteristic of Clark County’s program is it is based out of the Clark County Government Building.

“One of the differentiating features of this is that people will know there’s a place to come, a person to talk to and it’s a place they know about,” said Indiana Chief Justice Randall Shepard, who was in attendance for the opening. “It’s the courthouse — they sort of naturally associate it with the idea of having a legal problem.”

There will be no actual legal services offered at the center, but instead volunteer attorneys — along with second- and third-year law school students from the University of Louisville’s Brandeis School of Law — will tell those who come in for help where to go and how to find assistance.

“What we plan to do is be a resource in this building, face-to-face, to provide guidance, definition and options,” said Circuit Court Judge Dan Moore, who has been at the head of the effort to open the center.

Local pro bono chapters that operate within the county will still have a leading role in offering free legal assistance to individuals that qualify, but having an additional outlet for those seeking advice has become necessary. * * *

Another avenue the center will help provide assistance for is individuals that wish to represent themselves.

“We have seen an increasing number of self-represented litigants,” said Melissa May, Indiana Court of Appeals judge and chair of the Indiana Pro Bono Commission. “This program today ... has the capability to exist with the ease of access for these litigants and also for those who need legal representation.”

Increasing need was a common theme among the speakers — in order for residents to be able to address minor issues and volunteers to steer them in the right direction.

“This self-help program will add yet another level of needed assistance for Hoosiers who need help,” May said.

In addition to offering access to legal pamphlets — paid for with donations — and options for online resources, lists of attorneys in Clark and Floyd counties will be provided if it is determined the individual needs legal advice.

Although much of the information is out there to be found by those who need legal assistance or have legal questions, keeping up with the law and knowing where to look is not always as apparent.

“Surprisingly, even in an Internet age, there are plenty of people ... that could have found [their] way to the thing [they] needed on the web, but it just hadn’t occurred to [them],” Shepard said.

According to Shepard, there is no shortage of Hoosiers seeking that type of legal advice.

“The number of people who come in without a lawyer is ticking upward all the time,” he said. “In the old days, we use to send people to the library. This is a more modern, more targeted advice. This really has an impact in the everyday lives of citizens.

“It is, I think a genuinely gratifying moment that the county government, the profession, that the judges of this county and surrounding counties are willing to try to make it easier to accomplish in the end the thing that we say we’re about, which is substantial justice.”

Ben Zion Hershberg's story in the Louisville Courier Journal is headed "Free legal help available in non-criminal issues." Some quotes:
Indiana Chief Justice Randall Shepard said an old friend from Evansville called him not long ago for some legal guidance.

The friend said his mother, who immigrated from Italy in the 1950s, had different names on her driver's license and birth certificate and needed to get them reconciled.

"I told him the easiest thing to do would be to file for a name change," Shepard said, so his mother would have a legal document to show anyone who needed to know her identity.

Shepard shared that story Wednesday during an interview in Jeffersonville after taking part in the announcement of a new -- and free -- legal service to be available in the Clark County Government Building starting next week.

The Clark Legal Self Help Center will use University of Louisville law students and volunteer lawyers to help low-income people in need of legal guidance on non-criminal issues.

The service includes help with understanding court documents, determining whether a problem can be resolved by the individual or by using computer-based help, or telling someone how to find a lawyer if needed.

"I think housing issues and family issues will be the most common" problems coming to the center, said Clark County Circuit Judge Daniel Moore, who helped start the service. * * *

The volunteer lawyers won't establish lawyer-client relationships, Moore said, but will provide guidance and, for those who need lawyers, tell them how to contact the region's Indiana Legal Services Office in New Albany, the regional pro-bono services office or lawyers they would have to pay.

Melissa May, an Indiana Court of Appeals judge and chairwoman of the state's Pro Bono Commission that helps provide free lawyers to low-income residents, said she's excited about the self-help center.

She said the Clark center is among the first of its kind in the state.

"There are a lot of people who want to represent themselves," May said, and the center can help them.

Shepard said the center, along with Legal Aid Services and lawyers working pro-bono, can help people who need legal assistance but can't afford it.

Marion County had the basics of such a resource until this year. See this ILB entry from Jan. 2, 2010, headed "Closing this library, dismantling the resources, dismissing the librarian -- this is very unfortunate and falls into the 'whatever can they be thinking?' category"

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Indiana Courts

Environment - EPA: IDEM must change either Water Board law or general permit process

The Indiana Manufacturers Association yesterday informed its members about an issue that is taking shape at IDEM:

For some time EPA has take exception to the manner in which Indiana issues general permits as “permit by rule”. The subject came up during a meeting at the IMA a couple of weeks ago. The attached letter sets out the problem as EPA Region 5 sees it. IDEM is in the early stages of outreach and anticipates proposing the necessary legislative changes during the 2011 session.
Here is the March 9, 2010 EPA letter to Tom Easterly. The operative language:
Due to the direct conflict with CWA requirements for the composition of boards or bodies that issue NPDES permits, Indiana must revise its NPDES program by: 1) amending the statute to eliminate the requirement that a member of the Board possess a permit (and Indiana must actually remove any such person from the Board), or 2) transferring the authority to issue general permits from the Board to the Indiana Department of Environmental Management. EPA strongly recommends that Indiana select the second option for resolving the conflict of interest within the State's NPDES program. We believe this option will be resource efficient for the State given the burdens associated with the process for adopting administrative rules. In addition, Indiana needs to revise its practice to iimit the tem of general permits to 5 years.

Please reply with a commitment and a plan to timely resolve the concerns expressed in this letter. Indiana could enact legislation to resolve the NPDES conflict of Interest at the same time that it enacts legislation to resolve EPA's concerns, as expressed in a June 24, 2009 letter from this offIce to the Office of the Governor of Indiana (enclosed), about Indiana's criminal enforcement authority. Do not hesitate to contact me if you have any questions.

Question: How does this impact current permits?

Posted by Marcia Oddi on Thursday, May 27, 2010
Posted to Environment | Indiana Government

Wednesday, May 26, 2010

Ind. Decisions - "Social Networking Information Is Discoverable"

Smart HR Manager posted this teaser today:

Information that two sexual harassment claimants posted on their Facebook and MySpace pages is discoverable by their employer to refute their claims of depression, stress and other psychiatric disorders stemming from the harassment, a federal district court in Indiana ruled recently.
A little googling produced this May 18, 2010 article by Baker & Daniels' Stuart Buttrick and Krissy A. Katzenstein.

The opinion is Equal Employment Opportunity Commission v. Simply Storage Management LLC (SD Ind., Lynch), available here.

The issue - "Whether two of the claimants must produce the internet social networking site (SNS) profiles and other communication from their Facebook and MySpace.com accounts."

The answer from Magistrate Judge Debra McVicker Lynch begins on p. 5:

Discovery of SNS requires the application of basic discovery principles in a novel context. And despite the popularity of SNS and the frequency with which this issue might be expected to arise, remarkably few published decisions provide guidance on the issues presented here. At bottom, though, the main challenge in this case is not one unique to electronically stored information generally or to social networking sites in particular. Rather, the challenge is to define appropriately broad limits—but limits nevertheless—on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties. The court will first outline the principles it will apply in confronting this challenge.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Speaker regrets giving governor budget powers " ILB is confused

Dan Carden reports today in the NWI Times that House Speaker Pat Bauer is having regrets:

Call it a case of buyer's regret.

Nearly one year after giving Republican Gov. Mitch Daniels the authority to manage Indiana's spending while the General Assembly is not in session, House Speaker Patrick Bauer, D-South Bend, said Tuesday he now wishes the legislature was in charge of deciding what to cut.

"We have given him that authority, and we should take some of it away, only because I think the legislature will have things more open to the public with hearings and questions," Bauer said.

Bauer and state Rep. William Crawford, D-Indianapolis, the chairman of the House Ways and Means Committee, have both called on Daniels to do a better job explaining what he has cut from the state budget.

Daniels has ordered more than $600 million in budget cuts to schools and state agencies due to lower than expected state tax revenue. The 2009-11 state budget gives the governor the authority to unilaterally make cuts to keep the state budget balanced if revenue lags.

"Right now we're just trying to encourage them to respect the equalness of our branch," Bauer said. "The executive branch is not the dictator of the state."

If the legislature was in charge of administering the budget there would be testimony and debates in the House and Senate before any potential cuts, and it would be a more open process, Bauer said.

I'm puzzled. I've looked at the 2009 budget bill, along with its predecessors. I don't see any new powers granted to the governor.

Right after the 2009 special session I posted this entry, headed "What's in the Senate budget?" I pointed to this longstanding authorization granted the governor to elect to not allocate appropriations:

SECTION 30. [EFFECTIVE JULY 1, 2009] Subject to SECTION 25 of this act as it relates to the budget committee, the budget agency with the approval of the governor may withhold allotments of any or all appropriations contained in this act for the 2009-2011 biennium, if it is considered necessary to do so in order to prevent a deficit financial situation.
I noted that:
Nothing is written in stone -- an appropriation may be augmented, or the allotment of an appropriation may be withheld, at the determination of "the Governor and the Budget Agency," sometimes with the "advisory recommendation" of the state budget committee.
What does SECTION 25 say?
When budget agency approval or review is required under this act, the budget agency
may refer to the budget committee any budgetary or fiscal matter for an advisory
recommendation. The budget committee may hold hearings and take any actions authorized
by IC 4-12-1-11, and may make an advisory recommendation to the budget agency.
Here is the thing. I've looked back at the language of biennial budgets for the last 10 years. They all contain the exact-same boilerplate language on withholding allotment of appropriations, including the reference that the budget agency (which is responsible to the governor) may refer matters to the budget committee (which is made up of legislators) to hold hearings and make advisory recommendations.

So I am confused about what has changed this year, if it is not the law? Was there some unwritten agreement that the governor/budget agency would no longer involve the legislative budget committee in the decisionmaking?

The answer. Here is the answer I've gotten after asking around.

Before when cuts were made, they seemed to be one of two kinds: (1) unilateral cuts/rescissions of X% ordered by a governor that were effectively transparent, because all agencies would simply be cut; or (2) cuts made on a case-by-case basis in concjunction with the budget committee, i.e, with legislative participation or acquiescence.

What appears different here is that the legislative leaders considered reopening the budget during the past (2010 non-budget) session to make the cuts, but deferred to the Governor instead. According to what we are hearing now, they did so (or at least Demo leaders did so) believing that they would be "consulted" about, or at least informed as to where the specific cuts would be. But, as today's story indicates, that has not been the case.

So, if all this is right, "giving the governor the authority" was an oral agreement, not a law change. And whether the authorization was oral or part of the budget bill, the issues presented somewhat parallel those in the Minnesota case discussed in this May 16, 2010 ILB entry.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Indiana Government

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

In Wallace v. McGlothan (SD Ind., McKinney), a 34-page opinion, Judge Tinder writes:

Dr. Jonathan S. McGlothan attempted to correct Tracey Wallace’s vision problems through eye surgery, but the procedure ended up causing more harm than good. Tracey and Eric Wallace brought a diversity suit against Dr. McGlothan for medical malpractice under Indiana law. After a trial on causation and damages, the jury returned a verdict for the Wallaces and awarded nearly $700,000 in damages. On appeal, Dr. McGlothan challenges the sufficiency of the evidence. * * *

The evidence was sufficient to show that Dr. McGlothan’s negligence was the proximate cause of the Wallaces’ injuries, and Dr. McGlothan has not shown any perjury or discovery violations by the Wallaces that would warrant reversal. We AFFIRM the district court’s denial of Dr. McGlothan’s motions for judgment as a matter of law and AFFIRM the judgment.

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

Ind. Decisions - Court of Appeals issues 1 today (and 14 NFP)

For publication opinions today (1):

In Donald T. Shell v. State of Indiana , a 15-page opinion, Judge Mathias concludes:

The trial court did not err in admitting into evidence the items found during the execution of the search warrant because the warrant itself was properly based on the items found during the trash search, and the trash search was properly based on reasonable suspicion as a result of the information received from the CI. The trial court did not abuse its discretion in denying Shell‟s request that the identity of the CI be disclosed. And Shell‟s aggregate sentence of eighteen years is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed.
NFP civil opinions today (2):

Erick G. Black v. Marcy A. Black (NFP)

Adoption of T.L.J.; R.O. v. C.J. (NFP)

NFP criminal opinions today (12):

State of Indiana v. Patrick J. Davis (NFP) - "The State of Indiana appeals the trial court’s order dismissing the State’s petition to revoke appellee-defendant Patrick J. Davis’s probation. The trial court concluded that because there was no evidence that Davis had been advised of the terms of probation, revocation was improper. The State contends that a defendant need not specifically be advised of the automatic term of probation prohibiting the commission of a new offense. Finding that it need not be established that the defendant was explicitly advised that he is prohibited from committing new offenses while on probation, we reverse and remand for further proceedings."

Matter of L.W. v. State of Indiana (NFP)

Julie Smitson v. State of Indiana (NFP)

Ricky L. Rust v. State of Indiana (NFP)

Lawrence Echols v. State of Indiana (NFP)

Janyer Pinto v. State of Indiana (NFP)

Salvador A. Perez v. State of Indiana (NFP)

John Pemberton v. State of Indiana (NFP)

Edgar Mendizabal v. State of Indiana (NFP)

Russell Ralston v. State of Indiana (NFP)

Marcos Espinosa v. State of Indiana (NFP)

Anthony E. Griffin, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Ind. App.Ct. Decisions

Courts - "District Court Opinions Precedential Within the Same District?"

Interesting post today by Eugene Volokh. It begins:

I had always assumed that federal district court opinions (as opposed to Court of Appeals opinions or Supreme Court opinions) don’t serve as binding precedent on district judges even within the same district, and are no more persuasive precedent than any other district court opinions from any other district. But now, I see in Kerr v. Hurd (S.D. Ohio Mar. 15, 2010), the assertion that “In the absence of supervening case authority from the Supreme Court or the court of Appeals, this Court is bound, under the doctrine of Stare decisis, to follow decisions of its own judgments.
Interesting comments too.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Courts in general

Ind. Courts - "Clark judge asks state Supreme Court to order probation funding"

This Feb. 11, 2010 story by Ben Zion Hershberg in the Louisville Courier Journal was about another threat of judicial mandate in Clark County. It began:

The Clark County Council is expected to allocate $620,000 to the county’s courts at a special meeting later this month to avoid potentially expensive litigation that council president Jack Coffman said the judges have indicated they would file.

“If we don’t, a mandate will end up costing us more,” said Coffman, referring to the type of lawsuit brought by the judges in 2005 when a budget crunch prompted the council to use money collected by the courts from probationers to cover some court operating expenses. The judges generally control probation user fees but didn’t agree to the use sought by the council.

The dispute led to protracted litigation. Ultimately, the council had to pay an estimated $1.1 million in legal fees and disputed appropriations to the county’s four courts.

Yesterday the reporter had a follow-up story. Some quotes:
Clark Superior Court Judge Jerry Jacobi has asked the Indiana Supreme Court to order the county to provide $94,823 to keep his court's probation department operating through 2010.

In a lawsuit called an order for mandate of funds, Jacobi said the money is "necessary to operate the probation department that provides supervision to most of the felony drug offenders in Clark County. Without the mandate of these funds it will not be possible to fund the probation department through December 31, 2010."

If Jacobi prevails, the County Council would have to provide the funds. Chuck Moore, a member of the council, conceded Tuesday that the Superior Court 2 probation department needs the money but said the council doesn't yet know how to provide it.

Because the county is facing a financial crisis, its rainy day funds and most other reserves are committed to operating expenses, Moore said.

Moore has met with Jacobi in recent months to try to resolve the problem. But he said the talks "kind of broke down a month ago" because of uncertainties about funding sources. * * *

In his request filed with the state Supreme Court last week, Jacobi said the council failed last fall while working on this year's budget to include his probation department's budget. In February, after realizing it had left out the Superior 2 probation department, the council appropriated $169,000 from the rainy day fund, but Jacobi said that still left a shortfall.

The judge said he has been paying department expenses from probation user-fees that his court has collected, but more than $51,000 of those payments must be returned to the user-fee account under a Supreme Court ruling in a prior dispute between the council and the county's judges. That ruling said probation user-fees can't be used to pay general probation department expenses.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Indiana Courts

Courts - More on "Several States Look to Boost Retirement Age for Judges"

Updating this April 14, 2010 ILB entry, which concluded:

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.

I point this out because I heard on the radio this morning an incorrect report that Indiana's retirement age of 75 appellate judges is mandated by the Constitution.

The relevant quote is near the end of the ILB's 2006 entry:

Note: Re the statement "if a judge reaches that age in the middle of a term, the judge can complete the term." This may be true for county courts, but the ILB does not believe it to be true for Supreme Court justices and Court of Appeals judges. Article 7, section 11 of the Indiana Constitution includes this provision:
Every such justice or judge shall retire at the age specified by statute in effect at the commencement of his current term.
The age currently specified by statute (IC 33-38-13-8) is seventy-five:
(a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age.

(b) Notwithstanding subsection (a), the supreme court may authorize retired justices and judges to perform temporary judicial duties in any state court.
Or course, if you are president of Purdue, you must retire at age 65, for heaven's sake.
Page 5 of this article I wrote in 2005 contains a chart showing the appointment date of each of the current justices and when they run for retention. The three justices up for retention in 2008 for additional 10-year terms -- Shepard, Dickson, and Boehm --- were all approved on the state-wide retention ballot.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Courts in general | Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - "State court retirement opens door for diversity: Boehm's departure gives governor chance to consider a woman"

From a lengthy story today by Jon Murray in the Indianapolis Star:

The announced retirement of Indiana Supreme Court Justice Theodore Boehm will give Gov. Mitch Daniels the opportunity not only to shift the court's political balance, but also to bring an element of diversity that some say is much needed:

Indiana's high court is one of only two in the nation without a female justice.

Several people, including Boehm, say they hope Daniels will consider the importance of adding gender diversity, which they consider key to ensuring the court's fairness in its rulings.

"It's about diversity of thought," said Myra Selby, Indiana's only female justice, who served from 1995 to 1999 as an appointee of Gov. Evan Bayh. "There will be another woman on the Indiana Supreme Court. I believe it's important."

Indiana and Idaho are the only states without sitting female justices on their supreme courts, according to the National Center for State Courts.

Beyond any opportunity to bring diversity to the high court, Boehm's retirement, announced Tuesday, will provide the first opportunity for a Republican governor to select a jurist in nearly 25 years -- since 1986.

That will guarantee a shift in the five-member court's political balance to the Republicans' favor, but experts expect minor impact on hot-button issues.

"It's so uncommon that you get a 3-2 decision that divides Republicans and Democrats on that court," said Joel Schumm, a professor at the Indiana University School of Law-Indianapolis and, earlier in his career, a law clerk to Boehm.

"I don't think you're going to see any change at all." * * *

Selby said she enjoyed serving alongside Boehm, appreciating his quiet demeanor, sense of humor and love for baseball, which he shared with his colleagues.

"One of Ted's great gifts is his ability to think and consider widely, broadly," said Selby, a partner at Ice Miller in Indianapolis. "That's one of the things I quickly appreciated about him when he joined the court. It's a rare quality in people. He will be sorely missed."

Relevant recent ILB entries. At the end of this May 13, 2010 ILB entry, headed "State Supreme Courts Have Many Judges Outside the 'Judicial Monastery'," relating to the Kagan nomination to the SCOTUS, the ILB wrote:
Indiana, as the ILB has noted many times, has no female justices. Of our current five justices, three, I believe, had no previous judicial experience: Justices Boehm, Sullivan and Dickson.
Here are the ILB entries yesterday on the Boehm resignation and its implcations:

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - Yet more on "Life, Death and Insurance: Indiana's $15 Million Mystery "

After three stories in the Wall Street Journal, April 12, April 14, and May 13, 2010, the Indianapolis Star has a report today by John Tuohy that begins:

Mysterious new information surrounding the drowning of local businessman Stephen Hilbert's mother-in-law means the case will get a fresh look by the Indianapolis Metropolitan Police Department.

The September 2008 death of Germaine "Suzy" Tomlinson continues to stir up questions, largely because of a disputed $15 million life insurance policy taken out on her by a friend and his business partner.

"Detectives received some information from (Hilbert family) attorneys, and they are looking into it," said Lt. Jeff Duhamell, IMPD spokesman, who would not disclose the nature of the new evidence. "I wouldn't say they are reopening the investigation because they never really close them."

The story adds nothing new to the WSJ series, where the May 13th story began:
Indianapolis police have reopened their investigation into the mysterious death of Germaine Tomlinson, who was found drowned in her bathtub in September 2008, fully clothed with her high heels still on.

Posted by Marcia Oddi on Wednesday, May 26, 2010
Posted to Indiana Courts

Tuesday, May 25, 2010

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

Updating this ILB entry from March 11, 2010, concerning Anderson attorney and blogger Samuel C. Hasler (Sam Hasler's Indiana Divorce & Family Law Blog), the Supreme Court has today posted this Order Accepting Resignation and Concluding Proceeding, filed May 20, 2010.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts

Ind. Courts - "Indiana Supreme Court's Boehm to end 14-year tenure"

This long and comprehensive story by Lesley Stedman Weidenbener will appear in tomorow's Louisville Courier Journal. It begins:

INDIANAPOLIS - Indiana Supreme Court Justice Ted Boehm will retire Sept. 30 after 14 years on the five-member panel, giving Republican Gov. Mitch Daniels his first opportunity to appoint a member of the state's highest court.

Boehm, 71, said Tuesday he hopes Daniels will consider picking a woman for the job. Indiana is one of just two states in the country with no women on their supreme courts.

"I think it's definitely something he should - and I expect will - take into consideration," Boehm said. "It may not be the controlling factor, but it certainly should be something that is in everybody's thoughts."

The governor's office wouldn't comment on the criteria Daniels will use to select a new justice.

Instead, Daniels lavished praise on Boehm, who was appointed in 1996 by then-Gov. Evan Bayh, a Democrat now serving in the U.S. Senate.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Courts - Kagan's Harvard Law report card

Here it is, via the NY Times story today by Charlie Savage and Lisa Faye Petak, headed "A B-Minus? The Shock! The Horror!."

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Courts in general

Ind. Courts - Statement from Governor Daniels about Indiana Supreme Court Justice Ted Boehm’s resignation announcement

The Governor's office has just released this statement:

“Indiana’s Supreme Court is nationally renowned, and Justice Ted Boehm is a big reason why. Along with a remarkable intellect, he has brought a unique combination of real-world courtroom and business experience to the Court’s deliberations.

“His cooperative and practical temperament also serves as a model for any who might come after him. There will be no replacing Ted Boehm; the best we can hope for is someone who might learn from his example and grow over time into a judge of his first-rate caliber.”

[More] Attorney General Greg Zoeller just issued this statement:
“Known for his formidable questions from the bench, Justice Boehm has crafted opinions – both in majority and in concurrence or dissent – that will shape our state’s jurisprudence for years to come. Justice Boehm’s devotion to public service is mirrored in his many civic achievements for the benefit of the Indianapolis community. All Hoosiers can feel a sense of pride that such an accomplished jurist served so long and so ably on the state’s highest court,” Zoeller said.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Decisions - Transfer brief lauded by CJ Shepard now available

In this ILB entry on Monday, I wrote:

No transfers were granted last week. However, the denial of transfer in the case of Cory A. McClarin v. State of Indiana contains this out-of-the-ordinary notation:
Denied - All Justices concur. Shepard, C.J., joins in denying the Petition to Transfer, believing that the trial court has correctly been affirmed, but compliments to attorney Donald Shuler on the very high quality of the brief he filed on his client's behalf.
Here is the 3/16/2010 NFP COA opinion. The ILB will try to obtain a copy of the brief submitted to the Supreme Court to post for ILB readers!
I am happy to report that this morning I heard from Donald R. Shuler, Barkes, Kolbus & Rife, LLP, Goshen, Indiana. He wrote:
Ms. Oddi:

I am a fairly regular reader of the Indiana Law Blog and noticed your recent post containing the Transfer List for last week, which contains the notation from Chief Justice Shepard regarding the Petition I submitted in the case. If you still would like a copy of that Petition I would gladly forward/email a copy to you.

I have re-read the Petition several times since I received the notice to attempt to determine what CJ Shepard found noteworthy. I guess you never know what will strike a judge.

Anyway, since I have the opportunity, I would like to pass my gratitude on for your site. As I have been working to develop an appellate practice, your blog has been incredibly helpful in staying up to date on Indiana legal issues.

Of course I replied affirmatively, and Mr. Shuler sent me the documents, accompanied by this note:
I have attached the Petition, which contains the main body of the Petition for Transfer in the case. Also attached are the Questions Presented and Table of Contents/Authority. I always have them in separate documents, and while I assume you are most interested in the body of the Petition, thought I would attach that just to be safe
I have put the two together. Now, with much appreciation to Mr. Shuler, the ILB is making available the transfer petition in the case of McClarin v. State.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "What one trial court judge would like you to know"

Here is an article by Boone County Circuit Court Judge Steven H. David that appeared in the May 2010 issue of Res Gestae. Another judge writes: "I really believe that the concerns expressed by Judge David are universal and not just limited to family court matters." The article begins:

Distractions always take away from the merits of your case. Limit or eliminate distractions. They adversely affect good direct or cross examination. They misdirect our attention. They leave a bad taste in a trial court judge’s mouth, and that is not a good thing. Here are some thoughts and suggestions that may assist you in your presentation before a family court judge.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Susan Kozlowski v. Lake County Plan Commission, et al. , a 15-page opinion in a case with a pro se appellant, Judge Brown concludes:

Based upon our review of the record, we conclude that Kozlowski's claims demonstrate bad faith and that her contentions on appeal are utterly devoid of all plausibility. See Potter v. Houston, 847 N.E.2d 241, 250 (Ind. Ct. App. 2006) (holding that the appellant committed both procedural and substantive bad faith, noting that the appellant's arguments on appeal were illogical and puerile, that he steadfastly ignored unfavorable factual determinations and rulings, and that appellant's motions and arguments were calculated to cause great expenditure of time and money by the appellees in attempting to enjoy the use of an easement, and remanding for a calculation of appellate attorneys' fees); Montgomery v. Trisler, 814 N.E.2d 682, 685-686 (Ind. Ct. App. 2004) (remanding for a determination of appellate attorneys' fees and noting that the appellant continued to re-litigate issues that had already been decided adversely to him, simply continued to raise issues without merit, and continued harassment and accusations of the appellee and others). Accordingly, the Owners are entitled to appellate attorneys' fees, and we remand to the Superior Court to determine the proper amount of the appellate fee award.

For the foregoing reasons, we affirm the Superior Court's order denying Kozlowski's motion for summary judgment, and we remand for a determination of the Owners' reasonable appellate attorneys' fees.

NFP civil opinions today (3):

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

B.G. v. Review Board (NFP)

David Smith v. First Farm Mutual Insurance Co. (NFP)

NFP criminal opinions today (7):

Cynthia VanTreese v. State of Indiana (NFP)

Timothy Bitter v. State of Indiana (NFP)

Mitchell L. King, Jr. v. State of Indiana (NFP)

Richard Saunders v. State of Indiana (NFP)

Juan D. Beasley v. State of Indiana (NFP)

Nelisa Glover v. State of Indiana (NFP)

Steven Scott v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Desmond Davidson v. State, a 4-page, 5-0 opinion in a case decided without oral argument, Justice Dickson writes:

Contrasting opinions of the Court of Appeals have disagreed about the manner and extent of consideration to be given to the suspended portion of a sentence upon appellate review. To resolve this conflict, we granted transfer and hold that appellate review under Indiana Appellate Rule 7 may include consideration of the totality of the penal consequences found in a trial court's sentence. * * *

We decline to narrowly interpret the word "sentence" in Appellate Rule 7 to constrict ap-pellate courts to consider only the appropriateness of the aggregate length of the sentence with-out considering also whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge. This does not preclude a reviewing court from determining a sentence to be inappropriate due to its overall sentence length despite the suspension of a substantial portion thereof. A defendant on probation is sub-ject to the revocation of probation and may be required to serve up to the full original sentence.

Conclusion. Upon the review of sentence appropriateness under Appellate Rule 7, appellate courts may consider all aspects of the penal consequences imposed by the trial judge in sentencing the defendant. The Court of Appeals in this case was correct. We disapprove of the contrary views expressed in Eaton, 825 N.E.2d at 1290–91; Pagan, 809 N.E.2d at 926; and Cox, 792 N.E.2d at 904. The judgment of the trial court is affirmed.

For background on this case, see this ILB entry from Dec. 11, 2009, which includes the transfer petition and a chart showing court of appeals' judges' divergence on the question "Should a suspended sentence be treated the same as an executed sentence for purposes of Appellate Rule 7(B) review?" The petition concluded: "The issue is appropriately resolved by this Court in this case with the benefit of the issues being fully briefed and argued." However, as noted above, that opportunity did not arise -- the Court found it unnecessary -- as the case was decided without oral argument.

In Indiana Family and Social Services Administration v. Alice V. Meyer, et al, an 11-page split opinion with Justice Sullivan not participating, Justice Boehm writes:

We hold that a trial court has no authority to grant an extension of time to file the record in a petition for review of an administrative agency action under the Indiana Administrative 2
Orders and Procedures Act if the record is not filed within the required statutory period or any authorized extension of this period. * * *

We are unanimous in our holding that the trial court has no authority to grant a motion for an extension of time to file the record if the motion is filed after the time for filing the record and any previous extensions have expired. We are equally divided as to whether a case may go forward where a full record of proceedings has not been filed. The result in the Court of Appeals therefore remains in place and the trial court‘s order remanding this case to FSSA is affirmed.

Rucker, J., concurs.
Shepard, C.J., concurs in part and dissents in part with separate opinion which Dickson, J., joins.
Sullivan, J., not participating.

[CJ Shepard's concurring and dissenting opinion begins, at p. 9:] I agree with what the Court says today about a trial court‘s authority to grant an extension of time to file a certified record of proceedings when seeking judicial review of agency action under the Administrative Orders and Procedures Act (―AOPA‖). Ind. Code § 4-21.5-5-1 (2005).

I do not agree with my two colleagues who say that a petitioner can obtain judicial review under AOPA without filing a certified record at all. * * *

[And concludes] Whether under some theory a judicial review might proceed with a minimalist record, such a concept is plainly a slippery slope, setting in motion regular satellite litigation (like the present case) in which private citizens and the taxpayers will spend time and money contesting whether a record is ―complete enough.‖ It is not a good idea, and unnecessary for Mrs. Meyer‘s heirs.

Dickson, J., joins.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Ind. Sup.Ct. Decisions

Environment - Still more on "Indiana county's fertilizer ban rejected"

Updating this important Feb. 14, 2010 ILB entry headed "Indiana county's fertilizer ban rejected" about how Steuben County's effort to put in place an ordinance to protect its lakes by restricting phosphorus lawn fertilizers was denied by the state chemist, yesterday Jason Thomas of the Indianapolis Star had a lengthy story on phosphorus affecting water quality in Indiana. The story does not seem to be available on the Star site, although some part of it is here at a related site. Some quotes:

“It’s a huge problem,” said Lenore P. Tedesco, associate professor of geology at Indiana University-Purdue University Indianapolis. “I would argue that the vast majority of water in Indiana has an excess of phosphorus, which is causing changes in the ecosystem and creating water-quality problems.”

State and federal environmental officials are working on a remedy, but it won’t be easy. A ban on phosphorus is not likely, because farmers say it is essential to crops. More practical prescriptions may include controls on development and agricultural runoff, and maybe even a ban on phosphorus in lawn fertilizers. Such questions are being discussed and could reach the Statehouse as early as January.

In the meantime, officials are trying to determine how much phosphorus is acceptable in Indiana lakes and streams. * * *

The effects of algae, however, go beyond bad-tasting water.

In Indiana, large amounts of algae and excessive plant growth fueled by fertilizers have affected fish populations in streams and waterways, according to Tedesco, who also is the director of the Center for Earth and Environmental Science at IUPUI.

What was once a gravelly bottom in some portions of the White River, for instance, now have been covered with plants. Where bass might have thrived, carp now live. * * *

“There’s no question that phosphorus in waterways can cause problems,” said Rep. Nancy Dembowski, D-Knox, who chairs a bipartisan lakes management work group charged with monitoring the health of the state’s lakes.

While legislation restricting lawn fertilizer could come up next year, Dembowski said a wider ban could be premature.

“I’m not saying it couldn’t happen,” she said, “but no one is planning that at this time.”

Other Midwestern states, including Wisconsin and Minnesota, have restricted phosphorus in lawn fertilizers.

Low- and zero-level phosphorus lawn fertilizers are available in Indiana stores, said Lance Latham, director of public affairs for Scotts MiracleGro Co. Latham said the company “would not necessarily oppose a ban,” as long as it does not include organic fertilizer — which is animal byproducts — where it is impossible to remove phosphorus, he said.

What the state’s regulatory limit won’t address is runoff from residential lawns and farms — which is called nonpoint sources — that empties into rivers and streams and lakes and is difficult to regulate.

Today the Star has an editorial on the topic, titled "We can find the fertilizer fix." It begins:
From nasty-tasting water in Broad Ripple to vast fish-scarce "dead zones" in the Gulf of Mexico, America's affinity for fertilizer has brought about unintended consequences on a large and depressing scale.

The challenge facing federal and state authorities, and each farmer and lawn owner, is to retain sufficient benefits from the potent prime ingredient, phosphorus, while eliminating the byproduct of intolerable damage to waterways.

As the report from The Star's Jason Thomas on Monday made clear, the task is a formidable one, scientifically, economically and politically.

Precisely measuring the extent of the problem, as well as the extent of each source's contribution to it, remains to be done. Whatever those results turn out to be, it is highly unlikely that states or the federal government will impose a ban on phosphorus from the prime commercial source -- farming -- although scientific advisers to the feds have called for a drastic reduction. Any substantial cut would make for a painful transition for farmers and the economy, albeit a necessary one for the long-term health of our water and land.

More probable are prohibitions or tight restrictions on use of phosphorus-based fertilizers on lawns. Alternatives are widely available and the scope of improvement would be significant.

We might start by taking the decision-making out of the office of state chemist.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Environment

Ind. Law - Is timely special election to replace Souder mandated by law?

See Doug Masson's post this morning on interpreting IC 3-10-8-1(3).

ILB entries on the special vs. general election speculation are here from May 23rd (latter part) and here from May 20th.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Law

Law - 'How Facebook Is Redefining Privacy"

Updating this May 14th ILB entry, headed "Facebook Privacy: A Bewildering Tangle of Options," NPR's Morning Edition this morning had a 7-minute feature about "privacy — how much we have of it, and the perils of losing it." It is accompanied by links to several articles.

This story today in the WSJ, by John Letzing, begins:

The dust-up over Facebook Inc.'s privacy practices is becoming a political headache for the company's former privacy chief in his campaign for California attorney general.

The social-networking service, which has nearly 500 million users, has come under criticism lately over privacy issues, including a glitch this month that gave users unintended access to their friends' private instant messages, and a new feature that lets the company share information about which websites users visit.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to General Law Related

Ind. Courts - "Simon daughter seeks e-mails for estate case"

Updating earlier ILB entries in the Melvin Simon estate dispute, Jeff Swiatek reports today in the Indianapolis Star:

Bren Simon's e-mails to her stepchildren might be used as evidence to replace her as trustee of her husband Melvin Simon's $1 billion estate.

Deborah Simon, who wants to remove her stepmother as trustee because of her alleged animosity toward her stepchildren, has asked Hamilton Superior Court Judge William J. Hughes to unseal the e-mails for use as evidence in an upcoming hearing.

Bren Simon's argument that publicizing the e-mails would "embarrass" her isn't legal grounds for keeping them confidential, her stepdaughter contends in a new court filing. Bren Simon copied as many as 25 people on some of the disputed e-mails, and "every document that Bren seeks to seal was in fact drafted by Bren or sent at her direction; therefore, if she is embarrassed by her conduct, she has only herself to blame," says the request to unseal the e-mails.* * *

The hearing to remove Bren Simon as trustee is scheduled for July 15.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts

Ind. Courts - "Harrison Sheriff Deatrick's court hearing canceled while judge appointment is decided"

Updating a list of ILB entries under the heading "Harrison sheriff indicted in lengthy sexual harassment probe", the most recent of which was May 10, 2010, Grace Schneider reported yesterday in the Louisville Courier Journal:

Harrison County Sheriff Mike Deatrick's first day in court following his arrest nearly two months ago was postponed Monday because a special judge first must be found to oversee the criminal case.

While it's unclear when the Indiana Supreme Court will act on a request to reassign to the proceedings, Special Prosecutor Nancy Jacobs said Monday that she expects the July 20 trial to be postponed weeks or months because the judge appointed to the case likely will already have a full calendar.

"In my experience, it would be unusual to see that would be a trial date that would be kept" after a special judge is appointed, Jacobs said in telephone interview. * * *

Harrison Superior Court Judge Roger Davis had asked the court to step in earlier this month after Davis recused himself, citing conflicts in handling the case, and after Crawford Circuit Judge Lynn Lopp declined to take the case.

Although "the court is considering the request," said court spokeswoman Kathryn Dolan, there's no set timeline for when the judges will decide on how to respond to Davis' request.

Kristen Drew of WLKY had this story yesterday:
HARRISON COUNTY, Ind. -- A pre-trial conference for a southern Indiana sheriff facing criminal charges was canceled Monday after a judge recused himself from the case.

A Crawford County judge said he declined the appointment to hear the case because he grew up in the same community as Harrison County Sheriff Mike Deatrick.

As of now, the sheriff's attorney said the case is legally in limbo.

Deatrick is facing 12 criminal charges, including sexual battery and obstruction of justice.

The charges come after two female dispatchers claimed Deatrick forcibly sexually abused them in 2007. * * *

A judge ordered Deatrick to not have contact with the women, but one of them still works as a dispatcher in Harrison County.

Harrison County commissioners have asked Deatrick for his resignation, but his attorney, Bart Betteau said the sheriff is not going anywhere.

"There is no way the sheriff will resign," he said.

Deatrick was indicted last month but Betteau said he will remain sheriff.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts

Ind. Courts - "Two states — Idaho and Indiana — have no women on their highest courts"

That is the word via this May 14, 2009 story out of South Carolina.

This ILB entry from Oct. 6, 2007 is headed "Few women in Indiana are appointed to high judiciary posts."

Here is a list of four ILB entries from the fall of 2007, all under the heading "Indiana Supreme Court only Supreme Court in Nation with No Women Members," all reporting the concern at the time in Idaho that it would join Indiana to become one of just two states with no women on its high court. Idaho did end up with a woman justice, but Nevada more recently has joined Indiana.

This ILB entry, from Feb. 14, 2006, encapsulates the history of race and gender diversity on our Supreme Court.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - "Supreme Court Justice Boehm Steps Down From Bench"

From the Court's press release:

Justice Theodore R. Boehm, Indiana’s 104th Supreme Court Justice will step down from the bench on September 30, 2010. Chief Justice Randall T. Shepard made the announcement and said, “While it is disappointing to lose Justice Boehm as a colleague, we are all grateful for his 14 years of service to our state’s judiciary. He has brought powerful insight to our deliberations and enormous energy to the goal of making Indiana a better place for its citizens.”

Justice Boehm, was appointed to the Indiana Supreme Court by Governor Evan Bayh in 1996. During his career on the bench, Justice Boehm authored civil and criminal opinions on a variety of topics. He authored 466 majority opinions and 77 dissenting opinions. * * *

Justice Boehm was born in Illinois on September 12, 1938. He grew up in Indianapolis and graduated from Shortridge High School in 1956. He attended Brown University and spent his junior year at the University of Munich. In 1960, he graduated summa cum laude with a degree in philosophy from Brown. He graduated magna cum laude in 1963 from Harvard Law School, where he was an editor of the Harvard Law Review. After graduation he served as a law clerk to Chief Justice Earl Warren of the United States Supreme Court. * * *

The seven-member Indiana Judicial Nominating Commission will search for Justice Boehm’s successor. Chaired by Chief Justice Shepard, the Commission will likely interview candidates in July and send the names of three candidates to Governor Mitch Daniels. The Governor will select Indiana's next justice.

A media availability with Justice Boehm will take place Tuesday, May 25th in the Supreme Court Courtroom in the State House from 1:00 p.m. EDT- 2:30 p.m. EDT.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Law - "Elkhart Chamber to Review State’s Gun Law"

An announcement in RVBusiness, dated May 18, 2010:

A new gun law passed by the 2010 Indiana General Assembly voids the current human resource policies of many area companies.

To help these companies understand the implications of the new law, the Greater Elkhart Chamber of Commerce is hosting a seminar on May 25 starting at 7:30 a.m. at the Matterhorn Conference Center, 2041 Cassopolis St., in Elkhart, Ind. according to a news release.

According to the new law, a company may not prohibit workers from bringing firearms to work, as long as those weapons are secured in a vehicle. Many companies have policies prohibiting firearms on their property. Those policies are now illegal.

The chamber designed the seminar to provide area companies with guidance on sorting through new liability issues, worker safety concerns and policy requirements. Information will be provided by a panel that includes an attorney from Barnes and Thornburg, an HR manager from NIBCO and a deputy from the Elkhart County Sheriff’s Department. * * *

During the Statehouse debate, gun rights proponents and property rights proponents were in conflict. Now that the issue has been decided, the chamber feels this seminar will help companies comply with the new rules.

For background on Indiana's "take your gun to work" law, start with this ILB entry from March 21, 2010.

Here is the new law, IC 34-28-4, "Possession of Firearms and Ammunition in Locked Vehicles," added to the Indiana Code by HEA 1065, SECTION 7 [starts at bottom of page 6]. It is effective July 1, 2010.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to Indiana Law

About the ILB - More on: ILB entries now listed on Twitter

Updating this ILB entry from April 25, 2010, announcing that all ILB entries were now linked on the ILB's Twitter account, that link is now permanently accessible in the right column of this page, right under the list of links to ILB supporters.

Posted by Marcia Oddi on Tuesday, May 25, 2010
Posted to About the Indiana Law Blog

Monday, May 24, 2010

Ind. Courts - A look at Wallace and IC 11-8-8-22

In this Feb. 23, 2010 ILB entry, I pointed to some problems I saw with the proposed amendment to IC 11-8-8-22 contained in SB 224. That language, with a change in the effective date, is now law.

Here is a long list of ILB entries on the impact of the Supreme Court's decision in Wallace v. State, starting with the ruling itself on April 30, 2009. Many of them concern how individuals to whom Wallace may apply have attempted to have their names removed from the state's several sex offender registries.

Three of these cases have now reached, and been decided by, the Court of Appeals. All three were pro se appeals. In each case, the COA has found that the litigants must begin their efforts anew, under the recently amended IC 11-8-8-22, which took effect March 24, 2010.

Glenn E. Brogan v. State of Indiana was decided May 6, 2010. The opinion was written by Sr. Judge Sullivan, with Judge Barnes writing a concurring opinion.

Spencer R. Wiggins v. State of Indiana and Stuart A. Clampitt v. State of Indiana were both issued today. Judge Barnes wrote both opinions.

After reading today's opinions, I asked IU-Indy Law Prof Joel Schumm some questions:

Q - Am I right in concluding that the new requirements in IC 11-8-8-22 are not a new and additional ex post facto requirement, because they are procedural?

A - Yes, it doesn't affect the quantum of punishment but instead concerns the methods employed.

That said, I read the amended statute to be prospective. It changes the procedures for where petitions must be filed effective March 24, 2010. These defendants currently being told to start over filed their petitions long before the new statute took effect. In light of these recent cases I suspect the State could try to set aside all those orders entered after Wallace and before March 24, too.

Q - Also, I've read stories about people being arrested recently for not being registered, even though under Wallace they didn't need to. Now they have to prove they aren't covered. Isn't that burden shifting?

A - If they have a decent lawyer, they should be able to get the case booted on a motion to dismiss early in the process. Of course, they've probably lost their job, spent time in jail, and are out a fair amount of bond money by that point.

Another question relates to other cases, where the litigants are represented by attorneys, now pending in trial court, such as those referenced in this Jan. 26, 2010 ILB entry headed "Supreme Court's ruling in Wallace v. State has thrown the state and local sex offender registries into disarray"
Note that in some counties "Some offenders have sent in simple handwritten letters explaining their situation and have received a court order without hiring a lawyer or legal counsel."

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on "NCAA Documents in Fraud Case Made Public by Florida State"

Updating this ILB entry from Oct. 15, 2009, Paul Flemming of the Tallahassee News Journal reports today under the headline: "Florida Supreme Court won't hear NCAA case."

Florida's Supreme Court won't hear an appeal of a public-records case lost by the National Collegiate Athletic Association and Florida State University.

The decision concludes state litigation in the case brought by media outlets from around the state.

It also begins another phase of the proceedings -- how much of the media's legal fees the Indiana-based sports-governing group and FSU will have to pay.

The state's highest court rejected the NCAA's request for an appeal of lower-court decisions. Those courts ruled that documents in an athletics-sanction inquiry were public records under Florida law. The NCAA maintained that it was not subject to Florida's broad open-government laws.

Five justices ruled unanimously without an opinion. Two justices recused themselves from the case.

Now Leon County Circuit Court Judge John Cooper will schedule hearings about legal fees.

The state's Sunshine laws allow plaintiffs to seek payment of legal costs if they prevail in a records case. Initial filings in the case showed the media outlets spent about $200,000.

Court records earlier this year showed Florida State University had spent more than $100,000 in defense of the open-records lawsuit brought by media outlets last year.

The NCAA sanctions case at the heart of the open-records lawsuit is done. Florida State was disciplined with the loss of 12 football victories and a national championship in track, among other sanctions, as a result of an academic cheating scandal that involved 61 athletes in 10 sports.

Seminole Boosters Inc., the non-profit fundraising arm of the athletic department, paid more than $70,000 to the GrayRobinson law firm for legal work related to the NCAA sanctions case, separate from the open-records lawsuit.

Circuit and district courts ruled that the hearing transcript and the NCAA committee's response to Florida State's appeal of the penalties are public records under Florida law.

The Tallahassee Democrat, Gannett Co. Inc.'s Florida newspapers and television stations and more than 20 other media outlets filed the lawsuit in June 2009.

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to Courts in general

Ind. Courts - "Gov. Daniels rooting for card counter in lawsuit against casino"

Lesley Stedman Weidenbener reports today in the Louisville Courier Journal:

Gov. Mitch Daniels acknowledged in a commencement speech Saturday that he's rooting for a self-described card counter to win his lawsuit against a casino that banned him for the practice.

But the governor said Monday he has no plans to ask state regulators to step in.

The Indiana Supreme Court is currently considering whether the Grand Victoria Resort and Casino in Rising Sun acted appropriately when it banned Thomas P. Donovan because he was counting cards, a method of tracking what has been played to better predict whether a high or low card might be the next one dealt.

The practice is not against the game's rules or against state law, but the casino argues it has a common law right to refuse business to any individual customer -- as long as it isn't engaging in discrimination.

Daniels told graduating seniors at Franklin College on Saturday that he hopes Donovan wins.

"Donovan's sin in the casino's eyes is not that he is inordinately lucky, it's that he's inordinately smart," Daniels said. "He has taught himself to count the cards as they are played, then constantly and quickly to calculate the odds on his winning the next hand. In a game where luck still plays a large part, Donovan has through hard work learned to improve his chances."

The speech marked Daniels' first public comments about the case, which the casino industry is watching closely.

A trial court initially dismissed the case in favor of the casino but the Indiana Court of Appeals reversed, saying that Grand Victoria did not have the right to ban Donovan from the game. The Indiana Supreme Court heard arguments in the case last month, and a ruling is expected sometime this year.

Since Donovan filed his lawsuit, several casinos have asked the Indiana Gaming Commission to give them the authority to exclude players suspected of counting cards. But the commission has delayed action on those requests as it waits for the outcome of the court case, Yelton said.

Daniels said Monday that he won't ask the commission to write a rule to permit card counting.

"If the commission on its own decides to have a look at it, I wouldn't discourage them from doing that," he said.

Here is an ILB entry on the April 7, 2010 oral argument before the Supreme Court.

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to Indiana Courts

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

For publication opinions today (2):

In Spencer R. Wiggins v. State of Indiana , an 8-page opinion, Judge Barnes writes:

On November 19, 2009, Wiggins, who is still incarcerated, filed a pro se motion to remove his status as a sexually violent predator on the Indiana Sex Offender Registry. Wiggins alleged that the Department of Correction (“DOC”) had classified him as a sexually violent predator and that the trial court did not make the sexually violent predator determination by consulting with a board of experts. According to Wiggins, he is being retroactively punished, he did not receive a hearing to determine whether he posed a future danger, and his status as a sexually violent predator could only be made by the trial court at the original sentencing hearing. On November 24, 2009, the trial court denied Wiggins's motion. Wiggins now appeals.

Analysis. Wiggins argues that the trial court erred when it denied his motion to remove his status as a sexually violent predator. Wiggins contends that the DOC has classified him as a sexually violent predator on the Indiana Sex Offender Registry without notice or a hearing. See Ind. Code Chapter 11-8-8 (Indiana Sex Offender Registry Act); Ind. Code § 35-38-1-7.5 (governing sexually violent predators). According to Wiggins, when he committed his offenses, “the term „sexual violent predator' did not exist and there was no statute in effect that provided a procedure to determine him as a sexually violent predator . . . .” Appellant's Br. p. 8. Based upon our supreme court's decisions in Wallace v. State, 905 N.E.2d 371, 374-376 (Ind. 2009), and Jensen v. State, 905 N.E.2d 384 (Ind. 2009), Wiggins argues that the application of the sexually violent predator statutes to him violates the prohibition against ex post facto laws.

Since Wallace and Jensen, the proper method for challenging a person's status as a sex offender has been the subject of much confusion. The State argues that the trial court did not have jurisdiction to rule on Wiggins's motion. According to the State, Wiggins's motion should have been presented in a post-conviction proceeding. The State concedes that, in the end, Wallace and/or Jensen may or may not apply to Wiggins. What is patently clear is that we simply do not have enough information to make a determination as to whether Wiggins should be required to continue registering as a sexual violent predator.

Our research reveals that the 2010 session of the Indiana General Assembly enacted an amended statute that was effective March 24, 2010, and provides guidance on the appropriate procedures for challenging a person's status as a sex offender. * * *

The procedures set out in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender's circumstances, including the offender's full criminal history, dates of offenses, and reason for being required to register. Further, all interested parties are given notice of the proceedings. For these reasons, we direct Wiggins to file a petition in the proper county pursuant to the amended Indiana Code Section 11-8-8-22.

Conclusion. We affirm the trial court's denial of Wiggins's petition. However, because of the General Assembly's amendment of Indiana Code Section 11-8-8-22, effective March 24, 2010, we direct Wiggins to file an amended petition in compliance with Indiana Code Section 11-8-8-22. Wiggins should file the petition in the county in which he resides, pursuant to Indiana Code Section 11-8-8-22(d). We direct the trial court in that county to consider the petition in light of the amended Indiana Code Section 11-8-8-22. Affirmed. [ILB emphasis]

Stuart A. Clampitt v. State of Indiana - "We affirm the trial court’s denial of Clampitt’s petition. However, because of the General Assembly’s amendment of Indiana Code Section 11-8-8-22, effective March 24, 2010, we direct Clampitt to file an amended petition in compliance with Indiana Code Section 11-8-8-22. Clampitt should file the petition in the county in which he resides, pursuant to Indiana Code Section 11-8-8-22(d). We direct the trial court in that county to consider the petition in light of the amended Indiana Code Section 11-8-8-22. We affirm."

NFP civil opinions today (4):

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

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

Gary Pennington, et al. v. CSX Transportation, et al. (NFP)

Tony Van Tassel v. Theresa Reeves (NFP)

NFP criminal opinions today (1):

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

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 21, 2010

Here is the Clerk's transfer list for the week ending May 21, 2010. It is one page long.

No transfers were granted last week. However, the denial of transfer in the case of Cory A. McClarin v. State of Indiana contains this out-of-the-ordinary notation:

Denied - All Justices concur. Shepard, C.J., joins in denying the Petition to Transfer, believing that the trial court has correctly been affirmed, but compliments to attorney Donald Shuler on the very high quality of the brief he filed on his client's behalf.
Here is the 3/16/2010 NFP COA opinion. The ILB will try to obtain a copy of the brief submitted to the Supreme Court to post for ILB readers! (However, I'm having trouble locating an e-mail address in order to contact Mr. Shuler.)


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, May 24, 2010
Posted to Indiana Transfer Lists

Courts - SCOTUS action today [Updated]

The SCOTUS has granted cert in 5 cases, and issued a number of opinions this morning. Check SCOTUSblog here.

[Updated] Here are very brief summaries of all six opinions and the five grants.

"American Needle: High Court Delivers 9-0 Shutout Against NFL" is the heading to this post by Ashby Jones of the WSJ Law Blog.

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to Courts in general

Law - "Outdated patents are new company liability: Court opens the door for lawsuits that threaten to yield big fines for companies"

An interesting article yesterday in the Indianapolis Star business section reported by Bruce C. Smith. Some quotes:

Those tiny patent numbers printed on everything from plastic cup lids to kitchen faucets increasingly are turning into big headaches for Carmel-based Delta Faucet and hundreds of other companies across the country.

The companies have been sued by private whistleblowers or lawyers for allegedly using outdated or bogus patent numbers on their products or in their advertisements, potentially subjecting them to millions of dollars in fines.

The floodgates for "false marking" lawsuits opened in December when a federal appeals court substantially expanded the potential fines for bogus patents. Since that time, nearly 200 such lawsuits have been filed in federal courts against more than 100 companies. Only 40 false marking suits were filed in the previous five years.

Lawyers for some of the targeted companies argue that the change has spawned a cadre of fine-seekers prowling the aisles of retail stores in search of bad patent numbers, and they note that large fines could drive up the cost of consumer goods.

According to federal law, whistleblowers are entitled to half the fines, while the government gets the rest. And any private citizen can file such a lawsuit, regardless of whether they've suffered any injury.

Attorneys filing the lawsuits say enhanced fines are necessary to deter companies from using bogus patent numbers to discourage competitors from launching similar yet better products and from misleading customers into thinking the products are unique.

Posted by Marcia Oddi on Monday, May 24, 2010
Posted to General Law Related

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

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

From Sunday, May 23, 2010:

From Saturday, May 22, 2010: From Friday afternoon, May 21, 2010:

Posted by Marcia Oddi on Monday, May 24, 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 5/24/10):

Next week's oral arguments before the Supreme Court (week of 6/1/10):

This week's oral arguments before the Court of Appeals (week of 5/24/10):

Monday, May 24th

Wednesday, May 26th

Next week's oral arguments before the Court of Appeals (week of 6/1/10):

Next Tuesday, June 1st

Next Wednesday, June 2nd

Next Thursday, June 3rd

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, May 24, 2010
Posted to Upcoming Oral Arguments

Sunday, May 23, 2010

Law - "Daley to post all investigative reporter requests online "

There were several somewhat outraged stories last week reporting that Chicago's Mayor Daley was posting all FOI requests online.

For instance, Fran Speilman of the Chicago Sun-Times reported May 13, 2010:

In the name of “transparency,” Mayor Daley on Thursday got some measure of revenge against the investigative reporters who’ve made his life miserable by digging up dirt on the Hired Truck, city hiring and minority contracting scandals.

He revamped the city’s new website to include a log of all Freedom of Information Act requests. The list includes the name and organization of each applicant, documents demanded and dates the information was requested and is due to be released.

A new state law merely requires city departments to maintain such a log — not to post it on the Internet to tip investigative reporters about the trail being followed by competitors.

But Daley gleefully declared that he was going “above and beyond what’s required” in the interest of “transparency, openness and the free-flow of information.”

“If you want transparency in government, you have to have this. I’m sorry. This has nothing to do with [getting even with] the Sun-Times, Tribune, media or anything. This is what you want,” Daley said.

Corporation Counsel Mara Georges noted that some investigative reporters try to keep tabs on competitors by “FOI-ing other peoples’ FOIs.”

By posting the log, she said, “We don’t have to be the arbiter of disputes…to decide who’s gonna get access to other peoples’ FOIs, who’s gonna get access to the information others are asking about.”

Asked why the city would want to provide that kind of “tip service,” Georges said, “I don’t see it that way. I see it more as an openness of government.” * * *

The FOI log is not the only new data being slapped on the Internet.

Chicagoans will also be able to track the progress of their 311 or online requests for city services — everything from graffiti and abandoned vehicle removal and correcting building code violations to repairing garbage carts, replacing broken street lights and trimming trees.

That bit of transparency could arm Chicagoans with the information they need to beat City Hall over the head for not responding fast enough.

The information dump also includes: economic disclosure statements filed by city contractors; statements of financial interest filed by more than 11,000 city employees; and city payments for such items as utilities, real estate leases, legal expenses, settlements, employee reimbursements and debt service.

City Hall is also complying with a City Council mandate to shine the light on the city’s 160 tax-increment-financing districts by providing three-year estimates of revenue and spending on individual projects.

Dan Mihalopoulos of the NY Times had this story, dated May 14, that began:
Mayor Richard M. Daley shrugged and insisted to reporters last week that his latest effort at “enhanced Web transparency” — publishing Freedom of Information Act requests as they are filed — was all about better government. As the mayor tends to say so often: Let’s be realistic.

Local news media have long pushed the notoriously opaque Daley administration to open City Hall’s filing cabinets wider and more readily. And now that a recent change in Illinois’s “sunshine law” requires every government body to keep a log of requests for public documents, the City of Chicago has decided to go a step beyond the mandate and publish who is asking for which files. No other Illinois city has taken such a step.

The mayor is apparently relishing the opportunity to have reporters see what it is like to be, as he says, “scrootened.” Thanks to a new feature added this week to www.cityofchicago.org, the activities of hypercompetitive investigative reporters are exposed for the public — and rivals — to view the moment they begin following up on tips about the Daley administration’s activities.

Well, here it is, Chicago's FOIA page. Check out this list of FOI requests to the Dept. of Law. Move your pointer over a request's description for more information. You can also subscribe to the RSS feed. IMHO, this is a great setup.

Indianapolis FOIA.
The Indianapolis Star's Jon Murray posted a FOIA-related entry on his blog May 14th, headed "City legal opts out of handling records requests for prosecutor's office." Some quotes:
The city of Indianapolis' law office delivered a surprise to Marion County Prosecutor Carl Brizzi this week: A letter dated Tuesday communicates the Office of Corporation Counsel's refusal to handle public records requests for Brizzi's office any longer because of an undisclosed conflict of interest that is "unavoidable and concurrent." I wish I could say more, but city officials aren't telling me, citing attorney-client privilege. For what it's worth, this new restriction applies only to records requests, not to any other services city legal might provide for Brizzi's office.

Starting last month, as a flood of public records requests from the media and others began arriving at his feet, Brizzi decided to refer all of them to city legal -- which had handled some requests, but not all -- for processing. That has meant the city's public access counselor and other attorneys have reviewed the requests, responded to them and obtained documents to comply. In some instances, they also have reviewed page after page of e-mails or other records to decide whether redactions or exclusions were merited under Indiana's public records law.

Now if this were Chicago, we could review the specifics of that "flood of public records requests."

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to General Law Related

Ind. Gov't. - "Limit on prison visits angers South Bend family"

Alicia Gallegos reports today in the South Bend Tribune in a story that begins:

SOUTH BEND — When Sam Dickens' son went to prison earlier this year, the father didn't think he'd have any problem visiting him at Westville Correctional facility.

After all, Dickens' nephew is also an inmate in an Indiana prison, and Dickens has been visiting the young man for years.

But Dickens said he was shocked to learn he couldn't be on his son's visiting list.

Instead, new visiting restrictions at the Indiana Department of Correction meant Dickens had to choose to visit his son or his nephew, not both.

"I'm so frustrated. It's just not right," Dickens said during a recent interview at his home. "They're separating the families."

IDOC officials explain the new visitation rule was implemented this year because of security concerns.

The restriction specifies extended family members and friends can visit only one IDOC inmate per six months. The rule, said IDOC spokesman Doug Garrison, is to curb rampant contraband trafficking plaguing Indiana prisons.

"We're trying to reduce the chances of people bringing contraband into our facilities," Garrison said.

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to Indiana Government

Ind. Courts - "Clark County Legal Self-Help Center has a green light, even if full judicial support is yet to be determined"

So reports Braden Lammers today in the New Albany News & Tribune. Some quotes:

Clark Circuit Court Judge Dan Moore has appeared at Clark County Council and Clark County Commissioners meetings pushing for support for the program, which is designed to provide residents of moderate and low income legal direction and assistance. No actual legal services will be offered at the center, but instead volunteer attorneys and second- and third-year law school students from the University of Louisville’s Brandeis School of Law will tell those who come in for help where to go and how to find assistance.

“What the focus on this has always been is ... guidance,” Moore said. “There is a need out here and people aren’t getting it.”

The effort will allow volunteers to help in a variety of legal issues, but will not include criminal cases. Instead, assistance will be offered for those who may become overwhelmed when facing the legal system.

“These are resources people in the legal system take for granted,” Moore said. “If you’re not in it, it looks imposing.”

To eliminate some confusion, Moore formed a planning group to help implement the program. Questions remained as to how to address some concerns, but simplify the legal process.

“I think one of the challenges is to work out a procedure or protocol, where there is no attorney-client relationship formed down there, but there is narrowing down this scary looking legal mess,” he said.

In attempts to launch the initiative, Moore made several appearances before the county council and commissioners to drum up support for the plan. While the program carries no cost — pamphlets are being provided, volunteer attorneys and students will be offering the guidance and legal malpractice insurance is being offered by the Indiana Pro Bono Commission — the center has not received unanimous backing.

A letter presented at a previous commissioners meeting signed by three Clark County Judges — Superior Court No. 1 Judge Vicki Carmichael; Superior Court No. 2 Judge Jerry Jacobi; and Superior Court No. 3 Judge Joseph Weber — said that the judges could not offer their support to the program.

The letter also said that there was already a program in place for “client coaching,” where attorneys agree to take on pro bono cases for credit.

“Under the project you have created, you would be drawing from that same limited pool of attorneys without offering pro bono credit, malpractice insurance or client coaching,” the letter said. “Since none of the Superior Court judges were included it the planning stages of your project, we are not able to determine whether it is a project worthy of support.”

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to Indiana Courts

Ind. Courts - "Local judge appointed in Marion County traffic case"

Keith Rhoades reported May 22, 2010 in the Martinsville Reporter-Times:

MARTINSVILLE Morgan County Circuit Court Judge Matthew Hanson has been selected by the Indiana Supreme Court to hear a Marion County case filed against a Marion County judge and th
Unfortunately, that abbreviated sentence is all the information available from the Reporter-Times without a paid subscription.

And sadly, these orders of the Supreme Court appointing special judges are no longer available online. Until this year, the Supreme Court included among the orders it posts, those "Appointing Special Judges/Remanding Jurisdiction." For instance, in 2009, 21 such orders were posted. Starting in 2010, however, that entire category of orders has been removed from public posting.

The 2010 orders page points out:

If you are looking for an order that does not appear on this website, contact the Clerk of Courts to obtain a copy.
However, the problem is that first you have to know there is such an order, before you can request it!

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to Indiana Courts

Ind. Courts - Still more on "Grand jury can be used to insulate prosecutor"

Updating this ILB entry from May 18, 2010, Heather Gillers and Tim Evans of the Indianapolis Star have a lengthy story today headed "Carmel testimony called inconsistent: Prosecutor Leerkamp says that's why charges in Carmel case are misdemeanors." Read it in full.

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to Indiana Courts

Ind. Gov't. - More on "Sylvia Smith Gets Souder Exclusive Interview"

Updating this ILB entry from May 21st, here is Fort Wayne Journal Gazette Washingon editor Sylvia Smith's lengthy exclusive interview with resigned congressman Mark Souder, headed "Souder discusses affair, relationships damaged and decision to leave office." It begins:

WASHINGTON – What were you thinking?

Whether they were fans of Mark Souder, or found his worldview repugnant, or were just vaguely aware that he’s been their voice in Washington for nearly 16 years, Hoosiers are asking:

What were you thinking when you risked your family, your career and your reputation and embarked on a sexual affair with a married woman on your staff? How could you be so stupid?

A tidbit:
It ended, finally, about six months ago when the couple were in a parked car in a nature preserve in Whitley County. A Department of Natural Resources officer tapped on the window and told them to get moving.

There was no citation, no arrest. But as word leaked out, it was the incident that would end the affair and lead to Souder’s resignation.

Some perspective:
The somber phone conversations staff members were having and the tear-streaked face of the receptionist were a sharp contrast to the first Wednesday of January 1995.

That was the day Souder, then 43, was sworn in as a member of the freshman class that would reshape Washington for decades.

Souder’s jubilant family crowded into his new office along with 60 political supporters who had traveled to Washington by bus or on one of two private planes.

They were there to celebrate his victory over a three-term Democratic incumbent and to watch Souder be sworn in and then vote for the first Republican House speaker in 40 years, Newt Gingrich.

Later Souder described the moment: “I said, ‘Can you actually believe this is happening and they’re not taking it away? It’s all been so surreal.’ ”

Under Gingrich’s baton, the newly minted Republican majority set about to remake Washington’s laws, policies and ethics.

The members of the “Republican Revolution” promised to promote family values and be tight with the public purse. Leading up to the 1994 election, Republican candidates – including Souder – signed the Contract with America that committed them to bring 10 bills to the House floor on issues such as term limits and child pornography.

The preamble of the contract pledged “to end (Congress’) cycle of scandal and disgrace.”

The new Republican majority developed a reputation of holding itself – and others – to a higher moral standard.

But of the 73 members of Congress new to Washington that year, a dozen have been the subject of ugly headlines in their hometown papers and on the national news. The Class of ’94, as they called themselves, may not have stumbled any more or any differently from others, but the contrast between their actions and their “family values” mantra invited claims of hypocrisy.

Mark Foley resigned Congress in disgrace after lewd text messages to House pages were uncovered. Mark Sanford, after leaving Congress and becoming governor of South Carolina, was exposed as a cheat who carried on an affair with an Argentine woman whom he had traveled to meet at state government expense.

John Ensign, now in the Senate, had a widely reported affair with a campaign aide, the wife of one of his staff members. Bob Ney went to prison for accepting bribes.

Last week Souder’s name went on the scandal list.

In a second story today, Smith looks at money matters -- penion benefits, campaign account disposition, staffing.

In this commentary
ftoday, Smith writes that a double election is likely Nov. 2nd. It begins:
WASHINGTON – Should the special election to replace Mark Souder, who resigned last week after admitting to a sexual affair with an employee, be sooner rather than later?

The savvy Republican will push for as far from now as possible. The politically smart Democrat wants it ASAP.

The ick factor is just too big right now for Republicans to risk having the special election before there’s time for the revulsion to fade.

This Indianapolis Star "Behind Closed Doors" column today, headed "Do the math: $1 million-plus for 20 days of representation," reports:
Souder, a Fort Wayne Republican, became the latest politician to torpedo his career over sexual exploits with a staffer.

His downfall has left Daniels to weigh the district's need for representation versus the cost of holding an extra election to choose a successor.

"It appears that this might be a $1 million exercise to have a special election -- that's just the direct cost to the counties involved," Daniels said.

"But note that the earliest we can hold this election is the 20th of July. You know how Congress operates. They're out for August recess. They're out for Labor Day; they'll quit in September. So I've asked somebody to help us count the days. It looks like you might only miss 20 days."

So far, state Sen. Marlin Stutzman, R-Howe, and state Rep. Randy Borror, R-Fort Wayne, have said they want to replace Souder. Democrat Tom Hayhurst is his party's nominee for the November election.

Indiana Democratic Party Chairman Dan Parker has said he favors a November election to save money.

It looks like everyone agrees ...

Posted by Marcia Oddi on Sunday, May 23, 2010
Posted to Indiana Government

Saturday, May 22, 2010

Law "Many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one"

"Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says" is the headline to a story by Shannon Duffy in the The Legal Intelligencer. quoted here by the Sentencing Law and Policy Blog.

Posted by Marcia Oddi on Saturday, May 22, 2010
Posted to Courts in general

Courts - "Do Supreme Court justices tweet?"

Find the answer via the Washington Post, which features a short clip from "the answers given Thursday at a House Administration Committee hearing by Supreme Court Justices" Scalia and Breyer.

Posted by Marcia Oddi on Saturday, May 22, 2010
Posted to Courts in general

Courts - "Federal Judge Weinstein Takes On Child Pornography Laws"

From a long story by A.G. Sulzberger in the May 21st NY Times:

There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.

Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child. * * *

The child pornography industry has flourished through the Internet; the number of federal cases grew from fewer than 100 annually to more than 1,600 last year. As the number grew, Congress increased the recommended prison terms and established a mandatory minimum sentence of five years for anyone convicted of receiving child pornography. According to the federal defenders’ office, the average sentence was 91 months in 2007, up from 21 months a decade before.

But the tough penalties have chafed at many judges, echoing previous battles over drug cases. Last year, judges imposed sentences below the recommended range in more than half of all child pornography cases.

“What has caused concern in courts across the nation is that we have a lot of relatively law-abiding individuals sitting in the basement downloading the wrong kind of dirty pictures facing not just prison sentences but incredibly long prison sentences,” said Douglas A. Berman, a professor at Moritz College of Law of Ohio State University, who studies sentencing issues.

Posted by Marcia Oddi on Saturday, May 22, 2010
Posted to Courts in general

About this blog - ILB ranks high

This post today on the Adjunct Law Prof Blog, headed "Justia Ranks Adjunct Law Prof Blog 61st Most Popular of All Time," reports:

Justia ranks blogs. I am delighted to report that we [the Adjunct Law Prof Blog] are ranked number 61 of all time. It ranks 3,000 of them so this is quite an honor. Of course, Justia covers just law and legally related blogs. Who are the top 10 (actually 11)? They are as follows:
Check it out -- the ILB is #3: "Last Updated: May 21, 2010 - Rank All Time: 3."

Posted by Marcia Oddi on Saturday, May 22, 2010
Posted to About the Indiana Law Blog

Friday, May 21, 2010

Law - Fencing off trout streams

This article today in the South Bend Tribune, by Lou Mumford, caught my eye because I have read similar stories over the year. Mumford writes:

BUCHANAN MICHIGAN —Why does the fence cross the creek? More to the point, is it legal? In Buchanan, the spin-off on the chicken-crossing-the-road riddle is asked often, says Scott King. An avid fisherman and member of Friends of McCoy Creek — it was founded to assist what some might call "the reel McCoy,'' based on the creek's stature as a designated trout stream — King said more than a few Buchanan residents view restrictions on a public waterway as a contradiction.

Apparently, when it comes to the fence crossing the creek, they don't consider getting, or not getting, to the other side an acceptable answer.

It was only recently, King said, that he received a response from the Michigan Department of Natural Resources and Environment regarding the chain-link fence that straddles the creek a foot or two above the water near Centennial Park and the McCoy Creek Recreation Area.

King said a DNRE fisheries biologist informed him the owner of the property featuring the fence — R. McKinley Elliott, the Berrien County corporate counsel and a candidate for the county commissioners seat currently held by retiring Don Ryman — had every right to erect it.

"He explained McCoy Creek is a non-navigable stream. ... If a property owner owns property on both sides, he can fence off over the water," King said.

That position was confirmed Thursday by DNRE spokeswoman Mary Dettloff. As long as Elliott owns property on both sides of the creek — he does — and the fence doesn't impede fish — it doesn't — the fence can stand, she said.

For his part, Elliott said there's been a fence in place on the property, and over the creek, since before his family purchased it in 1958. The fence has been replaced on three occasions, most recently in 1986, for the sole purpose of family privacy, he said.

As King was reportedly told — efforts to contact the official he spoke with were unsuccessful — the creek's status as a non-navigable stream makes such a fence legal, Elliott said.

"In Michigan, navigable means it needs to be deep and wide enough for commercial logging. It goes back to the days of commercial sawmills," he said.

Dettloff agreed the log-flotation test — if logs can be floated on a body of water, the state terms the water navigable — was the rule until jurists determined the best course was to allow local courts to make such calls. Although that opened the door for roaming fishermen, or whomever, to challenge fences like Elliott's, Dettloff said ownership of property on both sides of a stream most likely would result in rulings favorable to property owners.

Here are some quotes from a 1997 story in the NY Times:
SHERIDAN, Mont., May 28— As wealthy out-of-staters buy ranches along prime trout streams in Montana, a battle is erupting over access to publicly owned rivers that flow through private land.

The fight is most heated along the Ruby River, a small waterway with a good trout population flowing through a valley of landowners who have put up fences to keep people off most of the river's lower stretch.

''People who grew up fishing this river can't get on it,'' said Tom Harman, a local fishing guide who contends that the Ruby has become an elite reserve. ''I haven't wet a boot in the Ruby in three years.''

Trout fishing was once an important part of life in this small ranching community. * * *

The conflict comes because the Montana Stream Access Law says the public owns the rivers. For recreation, including hunting and fishing, everyone has a right to get access to virtually any waterway that flows through private land. But many landowners have put up fences to keep people away from the streams. The matter is being reviewed by state officials. * * *

There have been a number of complaints from fishermen who have been yelled at and photographed and who have even heard warning shots fired as they fished prized trout streams flowing through private land, which is legal as long as they stay within the high-water marks.

Some landowners ''erroneously are trying to lay claim to a public resource,'' said Dick Oswald, a fisheries biologist for the Montana Department of Fish, Wildlife and Parks in nearby Dillon. ''I suspect they didn't do their homework before they bought land. This is America, not feudal Europe.''

Now from a 2008 NY Times story:
HELENA, Mont. — A group of landowners, including several wealthy out-of-staters, are none too happy that their exclusive use of a scenic trout-rich stream in the Bitterroot Valley is coming to an end.

The Montana Supreme Court ruled here recently that the 16-mile-long stream, Mitchell Slough, is open to the public and that the landowners are not entitled to fence it off as part of their private sanctuaries.

Montana law is firm in allowing the public access to streams and rivers that flow through private land, up to the high-water mark. The law states that fishermen can walk in a stream or along the bank up to the high-water mark if they enter the waterway from public land like a bridge. They may not cross or walk on private land above the mark without permission.

In this case, though, two dozen landowners — including the rock singer Huey Lewis and Charles R. Schwab, founder of the brokerage firm that bears his name — argued that irrigation diversions had so thoroughly altered Mitchell Slough that it was no longer a natural waterway and that therefore the stream access law should not apply. To reinforce that belief, they began calling it Mitchell Ditch.

Another NY Times story, from 2006, begins:
PITTSBURGH - Pristine trout streams are the pride of central Pennsylvania, but a legal battle over public access to one of its finest - the Little Juniata, known to many as the Little J - has created concerns among landowners and anglers nationwide.

The Commonwealth of Pennsylvania, the state's department of environmental protection, the state's department of conservation and natural resources, and the Pennsylvania Fish and Boat Commission are suing a landowner and a private fishing club for prohibiting the public from angling on a 1.3-mile stretch of the Little Juniata in Huntingdon County. Defendants in the suit include the Spring Ridge Club and its operator, Donny Beaver, and Connie L. Espy, the property owner who leases the stream to the club.

The plaintiffs assert that the waterway is navigable, and therefore public property. They filed suit, scheduled for a nonjury trial in Huntingdon County common pleas court on June 12, after more than a decade of confrontations over access to the river, which club members have paid tens of thousands of dollars to fish.

"If you go back and read our founding fathers, they didn't say life, liberty and the pursuit of happiness; they said life, liberty and the right to own and control property," Beaver said. "Our goal is to save these trout streams from being sprawled into another shopping mall, like the one that got built near the headwaters of the Little J. They're better off in our hands."

But Stan Stein, a lawyer representing a tackle shop owner, Allan Bright, in a separate suit against Beaver and his club, said landowner motives were seldom altruistic, and he expressed alarm over the privatization trend. "If you fish out West, as I do," said Stein, who is also working with the Commonwealth on its case, "you've got the wealthy Hollywood crowd building these 20,000-square-foot ranch houses and trying to limit access to what Beaver would call 'the free-lunch bunch.' We need to send them a message."

How such messages are heard varies widely from state to state, as do laws about water and submerged-land rights. Waterways are considered public property if they are federally designated as navigable, or large enough to carry commercial traffic. But when it comes to smaller rivers, even those that states consider navigable, there is no uniformity in how they are allowed to be used, and decisions are often made on a case-by-case basis. About the only things states share, according to Leon Szeptycki, general counsel of the coldwater conservation group Trout Unlimited, "is a steady diet of disputes between landowners and folks who want to fish."

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to General Law Related

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

This April 24, 2010 ILB entry discussed IDEM's efforts, beginning in 2005, to put in force state-wide rules re wood-fired outdoor boilers. In the absence of state-wide standards, individual communities have endeavored to address the issue. Here is a May 20, 2010 item by Chris McHenry in the Lawrenceburg Journal-Press:

Greendale has followed the lead of Lawrenceburg and Dillsboro in banning outdoor wood burning furnaces that provide heat to buildings.

The new ordinance was passed as an emergency measure at the May 12 Greendale City Council meeting, using the Lawrenceburg ordinance as a model.

Opponents of the outdoor furnaces point to smoke pollution, from chimneys that are far lower than those on buildings.

It appears these entities are going beyond regulating, and instead, are outright banning the units.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Environment

Ind. Decisions - "Infomercial pitchman spared 30 days in prison"

Yesterday's 7th Circuit opinion in the case of FTC v. Kevin Trudeau (ILB entry here) is the subject of a story in the Chicago Tribune today by Duaa Eldeib. Some quotes:

Infomercial pitchman Kevin Trudeau was spared 30 days in prison when a federal appeals court Thursday overturned a ruling in which a judge held him in criminal contempt of court.

U.S. District Judge Robert Gettleman had made the ruling after Trudeau urged supporters to communicate with the judge, and the judge's e-mail inbox was flooded with messages.

Gettleman has been presiding over a dispute between the Federal Trade Commission and Trudeau regarding Trudeau's hair- and weight-loss treatments.

The e-mails — more than 300 within about 36 hours — impeded the court's means of communication and required a threat assessment to determine if Gettleman was in danger, the judge had argued.

"Leave (K)evin and his right to free (speech) alone. I wish (k)arma on your soul this very moment," court documents quoted one e-mail to the judge as saying.

Trudeau's lawyer, Kimball Anderson, had said the e-mails were not intended to disable Gettleman's computers. He also contended that his client could not be held in contempt because Trudeau was not actually in Gettleman's presence when the e-mails piled up. Gettleman's position was argued by an appointed lawyer, Gary Feinerman, who declined to comment Thursday.

The 7th Circuit Court of Appeals opinion, written by Judge John Daniel Tinder, held that there was not a compelling reason to immediately punish Trudeau. In addition, Tinder wrote, the actions did not take place in the judge's presence, despite Gettleman's argument that he read the e-mails on the court computer. Gettleman's judicial action was ultimately "an abuse of discretion," the three-judge panel held.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "FSSA disclosure, transparency, evaluation must be priorities"

State Rep. Gail Riecken, District 77, Evansville, has a long opinion column today in the Fort Wayne Journal Gazette -- here is a short sample:

The time has long passed for the Daniels administration to institute a program of quality, humane and fiscally sound management for the Medicaid, food stamp and family assistance programs for which it is legally responsible.

We must demand to know how much this new system is costing taxpayers compared with the costs of the prehybrid/modernization models. Why can’t the Ways and Means Committee, which is charged with forming the state’s biennial budget, obtain from the Family and Social Services Administration a full accounting of the costs associated with the services provided by the agency despite repeated requests?

What is certain is that Hoosiers deserve better. Hoosier taxpayers deserve a full accounting of how much money we’ve lost in this deal, and struggling families, senior citizens and people with disabilities deserve a fairer and more responsive system. * * *

Hoosiers deserve complete disclosure of how the new system will be improved for those in need and what the final cost will be. Nothing less is acceptable.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Government

Ind. Courts - Even more on: Criminal charges filed against Plymouth attorney

Updating this ILB entry from Dec. 3, 2009, Virginia Ransbottom of the South Bend Tribune reports:

PLYMOUTH — A plea bargain was rejected Thursday by Marshall Superior Court 1 Judge Robert Bowen in the case of suspended attorney Ronald Gifford, 59, of Plymouth.

Gifford's license was suspended in 2008 for allegedly forging IRS confirmations of tax-exempt status for Fairfield and Mentone Garden Court facilities, two low-income HUD housing projects for the elderly and developmentally disabled.

Last year, Gifford was charged with felony theft from the account of the Wyland, Humphrey, Wagner and Clevenger law firm, of which Gifford was a partner.

Court records show the thefts involved two checks written between 2004 and 2006 for about $100,000.

By pleading guilty, Gifford would have received no jail time, performed 200 hours of community service and received two years' probation in which he could not request a license as a practicing attorney. * * *

Bowen said both sides had good arguments, but he could not get over the violation of trust and pattern over a period of time of making payments to get off easier.

"For those factors, I cannot accept the plea agreement at this point," he said.

A new status/plea hearing was set for 10 a.m. next Thursday. Bowen said if assistant prosecuting attorney Marc Morrison and Gifford's attorney did not come up with an acceptable agreement at that time, the case could go to a jury trial in six weeks.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Courts

Ind. Gov't. - "Indiana residents can apply online to become notaries"

From the AP:

People who want to become notaries public in Indiana can now receive training and apply for state commissions online.

The Indiana secretary of state's office has set up a website with applications and renewal forms as well as training modules.

Commissions and renewals now will be done exclusively online.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (5):

Taylor A. Reynolds and Sheryl Reynolds v. Vernon Bothwell and Sanjuanita Bothwell (NFP) - "A Trial Rule 75(B) motion to transfer is not one of the express and absolute exceptions to Trial Rule 6(B). See White v. Livengood, 390 N.E.2d 696 (Ind. Ct. App. 1979). The fact that Trial Rule 75(B) is not included in this list of exceptions leaves the trial court with the discretion to order enlargements of time in such cases where there is excusable neglect and no prejudice to the other party. This appears to be what the trial court did in this case, and we find no error. The trial court did not abuse its discretion in denying the Reynoldses’ motion to dismiss."

JADCORE, Inc. v. C & C Elevators, et al. (NFP)

T.H. Alleged to be C.H.I.N.S.; M.H. v. IDCS (NFP)

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

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

NFP criminal opinions today (6):

Steven A. Magness v. State of Indiana (NFP)

Damiean Mack v. State of Indiana (NFP)

Wesley L. Daniels v. State of Indiana (NFP)

Lanny R. Hissong v. State of Indiana (NFP)

Allen Horton v. State of Indiana (NFP)

John Allison v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Ind. App.Ct. Decisions

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

In Estate of Norman Blanco v. Prudential Insurance (SD Ind., McKinney), an 11-page opinion, Judge Evans writes:

The phrase “preexisting condition” was frequently in the news as efforts to enact national health care reform were debated over the last year. And although our case today involves a preexisting condition exclusion, there is a twist. The clause in this case is not one that denies coverage for health care expenses. Instead, it’s in an ERISA plan (the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 101 et seq.) promising to pay long term disability benefits to an employee who can no longer do his job. The case is a sad one as the employee, Norman Blanco, died after he struck out in the district court. His estate, which was substituted to fill his shoes, has carried on with this appeal from the judgment of the district court. * * *

If Blanco’s heart attack had occurred anytime after May 4, 2006 (i.e., 282 days after it actually hit), the preexisting exclusion clause in the plan would not have kicked in. Because his disability occurred when it did, Blanco had to get past two roadblocks to receive benefits. The plan’s preexisting exclusion clause defeats a claim for LTD benefits if an employee like Blanco:

A. received treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines, or followed treatment recommendation in the 3 months prior to the effective date of coverage, or

B. had symptoms for which an ordinarily prudent person would have consulted a health care provider in the 3 months prior to his effective date of coverage. * * *

The purpose of the policy is to exclude from coverage a person who is aware of something—be it a sign or symptom—for which a reasonably prudent person should seek treatment. Since Dr. Bobzien told Blanco of his extraordinarily high blood pressure and recommended hospitalization, Blanco’s hypertension was a preexisting condition under subsection (b) of the policy. Therefore, Blanco is not eligible for LTD because his disability—in particular his CHF and dilated cardiomyopathy—was due to this preexisting condition.

For these reasons, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - ""Transfers Granted" e-mails from Supreme Court Administration Office to be discontinued"

The ILB has just received a lengthy email, from Kevin S. Smith, Supreme Court Administrator & Clerk of the Appellate Courts and Tax Court, that begins:

To our friends to whom we have been sending regular "Transfer Granted" emails for the last several years:

I write to let you know that, in an effort to increase efficiency and eliminate redundancy, the Supreme Court Administration Office we will no longer be sending out "Transfer Granted" e-mails.

That is too bad. These were the brief notes the ILB and a number of others received, generally on the day the Court conferenced, telling us in which cases the justices had granted transfer. The ILB would immediately add background and post the information, within an hour of receipt. Here is an example of the result after the ILB has added value, from Feb. 26, 2010.

The Clerk's transfer list, which lists both grants and denials, is not made available until the following Monday or sometimes later, so it has been very useful over the past few years to receive notice of grants in advance. From the email:

Because the Clerk's Transfer Action Report contains the same information that our staff is separately typing up in these "Transfer Granted" emails, it makes little sense, administratively, for us to continue separately producing and transmitting the "Transfer Granted" e-mails as well, especially when the resources we devote to this effort are greatly needed elsewhere.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Courts | Indiana Transfer Lists

Ind. Gov't. - "Sylvia Smith Gets Souder Exclusive Interview"

Mitch Harper of Fort Wayne Observed has this entry this morning, with a tribute to the capabilities of the highly-respected Washington editor of the Fort Wayne Journal Gazette, Sylvia Smith.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Government

Courts - "Republicans Push Lawsuits to Unshackle Corporate Campaign Cash"

Jonathan D. Salant reports today in Business Week, in a lengthy story -- some quotes:

May 21 (Bloomberg) -- The Republican Party and conservative advocacy groups, seeking to capitalize on the Supreme Court’s January decision throwing out a ban on corporate political spending, are urging judges across the U.S. to strike down other campaign-finance restrictions.

Since the Supreme Court’s 5-4 ruling in Citizens United v. Federal Election Commission, a federal appeals court in Washington has already said the FEC can’t limit donations to groups that fund advocacy campaigns independently from candidates or parties.

Campaign laws are under constitutional attack in at least four other pending lawsuits, as opponents bet that a majority of the Supreme Court now may be willing to abolish political spending regulations, said Craig Holman, who handles campaign issues for the Washington-based advocacy group Public Citizen.

“It has just spawned a wide number of challenges to just about every element of the campaign-finance law, even elements that were sacrosanct, like disclosure,” Holman said of the Citizens United case.

If lower courts expand on the Supreme Court’s decision, corporations, unions and wealthy individuals may gain added leeway to spend unlimited amounts to support or defeat candidates in November’s elections, perhaps without telling voters who bankrolled their efforts. * * *

Another independent group, the Committee for Truth in Politics, is challenging reporting and disclosure requirements in a North Carolina federal court. The group funded ads opposing Obama and the Democrats’ proposed overhaul of financial regulations. The case is awaiting trial.

James Bopp Jr., a lawyer and Republican National Committee member from Indiana, represents the Real Truth and Committee for Truth groups. Contributors fear harassment if their names are publicized, and the law shouldn’t limit contributions to organizations airing issue-oriented ads that don’t call for the election or defeat of candidates, Bopp said.

For those groups, disclosure and contribution rules are “extremely destructive” of their “ability to operate effectively,” Bopp said.

Tara Malloy, associate counsel of the Washington-based Campaign Legal Center, said that without campaign-finance restrictions, special interests will flood airwaves with anonymous attack ads.

“The goal is to scale back disclosure to the point that there is no meaningful information about the funders of ads,” Malloy said.

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Courts in general

Ind. Gov't. - What happens with Souder's constitutents and staffers, while the office is vacant?

Supplementing yesterday's entry about the timing of the special election, Sylvia Smith, Washington editor of the Fort Wayne Journal Gazette, reports today:

WASHINGTON – Mark Souder’s name may be off the door of his Washington and Indiana offices as of this weekend, but it won’t be lights out for the 19 people who spend most of their workday helping constituents.

The employees will remain, supervised by the clerk of the House, until a replacement is selected in a special election this year. * * *

At least half a dozen times a year, one of the 535 House members dies or resigns, sometimes in scandal and sometimes to run for another office.

When that happens, the House has a procedure that comes down to this: No one from the vacated office can cast a vote on the House floor or ask a question in a committee meeting. Otherwise, the work of the congressional office goes on.

“It’s called the caretaker provision,” said Kyle Anderson, spokesman for the House Administration Committee.

Someone from the clerk’s office will visit the office on a regular basis and handle any administrative details that typically would require an elected official’s signature.

But beyond that, Anderson said, “the ongoing operation of the office is focused largely on constituent service.”

Posted by Marcia Oddi on Friday, May 21, 2010
Posted to Indiana Government

Thursday, May 20, 2010

Ind. Gov't. - "Special election to run $500,000, unless it’s in fall" [Updated]

This story by Benjamin Lanka in the Fort Wayne Journal Gazette looks at the options re the timing of filling the seat to be vacated by Rep. Mark Souder. It begins:

A special congressional election could cost northeast Indiana taxpayers more than $500,000, but some efforts are under way to eliminate that expense.

Gov. Mitch Daniels is required to call a special election to fill the vacancy when Rep. Mark Souder’s resignation takes effect Friday. Souder announced Tuesday he is leaving Congress after admitting an affair with a part-time staffer.

Such an election would not be cheap. Estimates from counties across the district revealed it could cost as much as $540,000 with Allen County bearing about half the bill. Allen County, however, will also have the most sway in the upcoming Republican caucus when it comes to deciding who will appear on the ballot.

[Updated] Yesterday the FWJG published this article on its editorial page, headed "... Special election concerns." It reads:
Two conflicting issues are at play in determining when northeast Indiana will elect a U.S. representative to fulfill Mark Souder’s term though the end of the year.

Though the principles involved may well be debated, make no mistake: One issue favors Republicans, the other Democrats.

Ultimately, Gov. Mitch Daniels will decide by setting the legal deadlines in motion. Once he certifies an election is necessary, it will take at least 60 days to have a special election – late July at the earliest.

On the one side, such an election will be costly (tens of thousands of dollars in Allen County alone, according to early calculations). Each of the counties in the 3rd District would have to stage an election for a single race.

Don’t be surprised to hear some Republicans call for delaying the special election until the general election Nov. 2 – or even just keeping the seat vacant until January.


Because the sooner an election is held, the more it would benefit Democrat Tom Hayhurst. And if Hayhurst wins a special election, he would gain an advantage for the general election in November. Hayhurst is already running for Congress, with a crew of volunteers and support staff already recruited. And the fresher the reasons for Souder’s resignation are in voters’ minds, the more it will help the opposition party.

So Democrats may well argue that northeast Indiana should not go without House representation any longer than possible. In coming months, Congress will most likely vote on an energy policy. Proposals to toughen regulation of the financial industry are likely to face votes. Whether or not to extend tax cuts almost certainly faces a vote this year.

Yes, there is a principle here: Is it worth the cost of a special election to have a U.S. representative for a couple of months longer? Can a section of a state afford not to have a U.S. representative for a few months?

But as Indiana politicians debate those questions, don’t forget the political motivations behind them.

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Indiana Government

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

For publication opinions today (1):

In Jerry J. Alexander v. Susan C. Alexander . a 28-page opinion, Judge Riley writes:

Appellant-Respondent, Jerry J. Alexander (Jerry) appeals the trial court‘s amended disposition decree issued pursuant to the dissolution of his marriage to Appellee-Petitioner, Susan C. Alexander (Susan), and Susan cross-appeals. We affirm in part, and remand for further proceedings.

Jerry presents three issues for our review, which we restate as the following issue: Whether the trial court abused its discretion or committed clear error when valuing the property of the marriage and then distributing it.

Susan presents two issues in her cross-appeal, which we restate as the following issue: Whether the trial court abused its discretion or committed clear error when valuing the marital property and then distributing it. * * *

Based on the foregoing, we conclude that the trial court did not abuse its discretion or commit clear error when valuing and distributing the marital property of the parties, except that the trial court‘s Order failed to account for approximately $31,000 worth of personal property. We remand for the trial court to distribute this property and adjust its spilt of the marital property accordingly.

NFP civil opinions today (2):

Term. of the Parent-Child Rel. of N.L. and J.A.; J.A. v. IDCS (NFP)

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

NFP criminal opinions today (3):

Donald Keller v. State of Indiana (NFP)

Jeremy A. Barker v. State of Indiana (NFP)

Darryl Gayden v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Ind. App.Ct. Decisions

Courts - Two interesting non-Indiana opinions today from 7th Circuit

Pella Corp. v. Saltzman, et al - 11-page, Per curiam:

Pella Corporation manufactures windows for homes and sells them through its subsidiary, Pella Windows and Doors, Inc. (collectively “Pella”). Over the last 18 years, Pella has sold more than six million aluminum-clad wood “ProLine” casement windows nationwide. Plaintiffs, owners of structures containing the windows in question, allege that the windows contain a design defect that permits water to seep behind the aluminum cladding and causes the wood to rot at an accelerated rate. In response to the number of windows needing replacement, Pella created the “Pella ProLine Customer Service Enhancement Program” to compensate affected customers. According to Plaintiffs, Pella attempted to modify its warranty through the program but never informed the end consumers of the program’s existence or of the defect. Plaintiffs brought suit against Pella, alleging that it committed consumer fraud by not publicly declaring the role that the purported design defect plays in allowing rot. After the district court certified two classes of plaintiffs, Pella sought permission to appeal the certification pursuant to Federal Rule of Civil Procedure 23(f). We grant Pella’s Rule 23(f) petition for permission to appeal and affirm the district court’s decision certifying the classes.
FTC v. Kevin Trudeau is a 16-page opinion from Judge Tinder. Here's a quote:
Trudeau is before us again. This time he’s been sentenced to thirty days in jail after he was found in direct criminal contempt of court for his conduct during the civil contempt proceedings. (We discussed the difference between civil and criminal contempt in our prior opinion in this case, id. at 769.) Trudeau, it seems, exhorted his devoted radio audience to send e-mails on his behalf directly to the court e-mail address of the district judge presiding over his case; he posted the radio broadcast on his web site, and followed it up with an e-mail blast asking his e-mail list to send e-mails to the judge. The district judge had not asked for any letters and the judge had not (he thought) made his e-mail address publicly available (it turns out Northwestern University Law School had listed it on its web site; the judge is an adjunct professor there). He was, therefore, surprised to see e-mail after e-mail come pouring into his inbox. He was also nervous. Most of the e-mails were polite and enthusiastic (“If loving the values Kevin Trudeau creates for society is wrong, I don’t wanna be right!”), but some had threatening overtones (“Leave kevin and his right to free spach alone. I wish carma on your soul this very moment. may god touch you today.” [sic throughout] and “More people than you know are keeping a close eye on this case, not just the special interests who will benefit from Kevin’s silence, but every-day regular people. We know that if he can be persecuted, so can we. We are awake to the tyranny slowly and quietly creeping into our society. We are watching.”). The judge alerted the marshal to the e-mails coming to his account, and the marshal performed a threat assessment to determine whether the judge was in danger. The judge received over 300 e-mails within a span of 36 or so hours.

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

Environment - More on "BP, environmentalists debate oil sand"

Updating this ILB entry from May 8, 2009, Gitte Laasby of the Gary Post Tribune reports today:

When BP Whiting starts processing more Canadian oil sands, residents near the refinery will experience more pollution and health effects from it, according to a new report by a coalition of environmental groups. * * *

In a "Tar Sands Invasion" report released this week, four environmental groups called tar sands the "largest and most destructive project on earth," saying it contributes to acid rain; causes three times the global warming pollution of conventional oil; leads to loss of boreal forests in Canada, which is migratory bird habitat; and that the 10,000 miles of pipelines that will transport the Canadian tar sands have the potential to leak and cause oil spills.

"Pipelines bring a danger of oil spills to America's agricultural heartland, while pollution from refineries would threaten local communities and the Great Lakes. All of these environmental consequences are unnecessary because, due to declining demand and improving energy efficiency, the United States does not need tar sands oil," the report said.

Here is the 36-page report, "Tar Sands Invasion: How direty and expensive oil from Canada threatens America's new energy economy." It is available on this website, dirtyoilsands.org.

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Environment

Ind. Courts - "How do cops handle mentally ill? Special training given to new Crisis Intervention Team"

Jeff Parrott of the South Bend Tribune has a report today on a three-day Crisis Intervention Team training seminar this week at South Bend Police Department headquarters, attended by area police, firefighters and other health care and social service providers.

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Indiana Courts

Ind. Decisions - More on "East Chicago can ask for changes in casino money distribution"

Updating yesterday's ILB entry on the Supreme Court's decision Tuesday in the case of Foundations of East Chicago v. City of East Chicago, et al, Dan Carden reports today in the NWI Times under the headline "AG praises outcome in E.C. casino case ." From the story:

Attorney General Greg Zoeller praised the Indiana Supreme Court on Wednesday for its decision giving East Chicago a procedure to alter the distribution of city casino revenue.

"We have always contended the elected city council members, as the city's fiscal body, had the legal right to extricate themselves from a questionable deal brokered by former Mayor (Robert) Pastrick. That's what the legislature intended, and that's what the Indiana Supreme Court found Tuesday," Zoeller said.

East Chicago receives 3.75 percent of the adjusted gross revenue from Ameristar casino as part of a local development agreement signed in 1995 between the city and the casino. More than half of that money is paid to Foundations of East Chicago, a nonprofit organization focused on economic development.

Mayor George Pabey wants the city to control those economic development funds, and a 2007 state law gave the city authority over those funds. Foundations sued the city and the state of Indiana seeking to have that law ruled unconstitutional.

The Indiana Supreme Court did not address the constitutionality of the law in its 5-0 decision, but instead said any change in the distribution of funds can be made, so long as the Indiana Gaming Commission approves.

The Gaming Commission has not received any request for a change in East Chicago's casino revenue distribution.

Over the past three months, Zoeller has visited East Chicago urging city council members to reject a settlement proposed by the mayor involving Second Century Inc., a for-profit foundation also funded by a slice of the city's casino revenue. Zoeller wants the council to reclaim city spending authority from Pabey.

"Citizens have the right to insist their elected representatives direct the flow of casino dollars to purposes that best meet the community's needs," Zoeller said.

A spokesman for the mayor said Pabey was "elated" by the court's decision and saw it as "a monumental victory" for East Chicago.

"By voiding these contracts with the Foundations of East Chicago, the city stands to gain millions of dollars to continue the city's rebuilding efforts," spokesman Damian Rico said. "Mayor Pabey will make sure this revenue will be used for the betterment of East Chicago."

Here is the press release issued yesterday by Zoeller.

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "Is a lifetime in jail the best way to deal with sex offenders?"

Newsweek columnist Mary Carmichael wrote yesterday on Monday's SCOTUS decision in US v. Comstock (ILB entry here) in an article that begins:

On Monday, the Supreme Court released two important decisions about the prison system: one ruling that juveniles can't receive life sentences for crimes other than murder and another that the federal government is allowed to hold sex offenders in custody indefinitely, even after they have completed their sentences. The first ruling was hailed as a victory for civil rights, but the second barely occasioned any outcry on behalf of the inmates it affects. The reason is obvious: who wants to be on the record defending sexual offenders?

The ruling "is in line with what a lot of communities have been doing already," says Tony Grubesic, an associate professor of geography at Indiana University, Bloomington, who has studied how prison systems deal with sex offenders. Many state governments already detain offenders after their sentences in "civil commitment" programs if the inmates are judged to be at risk of molesting or raping again. Yesterday's decision simply extends that power to the feds. "The trend is toward increasingly punitive measures," Grubesic says. "I'm not surprised by the court's decision."

Posted by Marcia Oddi on Thursday, May 20, 2010
Posted to Courts in general

Wednesday, May 19, 2010

Ind. Decisions - Supreme Court decides one today

In Gabino Gonzalez v. State of Indiana, a 6-page, 5-0 opinion, Justice Boehm writes:

We hold that a defendant’s statements made to a victim or to the court in an effort to gain acceptance of a plea agreement by the court are statements in connection with a plea agreement and therefore are not admissible in evidence pursuant to Evidence Rule 410. In this case the defendant’s letter of apology to a victim was admitted at his trial after a plea agreement was rejected. This was error but under the facts of this case the error was harmless. * * *

Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while intoxicated endangering a person. The trial court took the plea agreement under advisement and postponed the sentencing hearing to permit EVSC to consider whether to object to the agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret to all who were ―involved in the terrible accident I caused,‖ apologizing for his "irresponsible actions" and "poor decision to drink that day," and asking EVSC to show compassion to him and his family. He promised to seek alcohol counseling and asked EVSC to consider that "no one was hurt in the accident."

The court rejected the plea and the case went to trial where Gonzalez’s letter was admitted over his objection. After the court dismissed the charge of operating a vehicle with a blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.

The Court of Appeals reversed, finding that Gonzalez’s letter was inadmissible because it was written as a part of a plea negotiation and that the error "likely had a significant effect on the jury." * * *

Here, Gonzalez and the State had agreed to a proposed plea agreement. Before the agreement could be finalized, it required approval of the trial court. EVSC, as a victim of the accident, had a right to express its opinion to the court as to approval of the agreement. Gonzalez then wrote the letter in question to EVSC in an attempt to persuade it to accept the agreement. Gonzalez’s letter had "as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant." Gilliam, 650 N.E.2d at 49 (quoting Crandell v. State, 490 N.E.2d 377, 380 (Ind. Ct. App. 1986) trans. denied). Gonzalez’s letter was therefore a communication made in connection with his guilty plea. Accordingly, the trial court erred in admitting the letter at trial. * * *

In short, the evidence supporting Gonzalez’s conviction was overwhelming without the letter. Five witnesses—including four who had received training in identifying intoxicated individuals—testified that Gonzalez appeared to be intoxicated at the time of the accident. Gonzalez’s excessive speed and failure to yield constituted reckless driving. Gonzalez "flew" through a residential neighborhood, caused more than $25,000 in damages to the bus he struck, and endangered thirteen students, the bus driver, Gonzalez’s passenger, and other bystanders. There was essentially uncontroverted independent evidence supporting each charge, and the error in admitting his letter was therefore harmless.

Conclusion: Gonzalez’s conviction and sentence are affirmed.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Girls convicted in 1997 Jeffersonville stabbing seek reduced sentence: Prosecutor wants judge Fleece removed after comments at hearing"

Updating this April 9, 2010 ILB entry, Matt Thacker of the Jeffersonville News & Tribune has a lengthy follow-up story today, headed: "Judge hears arguments in 1997 Jeffersonville stabbing Attorneys say women should be released from prison."

The story reports "There was confusion from the outset of the hearing Tuesday." That confusion is reflected in the story itself.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Indiana Courts

Environment - "Attorney for General Electric Battles EPA Use of 'Sledgehammer' in Superfund Cases"

The subhead: "Sidley's Carter Phillips argues that unilateral administrative orders were meant to be used only in emergency situations but have become a go-to enforcement tool."

Environmental lawyer-readers will recognize this as a long-running battle.

Jeff Jeffrey has the story today in The National Law Journal. Some quotes:

At the U.S. Court of Appeals for the D.C. Circuit on Tuesday morning, lawyers for the General Electric Co. and the Environmental Protection Agency sparred over the constitutionality of a legal tool used to force the cleanup of hazardous waste sites. Carter Phillips, managing partner of Sidley Austin's D.C. office, faced off against Justice Department attorney Sambhav Sankar.

The D.C. Circuit appeal is the latest chapter in a decadelong effort by GE to prove that a provision of the federal Superfund statute is unconstitutional. The Superfund statute, known formally as the Comprehensive Environmental Response, Compensation and Liability Act, was passed in 1980 to ensure that polluters would pay for the environmental hazards they created. The provision in question permits the EPA to unilaterally order a private party to clean up a site that poses an "imminent and substantial" threat to public safety. Companies that fail to follow the unilateral administrative order face stiff fines.

Phillips argued that the EPA's use of such orders violates the private party's due process rights. That's because companies must spend money to clean up and take a hit to their market value caused by the bad publicity of being labeled a polluter before getting a chance to challenge the order in court, Phillips said.

"What you've got is an agency of the government engaging in a specific adjudicative process without an independent adjudicator presiding over it," Phillips told the panel composed of Judges David Tatel, Judith Rogers, and Thomas Griffith.

Even if that's true, said Griffith, any fines imposed under a unilateral administrative order can't be enforced without a court order. "The [order] is just a step in the process, not the end of the process," Griffith said. "GE doesn't have to pay a dime until an Article III court tells them too."

Phillips countered that, while a company waits for a court to determine whether it may be held liable, the public will hear that the company is in "violation" of the law, which will damage its stock value. Also, there's a $37,500 fine for each day of noncompliance, he pointed out.

Phillips said that the unilateral administrative orders, which he called the EPA's "sledgehammer," were designed to be used only in emergency situations, but have become a go-to enforcement tool.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Environment

Ind. Courts - More on: List posted of lawyers suspended for failing to pay registration fees or comply with CLE requirements

Updating this ILB entry from yesterday, the NWI Times today has a story by Susan Brown, headed "16 Lake County lawyers suspended ." It begins:

CROWN POINT | Sixteen Lake County lawyers have had their licenses suspended for failing to complete required continuing education classes or pay attorney registration fees, or both.

Most prominent among them are former Gary Mayor Richard G. Hatcher, county election board attorney Bruce Lambka and Marissa McDermott, the wife of Hammond Mayor Thomas McDermott Jr.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Indiana Courts

Ind. Gov't. - "LaPorte turns to Supreme Court for tax help"

Stan Maddux of the South Bend Tribune reported May 18, 2010 in a story that gives an overview of several related legal issues:

LAPORTE — Officials in LaPorte are turning to the Indiana Supreme Court to force a quick decision on the still pending tax reassessment to keep the city from possibly running out of money.

City Attorney Don Baugher submitted a written request asking the state's highest court to immediately assume jurisdiction over the matter and issue a quick ruling.

"We're just hoping under the circumstances the court will accept our petition," said Baugher.

The property tax reassessment that began in 2007 is still awaiting a final decision in the Indiana Tax Court. A proposed settlement reacher earlier this month has been approved by the LaPorte County Commissioners, Michigan City Area Schools and all other parties involved, including LaPorte County Assessor Carol McDaniel, whose legal challenge forced the disputed reassessment into the tax court.

Her attorney, Mark GiaQuinta said McDaniel signed the settlement Friday. Under the agreement, her $35,000 in legal expenses will be covered.

Property owner George Wendt of Long Beach has also filed a motion with the Indiana Supreme Court challenging the validity of the legal action taken by McDaniel that sent the case to the tax court.

Wendt and other lakefront property owners claim the 2006 figures approved under terms of the agreement are flawed and would unfairly raise their property taxes to much higher levels than many other property owners in the county.

Baugher said the case will likely be decided by the Indiana Supreme Court, given the most recent snags and possibility for other appeals. Baugher is asking the high court to assume jurisdiction now to expedite when official tax bills can start being distributed again.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Indiana Courts | Indiana Government

Ind. Decisions - "East Chicago can ask for changes in casino money distribution"

Yesterday's Supreme Court opinion in the case of Foundations of East Chicago v. City of East Chicago, et al. (ILB summary here) is the subject of stories today in the two northwest Indiana papers.

Dan Carden reports in the NWI Times:

The city of East Chicago can seek changes in how it spends its casino revenue and is not permanently bound by a 15-year-old agreement, the Indiana Supreme Court ruled Tuesday.

In a 5-0 decision, the state's high court said East Chicago can alter the distribution of money from a 1995 local development agreement between the city and Ameristar Casino if the Indiana Gaming Commission approves the changes.

Under that agreement, 2 percent of the 3.75 percent in adjusted gross revenue East Chicago is entitled to from the casino is paid directly to Foundations of East Chicago, a nonprofit organization created to promote economic development in the city. Mayor George Pabey wants the city to receive and control those economic development funds.

Foundations sued the city and the state of Indiana arguing that a provision in the 2007 state budget giving the city authority to control those funds was special legislation not permitted by the Indiana Constitution. The court sidestepped the constitutional question, saying the dispute can be resolved through nonconstitutional means.

"We conclude that the 2007 provision did not alter in any substantive way the statutory framework under which the Gaming Commission regulates licenses and license conditions, and thus find it unnecessary to rule on its constitutionality," Chief Justice Randall Shepard wrote.

The Gaming Commission will be prepared to hear any requests East Chicago may make concerning the local development funds, Executive Director Ernie Yelton said. No change requests currently are pending.

"The Supreme Court has recognized the Gaming Commission as having the ultimate jurisdiction and authority over local development agreements," Yelton said. "Anything could be changed, but only upon presentation and approval by the Gaming Commission."

A spokesman for Pabey said the city will seek legal counsel before deciding what to do next.

"It is Mayor Pabey's main priority to make sure that these revenues will be used for the betterment of East Chicago," spokesman Damian Rico said. "Ultimately we want the monies returned to the city to be spent the way they should be spent."

The attorney for Foundations of East Chicago said the organization is comfortable leaving the decision over the money in the hands of the Gaming Commission.

"I'm very pleased that the court clearly said that the city didn't have a blank check on this, that it can decide what it wants to do and that's it," attorney Peter Rusthoven said. "I'm hopeful we can work with everybody involved to get it resolved."

At stake is an estimated $14 million that has accumulated in an escrow-type account while the dispute has been in court, as well as future payments from Ameristar. Yelton said Tuesday's court decision means the Gaming Commission will decide who gets that money and how it is distributed.

"The commission will take every effort possible to ensure that if any monies are released that they will go towards the economic development of the city and nowhere else, regardless of whoever the recipient is," Yelton said.

Christin Nance Lazerus has this story in the Gary Post Tribune. Some quotes:
The Indiana Supreme Court ruled that the Indiana Gaming Commission has authority to ratify any changes to the development agreement between East Chicago and the Foundations of East Chicago Inc.

The unanimous decision was written by Chief Justice Randall Shepard and released Tuesday.

The agreement is one of the controversial deals brokered under former Mayor Robert Pastrick.

Foundations of East Chicago Inc. and Second Century Inc. have collected millions of dollars in casino boat money since 1996.

Since 2005, Mayor George Pabey has been fighting to tear up the agreements and claim the monies for the city.

The Foundations of East Chicago filed the suit arguing that the Indiana General Assembly did not have standing to enact a provision in its 2007 budget bill that allowed the city to void the agreement.

The city passed an ordinance to redirect all funding under that agreement to itself.

About $14 million has accumulated in an escrow account since the legal fight started.

Pabey spokesman Damian Rico said the mayor was pleased with the court's decision.

"By voiding these contracts with the Foundations of East Chicago, the city stands to gain millions of dollars to continue the city's rebuilding efforts," Rico said in a statement.

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 20 NFP)

For publication opinions today (3):

In Porter County Board of Zoning Appeals v. SBA Towers, II, a 17-page opinion, Judge Riley writes:

Appellant-Respondent, Porter County Board of Zoning Appeals (BZA or Board), appeals the trial court’s grant of Appellee-Petitioner’s, SBA Towers II, LLC (SBA), Verified Petition for a Writ of Certiorari requesting the trial court to award it a Special Exception for the construction of a wireless communications tower and accompanying equipment cabinets. We affirm.

The BZA raises one issue on appeal which we restate as: Whether the trial court erred in reversing the BZA’s denial of SBA’s request for a Special Exception. * * *

Overall, in light of the evidence before us, we find that the evidence upon which the BZA based its denial of SBA’s request for a Special Exception was devoid of probative evidence. For this reason, we find that the BZA’s findings and determination denying SBA’s grant of a Special Exception are clearly erroneous. Thus, we affirm the trial court.

In State of Indiana v. James H. Sitts, a 7-page opinion, Judge Brown writes:
The State of Indiana appeals the trial court’s grant of a motion to suppress filed by James Sitts. The State raises one issue, which we revise and restate as whether the trial court erred by granting Sitts’s motion to suppress evidence obtained pursuant to a traffic stop of Sitts’s car. We affirm. * * *

The sole issue on appeal is whether the trial court erred in granting Sitts’s motion to suppress the evidence obtained pursuant to a traffic stop of Sitts’s car. The State has the burden to demonstrate that the measures it used to seize information or evidence were constitutional. State v. Holley, 899 N.E.2d 31, 33 (Ind. Ct. App. 2008), reh’g denied, trans. denied. When the State appeals the trial court’s grant of the defendant’s motion to suppress evidence, the State is appealing from a negative judgment. Id. Consequently, the State has the burden of demonstrating to us that the evidence is without conflict and that the evidence and all reasonable inferences therefrom lead to the conclusion opposite that reached by the trial court. Id. During our review, we consider only the evidence most favorable to the judgment, and we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

In Samantha Light v. State of Indiana, an 8-page opinion, Judge Bradford writes:
Appellant-Defendant Samantha Light was convicted, pursuant to a guilty plea, of three counts of Class A felony Child Molesting for which she received an aggregate sentence of 125 years in the Department of Correction. Upon appeal Light contends that her sentence is inappropriate in light of her character and the nature of her offenses. Concluding that Light's 125-year term does not fall outside a reasonable sentencing range and that enhanced consecutive sentences are not inappropriate under these facts, we reject Light's challenge to her sentence and affirm. * * *

Light concedes that her offenses are shocking in nature but suggests that the young age of the victims, who perhaps will not remember the events and may therefore suffer
less psychological trauma, ameliorates the grave nature of her offenses. Of course, C.C. was six years old at the time, does remember the events in question, and is suffering ill effects as a result. In any event, we are unpersuaded that forced group sexual activity with young children and infants, by their own caretaker and/or mother, is somehow less depraved if the victims do not recall each excruciating detail for the rest of their lives. To the contrary, the young age of the victims, whose youth and vulnerability made them easy prey, highlights the depravity of Light's offenses and her lack of character in willingly engaging in such unthinkable acts. * * *

We are aware, as Light points out, that the Indiana Supreme Court has granted reduced sentences in certain cases in which defendants convicted of multiple molestations have received particularly lengthy terms. This case is easily distinguishable from those cases. Indeed, given the circumstances of Light's crimes, her 125-year sentence is fully within the navigational buoys of that body of law. * * *

Indeed, the only “outlier” here is Light, whose abhorrent conduct justifies a particularly lengthy sentence.

NFP civil opinions today (4):

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

Jeffery R. Grube v. Heather A. (Grube) Ryan (NFP) - "Based on the foregoing, we conclude the trial court did not commit error by modifying Father's child support obligation."

Tina L. Green v. Brian Green (NFP) - "On appeal, Appellant/Petitioner Tina L. Green (“Wife”) challenges the trial court's disposition of the marital estate following the dissolution of her marriage to Brian A. Green (“Husband”). Specifically, Wife argues that the trial court abused its discretion in including in the marital estate a $36,507 bonus received by Wife from her employer. Alternatively, Wife argues that even if the court did not abuse its discretion in including the $36,507 bonus in the marital estate, the trial court abused its discretion in valuing the bonus at its pre-tax amount rather than its post-tax amount. We affirm."

R.M. v. Review Board (NFP) - "Because the Review Board’s finding of ultimate fact that R.M. voluntarily terminated her employment without good cause was reasonable under the specific circumstances presented in this case, we affirm the Review Board’s determination that R.M. is not entitled to unemployment benefits.[3]
"[3] Contrary to R.M.’s assertion, our holding affirming the Review Board’s decision in this case does not equate to a broad holding that all employees with dangerous job duties will never be able to terminate their employment with good cause and will never be protected by the Unemployment Security Act. In this case, R.M. did not meet her burden of showing that she terminated her employment with good cause in connection with the work, and our holding is limited to the unique facts of this case."

NFP criminal opinions today (16):

Jeffery L. Wilson v. State of Indiana (NFP)

Curtis D. Magee v. State of Indiana (NFP)

Edward L. Underhill v. State of Indiana (NFP)

Ryan Allen v. State of Indiana (NFP)

Gerardo Hernandez v. State of Indiana (NFP)

Brandon M. Beltz v. State of Indiana (NFP)

Jarvis Devon Johnson v. State of Indiana (NFP)

Robin Banks v. State of Indiana (NFP)

Michael Achenbach v. State of Indiana (NFP)

Matthew Spengler v. State of Indiana (NFP)

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

Marshall Jackson v. State of Indiana (NFP)

Wayman H. Lyons v. State of Indiana (NFP)

Mark A. Jones v. State of Indiana (NFP)

Robert L. Terry v. State of Indiana (NFP)

Len Huynh v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 19, 2010
Posted to Ind. App.Ct. Decisions

Tuesday, May 18, 2010

Courts - Here is Elena Kagan’s Senate questionnaire

Via SCOTUSblog.

On p. 199 Kagan describes the White House selection process, as it applied to her -- when she was first contacted, etc. Her net worth is $1.7 million.

[Updated 5/19/10] See this story this morning in The National Law Journal.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Courts in general

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

In Paul K. Ogden v. James Atterholt (SD Ind., Magnus-Stinson, Magistrate Judge), a 12-page opinion, Judge Sykes writes:

Oral argument has narrowed this appeal to a single issue: Did the Commissioner of the Indiana Department of Insurance and his Chief Deputy violate Paul Ogden’s free-speech rights when they required him to resign as manager of the Department’s Title Insurance Division? Ogden was forced out of his position after writing a memo to the Commissioner criticizing the performance of his Chief Deputy and asking that the Title Insurance Division be removed from her control. He then sued the Commissioner, the Chief Deputy, and the Department of Insurance claiming that his memo was protected speech and his forced resignation violated his rights under the First Amendment. The district court entered summary judgment for the defendants and Ogden appealed.

We affirm. Ogden’s complaints about the Deputy Commissioner and his request for a departmental reorganization were made in the performance of his professional duties as manager of the Title Insurance Division. Because he was speaking as a governmental employee and not a citizen when he wrote the memo, under Garcetti v. Ceballos, 547 U.S. 410 (2006), the protections of the First Amendment are not implicated.* * *

We are left with one final housekeeping item. On appeal Ogden has expressed a concern that the magistrate judge’s resolution of the due-process claim in favor of the defendants might foreclose litigation of that claim in the Indiana courts. As we have noted, Ogden clarified in his reply brief and at oral argument that his dueprocess claim is based entirely on state law; as such, once the federal free-speech claim was resolved against him, the due-process claim should have been included in the order remanding the state claims to the Indiana court. The magistrate judge should not have taken up and resolved the due-process claim as if it arose under federal law—though it was understandable why she did so given the confusion in the pleadings. That claim now returns to state court along with Ogden’s other state claims.

With this clarification, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Bonita Hilliard v. Timothy Jacobs, et al. , an 18-page opinion, Judge Vaidik writes:

In the fourth appeal in this case, Bonita G. Hilliard, in her capacity as Trustee of the H. David and Bonita G. Hilliard Living Trust, appeals the trial court's dismissal of Timothy E. Jacobs' counterclaim, which was the last pending claim in litigation involving two insurance policies on the life of Hilliard's husband David worth a total of $2.5 million. Finding that the trial court did not abuse its discretion by denying her leave to file a third amended complaint, striking her reply counterclaim, and denying her motion to stay enforcement, we affirm. * * *

We conclude that the trial court was well within its discretion in denying Hilliard's motion to stay enforcement. Hilliard requested the stay pending her petition to the United States Supreme Court; however, she made no claim that the litigation involved federal questions or conflicted with federal caselaw. Although this dispute is currently under our review, Hilliard fails to point out any portion of the record establishing that she informed the trial court, while it was ruling on her motion to stay, that she would be pursuing an appeal to this Court. Her Motion to Stay Enforcement Upon Appeal and Reply in Support of Motion to Stay Enforcement Upon Appeal only requested the stay pending her petition to the United States Supreme Court. The trial court did not abuse its discretion by denying her motion to stay enforcement.

NFP civil opinions today (3):

Trinity Medical Solutions, Inc. and Matt Carns v. American Back Solutions, Inc.(NFP) - "In sum, the trial court did not abuse its discretion when it entered its December 2 Order amending its October 3 Order's timeline. Neither did the trial court abuse its discretion when it refused to set aside its January 29 Order on summary judgment pursuant to Indiana Trial Rule 60(B)(1). However, ABS's designated evidence in support of its Motion for Summary Judgment did not demonstrate a prima facie case for summary judgment on the question of Carns's personal liability under the Agreements. Hence, on that issue alone, we reverse and remand for further proceedings."

Marina Jiron v. Joseph Jiron, Sr. (NFP) - "To summarize, “all that is required to support modification of custody under I.C. § 31-17-2-21 is a finding that a change would be in the child’s best interests, a consideration of the factors listed in I.C. § 31-17-2-8, and a finding that there has been a substantial change in one of those factors.” Nienaber v. Marriage of Nienaber, 787 N.E.2d at 456. The record supports the determination that there was a substantial change with respect to at least one of the factors listed in I.C. § 31-17-2-8, as set out above, and that modification was in J.J.’s best interest. The court did not abuse its discretion in modifying custody and awarding primary physical custody to Father.Judgment affirmed."

Andrea Fox v. Nancy Foster (NFP)

NFP criminal opinions today (6):

Keith Dickert v. State of Indiana (NFP)

Terrell Wallace v. State of Indiana (NFP)

Ira Brown v. State of Indiana (NFP)

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

Steven P. Dooley II v. State of Indiana (NFP)

Mindy Warthan v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

The ILB has had a number of entries about this case -- for background, start with this one from Oct. 29, 2009. Several interesting constitutional issues had been raised. In its opinion, the Court concludes "a constitutional declaration is unwarranted."

In Foundations of East Chicago v. City of East Chicago, et al., a 9-page, 5-0 opinion, Chief Justice Shepard writes:

At the outset of riverboat gambling in this state, the Indiana Gaming Commission issued a license for operation of a boat at East Chicago. It incorporated as a condition of this license the terms of a local economic development agreement between the operator and the City of East Chicago, with the result that certain gaming revenue flowed from the operator to several local entities. During its 2007 session, the Indiana General Assembly enacted a provision declaring that if the license at East Chicago transferred to a new operator (which it has), the City could void its agreement with the former operator.

The present appeal represents a challenge to the constitutionality of the 2007 legislation by certain recipients of the revenue. We conclude that the 2007 provision did not alter in any substantive way the statutory framework under which the Gaming Commission regulates licenses and license conditions, and thus find it unnecessary to rule on its constitutionality. * * *

FEC filed this action challenging the validity of Section 302 under numerous provisions of the United States and Indiana Constitutions. The Attorney General intervened to defend the statute's validity. After conducting a bench trial, the trial court entered judgment against FEC, holding that FEC did not have standing to maintain the challenge and rejecting its constitutional arguments. * * *

I. Does FEC Have Standing? * * * At least for now, FEC is receiving substantial revenue from the casino license and the original local development agreements. The fact that Section 302 has the potential to set in motion events under which the Commission might eliminate that flow of money is sufficient to find standing under these circumstances.

II. Does Section 302 Impair FEC’s Interests? As the local corporations argued in the two earlier appeals, FEC contends that Section 302 directly impairs contract rights it possesses as a beneficiary of the agreements the City and the operator tendered to the Gaming Commission. Specifically, FEC contends that the section “directly and purposely authorizes the City to eliminate the Foundations' contract rights.” The Attorney General and the City both argue, however, that Section 302 does not substantially impair any such interests because FEC had no reasonable expectation that its ability to receive riverboat revenue would continue indefinitely. * * *

Section 302 does not by its terms even purport to alter the Commission's regulatory authority. The flow of funds for economic development are subject to any terms and conditions in the license issued by the Commission. The Commission incorporated various arrangements into the East Chicago gaming license on advice of the city government and other stakeholders and interested citizens. They may be revised by the Commission, with or without Section 302.
In light of the foregoing conclusions, we see no impairment of contractual rights presenting a colorable alarm under the applicable state or federal provisions. U.S. CONST. art. I, § 10 and IND. CONST. art. 1, § 24.

C. Other Constitutional Claims

FEC's challenge to Section 302 covers a considerable list of constitutional provisions, from, bar on taking private property without just compensation (U.S. CONST. amend. V, XIV and IND. CONST. art. 1, § 21), to the requirement that bills be confined to a single subject (IND. CONST. art. IV, § 19), to the constraint on special and local legislation (IND. CONST. art. 4, § 22), to the separation of powers principle (IND. CONST. art. III, § 1). A number of these may be plausible. Still, we avoid constitutional declarations when a dispute can be resolved through non-constitutional means. Superior Const. Co. v. Carr, 564 N.E.2d 281 (Ind. 1990). For all that appears, Section 302 did not alter the legal options of the combating parties in any substantial way, and we thus conclude that a constitutional declaration is unwarranted.


We reverse the trial court's holding on FEC's standing, but otherwise affirm the judgment.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Grand jury can be used to insulate prosecutor"

Updating this ILB entry from earlier today, Prof. Joel Schumm of IU Law-Indy, writes:

I watched the news conference online yesterday and was surprised to hear Prosecutor Leerkamp talk about agreeing to follow the grand jury's "recommendation."

This is repeated in a column [by Bob Kravitz] in today's Star. "The armchair prosecutors can argue that the Carmel Four should have been charged with sex-related crimes and felonies, but in the end, this was the grand jury's finding based on the facts they were presented, and Leerkamp, who had the power as prosecutor to override the findings, agreed."

From WISH TV: "The grand jury will make a recommendation about charges to the prosecutors and then the two prosecutors will ultimately decide if charges will be filed against the four seniors."

Schumm continues:
That's not my understanding of how the grand jury process works.

If the prosecutor sends a case to a grand jury instead of filing an information, the prosecutor loses any power in the charging decision. The prosecutor is stuck with the indictment and can't later pursue another grand jury or different charges (in the absence of new evidence) according to Indiana Code 35-34-1-6(b) and 35-34-2-12(d). Consistent with these statutes, I think the requirement that the prosecutor sign the indictment is merely ministerial.

If Leerkamp advised the grand jury that its role was only advisory (i.e., she was free to accept or reject its decision), one must wonder if that influenced how the grand jury approached its task.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Indiana Courts

Ind. Courts - List posted of lawyers suspended for failing to pay registration fees or comply with CLE requirements

Here it is, the annual "In the Matter of Failure to Comply with CLE Requirements and/or Nonpayment of Attorney Registration Fees." Eighteen pages of lawyers who had fallen behind in CLEs or paying the annual attorney fee. Lawyers on the list will be suspended from the practice of law at 11:59 p.m. on Monday, June 7, 2010.

Check last year's ILB post, a lot said there is still applicable.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Indiana Courts

Law - More on "Big changes to the sex offender registration provisions of the Adam Walsh Act proposed"

Updating this ILB entry from May 13th, that included a link to the Federal Register proposal, Wendy Koch of USA TODAY reports today:

Teenagers who commit sex crimes would not have to be listed on public sex offender registries under changes to a federal law proposed by the Justice Department.

The handling of juvenile sex offenders has been one of the most contentious issues for states trying to implement the Adam Walsh Child Protection and Safety Act of 2006, says Linda Baldwin, head of the department's compliance office.

The law, which sets tough new rules for registering sex offenders, requires juveniles 14 and older who commit serious sex crimes to register for the rest of their lives and states to post that information publicly.

The revised rules, posted Friday in the Federal Register and open to public comment for two months, would let states decide whether to include teen offenders in their public registries.

"This change creates a new discretionary, not mandatory, exemption from public website disclosure," the guidelines say.

The law currently requires sex offenders who completed prior sentences but commit a new crime to register again, no matter the crime. Another proposed change gives states discretion to decide that, as long as the new crime is not sexual or a felony.

"That was a big sticking point for many states," says Corey Rayburn Yung, associate professor at John Marshall Law School in Chicago. "I'm surprised at how much flexibility they're affording states. The Obama administration has eliminated any excuse for states not to comply."

Yung says the Justice Department had to make changes because states weren't implementing the law, despite a one-year extension granted last year. Only two states, Delaware and Ohio, have "substantially" done so, the department says.

"This definitely brings a lot of states closer to being able to implement it," says Amy Borror, of Office of the Ohio Public Defender, a state agency that represents the indigent in court.

States that don't implement the law by July 27 or receive a one-year extension (as many have) risk losing 10% in federal crime-fighting funds.

At the Indiana state level, these proposed changes tie in with the issue of teen sexting, which was considered in the past session of the General Assembly, and ultimately sent to a summer study committee.

For background, here is a long list of ILB entries on the issue of sexting.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to General Law Related

Courts - "Justices Rule on Prison Time for Juveniles, Sex Offenders"

Updating yesterday's ILB entry on the two big rulings yesterday from the SCOTUS, Tony Mauro and Marcia Coyle of The National Law Journal have this review of the opinions today, that begins:

In a pair of major criminal law decisions on Monday, the U.S. Supreme Court ruled that the Eighth Amendment does not allow sentences of life in prison without parole for juveniles who committed nonhomicide crimes and upheld a federal law permitting sexually dangerous inmates to be confined beyond their prison terms.
Comprehensive background on the opinions is available via the SCOTUSblog Wiki.

Prof. Berman of Sentencing Law & Policy has blogged extensively on both opinions.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Courts in general

Ind. Courts - "Police probing Brizzi's role in golf cart crash"

Updating earlier ILB entries referencing Marion County Prosecutor Carl Brizzi, Jon Murray and Mark Alesia of the Indianapolis Star have a long story today that begins:

Police are looking at the role of Marion County Prosecutor Carl Brizzi in a golf cart crash that injured an officer and also at Brizzi's extensive use of taxpayer-provided security, often into the early hours of the morning.

Carl Brizzi has told The Indianapolis Star that he was driving the cart at an October 2008 campaign golf outing when he swerved to miss a vehicle in the Fishers course's parking lot, causing the cart to tip over. An officer assigned to his security detail was thrown from the cart, suffering a broken left wrist and a torn tendon in his finger.

The Indianapolis Metropolitan Police Department has launched an internal affairs investigation to determine why both that officer's internal report on the injury and a public incident report provided an account that conflicted with Brizzi's.

In fact, Brizzi's name appears nowhere in those documents. Instead, they put the injured officer in the driver's seat and say only that he was working on a security detail, raising the question of why official reports would omit mention of the person most responsible for the crash.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Indiana Courts

Ind. Courts - "Grand jury can be used to insulate prosecutor"

That is the heading of this article today by John Tuohy of the Indianapolis Star. It begins:

For delicate cases, grand juries can be a prosecutor's best friend.

"Historically, it has been used to provide political coverage on hot-potato issues," said defense attorney Robert Hammerle. "If a prosecutor has a sensitive political issue, sending it to the grand jury is like the legislature sending an issue to a blue-ribbon commission."

By taking the Carmel High School cases to a grand jury, Hamilton County Prosecutor Sonia Leerkamp didn't have to make a controversial decision herself.

"The grand jury can help inoculate prosecutors against criticism in the community," said IU law Professor Norman Lefstein.

A grand jury is a panel of citizens that convenes in secret to hear evidence presented by a prosecutor and decide whether probable cause exists to charge someone with a crime.

Here is the Star's lead story today on the Carmel incident, headed "Details in Carmel case remain a mystery," reported by Tim Evans, Rob Annis, John Tuohy and Carrie Ritchie. It is accompanied by links to the 4 indictments and the Carmel schools investigation report.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to Indiana Courts

About this blog - ILB passes milestone!

It happened sometime last night,because Sitemeter this morning shows the ILB has had a total of 2,000,101 unique visits. As for page views, the meter shows 3,156,568 this morning.

[More] And how many entries? This post marks the 15,762th entry in this iteration of the ILB.

Posted by Marcia Oddi on Tuesday, May 18, 2010
Posted to About the Indiana Law Blog

Monday, May 17, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Bruce Adkins v. Vigilant Insurance Company, a 14-page opinion, Judge Bradford writes:

On appeal, Adkins challenges the trial court‟s determination that Vigilant was entitled to summary judgment on the basis that Adkins‟s alleged damages were not “covered damages” under the underinsured motorists section of the Excess Umbrella Policy. Adkins argues that pursuant to the terms of the underinsured motorists section of the Excess Umbrella Policy, Neese‟s automobile liability insurance should be considered to be “underlying insurance” giving rise to coverage under the Excess Umbrella Policy. * * *

We conclude that because the damages in question were not covered by either of Sutphin‟s underlying insurance policies as required by the terms of the Excess Umbrella Policy, the damages were not covered under the umbrella policy issued to Sutphin by Vigilant. * * * Affirmed.

In The Guardianship of D.P. by H.H. , a 12-page opinion, Judge Robb writes:
Helen Kay Hudson, as guardian of Donna Phillips, appeals the trial court’s orders denying her petition to revoke the Ollie H. Phillips and Donna K. Phillips Joint Revocable Living Trust (the “Joint Trust”) and ordering the guardianship to pay the attorney fees of trustee Elizabeth Shoemaker. For our review, Hudson raises two issues: 1) whether the trial court erred by denying Hudson’s petition to revoke the Joint Trust; and 2) whether the trial court abused its discretion by ordering payment of Shoemaker’s attorney fees. On cross-appeal, Shoemaker raises the threshold issue of whether the trial court’s denial of the petition to revoke the Joint Trust is an appealable order. Concluding the trial court’s denial of the petition to revoke the Joint Trust is a final judgment and therefore appealable, the trial court did not err by denying the petition, and the trial court did not abuse its discretion by ordering the guardianship to pay Shoemaker’s attorney fees, we affirm.
In Edwin G. Buss, et al. v. Michael L. Harris , a 14-page opinion, Judge Kirsch writes:
Edwin G. Buss (“Buss”), Commissioner of the Indiana Department of Correction (“the DOC”), appeals from the trial court’s order in an action for declaratory and injunctive relief brought by Michael L. Harris (“Harris”), a former inmate at the Miami Correctional Facility in Miami County, Indiana, requiring the DOC to update the sex offender registry to remove the term “SEX PREDATOR” and the statement “Lifetime Notification” from Harris’s offender detail and type on the Indiana Sheriffs’ Sex and Violent Offender Registry web site, and determining that Harris’s reporting obligation should be for ten years following the date of his release from incarceration. Buss raises the following consolidated and restated issue for our review: Whether the trial court erred by finding and concluding that Harris should not be listed on the sex offender registry as a sexually violent predator and that Harris’s reporting obligation was limited to ten years following the date of his release from incarceration.
We affirm. * * *

We hold that the trial court did not err by finding and concluding that the DOC and Buss were not authorized by statute to make a determination of and change to Harris’s status on the sex offender registry. We also reject the State’s argument that Harris’s status was changed by operation of law under Indiana Code section 35-38-1-7.5(b) and note that the Supreme Court’s decision in Jones [ILB - Jones v. State, 885 N.E.2d 1286 (Ind. 2008)] supports our conclusion. We also hold that the trial court correctly determined that Harris’s reporting obligation was for ten years and not a lifelong reporting obligation, as the change to the duration of Harris’s reporting obligation would have occurred only by a finding and conclusion that his status had changed. Again, Jones is helpful in reaching that conclusion.

In Jeffery L. Sloan v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
To hold that the five-year statute of limitations does not begin to run until such time as a victim discloses the abuse to authorities, without regard to when a defendant’s acts of concealment terminated, does not serve the statute’s intended purpose. * * *

Under these circumstances, and following the direction of Thakkar and Sipe, we find that although Sloan engaged in threats, intimidation, and other positive acts of concealment during the years that he was molesting M.A., the concealment ceased after the molestation stopped in 1991, and it was then that the statute of limitation began to run. The applicable five-year limitation period would therefore have expired in 1996; consequently, the trial court erred when it denied Sloan’s motion to dismiss. See Lindsay, 862 N.E.2d at 321 (trial court properly granted motion to dismiss filed by defendant facing RICO charges because there was no evidence defendant continued with pattern of threatening witnesses after he moved out of Indiana in 1996, and therefore concealment ceased in 1996 and statute of limitations expired in 2001). Accordingly, we are compelled to reverse Sloan’s conviction for Class C felony child molesting.

NFP civil opinions today (0):

NFP criminal opinions today (7):

Preston L. Pearson v. State of Indiana (NFP)

Frank Castillo v. State of Indiana (NFP)

David D. Thompson v. State of Indiana (NFP)

Phillip E. Sadler, Jr. v. State of Indiana (NFP)

Mauricio Martinez v. State of Indiana (NFP)

Keith A. Dickert v. State of Indiana (NFP)

Carl Cooper, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 14, 2010

Here is the Clerk's transfer list for the week ending May 14, 2010. It is one page long.

Two 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, May 17, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Whither Davidson v. State?

Although granted transfer Jan. 21, 2010, the case of Desmond Davidson v. State of Indiana, as far as I can tell, has never been set for oral argument. This is the case the ILB did the super chart for, so I've been following it, or trying to. A quote from the transfer petition:

Should a suspended sentence be treated the same as an executed sentence for purposes of Appellate Rule 7(B) review? The issue arises frequently, the consequences are significant, and six judges of the Court of Appeals have one view of the issue while seven hold the opposite view.

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Indiana Transfer Lists

Law - "Tax Credits are First Step in Health Insurance Reform for Small Businesses"

Thanks to Politico, this information:

Treasury and IRS release guidance on the small-business health care tax credit in health-reform bill, to help small businesses determine whether they qualify, and the size of credit.

White House fact sheet
, 'Small Businesses May Receive Both State and Federal Tax Credits, Dental and Vision Coverage Eligible for Credit'; and this from the WH blog, 'Tax Credits are First Step in Health Insurance Reform for Small Businesses,' by SBA Administrator Karen Mills

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to General Law Related

Courts - Several big SCOTUS opinions today

This is thanks to SCOTUSblog:

US v. Comstock - "The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.Kennedy."

Graham - "The Court, in an opinion again written by Kennedy, rules that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment's ban on "cruel and unusual" punishment. The vote is 6-3, reversing and remanding Graham v. Florida."

For more, see SCOTUSblog.

[More] USA TODAY: "High court rules out life sentences for juveniles" - available here

The AP's
Jesse J. Holland: "The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered 'sexually dangerous' after their prison terms are complete." - available here

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Courts in general

Ind. Gov't. - Twenty special funds diverted in crisis [Updated]

Niki Kelly of the Fort Wayne Journal Gazette has a story today on the Governor's plan to divert dedicated funds to balance the budget. Some quotes:

When state budget officials close the book on the fiscal year next month, they will have to dip into various special accounts to help balance the budget.

Because Indiana’s receipts from sales, income and other taxes have dropped substantially, the General Fund will bring in $13 billion while the state is scheduled to spend $14 billion.

The state is leaning on rainy day funds – similar to a savings account – but also will have to transfer money from several funds dedicated to other specific purposes, similar to when a cash-strapped family decides to pull money from a retirement or college fund. * * *

Ruhl acknowledges that the other funds in question were set up by lawmakers for a specific reason and are generally financed by an outside fee of some kind. But he said in severe recessionary times, nothing is sacred.

“The fact that the funds were purportedly raised for a specific purpose doesn’t condone wasting money or not capturing those funds for a higher priority, such as education or public safety,” he said.

“Our ability to cast the net wider than only general fund spending has greatly enhanced our ability to protect taxpayers and deliver critical government services.”

Still, that means a boater who paid an extra fee for lake and river improvements probably won’t get them.

Landfill tipping fees meant to aid recycling could be diverted. And even court fees paying for DNA testing are up for grabs. * * *

Money from the DNA sample fee is also in question. Anyone convicted of a felony or misdemeanor in Indiana pays the $2 court fee, which is then used to process samples from offenders in prison for the state’s DNA database as well as process DNA in police investigations.

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said he feels this fund should be left alone since it is highly important in solving crime and making Indiana safe.

“I hope they find (money) someplace else because I think DNA is the gold standard in terms of identifying people and also exonerating people,” he said. “If they are taking this money it creates backlogs or takes longer to solve crimes or cold cases and that’s bad for Indiana citizens.”

The Indiana State Police lab is currently caught up on DNA cases.

Two funds that are likely to take large hits because their programs are currently suspended are the Recycling Promotion and Assistance Fund and the Waste Tire Fund. Each one has more than $8 million built up in balances.

The recycling fund is financed through a 50-cent-per-ton surcharge that landfill operators collect from waste haulers. It is sent to the Indiana Department of Environmental Management.

IDEM then gives grants to promote and educate Hoosiers about recycling. An example is a university that uses the money to provide students with recycling bins.

The Waste Tire Fund is financed through a 25-cent-per tire-fee that every person in the state pays when purchasing new tires. The money is then used by IDEM to address the challenges of improperly disposed tires, such as cleaning up waste tire sites before they catch fire or become a haven for mosquitoes. * * *

There is one fund that Ruhl can raid without affecting anything – the Indiana Gaming Fund, which has almost $18 million in it.

Ernest Yelton, executive director of the Indiana Gaming Commission, said any fines assessed to casinos, as well as relicense fees, go into the fund.

Interestingly, no money has ever been taken out of it. That’s because lawmakers have never authorized the money to be spent on anything, so it has just built up over the years.

“It’s not funny. We could use the money,” Yelton said. “But it’s a good source to balance the budget that no one is going to suffer from.”

A side-bar to the story lists some of the funds and how much money is available.

It would be good to see a list of ALL the dedicated funds, and which ones are or have been hit, and which ones have not.

[Updated 5/20/10] "Daniels singing a new tune about budgeting gimmicks" is the heading of an editorial item today in the FWJG.

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Indiana Government

Ind. Decisions - "Appeals court upholds lawsuit against Lake auditor"

Friday's COA deicision in the case of Ralph Hullett, et al. v. James Lafevre, et al. (ILB summary here, 3rd case) is the subject of a story today by Dan Carden in the NWI Times.

An error made by the Lake County auditor's office means the man who purchased a Lake Station home at a tax sale must return it to the original owners.

The Indiana Court of Appeals has ruled that Ralph Hullett, who bought the home at a July 2007 tax sale, cannot keep it because the county auditor failed to adequately notify the original owners the home was to be sold.

James and Jeremy LaFevre owned the home on three property lots in Lake Station, all with the same combined address in the 2100 block of Fairview Street. In 2002, the tax billing address for one of the lots was changed to a Valparaiso address, while the address of record for the remaining two lots remained the Lake Station address.

The LaFevres paid the taxes on the lot they were billed for at the Valparaiso address, but taxes were not paid for several years on the other two lots. Notice of a pending tax sale was sent by the auditor to the Lake Station address, but returned by the post office as undeliverable.

After Hullett bought the home on the two lots at the tax sale, he also sent notice of his purchase to the Lake Station address listed in the auditor's records. That notice also was not delivered.

Nine days after the tax sale to Hullett was finalized by a Lake County judge, the LaFevres sued to overturn the sale.

Hullett argued he had followed the law and sent notice as required to the address listed in the tax records and is entitled to keep the property.

However, the appeals court said the office of Lake County Auditor Peggy Katona was required by state law to check its records for another possible owner address when the tax sale notices sent to the Lake Station address were returned by the post office.

"If the auditor had undertaken a search, it would have discovered that LaFevres owned Parcel 006, which is contiguous to Parcels 007 and 008, and has the same street address but a different mailing address," wrote Senior Judge John Sharpnack in the court's 3-0 decision.

"The auditor is deemed to have been aware of the Valparaiso mailing address for the LaFevres," Sharpnack said.

As a result of the auditor's error, the court invalidated Hullett's purchase of the Lake Station home and reverted ownership rights back to the LaFevres.

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Ind. App.Ct. Decisions

Courts - Impact of SCOTUS Citizens United decision seen in Kentucky magistrate's race?

Columnist Joseph Gerth writes today in the Louisville Courier Journal:

While the top players in the U.S. Senate race are lobbing dirt clods in a good old-fashioned mud fight, folks in Eastern Kentucky may be getting a glimpse of the future of politics in this country.

The race is a magistrate's election in the rough and tumble world of Pike County Democratic politics and involves a company with ties to political king-maker Leonard Lawson, fresh off his acquittal on federal bid-rigging charges.

And it could forever change the way politics are played in this state and the country.

The stage was set in January, when the U.S. Supreme Court, on a 5-4 vote, struck down federal prohibitions on corporate and union expenditures to promote the election or defeat of political candidates.

In the past, corporations were limited in their roles in elections, having to funnel money through political action committees.

The ruling also, in effect, struck down a 119-year-old provision in the Kentucky Constitution that prohibited corporations from spending money to affect elections. The provision was put into the constitution in an era when the old L & N Railroad held a monopoly and controlled much of the state. * * *

While it hasn't opened any floodgates, it has breeched the dam in Pike County, where at least $15,000 worth of corporate money has been spent to beat Pike County Magistrate Chris Harris' re-election efforts, according to the Lexington Herald-Leader.

The newspaper said Harris had the audacity to criticize cozy ties between the company, which operates the county's largest water system, and public officials. * * *

You've got to wonder if this is just the first of many elections in Kentucky in which corporations will become involved.

Will Churchill Downs and Keeneland and other horse racing companies start airing ads directly endorsing candidates who want to allow slot machines at racetracks?

Was this just a dry run for Lawson and does he intend to spend thousands — if not hundreds of thousands — of dollars from his various businesses to campaign against the re-election of Gov. Steve Beshear, whose administration turned him into the feds?

Will attorneys general who fight rate hikes by utilities in the future suddenly find themselves facing not only a Democratic or Republican opponent — but a well-funded corporate entity willing to spend millions to stop them from a second term?

And will Kentucky elections forever be changed?

Posted by Marcia Oddi on Monday, May 17, 2010
Posted to Courts in general

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, May 16, 2010:

From Saturday, May 15, 2010: From Friday afternoon, May 14, 2010:

Posted by Marcia Oddi on Monday, May 17, 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 5/17/10):

Next week's oral arguments before the Supreme Court (week of 5/24/10):

This week's oral arguments before the Court of Appeals (week of 5/17/10):

Next week's oral arguments before the Court of Appeals (week of 5/24/10):

Next Monday, May 24th

Next Wednesday, May 26th

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, May 17, 2010
Posted to Upcoming Oral Arguments

Sunday, May 16, 2010

Law - "Sex offenders, advocates push for Va. law notice"

From the May 15, 2010 Washington Post, this story -- some quotes:

Unlike some states, Virginia doesn't provide its 16,500 registered sex offenders with a list of restrictions on where they can live, work and play. Instead, registered offenders must search state websites to determine how to comply with laws meant to keep them away from schools, parks and other places where children could congregate.

Officials say it would be too costly to provide copies of the laws to all offenders and that the websites are sufficient.

Wayne Bowers, director of the Sex Abuse Treatment Alliance in Oklahoma, said by not informing sex offenders of the laws, states are opening the door for individuals to fail -- and reoffend.

"If these people fail, that means there is going to be another victim," he said.

Notification laws vary across the nation.

Some states, like New Mexico, spell out the restrictions on a website, while others, such as North Carolina and Indiana, require offenders to read over a list of the laws and sign that they understand it while in the presence of a law enforcement officer.

In Kentucky, offenders receive a notice each time a law changes. There are no state residency or work restrictions in Massachusetts, but some localities have enacted ordinances.

Just like with other laws, sex offenders can't claim ignorance. If they are caught too close to a school, park or, in several states, a church, they could be charged with a felony and sent back to prison. Failing to register on time also is a felony.

And while lawmakers are quick to add to the list of restrictions for sex offenders, few are willing to pass laws that favor a group so generally despised.

A bill to require Virginia State Police to give offenders a list of restrictions has failed the past two years. Meanwhile, about a dozen new restrictions or enhanced penalties were enacted. * * *

Listing the laws on the state police website isn't practical since not everyone on the registry has access to a computer, Devoy said. Also, in some localities, such as Virginia Beach, registered sex offenders are not allowed to have Internet access.

It would be better if the information was included in the certified packet of information each offender receives in the mail each year, she said.

The Department of Corrections informs and trains probation and parole officers about changes to the law, but it does not provide offenders with any lists, said department spokesman Larry Traylor.

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to General Law Related

Ind. Gov't. - A quite long NYT story on WellPoint

The NY Time's Sunday business section has a lengthy story today by Reed Abelson headlined "A Scrappy Insurer Wrestles With Reform." A few quotes:

But it is WellPoint, one of the companies that may have the most to lose under the new health care law, that seems unwilling — or unable — to avoid controversies that make it an easy target in Washington. In the last weeks of the debate over health care legislation, for example, WellPoint became the focus of lawmakers’ indignation over its decision to raise premiums in California as much as 39 percent.

Hauled before Congress in February to justify the decision, Ms. Braly refused to back down, although the uproar over the proposed increases might have helped hasten the legislation’s passage.

“They threw gasoline on the dying embers of health reform,” said Robert Laszewski, an industry analyst in Alexandria, Va. WellPoint withdrew the request after state regulators found it had made significant errors in the application.

Unlike some commercial insurers, WellPoint has bet heavily on the generous profits that flow from selling health insurance to individuals and small businesses. The company, which operates Blue Cross plans in more than a dozen states, is under pressure to deliver results under the new law, which sharply limits the prices it can charge and will eventually require it to cover all potential customers regardless of whether they have an expensive medical condition.

“They are going to have to fundamentally rethink how they are going to do business,” said Peter T. Harbage, a policy analyst and former California health official. “The question is whether WellPoint is going to be able to reform itself.”

Ms. Braly argues that WellPoint is well positioned because of its size and the strong appeal of the Blue Cross name. “We have a lot of historical strengths,” she said in an interview last week at the company’s headquarters in Indianapolis. But, she said, WellPoint is now focusing on what it needs to do in the wake of the new law’s passage. “There are new parameters,” she said, “and new marketplace rules.”

Some people say WellPoint’s combative stance reflects just how worried the company is about the future. “In some ways, WellPoint feels more embattled,” says Jerry Flanagan, a consumer advocate in California, because it dominates the increasingly regulated individual market, and this “puts them into a defensive mind-set.”

In the months after the bruising battle over the health care legislation, the company still seems to be fighting the last war, despite its protests that it has moved on. During a recent call with analysts, Ms. Braly repeated her complaint that insurers were being blamed unfairly for the rapid increases in the cost of care.

“We are being targeted and villainized,” she said. “They are shooting the messenger.”

OVER the last decade, WellPoint has become one of the nation’s largest insurers by buying up the Blue Cross plans that dominate the individual and small group markets in their states.

“That was a great strategy for a long time,” says Thomas A. Carroll, who follows the company for Stifel Nicolaus, the investment firm in St. Louis. “It was a way to basically add market share and add revenue. Investors liked it.”

WellPoint now has about 34 million customers, putting it ahead of the UnitedHealth Group in membership, and $60 billion in revenue, second behind UnitedHealth. While UnitedHealth and the other national companies tend to focus on providing services to large employers with workers in multiple locations, WellPoint’s focus has been on the local markets. Its strong presence allows it to demand the lowest prices from doctors and hospitals, while still offering customers a broad network of providers from which to choose.* * *

In the last year, WellPoint became a favorite example of Congress and the administration for why health care overhaul was needed. Even people inside the industry say the company has been painfully slow to recognize consequences of some of its controversial actions, whether canceling a sick patient’s coverage or raising premiums on policies that lawmakers already call too expensive. And some say that Ms. Braly’s quickness to argue with WellPoint’s critics, revealing her training as a lawyer, is not always productive.

“WellPoint is the most incredibly tone-deaf insurance company in an industry full of deaf executives,” says Mr. Laszewski, the Virginia consultant. He criticizes Ms. Braly, who received $13.1 million last year in compensation, as being insensitive to the politics involved in running a health insurer, at both the state and federal levels. “I don’t think she has the scar tissue and experience,” he says. “I don’t think she has the marketplace instincts.”

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Indiana Government

Ind. Gov't. - More on "Health care law will cost Indiana $3.6 billion over 10 years, actuary says"

Updating this ILB entry from May 13, 2010, this editorial today in the Fort Wayne Journal Gazette, headed "An unrealistic doomsday prediction," concludes:

[T]he study makes no effort to compare that increase – inflated as it is – with the cost of doing nothing. More insured Hoosiers should mean less illness, fewer trips to emergency rooms for basic health care, less lost work time, less direct state aid for health care of the uninsured – in other words, savings the report did not account for.

State legislators such as Republican Sen. Luke Kenley – a possible candidate for governor in 2012 – are only raising the level of rhetoric by saying the state might have to drop Medicaid and start its own program. The federal government will pick up 96 percent of the cost of new Medicaid patients, and Indiana could not come closer to replacing the federal Medicaid expenditures from state revenues.

At the very least, if the state is going to order up studies, it should follow the recommendation of state Rep. Jeff Espich, the Uniondale Republican who represents a portion of Allen County and is the party’s fiscal point man in the House: Develop a range of estimates that include the best case as well as the worst.

Meanwhile, Hoosiers considering last week’s actuarial report should remember Mark Twain’s suggestion about how statistics can be manipulated.

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Indiana Government

Ind. Gov't. - "Daniels trapped by spinning agency fix as both flop, solution"

Eric Bradner has this thoughtful analysis piece today in the Evansville Courier & Press. It begins:

INDIANAPOLIS — The dueling lawsuits between Indiana's human services agency and IBM Corp., the company it hired to revamp the state's welfare system, have placed Republican Gov. Mitch Daniels in a precarious position.

More than six months after Daniels canceled the 10-year, $1.37 billion contract between the Family and Social Services Administration and IBM, the state wants back the more than $400 million it paid. IBM wants to keep that money and says the state owes it $50 million more.

Even though the modernization project was scrapped, the state is keeping the new computers, document processing systems and phones and is using those improvements for its new "hybrid" method of processing applications for benefits such as Medicaid and food stamps. However, in its suit, FSSA alleges that IBM left the state nothing of value.

In its lawsuit, IBM strives to make a simple point: Daniels can't have it both ways.

The governor believed the system was too broken to fix with a scalpel, so to serve as his first FSSA head, he chose Mitch Roob — a free-market devotee who would enter the agency wielding a hatchet.

We know now that the scheme Daniels and Roob settled on in 2006 — minimizing the roles of county offices while making the switch to a statewide call center and online document processing system — essentially amounted to cutting off the face to spite the nose.

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Indiana Courts | Indiana Government

Courts - NJ Governor's failure to grant tenure to sitting justice causes controvery

Follwing upon the ILB's Minnesota Supreme Court appointments entry, politics is also an issue in the non-reappointment of a New Jersey Supreme Court justice, according this story headed "N.J. Governor Rebuffs Former Justices' Request That He Rethink Ouster of High Court Judge," by Henry Gottlieb of the New Jersey Law Journal. See also this May 13th statement by retired members of the NJ court, that includes:

By unwritten rule, Governors have maintained a four/three party affiliation split on the New Jersey Supreme Court, a balance seen as a powerful restraint on court “packing” or other means of exerting political pressure on an independent judiciary. Even lower court appointments are balanced between the parties. For over sixty years, Governors have nominated judges for reappointment unless there has been a determination that the judge has not capably performed his or her duties. There has been no “political test” for reappointment because the independence of the judiciary has been a bedrock principle followed by every Governor. When those who disagreed with the decisions of Chief Justice Wilentz tried to prevent the Senate from exercising its consent power, Governor Kean spoke out, recognizing the importance of independent judges even though he as well sometimes disagreed with the Wilentz Court.

No Governor before now has sought to control the Third Branch of government through the reappointment process. Judicial decisions must be made without fear of retaliation: competence, integrity, impartiality -- those qualities have been fostered by law and by tradition. Every litigant before the court has known that his or her case would be decided fairly, without undue political influence, by impartial, independent judges. Our court system has been an exemplar for other states; our courts’ opinions are cited and followed by other state courts. Not everyone agrees with every decision, nor should unanimity be expected in a free society.

No one, not even the Governor, suggests that Justice Wallace is not qualified to serve. He has demonstrated, as a trial judge, as an appellate judge, and as an Associate Justice of the New Jersey Supreme Court for almost seven years, integrity, thoughtfulness, scholarship, compassion and adherence to the rule of law. We can ask no more of any judge. That he is the second African American to serve on our State’s highest court, and that the Court has benefitted from his understanding of our diverse society, in addition to his exemplary record, argue powerfully in favor of his reappointment.

We regret the Governor’s decision not to reappoint Justice Wallace and urge the Governor to reconsider the effect of such a decision on judicial independence.

Here is the initial, May 3rd, story from New Jersey.com; it begins:
TRENTON -- Gov. Chris Christie today nominated attorney Anne Murray Patterson to the state Supreme Court to replace Justice John Wallace.

Wallace is the high court's only African-American. He is the first sitting justice to be denied tenure, though there have been those who resigned to avoid a renomination battle.

Christie said his decision was more about reshaping the court than about Justice Wallace, whom he said he had “great respect for ... personally and professionally.”

“The court over the course of the last three decades has gotten out of control,” Christie said during a press conference in Trenton. “It inappropriately invaded the executive and legislative constitutional functions. It’s not for the court to set some of the policies that I believe that they’ve set. And I’ve talked all during the campaign about changing the court. The only way to change the court is to change its members.”

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Courts in general

Courts - Minnesota Supreme Court restricts governor's ability to "unallot" appropriated funds; dissenter appointed chief justice

In this June 23, 2009 entry. the ILB looked at the 2009 budget bill and the authority it gave Gov. Daniels to both "augment" ("to add to an appropriation in this act from revenues accruing to the fund from which the appropriation was made") appropriations in the budget act, and to "withhold allotments of any or all appropriations contained in this act for the 2009-2011 biennium, if it is considered necessary to do so in order to prevent a deficit financial situation."

This March 8, 2008 ILB entry quoted from an article at Stateline.org, including:

In the final days of Minnesota’s legislative session last year, the governor invoked a rarely used authority granted more than 70 years ago that allowed him to rescind $5.3 million of already allocated program funds. He did so to help balance the state budget. But six low-income people whose state supplemental diet plan went away with that cut sued the state. The case has now found its way to the state Supreme Court, which will decide the constitutionality of the governor’s use of his so-called “unallotment” power. * * *

The Supreme Court has said it will review both the constitutionality of Pawlenty’s use of the unallotment authority and whether it violated separation of powers, meaning the case could have wide implications for the state.

On Wed., May 5, 2010, the Minn. court issued its ruling in the case. Here is a long report by Elizabeth Dunbar and Tom Scheck of Minnesota Public Radio. Some quotes:
St. Paul, Minn. — A Minnesota Supreme Court ruling that struck down a unilateral cut Gov. Tim Pawlenty made last year could make the Legislature's task of balancing the budget more complicated.

The Supreme Court, in a 4-3 ruling, said Wednesday that Pawlenty overstepped his authority when he used his unallotment authority to cut a nutrition program for low-income Minnesotans.

However, the decision did not turn on constitutionality, but on statutory grounds:
While Pawlenty and the Legislature negotiate on the current two-year budget, the court ruling could have implications for future budget negotiations between the governor and legislators.

Supreme Court Chief Justice Eric Magnuson noted in the ruling that Pawlenty's decision to cut the Minnesota Supplemental Aid Special Diet Program came before the budget-making process was completed.

While the unallotment statute gives the governor authority to address "an unanticipated deficit that arises after the legislative and executive branches have enacted a balanced budget," that wasn't the case last year when Pawlenty used the authority, the court wrote.

"Because the legislative and executive branches never enacted a balanced budget for the 2010-2011 biennium, use of the unallotment power to address the unresolved deficit exceeded the authority granted to the executive branch," Magnuson wrote.

As expalined by Ms. Dunbar in a side-bar:
Unallotment is executive power the governor of Minnesota may exercise under certain circumstances to cut the state budget or delay payments without the Legislature's approval.

The Minnesota Legislature formally gave the governor this power in 1939 after Gov. Harold Stassen needed to cut the state budget following an economic recession. The law was aimed at giving the governor power to protect the state from financial crisis.

The Indiana authorization is also contained in a statute, but in our case it is included as part of the "boiler plate" in the biennial budget law.

Here, via Minn. public radio, is a link to the 47-page opinion in Brayton v. Pawlenty.

From a story
by Martiga Lohn and Steve Karnowski of the AP, dated May 5, more details:

Pawlenty made his cuts after a difficult 2009 legislative session in which he faced Democratic majorities in the House and Senate. He signed major spending bills but used a line-item veto to block some items, and then vetoed a tax increase passed by Democrats. Instead, to balance the budget as required by the state constitution, he unilaterally canceled or delayed $2.7 billion in spending.

Democrats argued that Pawlenty created his own emergency by signing spending plans while striking down the tax plan to pay for it.

One of Pawlenty's cuts -- the $5.3 million from the nutrition program -- prompted the lawsuit that led to the court case. Ramsey County Chief District Judge Kathleen Gearin had blocked the cut, writing that Pawlenty overstepped a boundary between legitimate use of unallotment and the legislature's power.

The Supreme Court said the unallotment law was not meant to shift so much power to the governor, and that the governor has the power to cut funds only after the executive and Legislature agree on a balanced budget.

"Because the legislative and executive branches never enacted a balanced budget for the 2010-2011 biennium, use of the unallotment power to address the unresolved deficit exceeded the authority granted to the executive branch by the statute," the decision said.

Chief Justice Eric Magnuson wrote the decision, with Justices Alan Page and Paul Anderson issuing a separate concurrence. Justice Helen Meyer joined in the 4-3 majority. Justices Lorie Gildea, G. Barry Anderson and Christopher Dietzen dissented.

The justices did not decide if the unallotment statute is unconstitutional.

Page suggested that it might be, saying the statute gives the governor "virtually unfettered discretion" to decide how to cut funds. He expressed concern that it "may constitute an unlawful delegation of legislative authority."

Gildea asserted that the plaintiffs had failed to prove that the statute is unconstitutional. Gildea noted that the state constitution requires a balanced budget, and that the executive and legislative branches had agreed on a process through the unallotment statute to ensure that it can occur. Whether that is the best process is for the people, not the court, to say, Gildea wrote.

On May 13, Governor Pawlenty named dissenting justice Lori Gildea as Chief Justice.

As the MinnLawyer Blog points out: "There’s no check on a governor’s ability to appoint whomever he wants in Minnesota – no process required." Justices are elected in a nonpartisan election for a 6 year term, but vacancies are filled by gubernatorial appointment. The American Judicature Society comments: "According to the constitution, judges are chosen in nonpartisan elections, but many judges resign before their terms end, allowing the governor to appoint their replacements."

From a May 13, 2010 AP story by Martiga Lohn:

ST. PAUL, Minn. - Gov. Tim Pawlenty deepened his imprint on the Minnesota Supreme Court on Thursday, promoting Lorie Gildea to lead the court and naming a 35-year-old law professor who once clerked for U.S. Supreme Court Justice Clarence Thomas to fill her seat.

The Republican governor said the elevation of Gildea and appointment of David Stras fit within his philosophy of a limited role for the judiciary. Both took his side in a case that went against him last week when the court found he exceeded his authority by cutting the budget without legislative consent — Gildea in a dissenting opinion, Stras with a friend-of-the-court brief. * * *

In Minnesota, Supreme Court justices are either named by governors or, more rarely, elected directly. They stand for election every six years. Gildea will be on the ballot in 2012.

Straus was the focus of this May 14th ILB entry, headed "Blogger appointed to the Minnesota Supreme Court."

Finally, I ran across this fascinating article by David Schultz, a professor in the School of Business, Hamline University, writes the day after the court decision, but a week before the Supreme Court appointments. Some quotes:

The Minnesota Supreme Court's unallotment decision was predictable. As I argued in a June 16, 2009, Community Voices commentary, several constitutional and statutory arguments suggested that if Gov. Tim Pawlenty used unallotment to balance the budget as he promised, a court would find his action illegal.

The governor did what he promised, and the court found it illegal. In a 4-3 ruling, with Chief Justice Eric Magnuson writing the majority opinion and casting the deciding vote, he crafted a classic opinion that actually is the model of judicial restraint. In reaching its decision Magnuson noted that the court could have ruled on either statutory or constitutional grounds but that since it could handle the matter by statute, it would not address the constitutional issues. * * *

Winners and losers? Of course the plaintiffs and Galen Robinson of Mid-Minnesota Legal Assistance are the major winners. They get their money for the diet program. They also brought the case when the DFL chickened out last year and decided not to go to court. But if the Legislature ratifies the unallotment, their actions may be for naught.

The second winner is Chief Justice Magnuson. A former law partner of the governor who appointed him to the bench, Magnuson has spent nearly his entire time fighting the governor's budget cuts to the judiciary. Unlike the other three Pawlenty appointees to the Supreme Court who supported the governor (possibly with dreams of getting named chief justice), Magnuson's announcement before the case that he was stepping down from the court liberated him to follow what the law told him to do. The final decision was 4-3, with the chief justice casting the deciding vote (as I predicted it would be). His decision will be remembered as a courageous one, marked with independence and integrity. * * *

Now the losers. Pawlenty, of course, lost legally and politically. * * *

Finally, other losers include law professors David Stras and Michael Paulsen of the University of Minnesota and St. Thomas law schools. They filed a brief in this case drawing upon federal constitutional principles to defend the governor. They might know the U.S. Constitution, but they did not understand Minnesota constitutional law.

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Courts in general

Courts - Overview of the 2009-2010 SCOTUS term

Sat. evening C-Span's "America and the Courts" had a terrific two-hour show featuring a panel, chaired by Solicitor General Elena Kagan, and featuring presentations by former U.S. Solicitor General Paul Clement and UC-Irvine Dean Erwin Chemerinsky. The C-Span description:

Prior to her nomination to the Supreme Court, Solicitor General Elena Kagan moderated a panel on the 2009-2010 Supreme Court term. Former U.S. Solicitor General Paul Clement joined discussion at the Sixth Circuit Judicial Conference in Columbus, Ohio.
No direct link yet - check back.

But here is the link to the Sat., May 8, 44-minute show:

Retiring Supreme Court Justice John Paul Stevens and U.S. Solicitor General Elena Kagan appeared together at the Seventh Circuit Judicial Conference in Chicago. After brief remarks from Justice Stevens, Solicitor General Kagan spoke on his life and legacy. Kagan is reported to be on the short-list of nominees to replace Justice Stevens.

Posted by Marcia Oddi on Sunday, May 16, 2010
Posted to Courts in general

Saturday, May 15, 2010

Ind. Law - "Indianapolis law firms raising rates again"

Read the long story here, by Scott Olson of the Indianapolis Business Journal.

Posted by Marcia Oddi on Saturday, May 15, 2010
Posted to Indiana Law

Ind. Decisions - "Yalanda Parrish’s conviction, sentence upheld"; discussion of judges' independent research

Yesterday's NFP COA opinion in the case of Yalanda Sue Parrish v. State of Indiana (NFP) is the subject of a story dated May 14, 2010, in the Jeffersonville News & Tribune. Matt Thacker reports:

The Indiana Court of Appeals upheld the conviction and sentence of road-rage shooter Yalanda Parrish in a 3-0 decision published Friday.

A jury in Clark County Circuit Court convicted Parrish of class B felony aggravated battery in July, and Judge Dan Moore sentenced her to 10 years in prison with the final three years to be served on work release.

Parrish, 41, shot 52-year-old Wesley Mosier once in the chest as he approached her vehicle while stopped at a traffic light at 10th Street and Allison Lane in Jeffersonville. Witnesses gave varying testimonies about whether Parrish was following Mosier too closely or Mosier was driving erratically and cutting off Parrish on his motorcycle.

Mosier claimed he only wanted to ask if he had done something wrong, while Parrish said Mosier tried to attack her and she was acting in self-defense

Parrish’s 15-year-old son was arrested for kicking and hitting Mosier after he was shot and on the ground.

Yalanda Parrish appealed her conviction on the grounds that her request for a mistrial was denied. Moore ruled prosecutors could not mention allegations that Parrish’s son attacked Mosier because that might prejudice the jury.

Mosier mentioned during his testimony that her son pulled his hair and kicked him, and Moore admonished the jury to ignore those statements. The Court of Appeals found that one statement — taking into consideration that 15 witnesses were called — did not have a persuasive effect on the jury.

In arguing the sentence was too long, Yalanda Parrish’s appeal stated that the judge should not have used matters outside the court in sentencing.

The Court of Appeals found that she waived appellate review on that matter because she never objected when Moore said at the sentencing hearing that he went to the scene of the crime and counted the number of stops Yalanda Parrish could have turned off on 10th Street between Sportsman Drive and Allison Lane to avoid the conflict.

“Therefore, although trial court judges are strongly discouraged from undertaking their own investigations and visiting crime scenes, the information that the trial court judge in this case received as a result of his visits had already been presented to the jury, and we find no error,” the Court of Appeals ruled.

Some readers may recall this case, the ILB had a number of entries on it, it was variously referenced as a "stand your ground" or "road rage" case in reports.

Judges' independent research. After reading stories on the sentencing in this case, the ILB posted this Aug. 21, 2009 entry headed "Observations on: Verdict in road-rage shooting trial in Clark County". Additionally, a more general ILB entry from the day before, Aug. 20. 2009, had examined the propriety of judges' independent research -- the latter part of the Aug. 20th entry discussed the Indiana Code of Judicial Conduct Rule 2.9(C), which declares that judges "shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed."

Friday's decision in Parrish has a discussion of the Parrish judge's independent research beginning on p. 9 in the section re sentencing, headed "B. Consideration of Matters Outside the Record." From the opinion [ILB emphasis added]:

Parrish first contends that the trial court erred in considering matters outside the record. However, she has waived appellate review of this issue because she failed to object when the trial court made its statements about counting the number of stops to turn off on 10th Avenue between Sportsman Drive and Allison Lane and about visiting the Thornton’s parking lot. See Hulfachor v. State, 813 N.E.2d 1204, 1207 (Ind. Ct. App. 2004) (holding that failure to object to consideration of evidence outside the record in determining a sentence results in waiver of the issue on appeal). Waiver notwithstanding, we find no error. At trial, the State mentioned that there were fifty different places along 10th Street from Sportsman Avenue to Allison Lane where Parrish could have turned off and gotten away from Mosier if he was harassing her as she claimed. In addition, the jury saw a videotape and pictures of Thornton’s lot. Therefore, although trial court judges are strongly discouraged from undertaking their own investigations and visiting crime scenes, the information that the trial court judge in this case received as a result of his visits had already been presented to the jury, and we find no error.

Prior to that, on p. 7, the opinion quotes from the trial court sentencing record, including:

The Court’s required, I believe, to look beyond the statute and look beyond the arguments of counsel. And so much of this trial involved arguments about who was right and who was wrong that day. . . . Both of these adults on the roadway that day were engaged in conduct that does not reflect mature adults with their vehicles. Between Sportsman Drive and Allison Lane there almost appeared to be a competition on the roadway. . . . I think that one of the lawyers at the closing statements said that there were fifty stops to turn off between Sportsman Drive and Allison Lane. In fact, I counted them myself since the trial and had my staff double check me, and there were forty-eight options before that shooting occurred. Forty-eight places to turn off the road.
. . .
Ms. Parrish, the evidence on her side of the case was there was a child with her. There was a gun under her seat and it was a hand gun and we have learned since trial that she has no firearms training [what] so ever. She’s driving in a car in Clark County in Jeffersonville with a hand gun under her seat. Since the trial I actually have gone twice to the Thornton’s parking lot, got out of my car and stood there and watched the traffic to understand what was going on this day because we saw the video tape at the Thornton’s lot. Two huge driveways to turn into . . . before she chose the option to pull the gun. . . .

Posted by Marcia Oddi on Saturday, May 15, 2010
Posted to Ind. App.Ct. Decisions

Friday, May 14, 2010

Law - More on "Facebook Privacy: A Bewildering Tangle of Options"

Updating yesterday's entry, Jennifer Valentino-DeVries has posted this entry, headed "Looking to Delete Your Facebook Account? You’re Not Alone," in the WSJ blog, Digits. It begins:

Over the past 24 hours, searches related to deleting Facebook accounts have been some of the top trending items on Google — indicating that the tech-world furor about the social-networking site’s privacy policies may have become more mainstream.

Thursday evening, “how do i delete my facebook account” was among the top 20 trending searches on Google Hot Trends, and Friday morning “delete facebook account” made the list. This doesn’t mean that these searches are at the top of all Internet queries; rather, it’s an indication that the topic is seeing an unusual spike in search traffic.

And how might these privacy issues affect the issue of judges on Facebook? No answers here, but this quick Google search turns up a number of entries on the ethics of judges as members of social networks, pre the privacy brouhaha.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to General Law Related

Ind. Decisions - Supreme Court posts opinion this afternoon

In Chawknee Caruthers v. State of Indiana, a 10-page, 5-0, just-posted (3:10 PM) opinion, Chief Justice Shepard writes:

Chawknee Caruthers shot and killed Karim Turner after mistaking him for someone else, and a jury found Caruthers guilty of murder. During his trial, the court took security measures to address juror concerns that remain unspecified. He now appeals based on (1) the trial court’s failure to sua sponte interrogate the jury about the effect of these concerns on their impartiality, (2) his trial counsel’s ineffectiveness, and (3) sufficiency of the evidence. We affirm. * * *

Standard of Review. The failure to raise a claim of error generally waives that issue for appeal. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). We nevertheless sometimes entertain such claims under fundamental error, meaning an error that makes a fair trial impossible or that constitutes a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. (citing Benson v. State, 762 N.E.2d 748 (Ind. 2002)).

I. Failure to Interrogate the Jury Was Not Fundamental Error.. * * *

We acknowledge that best practice would have been for the trial court to enter its observations into the record at the time action was taken, giving further description of the nature of the jurors’ concerns and its reasoning for taking the security measures it did and not anything more. That said, even reading the record in a light most favorable to Caruthers’ claim does not lead us to conclude that the trial court’s failure to interrogate the jury constituted a ―blatant violation of basic and elementary due process‖ that undeniably made a fair trial impossible. Clark, 915 N.E.2d at 131.

II. The Evidence Was Sufficient to Prove Murder. * * *

At least two witnesses stated Caruthers admitted to the shooting. (Tr. at 147, 586.) Considering all the evidence most favorable to the verdict and drawing all reasonable inferences therefrom, we conclude that the jury could have reasonably found Caruthers guilty.

III. The Claim of Ineffective Assistance Is Unavailable Here.

Caruthers argues that his trial counsel was ineffective on several grounds. (Appellant’s Br. at 5–10.) His appellate counsel making these arguments also served as trial counsel. Arguing one’s own ineffectiveness is not permissible under the Rules of Professional Conduct.Ind. Professional Conduct Rule 1.7(a); Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999).

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Ind. Sup.Ct. Decisions

Law - More on "The battle over direct shipping of wine from producer to consumer has returned to Congress."

Updating this ILB entry from May 5, 2010, the Washington Post has a second story on the bill introduced in Congress. Shannon Dininny of the AP has a story that begins:

LOWDEN, Wash. -- Try to be a wine connoisseur in Dickinson, N.D.

Gordon and Sandee Schnell had a hard time until the state changed its rules in 2001 and allowed wineries to buy permits to ship directly to residents - one case of wine per person, per month.

But now Congress is considering legislation that could limit wineries' ability to sell and ship directly to consumers. The wholesale distributors who proposed the legislation say it will keep wine from minors, limit alcohol consumption and ensure states control sales.

It's left the Schnells puzzled.

"The argument against it was that young kids would be buying wine," Gordon Schnell asked. "Young kids aren't going to pay $30 for wine."

Added his wife, laughing, "Or order it two weeks in advance and wait."

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to General Law Related

Law - "Complaint Box | Ambulance Chasers"

From the NY Times City Room blog today, an item by Penny Musco that begins:

Getting involved in a minor auto accident can be a hassle, what with juggling alternate transportation and insurance claims, but even more annoying is the aftermath: the deluge of letters and calls from lawyers and medical professionals seeking to profit from your trouble.
It's the same in Indiana ...

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to General Law Related

Ind. Courts - "Porter Co. courthouse left without phone service Friday "

Bob Kasarda reports this afternoon in the NWI Times:

VALPARAISO | The failure of a month-old piece of equipment on Friday left the Porter County courthouse unable to place or receive telephone calls on what is typically a busy morning for the courts, probation officers and other departments.

The failure involved a router, which was installed as part of the building's transition to digital telephones, said Sharon Lippens, director of the county's Information Technologies and Service Department.

"It just up and died," she said.

The transition, which has been completed at the county's nearby administration center and is in the works at the juvenile and Portage buildings, is expected to slash the county's annual telephone bill by more than half. The savings comes by being able to reduce the number of telephone lines used and by operating an in-house voice mail system.

Lippens, who expected the router to be replaced Friday, said she is looking into having a spare on hand if the cost is not too great.

This is not the first problem to develop since the transition began, she said. Verizon mistakenly placed fax machines on the digital lines, which does not work, she said. There has also been some confusion in house as county workers get used to the new system.

One benefit of the new system is ability to use an instant messaging system, even when the telephone operations are down, Lippens said. She said her office received many reports of the phone problems via this system on Friday.

Her office, which is based at the nearby county administration center, was also able to use the instant messaging system to help out an individual, who was desperately trying Friday morning to confirm an appointment with his probation officer at the courthouse.

The man began randomly calling other county numbers when his call to the probation department did not go through, she said. Lippens said her office was able to use the instant messaging system to convey the man's message.

"That to me was really great," she said.

As of 11:30 a.m. the phones were still not working, although Lippens expected the problem to be corrected Friday afternoon.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Courts

Ind. Gov't. - "St. Joseph County officials to rethink proposed code ordinance"

Erin Blasko reported in yesterday's South Bend Tribune:

SOUTH BEND – Concerned it has become too broad in scope, county officials this week applied the brakes to a proposed code enforcement ordinance.

"At this point we're finding there are a lot of flaws in this piece of legislation, and we're going to slow down and continue to table it," said County Council Member Mike Hamann, D-District A.

Introduced by Hamann in April, Bill No. 33-10, which is modeled after South Bend's code enforcement ordinance, authorizes the building department to enforce code and zoning laws in the county and, if necessary, to impose fines.

According to Hamann, a number of people have expressed concern about language in the bill that would allow building department employees to enter people's homes to look for violations. The language was lifted almost word for word from the city ordinance, he said. * * *

"There's a lot of concern with what was written about entry of property and entry of homes," Herbster said. He said that although such language might be fine in the city, "people expect more freedom in the county."

According to Hamann, the bill is intended to target only "junk cars in residential areas and junk in yards," not people's homes. He said one of the reasons for tabling the bill is to have the language regarding entry into homes either removed or revised.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Government

Ind. Decisions - One Indiana opinion issued today by 7th Circuit

In U.S. v. Taylor (SD Ind., Barker), an 11-page opinion, Judge Cudahy writes:

In 2009, Darryl Taylor was convicted of armed robbery, attempted armed robbery and two separate counts of brandishing a short-barreled shotgun in relation to two crimes of violence. He was sentenced to 444 months’ imprisonment. In the present appeal, Mr. Taylor contends that the district court committed reversible error in denying his offering of the testimony of one Dale Serie. Mr. Serie served as a pastor on Sundays at the Volunteers of America, which is a halfway house where Mr. Taylor resided pending trial. The defendant, expressing a desire to take the stand in his own defense, wished to offer Mr. Serie’s testimony as to his reputation for truthfulness. This was a curious goal, since the defendant at trial argued that he had lied in his earlier confession to the police. Presumably, then, evidence of his renown for veracity would bolster the prosecution’s case. Nevertheless, Mr. Taylor represented to the court that Mr. Serie’s testimony would go to his honesty in taking the stand, rather than to statements he made at the time of the offense. The district court then conditioned Mr. Serie’s taking the stand on the defendant’s actually testifying. Ultimately, the defendant elected not to testify and so the defense rested without the benefit of Mr. Serie’s testimony. We find no error in the district court’s evidentiary ruling. Since Mr. Serie’s testimony was to be limited to bolstering the defendant’s own testimony, the former was irrelevant in the absence of the latter. This fact was correctly noted by the district court. Even if the court had erred in so ruling, however, a veritable mountain of evidence as to the defendant’s guilt rendered any such error harmless. For these reasons and the reasons that follow, we affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Alberto Ruiz v. State of Indiana , a 10-page opinion, Judge May writes:

Ruiz’s counsel wanted to present expert testimony by a clinical psychologist about coerced or false confessions. The State asked the court not to allow the witness to testify. The court excluded the witness on the grounds the testimony would not help the jury resolve any disputed facts, and would likely confuse the issues, mislead the jury, or unfairly prejudice the State. * * *

1. Standard of Review. Ind. Evidence Rule 702 allows for expert witness testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Evid. R. 702. Whether the proffered witness meets these requirements and, thus, whether the witness should be allowed to testify, is a decision within the discretion of the trial court. Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998), reh’g denied. Thus, we review such decisions only for an abuse of discretion. Id.

Ruiz acknowledges this discretion, but notes exclusion of a defense witness may have the effect of depriving a defendant of his right to put on a defense. In Holmes v. South Carolina, 547 U.S. 319, 326 (2006), the Supreme Court addressed the tension between a defendant’s right to put on a complete defense and evidence rules that permit the exclusion of evidence from criminal trials. It noted state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. * * *

Ruiz’s trial court excluded the Doctor’s testimony based on factors noted in Holmes: “unfair prejudice, confusion of the issues, or potential to mislead the jury.” 547 U.S. at 324; (App. at 149-50). Those generally valid considerations simply cannot justify exclusion when Ruiz’s trial was to the bench, because harm arising from evidentiary error is lessened if not totally annulled when the trial is by the court sitting without a jury. * * *

Thus, the reasons cited by the trial court did not justify excluding the Doctor’s testimony at Ruiz’s bench trial.

Nevertheless, we may not reverse because Ruiz has not demonstrated he was prejudiced by the court’s error. * * *

2. Appropriateness of Sentence. * * * Ruiz molested a member of his extended family, who was being brought for day care to the house where Ruiz lived with his brother and his brother’s wife. That “violation of trust,” (id. at 153), reflects poorly on Ruiz’s character. Before these offenses, Ruiz led an otherwise law-abiding life, but we cannot find that this factor renders Ruiz’s sentences inappropriate.

We cannot say Ruiz’s sentences are inappropriate in light of his character and the nature of the offense. Therefore, we affirm the trial court.

In Richard W. Miller v. Ann W. Miller, an 8-page opinion, Judge Mathias concludes:
It is important to recall that the consolidated proceedings between these parties involve three case types, Mother’s paternity action, Mother’s plenary action and Father’s dissolution action. The January 5, 2009 judgment was certainly an order that resolved child custody and support within the Mother’s paternity action, but it was not a final appealable judgment from all of the consolidated, pending cases as it left one or more issues unresolved. See R. App. 5 (A) and Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003). The January 5, 2009 judgment was only an interlocutory order on child custody and support that was neither certified as appealable by the trial court nor accepted as such by our court. Ind. Appellate Rule 14(B). Therefore, we do not have discretionary jurisdiction to review the judgment. See Taylor v. Jacobs, 864 N.E.2d 462 (Ind. Ct. App. 2007). This appeal is now therefore dismissed without prejudice.
In Ralph Hullett, et al. v. James Lafevre, et al. , a 14-page opinion, Sr. Judge Sharpnack writes:
Appellants Ralph Hullett and CJR Homes (collectively, Hullett) appeal from the trial court’s grant of Appellees James E. LaFevre and Jeremy B. LaFevre’s (the LaFevres) Motion to Set Aside the Order Directing the Auditor to Issue a Tax Deed (Motion). We affirm. * * *

When tax sale notices are returned in their entirety as undeliverable, it is incumbent as a matter of both federal constitutional and state law that further action be taken to effectuate notice reasonably calculated to apprise an interested party of tax sale proceedings, if it is practicable to do so. Edwards v. Neace, 898 N.E.2d 343, 348 (Ind. Ct. App. 2008). Additionally, the auditor is deemed to be aware of the contents of the records maintained in its office, and due process requires the county auditor to search the records that it maintains. * * *

In this case, the Auditor sent the LaFevres the notices of tax sale for Parcels 007 and 008 via certified mail to the Auditor’s address of record for those parcels, 2102 Fairview Street, Lake Station, Indiana. The notices were returned to the Auditor as undeliverable, with no forwarding address. The Auditor did not search its records for any other address. If the Auditor had undertaken a search, it would have discovered [ILB - etc] * * * Consequently, the evidence supports the trial court’s findings regarding the Auditor’s notice of tax sale, and the findings support the trial court’s conclusion that the Auditor should have searched its records and sent the notice of tax sale to the LaFevres’ Valparaiso address. The Auditor and Hullett did not provide constitutionally adequate notice of the tax sale process. Therefore, the trial court did not abuse its discretion by granting the LaFevres’ request for relief from judgment pursuant to Indiana Trial Rule 60(B).

NFP civil opinions today (1):

Richard K. Storm v. Tracy S. Sissom, Rebecca Sandlin and Shelley Sullivan (Fezatte) (NFP) - "Richard Storm (“Father”) sought transfer of his child custody modification case to Kentucky on the ground the Indiana court is an inconvenient forum, and his motion was denied. We reverse."

NFP criminal opinions today (7):

Larry A. Robinson v. State of Indiana (NFP)

Cherie Thompson v. State of Indiana (NFP)

John D. Cantrell v. State of Indiana (NFP)

Yalanda Sue Parrish v. State of Indiana (NFP) - "Yalanda Sue Parrish appeals her conviction after a jury trial of aggravated battery as a Class B felony as well as the sentence imposed thereon. Parrish raises two issues which we restate as: 1) whether the trial court erred in denying her request for a mistrial, and 2) whether the trial court abused its discretion when it sentenced her. Concluding Parrish was not placed in grave peril, and the trial court did not err in sentencing her to a ten-year advisory sentence, we affirm."

Timothy E. Dennison v. State of Indiana (NFP)

Shannon Docker v. State of Indiana (NFP)

Thomas Hodson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Grants for Court Reform Projects Are Available"

The Division of State Court Administration of posted an announcement of the grants availability -- the application deadline is June 15, 2010. The notice indicates that the 2010 grants will target several specific initiatives which will receive priority consideration. One of them is:

Transferring Responsibility for Court Records from the Clerks to the Courts

Since the summer of 2008, a team of trial judges working along with the Judicial Conference of Indiana has developed a strategic plan for the Indiana judiciary. This plan, called A New Way Forward, is available here at the judicial website..

The strategic plan includes several proposals, including greater educational requirements for judges, a more streamlined judicial system, and increased judicial responsibility for court records which now vests with the clerk of the circuit court.

The Strategic Plan further calls for all responsibility relative to the collection and disbursement of court fees to continue with clerks.

In line with one of the key goals of the Strategic Plan, funding is available for studies and pilot projects on how courts and clerks can transition the responsibility for court records from the clerk to the court while continuing fiscal functions with the clerk.

With the aid of a consultant, a court may wish to conduct a study on how to manage the transition of responsibility for the clerk functions directly related to record-keeping, digital information, file maintenance, and contact with the public with respect to court filings. Funding could cover the actual study of the legal and process-related issues for the kind of transition as well as the logistics of the transition itself.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Courts

Courts - Blogger appointed to the Minnesota Supreme Court

SCOTUSblog has this entry today, headed "Congratulations to David Stras."

For more, see this entry from the blog, Politics in Minnesota.

Note the end of the story:

Pawlenty made his judicial appointments a little more than a week after the high court ruled his 2009 unallotments of the state budget were illegal. The three justices considered for the chief justice seat cast the dissenting votes in the 4-3 decision.
The ILB has been working on an entry about that ruling, look for it later today or tomorrow.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Courts in general

Environment - More on "Contaminated soil from Louisville arena site dumped in Clarksville"

Updating this ILB entry from yesterday, which quoted a LCJ story, Amy Hartsock, Public Information Officer, Indiana Department of Environmental Management, has sent the ILB these corrections:

Hi Marcia,

I wanted to let you know about these corrections for the story that ran in the Louisville Courier Journal on May 12, “Contaminated soil from Louisville arena site dumped in Clarksville.”

* The following statement [in the LCJ story] is incorrect: “Hartsock estimated that the arena material in Clarksville is about three yards deep and covers about 100 yard by 150 yards in area.” A correct statement would be that the area being looked at is “about 10 feet deep and covers about 100 yards to 150 square yards in area.”

To provide further clarification, making it square yards would equate to an approximate surface area of 30 feet by 45 feet. IDEM has not been provided a volume or number of truckloads, and I have not provided calculations on volume or truckloads.

* Given that, it is also incorrect to say IDEM has ordered the removal of “hundreds of dump truck-loads of contaminated soil that was excavated from the site of the Louisville arena’s construction and left at a landfill in Clarksville.” It would be correct to say we’ve instructed them to “identify unclean fill placed at the site and remove it to a proper disposal facility.”

To provide further clarification, when the actual delineation takes place, we will know more about the volume that needs to be removed.

And one last bit of clarification: Kentuckiana Trucking is a clean fill site, not a landfill.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Environment

Ind. Courts - Still more on "Backlog of cases extends toxicology test results: Toxicology tests often take weeks, months to complete"

Updating yesterday's ILB entry, Bob Kasarda of the NWI Times reports today:

Porter County Prosecutor Brian Gensel said he doesn't expect local drunken driving convictions or active cases to be affected by the resignation of the head of the state toxicology lab amid complaints against the department.

Gensel is hopeful, however, the shake-up at the Indiana State Department of Toxicology will resolve delays in the processing of blood samples and the shortage of available expert witnesses.

"I concur it's frustrating," he said. "The time lag is so great."

Michael Wagner resigned Wednesday as director of the toxicology lab but will still be a faculty member at the Indiana University School of Medicine, which runs the lab, said school media manager Mary Hardin.

Michael Neerman, who is listed on the school's website as an associate director, was named acting director.

Neerman was to meet today with an assessment team that has been examining the toxicology department.

The Indianapolis Star has reported the review stems from concerns about long delays, sloppy work and failure to perform inspections required by law.

The school issued a statement Thursday that it is committed to addressing any feedback in order to ensure quality laboratory services.

Gensel said his office has never questioned the accuracy of the blood analysis carried out by the state lab. But he said the lab is overburdened and is thus slow in producing its results and in freeing up someone to testify as a witness in a criminal case.

While there are reports of DUI cases being dismissed elsewhere in the state as a result of the state lab, Gensel said he does not believe that has occurred locally.

This is not a problem with most drunken driving cases because breath tests, rather than blood samples, are used for evidence, he said. When a quick turnaround is needed on a blood sample, Gensel said his office turns to the local Great Lakes Labs, but that requires finding additional funding.

Diane Poulton, spokeswoman for the Lake County prosecutor, said the office also relies primarily on breath tests and has had no problem when seeking the services of the state lab.

In addition to analyzing blood samples in drunken driving cases, the state lab is charged with maintaining and certifying its breath test equipment is distributed to counties around the state, Hardin said.

There are 18 machines in Lake County and four each in Porter and LaPorte counties, according to the lab's website.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Courts

Ind. Law - Lake County school race hinges on voter's ID

Fascinating. Christin Nance Lazerus reports in the Gary Post-Tribune:

More than a week after the May 4 primary, the Lake County Election Board decided on Thursday to count one provisional ballot cast at a Calumet Township precinct -- providing that the person who cast the vote confirms his or her identity at the county Voter Registration office by noon today.

The vote may prove crucial to deciding a Lake Ridge School Board race where the candidates each have 370 votes. Jonathan Evans and Glenn Johnson are running for the District 2 seat.

Evans was appointed to the board a few months ago to fill out the term of board member Bea Rice, but the candidates are vying to succeed Estelle Becke.

Since school board races are nonpartisan, the May 4 election decides who is sworn in on July 1.

Election Board Director Sally LaSota said the person who cast the vote must have a valid government identification, such as a driver's license or passport.

LaSota did not know which candidate the provisional ballot from Calumet Township selected.

Neither candidate has a filed a petition for a recount.

Once the noon deadline passes, totals will be updated and the results will be finalized.

If the provisional ballot doesn't resolve the race, the result could hinge on the vote of the Lake Ridge School Board. In that case, Evans said he would recuse himself from the vote.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Law

Law - "Thousands of non-profits could unwittingly lose tax status "

From USA TODAY, Sandra Block reports:

Hundreds of thousands of small non-profits, from Little League teams to community soup kitchens, could lose their tax-exempt status on Monday because of an IRS filing requirement.

The 2006 Pension Protection Act included a provision requiring all non-profits to file an annual return with the IRS.

Previously, non-profits with annual revenue of less than $25,000 were excluded. Non-profits that fail to file a return for three consecutive years lose their tax-exempt status. On May 17, the three-year clock runs out for non-profits that haven't filed a return since 2007.

The Urban Institute estimates that up to 365,000 non-profits could lose their tax-exempt status if they fail to file by Monday. Groups that miss the deadline will have to apply for a new exemption and pay a user fee of up to $850. They could also be liable for taxes on any revenue earned before their exemption is renewed.

The requirement does not apply to churches or church-related operations. * * *

Non-profits with less than $25,000 in annual revenue can file a 990-N, an abbreviated online form. Completing the online form takes less than 10 minutes, says Tim Delaney, president of the National Council of Nonprofits.

The IRS has conducted an extensive campaign to educate non-profits, but many small charities are still unaware of the requirement, says Tom Pollak, senior research associate for the Urban Institute. "Filing to the IRS has never been on their radar screen."

The Urban Institute's National Center for Charitable Statistics has created a database of non-profits whose tax-exempt status is in jeopardy. It's available at nccs.urban.org.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to General Law Related

Ind. Gov't. - More on the IBM-FSSA contract

I've been looking online for the IBM-FSSA contract, entered into, I believe, in Dec. 2006. I haven't located it. The FSSA code # is 00405.

My only thought is that the State no longer classifies this as an "active contract." If so, this points up a deficiency in the online search system, if there is no online access to "inactive contracts" or canceled contracts, a point where interest may be at its highest.

Niki Kelly of the Fort Wayne Journal Gazette has a story today on the lawsuits, headed "State, IBM take battle to court: Sue each other over welfare pact; each side says it is owed millions." Here are some quotes from a side'bar:

Here are additional allegations from the lawsuit filed Thursday by the state against IBM Corp:

• The state alleges that IBM coalition workers were so far behind in processing applications that they would often recommend denial of an application to make their timeliness numbers look better. Then Hoosiers would appeal the decision. While the appeal was pending, workers would process the application and benefits would be granted before the hearing date. As a result, about 75 percent of these appeals were resolved without further action.

• The state alleges IBM never intended to meet call-time requirements. Although FSSA was holding IBM’s response time to two minutes, IBM was holding its subcontractor to seven minutes. The lawsuit said IBM did so “because it was cheaper for IBM to pay the fines to the state than to perform as promised” and “for the three-year period, IBM was achieving higher-than-projected profit margins at the same time that its modernized system was floundering.”

• The court filing acknowledged that numerous Hoosiers eligible for aid were hurt during the process. In one example, IBM coalition workers terminated Medicaid benefits for a nun who missed a telephone interview when it was scheduled during Mass on a Holy Day recognized by the Catholic Church when she had to play the organ. She reportedly tried six times to call the workers but was unable to get through. She sent a fax that was not processed, and her benefits were terminated for failure to cooperate.

[More] This quote from today's Star captures what many probably thought when reading the stories:
Mark St. John, who lobbies for social service groups including Indiana Family Services, said the lawsuits show the welfare privatization was every bit as bad as he and others feared. "Initially, they were blindly defending the process," St. John said of state government.

Posted by Marcia Oddi on Friday, May 14, 2010
Posted to Indiana Government

Thursday, May 13, 2010

Ind. Courts - The IBM lawsuit, Administrative Rule 9, and a teaching moment

Earlier today the ILB posted this entry which included "links to both the FSSA lawsuit against IBM, and the IBM lawsuit against FSSA (redacted)." I thought that the fact that there were redactions in the complaint was unusual, and noted them, saying:

The redactions, said to be "pursuant to a contract confidentiality agreement", are on pp. 11-12, para. 38 and 30.. Also para. 46 on p. 14, and portions of paras. 50 and 52 on p. 15.
A knowledgable reader has sent me a really useful memo titled "Documents filed under seal in Indiana courts" that includes the following:
In Indiana -- except for those items listed under Administrative Rule 9(G) -- nothing can be redacted or filed under seal in an Indiana trial court without the trial court first holding an Administrative Rule 9(H) public hearing and then entering an order that complies with Administrative Rule 9(H). See Travelers Cas. and Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008).

The Indiana Supreme Court has specifically held that a contractual agreement or Trial Rule 26 protective order cannot serve as the basis for filing documents under seal with the court; these orders only govern the exchange of information between parties in the discovery context. See Travelers Cas. and Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008); accord Allianz Ins. Co. v. Guidant Corp., 884 N.E.2d 405 (Ind.Ct.App. 2008).

Application of Administrative Rule 9 raises two significant implications for our practice.

First, if an attorney files materials under seal without the required Administrative Rule 9(H) hearing and the appellate court realizes it and takes issue with it, the appellate court can--and does--sua sponte order the materials unsealed and they become part of the public record without the attorney ever having the chance to keep them private. * * *

Second, as to those items that are listed in Administrative Rule 9(G), the failure to file them under seal (on green paper) can lead to sanctions against the attorney. Those items identified by Administrative Rule 9(G) are listed on the other attached document. If you will be filing documents in an Indiana court, I recommend printing this attachment and reading through it at least once just to familiarize yourself with the general categories. Although many of these will never apply to most of our practices, some of the Administrative Rule 9(G) items definitely do.

Also, keep in mind that the Indiana Supreme Court has interpreted Administrative Rule 9(G)(c) to refer to only those "specific court orders" that were entered in compliance with Administrative Rule 9(H). Travelers Cas. and Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008).

Here is a link to Administrative Rule 9, which many find difficult.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court posts one late today

Larry D. Storie v. Randy's Auto Sales, LLC v. St. Paul Mercury Insurance Company -- This is on a certified question from the 7th Circuit. Justice Dickson's 7-page, 5-0 ruling begins:

Pursuant to Indiana Appellate Rule 64, the United States Court of Appeals for the Se-venth Circuit has certified, and we have accepted, the following question concerning the application of Indiana law: "whether an entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Ind. Code § 9-22-3-11(e) when it no longer owns the vehicle upon receipt of the certificate of title." Storie v. Randy's Auto Sales, LLC, 589 F.3d 873, 881 (7th Cir. 2009). As explained below, we answer in the affirmative. * * *

While acknowledging that Indiana Code § 9-22-3-11 is not free from ambiguity, we find persuasive the legislature's use of "acquiring" rather than "owning," the thirty-one day grace period within which to apply for a certificate of salvage title after receiving the original certificate of title, and the harmful consequences that could result if "acquiring" were construed to mean "owning." As a result, we answer the certified question in the affirmative. That is, an entity that purchases and later sells a wrecked vehicle is required to apply for a salvage title under Indiana Code § 9-22-3-11(e), even if it no longer continues to own the vehicle when it receives the certificate of title. The relinquishment of ownership of the salvage vehicle does not extinguish the obligation to apply for a salvage title.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "Big changes to the sex offender registration provisions of the Adam Walsh Act proposed"

If you are following the federal sex offender registration law, you will want to read this post from Sentencng Law & Policy blog on changes proposed by DOJ.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to General Law Related

Ind. Gov't. - "Health care law will cost Indiana $3.6 billion over 10 years, actuary says"

Eric Bradner of the Evansville Courier & Press goes beyond the report and takes what looks to be a balanced look at Indiana health care responsibilities over the next decade under the new health care law in a story dated May 12, 2010.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Government

Ind. Decisions - Still more on "Term. of Parent-Child Rel. of I.B.; M.L., et al"

Updating this ILB entry from May 3, 2010, Prof. Steven D. Schwinn, John Marshall Law School had an entry about the case on May 13th on his Constitutional Law Prof Blog. The heading: "Indiana Supreme Court Takes Up Civil Right to Counsel."

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Transfer Lists

Ind. Gov't. - "History of the IBM deal with Indiana Family and Social Services Administration"

Supplementing this ILB entry posted earlier today, which includes links to the lawsuits, the Indianapolis Star has posted a very useful timeline of the relationship between Indiana Family and Social Services Administration and IBM, from May 2006 to the lawsuits filed today. It includes references to lawsuits filed by affected Hoosiers.

Ken Kusmer of the AP has just filed a good story about the lawsuit between FSSA and IBM. Some new information:

The state's complaint revealed for the first time that the cost of the IBM contract had grown to $1.37 billion under change orders submitted by IBM. The Associated Press reported in August that the original $1.16 billion deal had grown to $1.34 billion under amendments to the contract.

Indiana's lawsuit showed that it expects the U.S. Food and Nutrition Service to fine the FSSA $1 million to $2 million next month for making too many errors in calculating food stamp benefits.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Government

Law - "Facebook Privacy: A Bewildering Tangle of Options"

If you think tax law or environmental law is complicated, take a look at this chart from the NY Times and read the related article. Some quotes:

Facebook, one of the most popular social networks in the world, has more than 400 million registered people on its Web site. Half of these users log in to the service every day, the company says, and users spend 500 billion minutes on the site each month.

But in recent months, Facebook has revised its privacy policy to require users to opt out if they wish to keep information private, making most of that information public by default. Some personal data is now being shared with third-party Web sites.

As a result, the company has come under a blitz from privacy groups, government officials and its own users, who complain that the new policy is bewildering and the new opt-out settings too time-consuming to figure out and use.

“There are always trade-offs between providing comprehensive and precise granular controls and offering simple tools that may be broad and blunt,” said Elliot Schrage, vice president for public policy at Facebook. “We have tried to offer the most comprehensive and detailed controls and comprehensive and detailed information about them.”

The new opt-out settings certainly are complex. Facebook users who hope to make their personal information private should be prepared to spend a lot of time pressing a lot of buttons. To opt out of full disclosure of most information, it is necessary to click through more than 50 privacy buttons, which then require choosing among a total of more than 170 options.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to General Law Related

Environment - Proposed Indiana antidegradation rules face federal rejection if not changed

So reports Gitte Lasby today in the Gary Post-Tribune. Some quotes:

MERRILLVILLE -- The state of Indiana is too lax in its proposed rules for when polluters can discharge more pollution into Lake Michigan and other lakes and rivers, the U.S. Environmental Protection Agency says.

In some circumstances, revamped state rules would allow up to 2.5 times more pollution than federal law allows, the EPA says.

By request from environmentalists, the agency has intervened to require the Indiana Department of Environmental Management to change the rules to make them acceptable.

"Based on our review, we believe several components of the draft rules appear to be inconsistent with applicable federal requirements and could result in EPA's disapproval if they are not revised or clarification is not provided," EPA said in a Jan. 29 letter to IDEM.

The letter raises four points that are "inconsistent" with federal law and five points that require additional documentation and data to be acceptable.

IDEM proposed allowing new or increased pollution in "insignificant" amounts without requiring the polluter to prove it's necessary to accommodate important social and economic development.

IDEM's "insignificance" threshold was 25 percent of the amount that the receiving water can assimilate and still meet water quality standards. Federal law allows only 10 percent, EPA said.

"In EPA's opinion, loss of up to a quarter of the remaining assimilative capacity of the surface water without ... review is not insignificant," EPA wrote.

IDEM also proposed an exception allowing polluters to make certain types of new or increased discharges without proving that it's necessary because they are always considered beneficial. IDEM can't do that without proving it with data and analysis, EPA said.

The so-called "antidegradation" rules flesh out the federal Clean Water Act and are intended to prevent new or increased pollution that would degrade water quality unless the added pollution is necessary to accommodate important social and economic benefits.

IDEM has worked with businesses, municipalities and environmentalists on and off for about seven years to clarify the state's pollution rules, but has not finished.

The effort resumed in 2008 after the 2007 controversy over BP Whiting's wastewater permit, which allowed the refinery to discharge more ammonia and silty materials with heavy metals into Lake Michigan.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Environment

Ind. Courts - More on "Backlog of cases extends toxicology test results: Toxicology tests often take weeks, months to complete"

That was the headline to this worth reading again story by Tom Moor of the South Bend Tribune on July 6, 2009.

Today from the front-page of the Indianapolis Star, a story by Mark Alesia headed "Toxicology chief resigns amid review: Critics say department's work in drunken-driving cases is slow, sloppy." Some quotes from the lengthy story:

The head of the state department responsible for analyzing blood samples in drunken-driving cases resigned Wednesday amid a review of complaints, including long delays, sloppy work and failure to perform inspections required by law.

Those concerned with the department's performance told The Indianapolis Star this week that the problems have resulted in dismissed cases and an additional cost to taxpayers.

The department was also facing conflict-of-interest complaints because its website offers employees as expert witnesses who can be hired by defense attorneys. * * *

An "assessment team," led by former state appeals court judge Linda Chezem, had been examining the toxicology department and was set to meet IU officials Friday. That meeting will go on as scheduled.

Chezem's group, which includes state Sen. Thomas Wyss, R-Fort Wayne, and state Rep. Peggy Welch, D-Bloomington, had gone about its work quietly before being contacted by The Star on Tuesday.

Before Wagner's resignation Wednesday, Chezem said, "This needs to be a lab people have confidence in." She said her group was still gathering information and had not reached any conclusions about the department.

People on both sides of the justice system -- prosecution and defense -- don't appear to have confidence in the lab.

Boone County prosecutor Todd Meyer said he uses the Witham Toxicology Laboratory in Lebanon for "99 percent" of his blood tests in Operating While Intoxicated cases.

"I've had prosecutors tell me they've stopped sending them to the Department of Toxicology," Meyer said. "Witham takes two to five days. The Department of Toxicology takes two to five months."

But that decision comes with a cost to taxpayers. Prosecutors have to come up with extra money to use labs other than the state's, which provides service at no cost to law enforcement.

Marie Greger-Smith, head of Advocates Against Impaired Driving, said she has heard of at least four OWI cases in the Indianapolis area that were dismissed because of the Department of Toxicology. She said one of them was discussed at the most recent meeting of the Governor's Council on Impaired & Dangerous Driving, of which she is a member.

People who described those dismissals did not divulge specific case details, Greger-Smith said, and there was no data available that would shed more light on how many cases are overturned or how frequently there are issues with testing performed by the state lab.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Welfare modernization critics see progress: State system's chief credited with tremendous leap forward"

This ILB entry from yesterday, and earlier entries, discuss the post-IBM Indiana welfare system. Today Mary Beth Schneider of the Indianapolis Star reports in a story headed "Indiana, IBM trade lawsuits over troubled welfare project." Some quotes:

The state and IBM have each filed lawsuits against each other in Marion County this morning over the cancellation of IBM’s $1.34 billion contract for a privatized and centralized welfare delivery system.

Gov. Mitch Daniels canceled that contract in October after the system proved so unworkable that it was never expanded statewide as it was supposed to have been and after there were numerous complaints of wrongful denials of assistance, lost paperwork, and unanswered calls. The state’s Family and Social Services Administration has since moved to a hybrid system, combining modern computer technology with old-fashioned face-to-face contact between caseworkers and clients.

“Less than three years into the 10-year contract, and despite having received more than $437 million in payments, IBM performed so deficiently that FSSA was left with virtually nothing of value from IBM’s failed performance, and indeed is now faced with expending hundreds of millions of dollars in re-programming and eventually entirely replacing IBM’s failed systems,” Indiana’s lawsuit states. “FSSA’s damages are significant and growing.”

Marcus Barlow, a spokesman for FSSA, said the state, in its lawsuit, is seeking reimbursement of every dime it has paid IBM; reimbursement of all overtime state employees incurred because of problems with IBM’s performance; and also wants IBM to be responsible for any federal penalties or damages from any lawsuits filed by others because of the welfare system’s shortcomings. * * *

IBM’s lawsuit, also filed this morning, wants the contract to be enforced, saying it allows them to be paid for fees and expenses it believes the company is owed. IBM has billed the state for more than $125 million to cover computer and furniture purchases and various fees. The state has refused to pay.

The Star includes lins to both the FSSA lawsuit against IBM, and the IBM lawsuit against FSSA (redacted).

The redactions, said to be "pursuant to a contract confidentiality agreement", are on pp. 11-12, para. 38 and 30.. Also para. 46 on p. 14, and portions of paras. 50 and 52 on p. 15.

See also Lesley Stedman Weidenbener's story in the Louisville Courier Journal.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Government

Environment - "Contaminated soil from Louisville arena site dumped in Clarksville"

Ben Zion Hershberg reports today in the Louisville Courier Journal in a story that begins:

Indiana environmental officials have ordered the removal of hundreds of dump truck-loads of contaminated soil that was excavated from the site of the Louisville arena’s construction and left at a landfill in Clarksville.

The landfill operated by Kentuckiana Trucking Co. on Emery Lane, about a quarter-mile from the Ohio River, is supposed to take only clean fill and doesn’t have a permit for contaminated soil, said Amy Hartsock, a spokeswoman for the Indiana Department of Environmental Management.

The contaminants include lead and polynuclear aromatic hydrocarbons, substances often left after diesel oil or other fuels have been stored in an area or coal has been burned there, said Nathan Hancock, a Super Fund division geologist at the Kentucky Department for Environmental Protection.

Hancock said the contaminants aren’t in such high concentrations that they pose an immediate health risk.

Harold Workman, president and chief executive of the Kentucky State Fair Board that is to manage the arena, said Wednesday the contaminated soil that was moved to Clarksville in late 2008 and early 2009 was to be stored there only temporarily as part of a plan for eventual proper disposal.

But Hartsock said Indiana regulations don’t allow for temporary storage of such material at a site lacking a permit to handle it. And, she said, “to the best of my knowledge, our compliance staff isn’t aware” of the temporary storage plan.

Hartsock estimated that the arena material in Clarksville is about three yards deep and covers about 100 yard by 150 yards in area. That would be about 45,000 cubic yards, an amount that would fill more than 2,000 large dump trucks.

See also this ILB entry from May 3rd headed "State breaks silence on 'Easterly's Pile.'

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Environment

Ind. Decisions - One Indiana case decided today by 7th Circuit

In DIRECTV v. Barczewski (SD Ind., Hamilton), a 15-page opinion, Chief Judge Easterbrook writes:

A jury concluded that Jonathan Wisler intercepted encrypted signals from the DirecTV satellite system without authorization and that David Barczewski furnished devices to assist others to steal the signals. See 18 U.S.C. §2511; 47 U.S.C. §605. Ample evidence supports this verdict: both defendants bought electronic gear from a merchant that advertised its products as designed to facilitate theft of DirecTV signals, and both participated in an online discussion group, called the “Pirate’s Den,” whose members exchanged advice about how to decrypt DirecTV signals without paying. Both defendants insisted that the “smart cards” and associated gear they purchased had legal uses. That much is uncontested, but the jury did not have to believe defendants’ claim that the gear had been put to a legal rather than an illegal use. Nor did the jury have to believe Wisler’s assertion that, as a DirecTV subscriber, he had no reason to steal signals. After buying a smart card and joining the Pirate’s Den, Wisler cut back to the lowest tier of service; a jury could conclude that he descrambled other programs, such as sports and movies, without paying. * * *

[Interesting discussion of "shall" and "may," eg at p. 7] As our colleagues in other circuits have remarked, this unwillingness to give effect to a change in statutory language unless the legislative history contains a reassuring “We really mean it!” is incompatible with decisions of the Supreme Court. See, e.g., Swain v. Pressley, 430 U.S. 372, 378–79 (1977); Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) (“it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute”). Legislative history comes into play only when necessary to decode an ambiguous enactment; it is not a sine qua non for enforcing a straightforward text. * * *

[at p. 14] District judges have discretion to consider other reasoned approaches too; there is latitude in the word “may.” The district judge used that latitude to give Barczewski the lowest available penalty. But judges need not go easy on hourly wage-earners who decide to steal TV signals, any more than they need go easy on people who choose other forms of theft to supplement the family budget. People who do not want to pay the market price for goods or services must refrain from theft and cannot complain if the price of crime is steep.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Jose Lopez v. State of Indiana , an 8-page opinion, Judge Crone writes:

Jose Lopez appeals his conviction for class A misdemeanor resisting law enforcement, arguing that the evidence is insufficient. * * *

We conclude that the evidence is sufficient to prove that Lopez acted with the requisite force in resisting the officers in the execution of their duties. * * *

Accordingly, there was probative evidence from which a reasonable trier of fact could have found Lopez guilty beyond a reasonable doubt of resisting law enforcement.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Dia Khari Nelson v. State of Indiana (NFP)

Cory Devonn Beavers v. State of Indiana (NFP)

Willie Q. Poindexter v. State of Indiana (NFP)

Marcus A. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Ind. App.Ct. Decisions

Courts - "State Supreme Courts Have Many Judges Outside the 'Judicial Monastery'"

Marcia Coyle of The National Law Journal has this story today - some quotes:

The U.S. Supreme Court nomination of Elena Kagan has been criticized by some Republican senators because she has no judicial experience, but a lack of judicial credentials is no surprise on state Supreme Courts and neither is a strong showing of gender diversity.

Since Justice John Paul Stevens announced his retirement last month, the National Center for State Courts has entered the debate over the dynamics of the high court by offering comparisons with the Supreme Court's sister courts at the state level.

The center's latest research shows that 85 percent of state courts of last resort -- 46 of 53 -- include at least one member who came to the court without prior judicial experience. Only seven states -- California, Kentucky, Louisiana, Michigan, Oklahoma, South Dakota and Tennessee -- have courts of last resort constituted entirely of judges with lower-court judicial experience. * * *

The center said there are 19 sitting state chief justices who joined their high courts without prior judicial experience, including four who were installed as chief justice without prior service as an associate justice. Those four are Minnesota Chief Justice Eric Magnuson, Montana Chief Justice Mike McGrath, Nebraska Chief Justice Michael Heavican and New Jersey Chief Justice Stuart Rabner. Justices without prior judicial experience tend to come from backgrounds in academia, the private practice of law or law enforcement, according to the research.

And state Supreme Courts long have passed the landmark that will occur if Kagan is confirmed: three female justices -- one-third of the nation's high court for the first time.

The center reports that nearly half of state courts of last resort -- 25 of 53 -- already have that level of gender balance, or greater. Women currently constitute 31 percent of all sitting justices on state courts of last resort.

The court of last resort with the highest percentage of women is the District of Columbia Court of Appeals, where six of the nine members, or 67 percent, are women. As of April 1, three states have a female majority on their highest courts: Tennessee at 60 percent, and Wisconsin and Michigan, both at 57 percent. All three of these states have a female chief justice. Nationwide, women head 20 of the 53 courts of last resort.

Indiana, as the ILB has noted many times, has no female justices.

Of our current five justices, three, I believe, had no previous judicial experience: Justices Boehm, Sullivan and Dickson.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Courts in general

Ind. Gov't. - More on "Attorney for East Chicago nets big contract "

Updating this ILB entry from May 3, 2010, Steve Zabroski reports in the NWI Times:

The take-home car is out, and pay for the city's top legal advisor will be capped under terms of a new contract approved on Wednesday.

An earlier agreement with Corporation Counsel Carmen Fernandez signed April 28 by the Board of Public Works and Safety included use of a city vehicle and provided for remuneration, which could have topped $268,000 per year.

But that contract was really just a draft, and was inadvertently approved, said City Controller Charles Pacurar, president of the works board.

The new professional services agreement with Fernandez sets an annual not-to-exceed limit of $85,000 in pay, in addition to city employee benefits, including health insurance, but no car.

Negotiations regarding a new contract with Fernandez were in progress two weeks ago when the draft agreement was accidentally put onto the meeting's agenda, said Utilities Director Al Velez, vice president of the works board.

That contract, which provided a retainer of $96,000 per year and $160 per hour for all hours worked beyond 50 in any one month, was never executed, said board attorney Alexander Lopez. * * *

Fernandez has had 24-hour use of a city-owned 2009 Mercury Grand Marquis since December.

The luxury sedan was formerly driven by her cousin, Mayor George Pabey, until the city bought him a new 2010 Buick Lucerne for $37,820 on Dec. 15.

Fernandez drove the Mercury to City Hall on Wednesday morning, but confirmed in the afternoon that she would not be driving it home after work.

She will arrive at the office today in her own car, she said.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Government

Environment - "Regulators to hear comments on Scottsburg biomass project"

Updating earlier ILB entries on the proposed biomass wood-burning power plants in southern Indiana, most recently this one from Feb. 15, 2010, the Louisville Courier Journal reported May 11th that:

State utility regulators will be in Scottsburg this month to take public testimony about a proposed $100 million wood-burning power plant to be built south of town on U.S. 31.

The Indiana Utility Regulatory Commission will conduct an official field hearing to accept oral and written consumer comments regarding the plant proposed by Liberty Green Renewables LLC of Harrison County.

Liberty Green also has proposed a similar plant near Milltown, but the commission will not be taking testimony on that project at its May 26 meeting at Scottsburg High School. The meeting is set for 6 p.m.

Before it begins, the Indiana Office of Utility Consumer Counselor, which represents ratepayers in utility cases, will host an informational meeting to discuss the project and the regulatory process. That meeting begins at 5:30 p.m. at the high school.

Liberty Green is seeking the utility commission’s approval to build and operate the 28-megawatt electric generating facility. The company plans to use organic waste wood as its fuel and would sell power on the competitive, wholesale electricity market.

The so-called biomass proposal has raised some concerns. Lawmakers have questioned the plant’s environmental impact, including the emission of carbon dioxide and other pollutants, but took no action to stop its construction.

The Indiana Department of Environmental Management, meantime, is separately considering pollution control permits for the proposed Scottsburg and Milltown plants. Those permits are pending.

In the utility regulatory case, a group called the Concerned Citizens of Scott County has formally petitioned to provide testimony, which is due in July. The Citizens Action Coalition of Indiana is also weighing in on the case.

The Office of Utility Consumer Counselor is preparing its testimony as well. It will be considering the proposed plant's impact on the wholesale electric transmission system, on Indiana utilities, on customer rates, and on future electric needs for Indiana consumers. The OUCC is also reviewing the impact such a facility may have on non-electric utilities – including water and sewer companies.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Environment

Ind. Courts - Still more on "Life, Death and Insurance: Indiana's $15 Million Mystery "

Following up on this April 14, 2010 ILB entry quoting a WSJ story reported by Leslie Scism and Mark Maremont, the same team has an update in today's paper, headed "Inquiry Into Death In Indiana Reopened, that begins:

Indianapolis police have reopened their investigation into the mysterious death of Germaine Tomlinson, who was found drowned in her bathtub in September 2008, fully clothed with her high heels still on.

A local entrepreneur, who was the last person to see the 74-year-old alive, had a $15 million insurance policy on her life, payable to a company that he controlled. A civil legal dispute over the life insurance on Ms. Tomlinson, mother-in-law of former Conseco Inc. Chief Executive Stephen Hilbert, was the focus of a page one article in The Wall Street Journal last month.

Several months after Ms. Tomlinson's death, the police and local coroner's office concluded that she accidentally fell into the bathtub while drunk.

Capt. Mark Rice, head of the homicide division of the Indianapolis Metropolitan Police Department, said Wednesday that police decided to take another look after meeting with Ms. Tomlinson's family—the Hilberts—and their attorneys, who provided new information gleaned from their own probe.

Capt. Rice said he had assigned a detective to follow up on the information. Although they are making new inquiries, the police said they stand by their conclusion that the death was accidental. Judy Woods, a Hilbert family attorney, confirmed the meeting with police.

"What they have provided gave rise to suspicion and motivation about people who might have wanted to see her dead," Capt. Rice said. He declined to discuss the matter in detail, but said the information in part concerned "financial dealings."

He also said it might be difficult to bring any charges, saying, "I don't know if we have any witnesses who will come forward and say, this was definitely murder." Capt. Rice raised the possibility that lesser criminal charges could be brought, including fraud.

Posted by Marcia Oddi on Thursday, May 13, 2010
Posted to Indiana Courts

Wednesday, May 12, 2010

Ind. Courts - "Indianapolis Archdiocese ends priest abuse lawsuit with first cash settlement"

The ILB's last entry on this case was on Jan. 22, 2010, re the trial pending before Judge David Dryer of Marion Superior Court, Civil 10.

This afternoon, Robert King of the Indianapolis Star has a long story, complete with graphics -- some quotes:

In a move unprecedented for the Roman Catholic Archdiocese of Indianapolis, the church has agreed to a cash settlement with someone who has brought a lawsuit alleging sexual abuse by a priest -- adding Indianapolis' name to the list of American dioceses to take a financial hit in the ongoing scandal.

The $199,000 settlement is small compared with some of the multimillion-dollar deals reached elsewhere around the country. But the agreement with a 48-year-old Indianapolis man involves a former priest who is still the subject of 12 pending lawsuits by other alleged victims.

In this case, a plaintiff known in court papers only as John Doe CT claimed that when he was 14 then-priest Harry Monroe repeatedly abused him sexually while both were at St. Catherine Catholic Church on the city's Southside. St. Catherine merged with another parish in 1993 to form what is now Good Shepherd.

Along with the cash payment, the settlement requires the archdiocese to issue a public apology for John Doe CT's abuse. * * *

The settlement also requires the archdiocese to take actions that its policy guidelines says already should be in place -- including bans on priests from taking overnight trips with children or having children in their cars alone. * * *

The settlement, reached last week, came through a mediator less than two weeks before jury selection was to begin. It also comes as the pressure on the Catholic Church to address a widening sex abuse scandal in Europe and Mexico.

This April 30, 2010 ILB entry dealt with statute of limitations issues in priest abuse case.

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Indiana Decisions

Courts - "Try to avoid behavior that leads judges to officially castigate you in their court opinions"

Headed "Tips for Lawyers," Prof. Eugene Volokh of The Volokh Conspiracy today points to a New York federal court opinion re what not to do. A quote from the opinion:

The reason for the references to other statutes with no relevance to this case, such as Title VII and the FLSA, remains a mystery, but probably all such references are attributable to what Judge Siragusa aptly described as “Ms. Agola’s ‘copy and paste’ document preparation method,” 2009 WL 3189869, at *7 n. 18, which apparently involves lifting and reusing parts of pleadings and other papers from unrelated cases, without bothering to check to make sure that they are accurate and relevant to the case at bar.
Actually, over the years the ILB has been collecting opinions like this.

From Dec. 3, 2007, Ashley N. Galvan v. State of Indiana is an opinion that criticizes the defendant's attorney's brief and orders him to return his fee for appellate services,

From Sept. 8, 2007, an order from an Iowa bankruptcy court where an attorney is sanctioned for plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs.

From Sept. 13, 2007
, James Keeney v. State of Indiana, some quotes:

Unfortunately, we must call attention to the fact that the appellate attorney for Keeney has filled her brief with uncited material. Specifically, the brief’s entire “Argument” section is a near-verbatim replication of a recent Memorandum and Order from the United States District Court for the District of Massachusetts. Compare Appellant’s Brief at 2-29 with United States v. Stewart, 468 F. Supp. 2d 261, 263-82 (D. Mass. 2007). Each contention in an appellate brief “must be supported by citations to the authorities . . . relied on.” App. R. 46(A)(8)(a). But Keeney’s attorney has not cited Stewart, nor has she otherwise indicated to this court that she is relying on that case. * * *

The importance of proper attribution cannot be understated. While lawyers and judges regularly borrow reasoning from others, both ethics and the appellate rules require that the source be given credit. Nonetheless, Keeney’s appellate attorney merely transplanted the District Court’s order into her brief as if it were her own work.

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Courts in general

Law - No surprises here

"Study Finds Male Lawyers More Overconfident" is the heading of a story by Petra Pasternak of The Recorder. Some quotes:

Male lawyers have a bigger problem with overconfidence than their female counterparts, a new study found.

Many lawyers overestimate their chances of success when predicting the outcomes of civil or criminal cases, according to UC-Irvine psychologist and law professor Elizabeth Loftus. She co-authored the study (pdf), which appears in the May issue of Psychology, Public Policy & Law.

Excessive optimism can lead clients to litigation instead of settling, according to the researchers. The study surveyed 481 U.S. lawyers who represented plaintiffs and defendants in criminal and civil cases expected to go to trial in six to 12 months. They were asked what they'd consider a win situation at the minimum. They then rated their confidence of achieving that goal on a scale from zero to 100 percent. * * *

"The higher the expressed level of confidence, the more likely lawyers were to fall short of their goals," Loftus said in a press statement. "In addition, male attorneys were found to be more overconfident than female attorneys."

The ability to more accurately predict case results does not improve with experience, the study also found.

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Jerry Coleman Buchanan, et al. v. Candice L. Vowell, et al., a 12-page, 2 opinion decision, Sr. Judge Barteau writes:

Plaintiff-Appellant Jerry Coleman Buchanan (“Jerry”), by his father and guardian, Odell Buchanan brings this interlocutory appeal of the trial court’s dismissal of his amended complaint for damages against Defendant-Appellee Shannon Vowell (“Shannon”). We reverse and remand.

Jerry raises two issues for our review, which we consolidate and restate as: Whether the trial court abused its discretion in determining that Buchanan’s amended complaint against Shannon failed to state a claim upon which relief could be granted.

On cross-appeal, Shannon raises one issue for our review, which we restate as: Whether the trial court abused its discretion in granting Buchanan’s motion to file a belated motion to certify its interlocutory order for appeal. For purposes of judicial economy, we will address this issue before we turn to Jerry’s issue. * * *

Defendant Candice Vowell (“Candice”) was driving her vehicle eastbound on Kessler Boulevard and struck Jerry, throwing him on the hood of her car and into the windshield. Jerry suffered permanent brain damage and fractures to various bones.

Prior to the accident, Candice had, during her hours of employment or immediately thereafter, consumed sufficient alcohol to become intoxicated. The alcohol was provided by Candice and Shannon’s employer, Brad’s Gold Club. Candice and Shannon, who is Candice’s mother, determined that rather than call a cab or leave Candice’s car at Brad’s Gold Club, they would traverse the Marion County streets with Candice leading and Shannon following. At the time of the accident, Shannon was following Candice in a separate vehicle, and was engaging Candice in conversation on a cellular telephone.

In his amended complaint, Jerry alleged, among other things, that at the time of the accident Shannon knew that Candice was operating her vehicle while intoxicated and knew or should have known that talking on her cell phone would further impair or distract Candice, making her even more dangerous to other persons using the streets. Jerry further alleged that Shannon “negligently made the affirmative, conscious effort to call Candice, distracting her from maintaining a proper lookout.” * * *

I. Shannon contends that the trial court abused its discretion in granting Jerry’s belated motion to certify the interlocutory order for appeal. * * *

The circumstances of each case should be examined by the trial court, and under the rather unique convergence of circumstances in this case, we cannot say that the trial court abused its discretion in finding good cause.

II. Jerry contends that the trial court abused its discretion in dismissing his complaint for failure to state a claim upon which relief may be granted. Shannon’s motion to dismiss for failure to state a claim tested the legal sufficiency of Jerry’s complaint, not the facts supporting the claim. * * *

The parties principally argue about whether Shannon gratuitously undertook a duty to protect Jerry from the drunken Candice. Accordingly, we begin our analysis by looking at the concept of a gratuitous undertaking. * * *

The allegations made by Jerry in his amended complaint show that Shannon agreed to enter into a concerted activity whereby Shannon would follow the drunken Candice and would direct and/or distract her by calling her on her cell phone. The allegations also show that Candice and Shannon conspired to leave the scene of an accident where serious injury to Jerry had occurred. Thus, like the passenger in Sanke, Shannon encouraged Candice’s tortious activity. It is possible that Shannon, like the passenger in Sanke, could be held jointly liable for Jerry’s injuries.

Furthermore, we note that Shannon owed a duty of reasonable care to those that shared the road with her, both motorists and pedestrians. See Claxton, 615 N.E.2d at 474. Shannon, as an individual, may have breached this duty by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol. Thus, Shannon may be found liable for Jerry’s injuries even if she did not gratuitously assume a duty or act in concert with Candice.

We hold that the trial court abused its discretion in dismissing Jerry’s amended complaint for failure to state a claim. We reverse and remand with instructions that the trial court vacate its order.

RILEY, J., concurs.
VAIDIK, J., concurring in result with separate opinion. [that begins, at p. 13] I agree with the result reached by the majority but write separately to address various issues raised in this case. * * *

Finally, I wish to express my disagreement with the majority’s comments about Shannon and Candice’s cell phone conversation. The majority concludes that Shannon may have breached her own duty of care “by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol.” Slip op. at 11. Perhaps the content of the cell phone conversation may evidence Shannon’s aid or encouragement of Candice’s tortious conduct. But I do not believe that merely calling someone on the phone knowing that the person is driving and intoxicated constitutes a tortious act on its own. See also Jay M. Zitter, Annotation, Civil Liability Arising from Use of Cell Phone While Driving, 36 A.L.R.6th 443 (2008).

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "High court rejects Van Orden appeal"

Among the transfers denied by the Supreme Court on the list posted Monday (ILB entry here) was the case of Julie Van Orden v. State of Indiana. According to the transfer list: Justices Sullivan and Boehm voted to deny transfer; Justices Dickson and Rucker voted to dismiss the appeal. Chief Justice Shepard did not participate in the case. [ILB - the CJ is an Evansville native.]

Eric Bradner reports today in the Evansville Courier & Press:

The Indiana Supreme Court has refused to hear an appeal of the 2009 attempted murder conviction of the woman who shot and killed former Evansville Mayor Russell Lloyd Sr. in 1980.

Julie Van Orden, 65, who was found guilty but mentally ill in the Lloyd killing, was sentenced to 50 years in prison for stabbing a state psychiatric hospital worker in 2006.

While Van Orden was in the minimal transitional unit — a part of the hospital for patients set to be released within 30 days — police say she stabbed Theodore Shriver, a Logansport State Hospital attendant, 13 times. * * *

Van Orden appealed her conviction, but in March, a state appeals court turned her down. [ILB- here is the March 15, 2010 NFP COA opinion.] The Indiana Supreme Court announced last week it would not grant her request that it take up the case.

Van Orden argued then that she presented sufficient evidence to prove she was insane at the time of the attack, but the court found the jury was provided with conflicting expert opinions as to Van Orden's sanity at the time of the crime.

Because of that, the court concluded it "cannot invade the province of the fact-finding jury."

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: "Welfare modernization critics see progress: State system's chief credited with tremendous leap forward"

Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reports this morning:

INDIANAPOLIS – The Family and Social Services Administration announced Tuesday the next region for its new “hybrid” welfare eligibility system is an 11-county area that includes Vigo, Parke and Monroe counties.

The expansion is dependent on federal approval.

FSSA on Monday released statistics showing that adding more local welfare workers in 10 southwest Indiana counties under a pilot hybrid system has cut the problems that clients have had with Indiana’s privatized, automated benefits system.

Anne Murphy, secretary of the Family and Social Services Administration, will present results from the rollout of the hybrid welfare intake system to the State Budget Committee today.

The state has been scrambling to fix the problems created when it turned over welfare intake for more than 1 million Indiana residents to a team of vendors, sparking lawsuits and complaints from clients and lawmakers. * * *

The next hybrid region will include Warren, Fountain, Parke, Putnam, Vermillion, Vigo, Clay, Owen, Monroe, Greene and Sullivan counties. The rollout there is expected to take place in June.

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Indiana Government

Law - More on "What’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other”

Yesterday's NY Times story, quoted in this ILB entry, is supplemented today by this story in the Indianapolis Star, reported by Jon Murray, headed "Service dog at heart of discrimination complaint: Dog is solution to one woman's allergy but cause of co-worker's." (BTW, the service dog, Penny, pictured in the story, looks like a smaller model of my free-spirited Golden, Higgins, who was a rescued dog.)

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to General Law Related

Ind. Courts - "Former U.S. Attorney Jon DeGuilio has been confirmed as a federal judge for northern Indiana"

From the AP, via WSBT 24/7 News:

The U.S. Senate confirmed DeGuilio to the lifetime appointment on Tuesday. President Barack Obama nominated him for the U.S. District Court position in February.

DeGuilio is a former Lake County prosecutor and was the top federal prosecutor for the northern third of Indiana from 1993 to 1999. He most recently was an executive for Munster-based NorthWest Indiana Bancorp. * * *

The nominations of Marion Superior Court Judge Tanya Walton Pratt and federal Magistrate Judge Jane Magnus-Stinson as judges for the Indianapolis-based Southern District of Indiana remain pending with the Senate.

Posted by Marcia Oddi on Wednesday, May 12, 2010
Posted to Indiana Courts

Tuesday, May 11, 2010

Ind. Decisions - Where are the opinions? [Updated]

Indiana Court of Appeals opinions are generally posted around 9:30. It is a very rare day when there are no opinions, usually there are 6 to 30.

However, no opinions were posted last Friday, May 7, 2010, and none were posted Monday, May 8th. And none have been posted yet today.

On a related matter, the ILB has learned that one of the topics at an "Evening with the Appellate Judges"-type gathering last week was:

[W]hether attorneys liked the fact that all of the COA opinions are posted on the website, or whether we even needed them posted. Not one person disliked them being posted or said they did not find them to be a valuable resource. Yet the question was asked several times in several different ways.

[Updated at 2:54 PM] Okay, the word is, no opinions have been posted for the last three days simply because no opinions have been issued during that period. Call it the dog days of spring.

That alleviates my concerns that either: (1) the opinions were lost in the system somewhere between the chambers and the posting; or (2) less likely, that the COA had unilaterally decided to stop posting NFPs.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Ind. App.Ct. Decisions

Law - "What’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other”

A "must read" story today by Steven Greenhouse in the NY Times:

In her first week at a new job, Emily Kysel suffered an allergy attack so severe that she had to go home early one day. A co-worker was eating buffalo wings at her desk, and the wings contained paprika, to which Ms. Kysel, 24, has a rare and potentially fatal allergy.

She nearly died five years ago from eating chili, and since then her allergy has sent her to the emergency room five times and caused her to jab herself with an anti-allergy injection 11 times, sometimes from just inhaling paprika nearby.

“It feels like someone poured acid down your throat,” she said.

Fearing a fatal encounter with paprika, Ms. Kysel’s parents and grandparents chipped in to buy her an allergy-detection dog, which works much like a narcotics-sniffing dog. After she had extensive talks with her employer, the City of Indianapolis, officials gave her permission to take the dog to work. The golden retriever, named Penny, cost her family $10,000 — it jumps up on Ms. Kysel whenever it detects paprika.

On the first day Ms. Kysel took Penny to work, one of her co-workers suffered an asthma attack because she is allergic to dogs. That afternoon Ms. Kysel was stunned when her boss told her that she could no longer take the dog to work, or if she felt she could not report to work without Penny, she could go on indefinite unpaid leave. She was ineligible for unemployment compensation because of the limbo she was put in.

Ms. Kysel filed a complaint with the Equal Employment Opportunity Commission, asserting that her employer had discriminated against her by failing to accommodate her disability. Legal experts say her case raises tough questions about how to balance the sometimes clashing interests of co-workers with disabilities and how far employers need to go to make reasonable accommodations for workers under the Americans With Disabilities Act.

“I was crestfallen, angry,” Ms. Kysel said. “I thought I had jumped through all the hoops to get permission, but then it immediately felt they were favoring this other individual.”

Greg Fehribach, a lawyer for the city, denied that Indianapolis had violated the law. He said Ms. Kysel’s supervisors had gone far to accommodate her, holding a meeting where she explained her allergy to her co-workers, and barring employees from eating foods containing paprika at their desks. Several managers and co-workers have questioned the seriousness of Ms. Kysel’s allergy — some see it as a quirky, almost laughable oddity. To buttress her case, two allergists wrote letters saying her allergy was life threatening.

While working for the city’s Department of Code Enforcement, she had an attack because the tiny snack bar in her office building began serving paprika-laden pulled pork.

One thing that galls Ms. Kysel is that the City of Indianapolis has barred her from using her service animal at work although it allows blind employees to have them.

“I don’t think I deserve preferential treatment over anyone,” she said. “But I think I deserve equal treatment.”

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to General Law Related

Ind. Courts - "LaPorte County judge returns to bench"

WSBT TV, South Bend, has a brief story this morning:

LAPORTE COUNTY — A suspended judge returned to the bench Tuesday.

LaPorte County Judge Jennifer Evans-Koethe was accused of trying to cover up evidence in 2008 when she says she accidentally shot herself in the head.

In January, a jury found her not guilty of obstruction of justice in the criminal case against her.

The Indiana Judicial Qualifications Commission also investigated Evans-Koethe for alleged misconduct related to the shooting. Before a hearing on that issue, the commission and Evans-Koethe reached an agreement on discipline. The state Supreme Court suspended her for 60 days without pay.

For the next year, Evans-Koethe can't hear any case where the police officers who were involved with her case will testify. She also agreed to certain treatment requirements.

Here is a list of earlier ILB entries re Judge Evans-Koethe.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Indiana Courts

Ind. Gov't. - Still more on "For WellPoint, Math Error Spurs More Scrutiny "

Updating this ILB entry from May 6, 2010, yesterday's NY Times had an editorial headed "The Anthem Saga," that includes the following:

Meanwhile, an actuarial review commissioned by the state’s Department of Insurance found that Anthem also miscalculated the costs it would face in the individual market and the premiums it would need to offset them. Had the calculation been done correctly, Anthem would have needed an average increase in the individual market of only 15 percent, not the 25 percent it proposed.

There is no evidence that Anthem deliberately cooked the books. The errors were not detected by an internal company review or by an outside consultant hired by the company. They were found only when an independent firm hired by the state, Axene Health Partners, assigned four actuaries who spent 500 hours over 10 weeks analyzing calculations that it described as “extremely complex.”

It is daunting how much effort was required to dig out these discrepancies, and it’s revealing that it required a truly independent review to find them. Regulators everywhere are now on notice that they can’t assume company calculations are accurate and that they may need to hire their own consultants to probe deeply.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Indiana Government

Ind. Gov't. - More on: "Job seekers tap library computers in droves"

Updating this ILB entry from May 3rd, about the importance to users of the Lake County Public Library system, Vic Ryckaert of the Indianapolis Star reports today on public reaction to a proposal to close six library branches in Indianapolis. The story begins:

About 150 people attended a public forum Monday at the Library Services Center to oppose a $1.5 million cost-cutting plan that could result in closing as many as six local branches and laying off as many as 55 employees over two years.

More than a dozen speakers urged leaders of the Indianapolis-Marion County Public Library system to keep all of its 23 locations open. They complained that closing libraries would hurt underserved inner-city neighborhoods and force many youngsters to walk longer distances to find books to read.

"Every family does not have a computer at home," Lori Morris, 48, said before the meeting. "Libraries, in my opinion, do build communities."

Morris, who frequently visits the Glendale branch, one of six targeted for possible closing, said many people need library services like computers and reference material to look for jobs or get help filing for unemployment insurance.

"This is people's livelihoods," she said.

That's the case for Laura Furst, 36, who said she visits the library at least once a week to create resumes and study for college-entrance exams.

"We'll never be able to call ourselves a world-class city while we close libraries," Furst said.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Indiana Government

Environment - Purdue's request to expand the Wade Power Plant assailed

From a story today in the Lafayette Journal Courier, reported by Eric Weddle:

Where is Purdue University?

That was a repeated question Monday by environmental group members and others attending a forum on the university's request to expand the Wade Power Plant.

The Indiana Department of Environmental Management held the meeting to answer questions and hear comments about the requested permit. * * *

According to IDEM officials on hand at West Lafayette's Cumberland Elementary, Purdue officials were encouraged not to attend. Earlier in the day, a Purdue official said the campus stood by its plans and its permit application.

Nevertheless, some of the 50 people at the meeting said they were disappointed Purdue has not held a public forum to answer why the university is expanding coal use when campus research is uncovering groundbreaking alternative fuel processes.

"I am looking at the university being locked into 20, 30 or 40 years using coal because of this," said Richard Mertens of West Lafayette. "They could be a leader in (renewable fuel) technology. But now they will be stuck with it like a ball and chain."

Purdue's request to install a natural gas-fired boiler and a clean-coal boiler as a boiler replacement at the Wade Power Plant has stirred the ire of the Sierra Club, an environmental group that is targeting the campus with its Beyond Coal campaign.

Steve Francis, chairman of the Indiana Sierra Club, said Purdue should be commended for shutting down a 50-year old boiler and using natural gas. But he said he is troubled that officials will not meet to discuss alternatives to coal.

"We want them to make a reasonable commitment to using sustainable biomass or preferably wind, geothermal and energy efficiency, like Ball State has," he said.

Last year Ball State University said it would install a campuswide geothermal heating/cooling system that would allow it to shut down its coal plant.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Environment

Ind. Decisions - Attorney disciplined for comments made after enduring harassing phone calls to her home

Access the unanimous May 7, 2010 order of the Supreme Court here.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Welfare modernization critics see progress: State system's chief credited with tremendous leap forward"

Eric Bradner reported May 9th in the Evansville Courier & Press:

INDIANAPOLIS — Four months into a pilot program intended to rectify problems with Indiana's handling of welfare applications, statistics show a speedier process with fewer complaints, and organizations that assist the poor and elderly say the improvements are significant.

As Indiana's Family and Social Services Administration prepares to show the results of its new "hybrid" system to a state fiscal panel Tuesday, those who have criticized Gov. Mitch Daniels' administration's efforts in the past now say they are ready to see the new program expanded.

"Today things are better," said state Sen. Vaneta Becker, R-Evansville, a leading critic of the modernization effort. "We are hearing fewer complaints. That's not to say that we don't still hear some, because we do, but not nearly as many or as often." * * *

FSSA Secretary Anne Murphy will detail the hybrid system's performance in a presentation before the State Budget Committee on Tuesday.

After taking the agency's helm last year, Murphy began meeting regularly with legislators, hospitals and advocacy groups in Southwestern Indiana.

Lawmakers such as Becker, who lambasted her predecessor, Mitch Roob, now the state Secretary of Commerce, offer much rosier views of Murphy's job performance.

"I have to give Anne Murphy a lot of credit," Becker said.

Deidra Conner, the president of Evansville ARC, which assists disabled people, said before meetings in the Evansville area, Murphy typically asks her to compile a list of problems and complaints experienced by those invited to attend.

"Historically, I would get anywhere from three to six pages of issues and complaints. Before the last meeting six weeks ago, I got one e-mail," and the e-mail indicated FSSA already had been notified of the problem and was working on a solution, Conner said.

"The complaints by the agencies have dropped tremendously," she said, adding that Murphy told those at the meeting six weeks ago that the hybrid system has performed better than either the old system or the modernized version.

"The room seemed to concur with that. We view it right now as a big success story," Conner said. "I just really feel like it's a good example of how people who are really engaged in the community wouldn't let it go but dealt with it professionally."

She, too, credited Murphy.

"Mitch Roob did not seem to acknowledge or accept that there were problems with the modernized system, whereas Anne saw it for what it was and realized that people in need were falling through the cracks," Conner said.

Meanwhile, FSSA still is disengaging from the IBM deal. The company has sent the state invoices seeking more than $125 million, and Barlow said the state is refusing to make those payments.

Ken Kusmer of the AP reported last evening:
Some advocates agreed welfare intake appears to operate better under the hybrid system than in the rest of the state, but said they needed to see more data before calling it a success.

"At the very least, the public complaints seem to have dropped off in the hybrid region substantially," said John Cardwell, chairman of the Indiana Home Care Task Force.

David Roos, director of the public health insurance advocacy group Covering Kids & Families of Indiana, said the data showed FSSA making progress but internal FSSA data shows hybrid counties lagging behind the state averages for enrollment growth for Hoosier Healthwise and other Medicaid programs.

From Mary Beth Schneider's story in the Indianapolis Star:
Armed with evidence that the changes made to welfare delivery in a 10-county pilot project are working, the state will announce today whether it will expand the program to more areas of Indiana.

Gov. Mitch Daniels pulled the plug on a $1.34 billion IBM contract for a centralized welfare intake system in October. The Family and Social Services Administration replaced it with a hybrid program, combining modernization and computerization of records with the face-to-face contact between caseworkers and clients that was the hallmark of past welfare systems.

Monday, FSSA said the experiment, which has been limited to 10 counties in southwestern Indiana, has led to far fewer complaints and problems than under IBM's management. A decision on whether to expand it will come today, said FSSA spokesman Marcus Barlow.

Under the modernized, IBM-run system, people were pushed to apply for benefits by phone or computer, with calls routed through a centralized call center. In the hybrid system, caseworkers are back in county offices instead of in the call centers, although a smaller call center still handles simple requests, such as changes of address.

Posted by Marcia Oddi on Tuesday, May 11, 2010
Posted to Indiana Government

Monday, May 10, 2010

Ind. Decisions - Transfer list for week ending May 7, 2010

Here is the Clerk's transfer list for the week ending May 7, 2010. It is one 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, May 10, 2010
Posted to Indiana Transfer Lists

Ind. Courts - "G. Michael Witte Named Disciplinary Commission Executive Secretary"

A Supreme Court press release announces:

G. Michael Witte, former Dearborn County Judge, has been named the Indiana Disciplinary Commission Executive Secretary. The Disciplinary Commission is the agency that investigates and prosecutes alleged attorney misconduct. The Indiana Supreme Court approved naming Judge Witte as the agency head, confirming a recommendation from the nine-member Indiana Disciplinary Commission. * * *

Mr. Witte is expected to begin working in mid-June. As Disciplinary Commission Executive Secretary he will work with agency staff and the nine-member Commission to ensure members of the Indiana bar uphold the Rules of Professional Conduct. He will lead the agency that investigates and prosecutes cases of alleged attorney misconduct. The Indiana Supreme Court has final authority over all attorney discipline cases.

Posted by Marcia Oddi on Monday, May 10, 2010
Posted to Indiana Courts

Ind. Gov't. - "Valpo developing new wind turbine regulations"

Phil Wieland reports today in the NWI Times:

VALPARAISO | Residents interested in casting their electric bill's fate to the winds will have to wait a little longer.

The first effort to adopt zoning regulations on wind turbines for homes and businesses almost a year ago drew criticism for attempting to limit them to a height that would make them ineffective. City Planning Director Craig Phillips withdrew the proposal and said he would do more research on the issue. * * *

Porter County now has a wind turbine ordinance, and one has been recommended to the Portage City Council for passage. Phillips said that will provide additional references that could be helpful in speeding up Valparaiso's efforts.

"I'll look at what they've done," he said. "The fact others are doing it shows there is a critical mass interested in the topic, and it gives us more reason to revisit what we began earlier."

Lewis was critical of the first ordinance for trying to limit height to 30 feet, which he said would not be high enough to take advantage of the winds. The height will be limited, but the precise parameters still are being worked out.

"We are trying not to eliminate something that might work," Lewis said. "We are trying to be as open and flexible to wind turbines as possible. We are going to limit the height, but we are trying to find the appropriate ground to get the best technology but also deal with the aesthetics, flicker (of light through the spinning blades) and property lines for fall zones (if the turbines should topple)."

Posted by Marcia Oddi on Monday, May 10, 2010
Posted to Indiana Government

Ind. Decisions - "Court Blocks Strip Mining on Indiana Farmland"

The 7th Circuit decision May 6th (ILB summary here) in Amercian Land Holdings of Ind. v. Jobe, et al is the subject of this story today by Joseph Celentino of Courthouse News Service:

CHICAGO (CN) - The 7th Circuit upheld a ruling that blocks a mining company from strip mining 62 acres of farmland in Sullivan County, Ind. An untouched island in strip-mined country, the land sits atop an estimated $50 million of coal.

Affiliates of Peabody Energy Corp. had appealed a decision by U.S. District Judge William Lawrence, who ruled that a 1903 deed did not give Peabody the right to strip mine the land.

The deed, executed by Peabody's predecessors and area landowners, grants Peabody "all the coals, clays, minerals, and mineral substances underlying" the land, "together with the right to mine and remove said coals ... without further payment of any nature whatsoever."

Peabody said the deed gave it the right to strip mine the land without compensating landowners and the option to buy full title to the land for $30 an acre.

Though the deed allows underground mining, Peabody argued that strip mining was necessary to remove all the coal, because the thin, layered nature of the coal seams made shaft mining less effective. The mining company expected to extract about 1.2 million tons of coal from strip mining the 62 acres, which it claimed would open up another 2.5 million tons of coal in the surrounding land.

Judge Lawrence noted ambiguity in the deed between the right to mine "all the coals" and the deed's restrictions on Peabody's use of surface land. He allowed outside evidence, including the area's mining history, to help him decide if the deed conveyed the right to strip mine the land.

He ruled that it did not, and the federal appeals court agreed.

"His conclusion that the deed is ambiguous and the infeasibility of strip mining at the time it was granted allows the ambiguity to be resolved in favor of the surface owner is consistent with the case law," Judge Richard Posner wrote.

Historical evidence showed that strip mining was not introduced to Sullivan County until 1918 and was not a common practice until the 1920s. So when the deed was executed in 1903, the parties could not have been talking about using strip-mining methods to extract coal, Posner said.

He quoted portions of the deed that "seem to confine the coal company's use of the surface to structures and activity relating to underground mining."

Posted by Marcia Oddi on Monday, May 10, 2010
Posted to Ind. (7th Cir.) Decisions

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

In Fincher v. South Bend Heritage (ND Ind., Simon), an 11-page opinion, Judge Flaum writes:

Defendant-appellee South Bend Heritage Foundation (“SBHF”) denied plaintiff-appellant Marshall Fincher’s application for Section 8 housing in its building because Fincher had a prior eviction within three years. Fincher brought a suit against SBHF on the theory that he was denied due process of law, or, in the alternative, that SBHF breached a contract with the United States Department of Housing and Urban Development (“HUD”) to which Fincher was a third-party beneficiary. On appeal, Fincher recognizes that the controlling precedent in this Circuit holds that there is no cause of action for a person in his position. See Eidson v. Pierce, 745 F.2d 435 (7th Cir. 1984). Fincher asks us to overturn our precedent on this issue. For the reasons set forth below, we choose not to overrule Eidson and we affirm the district court’s grant of summary judgment.
In Everroad v. Scott Truck Systems (SD Ind., Young), a 22-page opinion, Judge Rovner writes:
Diana Everroad sued her former employer, Scott Truck Systems, Inc. (“Scott Truck”), and Sherry Hantzis, the company’s general manager, for gender and age discrimination, and for retaliation for reporting gender and age discrimination. The district court granted summary judgment in favor of the defendants, and Everroad appeals. We affirm.

Posted by Marcia Oddi on Monday, May 10, 2010
Posted to Ind. (7th Cir.) 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, May 9, 2010:

From Saturday, May 8, 2010:

Posted by Marcia Oddi on Monday, May 10, 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 5/10/10):

Thursday, May 13th

Next week's oral arguments before the Supreme Court (week of 5/17/10):

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

Monday, May 10th

Wednesday, May 12th

Next week's oral arguments before the Court of Appeals (week of 5/17/10):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.

NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, May 10, 2010
Posted to Upcoming Oral Arguments

Sunday, May 09, 2010

Courts - "The Administration plans to identify its nominee in 'guidance' at 7:20 am tomorrow morning, with a formal announcement by the President at 11 am"

So begins this long entry by Tom Goldstein of SCOTUSblog.

Kagan announcement now set for 10 AM.

Posted by Marcia Oddi on Sunday, May 09, 2010
Posted to Courts in general

Courts - "Family sues over daughters' deaths in crash with Illinois trooper on cell phone"

A chilling story reported today by Len Wells in the Evansville Courier & Press:

As Illinois State Police begin enforcing the state's distracted driving laws this month, the family of Jessica and Kelli Uhl is asking the state of Illinois for $43 million as compensation for the loss of their teenage daughters who died in a wreck with a trooper who was using a cell phone and car computer.

Jessica Uhl, 18, and Kelli Uhl, 13, died in a fiery crash Nov. 23, 2007, when an Illinois State Trooper driving to a traffic accident at 126 mph crossed the median of Interstate 64 near Scott Air Force Base and slammed into their car.

Evidence presented in trooper Matt Mitchell's reckless homicide case revealed he had received a cell phone call from his girlfriend and was e-mailing a fellow trooper on his on-board computer in the seconds before the crash — all while traveling in excess of 120 mph.

Mitchell entered a negotiated guilty plea in the case and was placed on 30 months probation. He has been suspended with pay.

The case is now in the state's Court of Claims, where the victim's family is asking for compensation for the loss of their children. Larry Trent, the Illinois State Police director at the time of the accident, testified that Mitchell's actions were "indefensible."

In announcing plans to enforce the state's distracted driving laws, Captain Richard Kinter of the Illinois State Police District 19 post at Carmi said that the latest figures from the National Highway Traffic Safety Administration indicate that nationwide, 6,000 people died and another half-million were injured in 2008 because of distracted or inattentive drivers.

Kinter said two of the most dangerous distracted driving behaviors are talking on a cell phone while driving and texting while driving. Illinois currently has a number of laws on the books to control these behaviors.

Under Illinois' Graduated Driver's Licensing Law, all people under the age of 19 are not allowed to drive and use a cell phone. Effective Jan. 1, two other laws concerning distracted drivers went into effect:

  • In Illinois it is unlawful to use a cell phone, personal digital assistant (PDA) or portable computer to compose, send or read text messages or access the Internet while driving.

  • The other law prohibits cell phone use entirely within a school speed zone or construction zone.

Posted by Marcia Oddi on Sunday, May 09, 2010
Posted to Courts in general

Law - "Forensic Evidence and the CSI Effect"

This article at LLRX.com (law and technology resources for legal professionals) rounds up the "legal scholarship and media studies that illuminates the extent of the phenomenon and whether it needs to be addressed and how."

Posted by Marcia Oddi on Sunday, May 09, 2010
Posted to General Law Related

Ind. Gov't. - "Ordinance Allowing Chickens in Bloomington Neighborhoods Producing Good Results"

Our most recent "urban chickens" entry was this one from April 13, 2010.

Now this May 7, 2010 story by Joe Hren, via Indiana Public Media, reports:

Usually the words ‘urban’ and ‘chicken’ don’t go together. But they do in Bloomington thanks to the 2006 ordinance that allow chickens in your backyard.

City of Bloomington Planning Director Tom Micuda said the chicken debate generated the most public interest he can remember. “This was very much generated from citizens talking to public officials and council members to develop an ordinance that ultimately got passed -- very much a grass roots effort.” * * *

City of Bloomington Animal Care Director Laurie Ringquist thinks the ordinance has been very beneficial.

“It’s worked well also because we have something clear cut to follow and we’re not caught in limbo with what to enforce and what not to enforce. From a neighbor perspective, it’s reduced a lot of complaints, we rarely get chicken complaints anymore because there are no roosters and people are only allowed to have five hens.”

Posted by Marcia Oddi on Sunday, May 09, 2010
Posted to Indiana Government

Saturday, May 08, 2010

Ind. Courts - "Clarian Health sued over high charges: Patients claim bills for services insurance doesn't cover are unreasonable"

Daniel Lee reports this monring in the Indianapolis Star:

Abby Allen was brought to Clarian North Medical Center in Carmel by ambulance in June 2008, suffering from what she described as terrible pain from an infection.

As she prepared for surgery and a hospital stay of several days, she signed papers provided by Clarian stating she was financially responsible for the care provided to her.

"They never said anything about what the charges were going to be," said Allen, 21. "We got the bill and it was just like, 'Oh my gosh, I have a huge medical bill.' "

Allen is one of two plaintiffs in a lawsuit filed this week in Marion Superior Court claiming that Clarian Health charges uninsured patients -- or those receiving treatments not covered by their insurance -- unreasonably high prices. The Indianapolis-based hospital system, according to the suit, gives those patients no ability to negotiate different prices.
* * *

The lawsuit, however, has broader implications because it targets a controversial practice used to set hospital prices across the nation. Hospitals typically start with a set price, called the "charge master." Health insurers then negotiate discounts off that rate. The discounts can be substantial depending on the volume of patients an insurer brings to a particular hospital.

Hospitals usually offer discounts to uninsured or "self-pay" patients and provide free charity care to poor and indigent patients. Clarian said that in 2009, it spent more than $376 million on patients who received free or discounted care.

The ILB has had a number of entires over the years on the issue of negotiating medical costs, important both for the uninsured and those with high deductible insurance coverage. They include:The ILB is attempting to obtain a copy of the complaint in the Clarian lawsuit.

Posted by Marcia Oddi on Saturday, May 08, 2010
Posted to Indiana Courts

Ind. Courts - Still more on "Harrison sheriff indicted in lengthy sexual harassment probe"

Updating this ILB entry from April 3, 2010, Grace Schneider of the Louisville Courier Journal has a long story today headed "Judge and location of Deatrick trial still undecided." It begins:

Harrison County Sheriff Mike Deatrick’s criminal trial is scheduled for July 20 but several basic procedural issues have yet to be decided — including which judge will preside over the trial and where the trial will be held.

Deatrick’s attorney, Bart Betteau, has asked for the case to be dismissed, saying the information used to charge him is vague and will prevent him from mounting an adequate defense.

A decision on that will have to wait, however, because two judges have excused themselves from the case, and a special judge has yet to be appointed in their place.

A motion from Deatrick’s lawyer to move the trial out of Harrison County to another county because of pretrial publicity is also pending.

A grand jury indicted Deatrick, 64, on April 1.

He faces 10 felony charges and two misdemeanors following a Indiana State Police investigation into sexual misconduct, obstruction of justice and allegations of insurance fraud.

Deatrick is free on bond and is expected to continue serving as sheriff until December, when his term ends.

Posted by Marcia Oddi on Saturday, May 08, 2010
Posted to Indiana Courts

Courts - "No cameras, no audio and now, no main entry to the high court. Is Court growing more insular under Roberts?"

So reads the headline to this story by Tony Mauro in The National Law Journal.

Posted by Marcia Oddi on Saturday, May 08, 2010
Posted to Courts in general

Friday, May 07, 2010

Indiana Decisions - Maybe not today, redeux

The Court's Indiana Opinions pages havn't been updated today -- they still show Thursday's date. That means there may be opinions, but, if so, they haven't been posted.

And no, as far as I know, today is not a holiday.

Posted by Marcia Oddi on Friday, May 07, 2010
Posted to Ind. App.Ct. Decisions

Environment - "IDEM investigating asphalt company"

Seth Slabaugh reports today in the Muncie Star-Press in a story that begins:

DALEVILLE -- Meshberger Brothers Stone Corp., which is building a hot-mix asphalt plant near Daleville, did not come across during a public hearing on Thursday night as a corporate citizen that plans to be a good neighbor.

The company filed for a permit from the Indiana Department of Environmental Management without notifying adjacent property owners as required by law, IDEM officials told around 50 angry neighbors.

As a result, the agency ordered Meshberger to file a new permit application and to notify the affected property owners, who filed written objections, resulting in Thursday's meeting.

In addition, IDEM officials reported that the company started building the plant without a permit. That potential violation is being investigated by IDEM's compliance and enforcement branch.

"I personally told them to stop construction," said Iryn Calilung, section chief of the permits branch of IDEM's office of air quality.

"Well, they haven't stopped," someone in the audience yelled.

"We will take care of it," Calilung said.

Posted by Marcia Oddi on Friday, May 07, 2010
Posted to Environment

Law - Still more on "Learning How to Fight the Debt Collector"

Updating earlier ILB entries, Willliam Glaberson of the NY Times has a story today headed "New York Judges Resist Claims by Debt Collectors." Some quotes:

As New Yorkers have tumbled into credit-card debt during the Great Recession, bill collectors have turned to the courts to get what they say is due, and the courts have in turn issued hundreds of thousands of orders against residents. Some consumer groups argue that by doing so, the courts have become little more than an arm of the debt-collection industry.

Now, a few New York judges are suggesting that they agree, at least in part, with the consumer groups. They have fumed at debt collectors and their lawyers, scolding them for excessive interest like 30 percent a year and berating for them for false statements and abusive practices.

Some of the rulings have even been sarcastic or incredulous. In December, a Staten Island judge said debt collectors seemed to think their lawsuits were taking place in a legal Land of Oz, where everyone was supposed to follow anticonsumer rules invented by some unseen debt-collection Wizard.

Last month, a Manhattan appeals court threw out a credit-card case, saying a debt collection company had sued the wrong person but pursued the case anyway. * * *

Debt-buyer businesses purchase lists of names and amounts supposedly due — for pennies on the dollar — from credit-card companies and sometimes have no real evidence about who they are suing or why.

They then file tens of thousands of suits, often with little to back up their claims. A Nassau County judge said this winter, for example, that one of New York City’s high-volume debt-collection law firms, which has close ties to a debt-buying company, did not provide “a scintilla of evidence” that there was a debt at all in a case against a Long Island woman. * * *

Privately, some judges say they are embarrassed that in many New York courts, debt-collection lawyers have grown so comfortable that they give the impression they are in charge of the proceedings and need not prove their claims with strong evidence.

Posted by Marcia Oddi on Friday, May 07, 2010
Posted to General Law Related

Law - "States vary on dealing with youth sex offenders"

A long AP story yesterday by Greg Bluestein - some quotes:

Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors.

The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender regristration laws.

"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.

Posted by Marcia Oddi on Friday, May 07, 2010
Posted to General Law Related

Law - "Dish on Big Law Websites: the Good, the Bad and the Cheapest"

This story is fun. From The Snark at Fulton County Daily Report

Posted by Marcia Oddi on Friday, May 07, 2010
Posted to General Law Related

Thursday, May 06, 2010

Ind. Decisions - Supreme Court posts one this afternoon

In Garelick & Glazier Cohen, et al. v. Pam Statom, a 12-page, 3-2 opinion filed late this afternoon, Justice Boehm writes:

In this interlocutory appeal, Joseph Reiswerg and the law firm of Cohen Garelick and Grazier filed motions for summary judgment asserting an affirmative defense of statute of limitations to Pam Statom’s attorney malpractice lawsuit against them. The trial court granted Statom’s motion to strike both motions, stating that Reiswerg and the law firm had waived the sta-tute of limitations defense by failing to raise it in response to Statom’s motion for partial sum-mary judgment against them. We reverse the trial court and hold that a party does not waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that would not be dispositive as to the issue of liability. * * *

I. Motion for Partial Summary Judgment * * *

A party responding to a motion for summary judgment is entitled to take the motion as the moving party frames it. The defendants were under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment that Statom presented. A non-movant is not required to address a particular element of a claim unless the moving party has first addressed and presented evidence on that element. * * *

Where, as here, the plaintiff moves only for partial summary judgment on an issue or an element but not as to liability, the defendant is under no obligation to present all of its affirmative defenses at the summary judgment stage. In short, Statom moved for partial summary judgment, seeking only a declaration that the defendants were negligent as a matter of law. If Statom wanted to move for partial summary judgment on the issue of liability, her mo-tion should have so stated. It did not. She cannot now claim a victory greater than she sought and greater than she placed in issue.

II. The Effect of the Trial Court’s Denial of Summary Judgment as to CGG * * *

We do not agree that whether Statom’s motion for partial summary judgment succeeded or failed controls its preclusive effect. Specifically, a party’s success or failure in opposing a partial summary judgment motion does not dictate whether that party waived an affirmative defense. Waiver of a contention is effected by the contention’s being placed in issue by the movant and the non-movant’s failure to raise it. When Statom moved for partial summary judgment on the issue of negligence, neither Reiswerg nor CGG asserted the statute of limitations in response. A non-movant’s choice not to assert an affirmative defense as a response to a motion for partial summary judgment that does not implicate the affirmative de-fense does not bar later assertion of the defense.

Conclusion. The trial court’s order striking the defendants’ motions for summary judgment is re-versed. This case is remanded for proceedings consistent with this opinion.

Shepard, C.J., and Dickson, J., concur.
Rucker, J., concurs in result in part and dissents in part with separate opinion in which Sullivan, J., concurs: [which begins, at p. 11]. Because I believe the trial court correctly struck Reiswerg’s motion for summary judgment on grounds that Reiswerg waived his statute of limitations defense by failing to raise it in response to Statom’s motion for partial summary judgment, I respectfully dissent to Part I of the majority opinion. I concur in result to Part II.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Prosecutors object to motion to move Camm trial"

Charles Gazaway reported yesterday at WAVE 3:

LOUISVILLE, KY (WAVE) - In 2009, the Indiana Supreme Court overturned David Camm's second conviction for the murders of his wife Kim, and children, Brad and Jill Camm. Halfway through this year, we don't even know where Camm's third trial will be held.

This week, prosecutors filed an objection to a request by Camm's lawyers to have the trial moved out of Warrick County, the location of his second trial.

The defense claims half of the people in Warrick County think Camm is guilty. Prosecutors say they are reading the data wrong and 75% of Warrick County residents don't know much about the case at all.

There has been no word from the judge on when he will rule on this first fight in Camm's new trial.

A story April 15th by Matt Thacker in the New Albany News & Tribune reported:
FLOYD COUNTY — The results are in from a survey sent in late February to 200 Warrick County residents to determine if David Camm can receive a fair third trial in the county, and after reading more than half of the responses, an attorney for Camm said the answer is clearly no.

“Based on a quick overview, I would say that around 50 percent believe that he’s guilty,” Stacy Uliana, one of two attorneys appointed to represent Camm, said on Thursday. “(The surveys) show the community has been infected with prejudice after being exposed to eight weeks of an unfair trial.”

According to a court clerk, the questionnaires had all been returned by last week. Copies were mailed to counsel on April 9 for review. Uliana said the results were about what the defense team expected.

Camm’s lawyers filed a motion to have the case moved from Warrick County, where the second trial was held, to Northern Indiana where media coverage of the case has not been so intense. Floyd County Prosecutor Keith Henderson has objected to changing the venue.

When the two sides could not compromise, Warrick County Superior Court No. 2 Judge Robert Aylsworth ordered the surveys be mailed to randomly selected people from the 2010 jury pool. * * *

If the prosecution and defense still do not agree whether to change venue, a hearing will likely be scheduled.

Uliana points out that coverage of a third trial has not even begun, and so the jury pool would likely become even more tainted as the trial date nears.

“There was a substantial number who do not remember anything about the case. Many of those were too young or not living in Warrick County, but there’s a community sentiment that he’s been convicted twice and is guilty,” Uliana said. “That’s just not a fair way to start a trial.”

For more on the survey, start with this ILB entry from March 25, 2010.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Indiana Courts

Courts - More on "Key New York Suit Calls Public Defender Programs Inadequate"

Updating this ILB entry from March 16, 2010, William Glaberson reports today in the NY Times that:

There are enough signs that New York’s system of providing public defenders is failing poor people that a broad class-action suit challenging the system can move ahead, the state’s highest court ruled Thursday, setting the stage for a sweeping battle in the courts and perhaps the Legislature. The 4-to-3 ruling came in a closely watched suit that civil liberties lawyers said could be a model for similar challenges around the country.

The ruling, written by the state’s chief judge, Jonathan Lippman, said that the suit — which had been bitterly opposed by the state — could proceed because it posed fundamental questions about the fairness of the criminal justice system. “Wrongful conviction, the ultimate sign of a criminal justice system’s breakdown and failure, has been documented in too many cases,” the decision said.

The ruling was something of a milestone after decades of reports, and findings by state commissions, that New York’s locally financed system for meeting the constitutional requirement to provide lawyers for indigent defendants — which varies greatly from county to county — is inadequate, with inattentive, unavailable, poorly trained and supervised lawyers handling huge caseloads. In many counties, it noted, poor defendants are routinely arraigned without lawyers at all during initial appearances, where bail is set and many defendants are sent to jail.

The way is now cleared for a trial or a settlement by New York, as has been the result in several other states that have faced such challenges. There have been similar class-action challenges over public-defense systems in Connecticut, Indiana, Minnesota, Montana and other states that have ended with inconsistent decisions and settlements. Last month, the Michigan Supreme Court permitted a similar challenge to proceed.

By some estimates, the improvements sought by the civil liberties lawyers could cost the state hundreds of millions of dollars.

Here is the 33-page opinion.

The ILB could not immediately locate
information about a class-action challenge to the Indiana public defender system, but did pull up this entry from Nov. 28, 2009, headed "Public defenders are threatened with cuts in several Indiana counties."

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Courts in general

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

In Amercian Land Holdings of Ind. v. Jobe, et al (SD Ind., Lawrence), a 16-page decision, Judge Posner writes:

This diversity suit, brought by affiliates of the Peabody Energy Corporation (for simplicity we’ll pretend there is a single plaintiff and call it Peabody), seeks both a declaration that Peabody has the right to strip mine coal on the defendants’ land, and specific performance of an option to purchase the land. The land is in Indiana, and the substantive issues in the case are governed by Indiana law. The district judge, after conducting a bench trial, entered judgment for the defendants, 655 F. Supp. 2d 882 (S.D. Ind. 2009), and Peabody appeals. * * *

The defendants own a total of 62 acres of farmland in Sullivan County, Indiana; there are farmhouses and other buildings on the land. The land is an island in an area that Peabody is busy strip mining for coal, and it is eager to strip mine the defendants’ land as well, and insists that a 1903 deed entitles it to do so. The coal beneath the land is worth $50 million (of course minus the cost of extraction) at the current spot price of $42 per ton for coal of this type and quality. * * *

Peabody contends that the deed entitles it both to strip mine the land without compensating the owners and also, if it wants, to obtain full title to the land (that is, fee simple) for $30 an acre. Under the first entitlement the right to use the surface would revert to the defendants when Peabody was finished strip mining it; under the second it would be Peabody’s property to do with it as it wanted, forever. One might wonder why Peabody would prefer litigating rather than just digging an underground mine, as the deed allows. But the district judge found that strip mining was necessary to remove all the coal—underground mining wouldn't do it because the coal seams aren’t very thick and in places they are layered over one another so that a good amount of the coal would have to be left in place in order to support the shafts required for getting at and extracting the rest of the coal.

The deed, given by the defendants’ predecessors to Peabody’s predecessor, grants the latter and its successors “all the coals, clays, minerals and mineral substances underlying” the defendants’ land, “together with the right to mine and remove said coals [etc.—we can ignore the reference to ‘clays, minerals and mineral substances,’ as do the parties] without further payment of any nature whatsoever.” * * *

But the further portions of the deed that we quoted seem to confine the coal company’s use of the surface to structures and activity relating to underground mining. For $30 an acre the company can purchase portions of the surface for structures related to such mining, but removal of the surface for purposes unrelated to underground mining is nowhere authorized unless by the reference to “all the coals.”

The tension between the right to mine “all the coals” and the limits on the mining company’s use of the surface of the land marks the deed as ambiguous. And so the judge admitted extrinsic evidence (evidence beyond the deed itself) to help him decide whether the deed had conveyed, either directly or by grant of the purchase option, the right to strip mine the land. * * *

The key extrinsic evidence presented at the bench trial was that there was no strip mining of coal in Sullivan County, Indiana, in 1903; and apparently no strip mining of coal anywhere in the United States at that time, beyond isolated experimentation. * * *

Because strip mining is a more valuable use of the defendants’ land than farming and home occupying, our decision will not prevent the land from being put to its most valuable use, which is indeed for strip mining. It will simply affect the terms on which Peabody acquires the right to strip mine the land. It would like to be able to acquire the right for $1860 (62 acres times $30). With $50 million worth of coal under the land (though its net value, as we said earlier, is less because of the cost of extraction—but may be more because Peabody needs to strip mine the defendants’ land in order to extract more coal from beneath the surrounding land), it will have to pay the defendants a good deal more. The judgment is affirmed and the cross-appeal denied.

In Fal-Meridian, Inc. v. US HHS (Petition for Review of an Order of the Departmental Appeals Board of the U.S. Department of Health and Human Services.), a 13-page opinion, Judge Posner writes:
The Meridian nursing home asks us to set aside a final decision by the Department of Health and Human Services that imposed a civil penalty of $7,100 on the nursing home for having violated a regulation under the Medicare and Medicaid provisions of the Social Security Act. 42 U.S.C. §§ 1302, 1395hh. The regulation requires a skilled nursing facility to “ensure that—(1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents.” 42 C.F.R. § 483.25(h). The size of the penalty was based on the Department’s further determination that Meridian’s violation of the regulation was “likely to cause . . . serious injury, harm, impairment, or death to a resident.” 42 C.F.R. §§ 488.301, 488.438(a)(1)(i).

It may seem odd that the nursing home would be seeking judicial review of such a tiny penalty, when its lawyer told us that the Department’s determinations would not jeopardize the nursing home’s license to serve Medicare and Medicaid patients. But the episode (which we’re about to narrate) giving rise to those determinations has also incited a tort suit for wrongful death against the nursing home, and the home does not want the finding used to bolster a claim of negligence. Regulatory violations are not negligence per se but they are evidence of negligence. Beta Steel v. Rust, 830 N.E.2d 62, 73- 74 (Ind. App. 2005); Zimmerman v. Moore, 441 N.E.2d 690, 696-97 (Ind. App. 1982). Meridian may also fear that the imposition of a civil penalty for an accidental death may make it harder to attract new residents.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court issues one today, a NFP

William Meyers v. Kosciusko Co. Assessor, et al. (NFP) - "The Court can understand that the increase in Meyers’ tax bill has caused him consternation. Nevertheless, when Meyers appealed the property’s assessment, he was required to do more than simply convey that consternation. Rather, he was required to provide probative evidence demonstrating what, specifically, the “ask price” for the property would have been as of January 1, 2006. See Manual at 2. He did not do so. Accordingly, Meyers has not shown that the property’s assessment of $293,200 was improper."

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (2):

Glenn E. Brogan v. State of Indiana - The confusing saga of Wallace v. State, decided April 30, 2009, continues -- and is perhaps compounded.

A number of issues are touched on (or raised) today in this opinion by Sr. Judge Sullivan, with a separate concurring opinion by Judge Barnes.

Among those particularly striking: Brogan filed (pro se) in Newton County, where he had been convicted 9 years ago, to have his name removed from the registry under the rationale of Wallace. He filed on Aug. 24, 2009. The trial court denied his motion on the day it was filed, saying it did not have jurisdiction.

Taking note of the new amendatory language enacted in the 2010 session of the General Assembly [SEA 224 (PL 103-2010), SECTION 2 of which amended IC 11-8-8-22 and took effect "upon passage", which was March 24, 2010, seven month after the filing and denial here], the opinion concludes:

We do hold, however, that Noble County is not, under the facts of this case, the appropriate forum in which to obtain judicial relief directing registry officials in another county to remove his name.

We affirm the ruling of the Noble Superior Court without prejudice to the right of Brogan to seek relief pursuant to Ind. Code§ 11-8-8-22. Affirmed.[10]

RILEY, J., concurs.
BARNES, J., concurring in result with separate opinion [writes that the new procedures set out in the amended statute will] allow the trial court, and this court on appeal, to be fully informed of a sex offender’s circumstances, including the offender’s full criminal history, dates of offenses, and reason for being required to register."
[10] We are unable to specify the county in which Brogan must file the petition because Ind. Code § 11-8-8-22 requires Brogan to file a petition in the county where he resides. The Act defines a “principal residence” as “the residence where a sex or violent offender spends the most time.” Ind. Code § 11-8-8-3. If Brogan remains incarcerated, it appears that the county where he is incarcerated would be the proper place to file a petition to be relieved from the obligation to register as a sex offender.

In Bryon Helms v. State of Indiana , a 9-page opinion, Judge Darden concludes:
In this case, the State presented evidence that on the night of January 25, 2009, Officer Ball discovered a crack pipe tucked behind the driver's door handle of Helms' vehicle. The State, however, failed to show any possible harm resulting from the possession. See C.A. Bean, 818 N.E.2d at 151 (finding no evidence of harm where officers discovered a used crack pipe in the defendant's vehicle, where two children also were present).

Given that the State did not present sufficient evidence to sustain a conviction for reckless possession of paraphernalia, we find that the trial court erred in denying Helms' motion to dismiss that charge. Accordingly, we reverse the trial court's denial of Helms' motion to dismiss and remand with instructions to dismiss the charge against Helms for reckless possession of paraphernalia.

In conclusion, we affirm the trial court's admission of the pipe into evidence. We, however, reverse the trial court's denial of Helms' motion to dismiss the charging information for reckless possession of paraphernalia as the State failed to produce any evidence of recklessness.

NFP civil opinions today (1):

Karen Spivey (Topper) v. Charles Topper (NFP) - "The dispositive issue is whether the trial court properly terminated Topper’s obligation to pay spousal maintenance to Spivey because she was receiving Social Security disability payments." Affirmed.

NFP criminal opinions today (5):

William Weinberg v. State of Indiana (NFP)

Laundle Black v. State of Indiana (NFP)

Kendra Smith v. State of Indiana (NFP)

Levonuia Riley, Jr. v. State of Indiana (NFP)

William H. Carnahan, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Overturned murder case jumps to forefront of Howard County prosecutor election"

The 7th Circuit's May 3rd decision in the case of Goudy v. Basinger, Sup. -- see ILB summary here -- is the subject of a story today by Brandi Watters in the Anderson Herald Bulletin. Some quotes:

ANDERSON, Ind. — A 15-year-old murder conviction overturned by a federal court Monday has sparked a heated debate in the race for county prosecutor.

Walter Lee Goudy’s 1995 murder and attempted murder convictions were overturned Monday by the U.S. Court of Appeals for the Seventh Circuit in Chicago on Monday after judges determined that Goudy did not get a fair trial due to the actions of the prosecutor’s office.

Goudy was convicted in 1995 for being one of two gunmen in the Anderson shooting death of Marvin McCloud. He was also convicted of attempted murder for shooting McCloud’s passenger, Damon Nunn, several times.

Rodney Cummings, who is challenging Prosecutor Thomas Broderick in the November election, served as prosecutor during the Goudy trial, but did not try the case himself, Cummings told The Herald Bulletin on Wednesday.

Since Goudy’s conviction was overturned, Broderick has just 120 days to pursue a new case against Goudy or he will be released from the Wabash Valley Correctional Facility where he is being held.

Broderick had strong words for his opponent on Wednesday.

In a written statement, Broderick said errors made in the case by Cummings’ office were “among the worst of failure to disclose evidence cases that I have personally seen.”

The case was overturned by federal judges because the prosecutor’s office failed to provide material pieces of exculpatory evidence to the defense during Goudy’s trial.

Exculpatory evidence is evidence that tends to prove the innocence of a defendant.

In Goudy’s case, the evidence included a police line-up that fingered another man, witness Kaidi Harvell, as the shooter; a taped confession by the defendant’s brother implicating Harvell; and evidence that Goudy’s alibi witness may have been persuaded to change her testimony.

Goudy’s original defense attorney, Mark Maynard, said he’s long believed that Goudy didn’t get a fair trial due to the exclusion of the evidence.

Cummings responded to Broderick’s statement Wednesday by saying that Broderick doesn’t have the courage to pursue a case like the Goudy murder trial.

In 1994, then-prosecutor Bill Lawler dismissed the case against Goudy when alibis were provided for his whereabouts during the shooting.

Cummings said Broderick was Lawler’s chief deputy prosecutor at the time of the dismissal.

“It’s laughable that Broderick would even make a statement about the trial because the former prosecutor, for which he was the chief deputy for, dismissed the case. They didn’t have the courage to try it in the first case,” Cummings said.

Once elected, Cummings filed murder charges against Goudy and took the case to trial.

Though he acknowledges that mistakes may have been made, Cummings maintains that he did the right thing by pursuing a tough case to get justice for the victims.

“Those guys don’t have the courage to take on tough cases. It’s easier for them to let murderers walk. A murderer at least had some accountability for 15 years and he would have been on the street if it were left up to them,” he said.

Broderick said he wasn’t a member of the prosecutor’s office at the time of the dismissal, and in fact, had left the office three years prior.

Broderick said his decision regarding whether or not to put Goudy on trial again will depend on an investigation by his office and local police.

The existing evidence in the case is a factor, he said.

“What evidence may still exist, given the passage of time and faded memories and witnesses that may have came and went? What are these witnesses going to say now?”

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Indiana Bar aids lawyers' victims: 3 Sniadecki clients seeking assist from statewide fund"

Jeff Parrott reports today in the South Bend Tribune:

[Harold] Davis said he paid attorney Rod Sniadecki a $500 retainer to file the necessary court papers in February [to legal custody of his daughter], but Sniadecki never has done so. Davis says he has left phone messages with Sniadecki every other day since March but never heard a reply.

Now Sniadecki's days as a lawyer are coming to an end — his disbarment takes effect May 12 — leaving Davis wondering whether he will ever see his $500 again.

He needs that money to hire a new attorney.

There is hope for people like Davis, said Gary Stage, an Indianapolis attorney who chairs the Indiana State Bar Association's Clients' Financial Assistance Fund program.

The fund, comprised of dues paid by the state bar association's roughly 12,000 member attorneys, makes payments to people it determines have been victimized by dishonest attorneys.

The association, a private entity, is under no legal obligation to make the payments.

"This is a voluntary attempt by the legal profession to give some relief to people who have been victimized by dishonest attorneys ... who can give all of us a bad name," Stage said.

The Indiana Supreme Court last month disbarred Sniadecki after unanimously finding that he violated the terms of a previous suspension from the practice of law; entered into an improper business transaction with a client; and committed crimes and engaged in dishonest conduct.

In addition to the attorney rule violations, the crimes included forgery, perjury and attempted obstruction of justice, the high court ruled.

St. Joseph County Prosecutor Michael Dvorak has confirmed his office is investigating the allegations but has filed no criminal charges.

So far, three Sniadecki clients — aside from Davis — have applied for assistance from the fund, and all three requests remain under investigation, ISBA spokeswoman Carissa Long said.

She said the fund now contains about $540,000. It takes in about $21,000 a year in dues and pays out $30,000 to $50,000 annually in aid, she said.

Long noted that clients need not have been victimized by ISBA members to receive aid.

Stage said the committee would need to review the facts of Davis' application, if he were to file one, but in general, the fund is designed to help people in his situation.

"In a typical case where the attorney took a retainer fee and then did nothing, and the lawyer has been disciplined, the chances for recovery typically are pretty high," Stage said.

When an attorney suddenly is unable to practice law because of an illness or substance abuse problem, other attorneys volunteer to step in and temporarily handle his cases, under the Judges and Lawyers Assistance Program overseen by the Indiana Supreme Court.

But when an attorney is disbarred, no such service exists. Clients who have pending cases are responsible for hiring new attorneys, said Seth Pruden, interim executive secretary of the Indiana Attorney Disciplinary Commission.

"There is always a risk when someone hires someone else to do work, whether it is a home contractor, accountant, or lawyer," Pruden said. "If the lawyer becomes unable or unwilling to do the job, the person hiring must find someone else to do the work."

For more on Sniadecki, see this ILB entry from April 2, 2010, which quotes an earlier story by the same reporter. An interesting provision in the earlier story:
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.
That date is straight from the Court's order.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Indiana Courts

Courts - "Kentucky courts slashing 113 jobs"

Beth Musgrave of the Lexington Herald-Leader reported in a lengthy April 29, 2010 story:

FRANKFORT — Kentucky courts will axe 113 positions over the coming months to help make up an expected $6.8 million shortfall for the fiscal year that begins July 1.

The job reduction is the largest layoff in the court’s history and follows a smaller round of cutbacks last year. More belt tightening is likely again next year, when a $10.6 million shortfall is expected. * * *

The cost-cutting measures include:

■ Cutting at least 18 staff positions from the state’s family court programs;
■ Abolishing drug courts set aside for families and juveniles;
■ Axing 21 trial commissioners;
■ Cutting overtime for all deputy clerks;
■ And cutting all payments to attend conferences for the next two years.

Only five of the 113 positions being cut across the state are now vacant, said Administrative Office of the Courts Director Laurie Dudgeon. Some of the affected people will be offered other vacant positions if they are tenured employees — or employees that can not be terminated at will, she said. * * *

Court officials had warned legislators as early as last summer that layoffs in the judicial branch were inevitable without additional money. But lawmakers — who have yet to pass an executive branch budget — opted to cut the court system by about 2 percent from the previous year. It’s overall budget for fiscal year 2011 was $290 million, far less than the $315 million the courts had requested.

The shortfall for the two pools of money that the judicial branch uses for its operations is more than $33 million for the upcoming fiscal year. However, the courts were able to use $26 million in one-time money to erase much of that shortfall.

So far, the judicial branch is the only branch of Kentucky government that has been forced to use layoffs to balance its budget.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Courts in general

Ind. Gov't. - More on "For WellPoint, Math Error Spurs More Scrutiny "

Updating yesterday's ILB entry, Daniel Lee has this story today in the Indianapolis Star headed "States urged to recheck WellPoint rate hikes". Some quotes:

Indiana Gov. Mitch Daniels is giving the request a cool reception. * * *

WellPoint in February disclosed that the average rates for the company's 107,000 individual Anthem policyholders in Indiana were rising 21 percent this year. Some Indiana Anthem customers reported that their rates were rising as high as 50 percent.

In California, individual Anthem customers were seeing an average increase of roughly 25 percent.

Gov. Daniels does not plan on responding to the letter, according to Jane Jankowski, a spokeswoman.

"When we feel the need for advice about health-care costs, we won't start with the people who just passed this disastrously expensive and backward federal legislation," Daniels said in a statement e-mailed by Jankowski.

Posted by Marcia Oddi on Thursday, May 06, 2010
Posted to Indiana Government

Wednesday, May 05, 2010

Ind. Courts - More on "Religion, prayer and government"

Updating this ILB entry from May 2nd, Ryan J. Foley of the AP has a long story today headed "Judge who struck down Day of Prayer in spotlight." Some quotes:

MADISON, Wis. (AP) -- Since U.S. District Judge Barbara Crabb ruled the National Day of Prayer unconstitutional, critics have declared what they think of her: A Marxist. A moron. A disgrace.

One person wrote that he was praying God removes her from office. Several warned she is headed to hell. GOP Rep. Ted Poe of Texas took to the House floor to taunt: "What's next, Judge Crabb? You going to ban Thanksgiving and Christmas as national holidays?"

Crabb, a 31-year veteran of the bench in this liberal state capital, has faced harsh criticism before. Those close to her say she isn't afraid of it.

In her ruling last month, Crabb said the law creating the tradition being observed Thursday is an unconstitutional call to religious action. She quickly became a magnet in the contentious debate over the role of religion in public life - denounced by Christian activists for overstepping but hailed as courageous by atheists, agnostics and non-Christians who feel excluded from the day. * * *

The 71-year-old judge, who declined an interview request, has never been afraid to make rulings unpopular with "Joe Blow on the street" when she believes the law calls for it, said Krista Ralston, who was Crabb's first law clerk after she was promoted to judge three decades ago.

In the late 1980s, protesters burned Crabb's likeness in effigy after she allowed Indian tribes to spearfish off their reservations - a practice some white fishermen believed ruined their sport. Demonstrators threw rocks, uttered racial slurs and accused Crabb of giving Indians special treatment.

"Talk about developing thick skin - that'll do it for you," said Kendall Harrison, who worked for Crabb as a law clerk from 1995 to 1997.

Crabb, who graduated from the University of Wisconsin law school in 1962, served in the 1970s as a federal magistrate under the late U.S. District Judge James Doyle, the father of Wisconsin's Democratic governor. Appointed to the bench in 1979 as Wisconsin's first female federal judge, Crabb is called thoughtful, fair and hardworking by lawyers who appear in her courtroom. * * *

A hallmark of Crabb's tenure has been the belief that all litigants deserve an opportunity to be heard and should have a prompt resolution. Along with U.S. District Judge John Shabaz, she adopted rules that have made the Western District of Wisconsin one of the speediest federal courts in the nation.

After Shabaz went on medical leave in 2008 and retired last year, Crabb worked long hours as the district's only judge. Shabaz's successor was confirmed in March.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

Sherry J. Chapo, et al. v. Jefferson County Plan Commission - "No further action was taken by Jefferson County. Therefore, twenty-two months later, on December 16, 2008, Chapo filed a motion to dismiss for failure to prosecute. A hearing on Chapo's motion was set for April 9, 2009. During the hearing, Chapo's counsel testified that for the first time since filing the motion four months prior, he had received an email from Jefferson County's counsel the day before the hearing indicating that Jefferson County would be filing a motion to amend and a request for jury trial. No such pleadings were filed. Also, at the hearing, it became clear that Jefferson County had not taken any action to move this case along and was unable to make a good faith argument to support continuing the instant cause. Thus, Chapo established the propriety of an award of attorney fees incurred when she was forced to defend against a frivolous and groundless claim. The trial court erred when it summarily denied Chapo's motion for attorney fees. We remand for a hearing to determine the appropriate amount of the award."

In Fort Wayne Metropolitan Human Relations Commission v. Marathon Gas Station, an 8-page decision, Judge Riley writes:

Appellant-Plaintiff, Fort Wayne Metropolitan Human Relations Commission (Commission), brings this interlocutory appeal of the trial court's grant in favor of the defendant, Nachhatar's Stores Inc. d/b/a Marathon Gas Station (Nachhatar), motion to strike jury demand. We reverse and remand with instructions to dismiss. * * *

Having determined that Commission Rule 2, 1-2.6 contravenes the requirements set forth in Indiana Code section 22-9-1-16, which clearly expresses the legislature's intent that both the complainant and the respondent must agree, in writing, on a form provided by the commission, we find that this procedural error prevents the trial court from exercising its jurisdiction. Evans v. State, 908 N.E.2d 1254, 1257 (Ind. Ct. App. 2009) (stating that in the context of reviewing administrative actions, before the jurisdiction of the trial court may be invoked for review, the plaintiffs must first comply with the statutorily provided procedures.) Thus, we remand with instructions to dismiss.

In Allvest, Inc. v. Classic Fire & Marine Insurance Co., et al., a 33-page opinion, Judge Crone writes:
This appeal arises out of insurance liquidation proceedings involving a disputed claim (“DC 83”) submitted by Allvest, Inc., to Classic Fire & Marine Insurance Company (“CFM”) for indemnification allegedly provided under an insurance policy. In its bankruptcy proceeding, Allvest sold its rights to DC 83 to Brett von Gemmingen, attorney for J.W., P.B., K.S., C.S., A.W., and C.L. (“the J.W. Claimants”), who had obtained tort judgments against Allvest in an Alaska court. The trial court found that the J.W. Claimants were not entitled to payment from CFM's liquidation estate and dismissed the claim. The J.W. Claimants appeal. * * *

We conclude that the J.W. Claimants' claim against Allvest and Allvest's claim against CFM are two separate, distinct claims, and therefore, a distribution on DC 83 will not result in a double recovery. Accordingly, we conclude that the trial court erred in finding otherwise and reverse its dismissal of DC 83. Further, we conclude that pursuant to Indiana Code Section 27-9-3-34(d), the Alaska judgments have no conclusive, binding effect in CFM's liquidation proceedings as to liability and the measure of damages, although they may be considered as evidence thereof. Finally, we conclude that the trial court did not err in denying the J.W. Claimants' request for a jury trial. Therefore, we affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Scott Jones v. Indiana Farmers Mutual Insurance, et al., a 19-page opinion, Judge Brown writes:
Scott Jones appeals from an order of the Indiana Worker's Compensation Board (“Board”) concluding that Indiana Farmers Mutual Insurance Company (“Indiana Farmers”) did not provide coverage when Jones was injured because Indiana Farmers had cancelled its insurance policy. Jones raises two issues, which we consolidate and restate as whether the Board correctly interpreted Ind. Code § 22-3-5-5(c)(5) of the Worker's Compensation Act. We affirm.
In Jason R. Merchant v. State of Indiana , a 15-page opinion, Judge Brown writes:
Jason Merchant appeals his conviction for unlawful possession of a firearm by a serious violent felon. Merchant raises one issue, which we revise and restate as whether the trial court erred by admitting evidence obtained during a warrantless search of Merchant's vehicle. We affirm.
In Matthew A. Baugh v. State of Indiana, a 14-page, 2-1 opinion, Judge Crone writes:
Matthew A. Baugh appeals his two convictions and consecutive sentences for class B felony sexual misconduct with a minor, as well as the determination that he is a sexually violent predator. We affirm. * * *

BAKER, C.J., concurs.
DARDEN, J., dissents with separate opinion [which concludes] How could a constitutionally competent attorney allow his client to suffer the consequences that befell Baugh without advising him of the statutorily required hearing, at which he could subject the experts' conclusions to the crucible of cross-examination?

Therefore, I would hold that the trial court's sentencing determination that Baugh is a sexually violent predator cannot stand, and I would order a remand to the trial court to either conduct a hearing at which the examining experts testify or inform Baugh of the statutory requirement for such a hearing and elicit from him an express waiver of the experts' testifying at such a hearing

NFP civil opinions today (4):

Summer Wilson v. Samuel Kent III (NFP)

Donald Vacendak, et al. v. City of Gary, et al. (NFP) - "As we have amply documented above, Vacendak’s appellate brief is often incoherent, violates numerous rules of appellate procedure, recklessly accuses the trial court judge and clerk of serious misconduct, fails to address the merits of the trial court’s ruling, and focuses on the wording of a trial rule that was amended nearly forty years ago. By any definition of the term, Vacendak’s appeal must be considered frivolous. Consequently, we remand for a hearing to determine the amount of damages to which Appellees are entitled pursuant to Appellate Rule 66(E)."

Edwin Blinn, Jr. v. William Thorne (NFP) - "Based on the foregoing, we conclude that the trial court erred when it awarded damages to Thorne in contravention of his agreement that the truck he purchased was being sold “as is.”
Reversed and remanded."

Jesse Clements v. Ralph Albers (NFP) - "Jesse Clements [ILB - pro se] appeals the trial court's award of discovery sanctions to Ralph Albers. We affirm and remand for a hearing to determine the expenses to which Albers is entitled for successfully defending his motion to compel discovery on appeal."

NFP criminal opinions today (7):

Kevin Hadley v. State of Indiana (NFP)

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

Dante Hill v. State of Indiana (NFP)

Dennis Alonzo Beeching v. State of Indiana (NFP)

Ricky Lee Lines v. State of Indiana (NFP)

Larry Dearborn v. State of Indiana (NFP)

Frederic Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court posts one today

In Clint Beldon v. State of Indiana, an 8-page, 5-0 opinion, Justice Sullivan writes:

The trial court used the same prior conviction to both elevate Clint Beldon's operating while intoxicated charge from a misdemeanor to a Class D felony and as a predicate offense for a habitual substance offender enhancement. While the general rule is that such “double enhance-ments” are not permitted absent explicit legislative direction, two of our decisions have held that direction exists in the circumstances of this case. * * *

We affirm the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Jasper County Circuit Court Judge John Potter receives the 2010 Robert J. Kinsey award

Jasper County Circuit Court Judge John Potter was presented with the 2010 Robert J. Kinsey award for outstanding service and support to the children and youth of Indiana on April 15, 2010 at the Juvenile Judges Symposium in Indianapolis. See this scanned program for more information, including a list of past recipients.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Indiana Courts

Courts - "Judge closes trial's Internet window: In a medical negligence case, the court clerk was told to block online access to public documents"

Deciding that admonishing jurors not to access the internet was not enough, a judge in Oklahoma has twice blocked public access to the county court docket (ILB - similar to Indiana's Odyssey system) on cases in her court. Bill Braun reported in the Tulsa World on May 3, 2010:

In a sign of the Internet times, a Tulsa judge recently ordered online access to information about a specific civil case, via a court website, to be "restricted entirely for the duration of the trial in this matter," records show.

Lawyers involved in the trial "agreed to an order that would remove the docket sheet from the public access during the pendency of the trial," Tulsa County District Judge Linda Morrissey said.

During that trial, attempts to call up the history of developments in the case on a court website that has Tulsa County cases — tulsaworld.com/oscn — resulted in a screen empty of information except for a case number and a declaration of "no record." * * *

Accessing the case's docket sheet by computer, a day after the trial ended, showed that information was restored and there were 20 print-out pages, listing the parties, the lawyers and a chronological history of motions, orders and rulings.

An order signed by Morrissey says all parties in the case agreed with a directive that required Tulsa County Court Clerk Sally Howe Smith to take "all measures necessary" to comply with this restriction of access.

Lawyers were concerned that jurors could
be influenced by getting information, from a record of events in a case filed in February 2007, that could or would be inadmissible as trial evidence.

Morrissey said litigants have a right to a fair trial before an impartial jury, and she routinely gives strong admonitions to jurors that they not search the Internet for information about a case being tried.

In the recent medical case, there was sufficient concern among lawyers that "they did not want that possibility to exist," Morrissey said. * * *

Joey Senat, an associate professor of journalism at Oklahoma State University, said this court order "is essentially closing off court records from the public."

"If she is going to close off court records, she should have a compelling reason to justify it," said Senat, a former president of Freedom of Information Oklahoma Inc., a watchdog group supporting openness in government.

The lawyers involved in the trial "don't represent the public's interest in those records," Senat said.

A judicial admonition for jurors not to research via the Internet or other methods should be sufficient, he said.

What might be convenient to trial participants does not outweigh "the public's right or need to know,'' Senat said.

Morrissey issued a similar order restricting public access to docket sheet entries in a condemnation case that was tried in March.

Smith, the court clerk, said she thinks this type of request will become more common in Tulsa County, and "I am surprised it has not come up in a criminal case."

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Courts in general

Courts - "N.Y. Court Expands Rights of Nonbirth Parents in Same-Sex Relationships" [Updated]

Jeeremy W. Peters reports today in the NY Times:

ALBANY — New York State’s highest court somewhat expanded the rights of gay and lesbian parents on Tuesday in a narrow ruling that said nonbiological parents in same-sex relationships should be treated the same as biological parents.

But the high court, the Court of Appeals, declined to resolve two cases involving lesbian parents and instead sent both back to lower courts, saying that the question of whether nonbiological parents should be given full parental rights was up to the State Legislature.

In one case, the court found that a lesbian who had given birth while in a committed relationship was entitled to seek child support in Family Court from her former partner. The ruling was 4 to 3.

In the other case, which legal experts said had broader implications, the court ruled that a woman seeking visitation rights from her former partner, who gave birth to a child conceived by artificial insemination after the two had entered into a civil union in Vermont, was a legal parent of that child.

The decision, by a 7-to-0 vote, said the woman, identified in court documents as Debra H., could ask a court for visitation and custody rights because New York confers parental rights to both parents in a same-sex relationship if the couple has a civil union.

Though the court did not specifically address the parental rights of gays and lesbians who are not birth parents but have other legally sanctioned unions, like a marriage performed in a jurisdiction that allows same-sex couples to wed, the case provides them a legal claim to parenthood. * * *

Some legal experts said they were dismayed by the ruling because it effectively established two sets of standards for children of same-sex couples: one set for those born to couples with a legally recognized relationship, and another for those born to couples without legal recognition.

“A distinction between whether one is a parent or is not a parent based on whether a couple is in a civil union or not in a civil union — that should not matter,” said Nancy Polikoff, a law professor at American University. “From the child’s point of view, he or she has two parents.”

The court declined to establish criteria for parenthood in relationships in which one partner or spouse is not the biological parent, saying a more flexible standard could invite claims of parental rights by people who have no business raising them. * * *

Other jurisdictions have amended their laws to grant nonbiological parents broad legal rights. Colorado, Indiana, Minnesota, Texas and the District of Columbia have all established criteria under which people other than biological parents can claim to have parental rights.

The Court of Appeals said nothing prevented the Legislature from following that lead.

The Times' story includes links to the two NY opinions.

[More] More here this afternoon, from Joel Stashenko of the New York Law Journal.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Courts in general

Environment - More on "EPA proposes two options for managing coal waste"

EPA's plan, announced yesterday, has allready met with criticism. From The Blog of Legal Times:

For months, environmental lawyers have been waiting for the government to come out with proposed rules on the disposal of coal ash. But what the Environmental Protection Agency did today took some by surprise.

Rather than issue one proposed rule, the EPA laid out two options for public comment. One would classify coal ash as a hazardous waste, subject to a heavier regulatory regime with enforcement by state and federal regulators.

The other option, favored by industry, classifies it as a non-hazardous waste and leaves enforcement to citizen’s suits. Still, Bracewell & Guiliani partner Lisa Jaeger cautioned that option “doesn’t mean government disappears. It means states take a primary role as opposed to the EPA.”

Wilmer Cutler Pickering Hale and Dorr partner Kenneth Meade said that “there was never any Congressional intent in any environmental laws to leave enforcement to citizen’s suits.” But he also said there would be “serious repercussions” if coal ash was regulated as a hazardous waste. * * *

More than 560 plaintiffs have filed 57 lawsuits against the TVA, according to J. David Brittingham of Dinsmore & Shohl in Cincinnati. As of September 2009, the TVA already paid out more than $69 million in settlements.

Brittingham praised the EPA in the coal ash proposals for “trying to balance the interests of all the various parties and stakeholders.”

The EPA under either approach will require new coal ash ponds and landfills to have liners. Both new and existing facilities will be required to monitor groundwater. There are also incentives to transition to storing ash in safer, dry form. Both proposals also allow for coal ash to continue to be used in recycled in products.

The key difference is whether the ash is regulated under Subtitle C or D of the Resource Recovery and Conservation Act.

The Subtitle C proposal creates a comprehensive program of federally enforceable requirements for waste management and disposal.

Under the Subtitle D version, the EPA has “authority to set performance standards for waste management facilities” and the regulations “would be enforced primarily through citizen’s suits,” according to the EPA press release.

Shaila Dewan of the NY Times reports:
The Environmental Protection Agency issued a long-awaited proposal Tuesday to regulate coal ash, the toxic byproduct of burning coal to produce power. But the agency deferred a decision on whether to treat it as hazardous waste, drawing criticism from environmentalists who had hoped for a stronger stance.

Instead, the agency offered two alternatives, one that would regulate coal ash under strict hazardous-waste rules, and a weaker and less expensive option that would regulate it under the same framework that governs household garbage. The agency will choose between the options sometime after a 90-day comment period.

Either proposal would represent the first time that coal ash, which contains arsenic, mercury and other toxic substances, has been federally regulated, Lisa P. Jackson, the E.P.A. administrator, said in a conference call. “Both proposals reflect a major step forward at the national level in reducing the risk of improper coal ash disposal,” Ms. Jackson said. * * *

“We are disappointed that the rule brings forward two dramatically different regulatory options,” Scott Slesinger, legislative director for the Natural Resources Defense Council, said in a statement. “We expect E.P.A. to choose the option that adequately protects the public, particularly our precious groundwater, and treats this hazardous waste as a hazardous waste.”

But other environmental groups praised the agency for acknowledging the elevated risk of cancer and other health effects of coal ash. Industry groups, meanwhile, urged the E.P.A. to take the less strict route.

“We believe there’s only one prudent course of action — federal regulation of coal ash as a nonhazardous waste,” said Jim Roewer, the executive director of the Utility Solid Waste Activities Group, which has argued that the industry has voluntarily begun to improve ash disposal practices and that hazardous-waste regulation is expensive and unnecessary. * * *

Under the E.P.A.’s hazardous-waste proposal, surface impoundments would be phased out over five years, Ms. Jackson said. The regulations, which would also require safeguards like liners in new dry landfills and groundwater monitoring at both new and old landfills, could be enforced by the agency.

Under the nonhazardous designation, existing surface impoundments would have to be retrofitted with liners and new surface impoundments and landfills would require liners, but the rules would be essentially recommendations that could not be enforced except by citizens filing lawsuits. States would not be required to adopt the new guidelines as law.

The agency estimated that the first option would cost the industry $1.5 billion a year, while the second would cost $600 million a year. Both would allow certain types of “beneficial reuse,” or recycling, of coal ash as an additive in cement, concrete and asphalt, for example.

Hewre is the 563-page proposed rule.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Environment

Ind. Courts - McKinney loses prosecutor primary in Delaware County

Keeith Roysdon reports in the Muncie Star Press:

Delaware County will have a new prosecutor come next fall.

Mark McKinney, a first-term incumbent Democrat plagued by controversy after controversy — including pending Indiana Supreme Court disciplinary action that could cost him, at least temporarily, his license to practice law — lost Tuesday’s Democratic Party primary election to challenger J.A. Cummins.

Another story here.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Indiana Courts

Ind. Gov't. - "For WellPoint, Math Error Spurs More Scrutiny "

Recall that at the same time California's governor was vocally protesting his state's 39% WellPoint rate increases. there was little said in Indiana about similar increases. Today Avery Johnson of the Wall Street Journal reports:

The Obama administration's top health official is urging state regulators and lawmakers to investigate whether WellPoint Inc. made mathematical errors in justifying sharp rate increases around the country.

In a letter being sent to state insurance commissioners and governors late Tuesday, Health and Human Services Secretary Kathleen Sebelius calls for a national inquiry into the data underpinning rising health-insurance costs. Ms. Sebelius is seizing on WellPoint's decision last week to withdraw a request for up to a 39% price increases on individual plans in California after an actuary hired by the state found several mistakes in the filing.

"In light of this recent finding, I urge that, to the extent you have authority to do so, you re-examine any WellPoint rate increases in your state," Ms. Sebelius wrote. "Even small errors can mean unaffordable premiums for policyholders."

WellPoint has become a lightening rod for criticism over rising premiums. Chief Executive Angela Braly was called before Congress in February to defend its California rate increases. At that hearing, Ms. Braly pointed to mushrooming charges by hospitals, doctors and drug companies that are passed through to consumers in their insurance bills.

Other insurance executives were hauled into the White House in March to explain their prices, but WellPoint has borne the brunt of criticism in part because it is the biggest seller of plans to individuals and small businesses, and because of the size of its California rate boost.

In investigating the California rate filing, that state's Department of Insurance found mathematical mistakes, such as overestimating future medical costs and double-counting the effect of its policyholders aging, according to insurance commissioner Steve Poizner, a Republican candidate for governor. * * *

Ms. Sebelius's letter urges states to tighten their review processes, noting that new health law makes available $250 million to states for that purpose. Some state officials have already started acting in the wake of WellPoint's admission last week.

Connecticut Attorney General Richard Blumenthal said he will ask his state's insurance regulator Wednesday to comb through a local WellPoint unit's request to raise individuals' rates by 24% on average last year. Connecticut's insurance department had granted increases of up to 20%, said a spokeswoman for Mr. Blumenthal.

"If there were any similar errors the rates should be reduced," said Mr. Blumenthal, a Democrat who is running for a U.S. Senate seat in Connecticut.

In New York, where a WellPoint unit raised individuals' premiums by about 17% last year, actuaries are pulling out the company's filings and discussing the merits of the increases, said John Powell, assistant deputy superintendent for health at the state's insurance department. "We're going to see if any alarms go off for us," said Mr. Powell.

WellPoint said both New York and Connecticut have rate oversight processes in place to double-check the actuarial assumptions in companies' filings.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to Indiana Government

Law - "The battle over direct shipping of wine from producer to consumer has returned to Congress."

That is the lede to this story today in the Washington Post, by Dave McIntyre. More quotes:

Last month, Rep. Bill Delahunt (D-Mass.) introduced legislation pushed by beer and wine wholesalers that could make it nearly impossible for consumers to have wine shipped to their door.

Delahunt's bill would effectively overturn a U.S. Supreme Court ruling issued five years ago this month in Granholm v. Heald, a case brought by the late Virginia vintner Juanita Swedenburg. The ruling held that states had primary responsibility for regulating the distribution of alcoholic beverages, but that they could not discriminate against out-of-state producers by allowing only their own wineries to ship to consumers.

Granholm was not the total victory that direct-shipping advocates had hoped for, but it slowly turned the tide in their favor. In 2005, 27 states allowed some form of direct-to-consumer wine sales. Today, through legislative efforts and court challenges, residents of 37 states and the District of Columbia are able to order a case of wine from a favorite winery and have it shipped to their homes. (An effort to legalize direct-to-consumer sales failed again this year in the Maryland legislature, although advocates say a deal has been reached to pass similar legislation next year.)

Simply put, the direct-shipping battle pits the 21st Amendment, which repealed Prohibition and gave the states authority to regulate alcohol distribution (a compromise that allowed some states to remain "dry"), against the Constitution's Commerce Clause, which gives Congress, not the states, authority to regulate interstate commerce and trade.

Delahunt's bill, H.R. 5034, declares that alcoholic beverages are not like other consumer products, that they do not fall under the Commerce Clause and that states have ultimate authority to regulate their distribution. It would also place a high burden of proof on any legal challenge to a state's distribution laws.

With this bill, opponents of direct shipping cannily enrobed their cause in three hot-button political issues: The bill would stop "deregulation" of alcohol by reinforcing "states' rights" and limiting "excessive litigation." Attorneys general from 39 states, including Maryland's Douglas F. Gansler (D) and Virginia's Ken Cuccinelli II (R), signed a letter to Congress supporting the bill.

Here is a long list of other ILB entries on wine shipping.

Posted by Marcia Oddi on Wednesday, May 05, 2010
Posted to General Law Related

Tuesday, May 04, 2010

Not Law but Interesting - " Students Transform Salad Spinner Into Life-Saving Centrifuge"

Ariel Schwartz writes in Inhabit:

When’s the last time you heard of a salad spinner that saves lives? Two Rice University students have transformed a simple salad spinner into an electricity-free centrifuge that can be used to diagnose diseases on the cheap. Created by Lauren Theis and Lila Kerr, the ingenious DIY centrifuge is cobbled together using a salad spinner, some plastic lids, combs, yogurt containers, and a hot glue gun. The simple and easily-replicated design could be an invaluable tool for clinics the developing world, enabling them to separate blood to detect diseases like anemia without electricity.

The students discovered that a salad spinner can separate 15 microliters of blood into plasma and heavy red blood cells after spinning for just 10 minutes. By holding a gauge up to the tube, Theis and Kerr are able to measure a patient’s hematocrit (ratio of red blood cells to total volume), which can indicate anemia. And while anemia itself isn’t deadly, the condition can point to other ailments like HIV, malnutrition, and malaria.

More on the centrifuge here.

See also: "Stamp-Sized Paper “Chip” Diagnoses Diseases For Just a Penny."

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to General News

Environment - "EPA proposes two options for managing coal waste"

James Bruggers reports today in the Louisville Courier Journal:

The Environmental Protection Agency on Tuesday proposed two different ways to manage the nation’s huge volume of coal combustion waste, and asked the public to weigh in to help the government decide.

One approach would eventually phase out coal ash storage ponds. The other would would allow ash ponds, but only if they have plastic liners.

There are no national requirements for plastic liners or other coal-ash safety measures currently.

“Over the course of developing these proposals, it became clear there are people who feel very strongly about one or the other,” said EPA Administrator Lisa P. Jackson. “We believed the next best step would be to open a transparent public process, then the EPA does its job and makes a final decision.”

She said the agency will open a 90-day comment period.

The agency’s announcement follows Jackson’s promise last year to develop the first national rules on managing the wastes that come from burning coal, following a massive ash slide in December 2008 at a power plant near Knoxville, Tenn.

The issue is of special interest in Kentucky and Indiana, which the EPA says rank first and third for production of coal burning wastes. Indiana and Kentucky are also the nation’s top two states for coal ash ponds, with 53 and 44 respectively, according to the EPA.

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Environment

Ind. Decisions - "Supreme Court Sides With Insureds in Farm Liability Dispute"

The Supreme Court's decision April 29th in the case of Everett Cash Mutual Insurance Company v. Rick Taylor and Katrina Taylor (ILB summary here) is the subject today of a story in Claims Journal. It concludes:

The Supreme Court rejected Everett Cash's argument that the Taylors' claim was not for an "occurrence" as defined in the policy, stating that the claim was "filed as a result of an 'accident' in which he suffered bodily injury and incurred medical expenses. This was an occurrence within the meaning of the policy."

The court reasoned that the exemption in the Everett Cash policy "simply clarifies that the policy provides no coverage in the conventional workers' compensation context." Everett Cash doesn't provide workers' comp policies, and the Taylors had no employees at the time they purchased their policy.

"It would be beyond the ordinary understanding of the workers' compensation system to extend the exclusion to the matter-of-first-impression scenario here – where a claim is filed against an insured by an injured worker in the employ of a third party who did not comply with its obligations under the Act," the Court explained.

"Given that the Taylors could not have even purchased workers' compensation insurance to protect themselves from claims by Sherlocks' employees, it is hard to imagine them thinking that an exclusion regarding workers' compensation could preclude them from having protection from a lawsuit by someone injured in an accident on their property."

The Court also pointed out that the exclusion was written ambiguously enough that apparently Everett Cash's own agent thought coverage would be provided in this case.

"We hold that for an insurance policy to exclude such a claim, any exclusion must be more explicit than the language used here," the Court said.

The Court's decision was written by Justice Sullivan.

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Ind. Sup.Ct. Decisions

Law - More on "School Law Clinics Face a Backlash"

Updating this ILB entry from April 3, 2010, today Karen Sloan of The National Law Journal has a story headed: "Battleground Over Law School Clinics Widens."

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to General Law Related

Indiana Decisions - Maybe not today [Updated]

The Court's Indiana Opinions pages havn't been updated today -- they still show Monday's date. That means there may be opinions, but, if so, they haven't been posted.

[Updated] My bad! A reader points out it is primary election day and state offices are closed.

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Indiana Decisions

Ind. Gov't. - More on "IBM bills state $125 million"

Updating this ILB entry from May 2nd, quoting stories in the Fort Wayne Journal Gazette, the same paper today has an editorial headed "IBM deal’s steep cost." Some quotes:

Daniels made bold promises when he pitched a deal to turn over the administration of welfare services to IBM. While the savings, improved services and job opportunities never materialized, the cost of the deal, which was canceled in October, continues to grow.

Because the administration is unlikely to calculate the full cost of the debacle, the General Assembly should demand a full accounting. It took a public records request from The Journal Gazette to determine IBM has billed the state for $125 million since the deal was canceled. * * *

The contract was canceled in October, to be replaced with a “hybrid” system in which FSSA staff and subcontractors handle cases as a team. ACS continues as a subcontractor.

State officials are disputing the charges from IBM, although they have not filed a formal objection. They have also fined the company $115,000 for missing performance targets during five months of 2009. That amounts to about 1 percent of the $11.5 million a month IBM was paid last year.

The administration has stubbornly defended the contract from its inception, refusing to acknowledge the human cost of interrupting vital services to the state’s most vulnerable residents.

Lawmakers owe Hoosiers a better review of the deal. As the governor begins a full-out pitch for outsourcing in Indiana schools, it’s time to learn the full cost of welfare privatization.

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Indiana Government

Ind. Courts - More on "DWI repeat offender admits 2 charges in fatal crash"

Updating this April 5, 2010 ILB entry, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:

On Monday, Allen Superior Court Judge Fran Gull sentenced Mansfield to 16 years in prison for causing the crash, which also seriously injured Yenser’s teenage daughter.

Because the sentence was determined by the terms of a plea agreement with prosecutors, neither defense attorney Nikos Nakos nor Allen County Deputy Prosecutor Adam Mildred spent much time arguing about what Mansfield’s sentence should be.

In April, Mansfield pleaded guilty to a Class B felony charge of operating a motor vehicle while intoxicated with a blood-alcohol concentration of more than 0.15 percent causing death and a Class D felony charge of criminal recklessness.

Additional charges of aggravated battery, operating a motor vehicle while intoxicated causing death and an additional count of criminal recklessness were dismissed at sentencing.

Gull sentenced Mansfield to 16 years on the Class B felony charge and an additional two years on the Class D charge but ordered both sentences to be served at the same time. She ordered Mansfield to pay $20,955 in restitution, and his driver’s license will be suspended for five years after his release from prison. * * *

Also present at the hearing was state Sen. Tom Wyss, R-Fort Wayne, at the request of the Yenser family. In April, Gov. Mitch Daniels signed into a law a bill championed by Wyss that requires judges to monitor habitual traffic violators for a three-year period after their driving privileges are reinstated.

A two-time convicted drunken driver, Mansfield’s driving privileges were reinstated in 2000.

At the time of the fatal crash at Indiana 101 and Dawkins Road, Mansfield’s blood-alcohol level was 0.37 percent, more than four times the level of 0.08 percent at which a person is legally intoxicated.

Mansfield ran a stop sign at the intersection in his pickup truck, plowing into the side of Yenser’s SUV and knocking both vehicles into a ditch. Yenser, 45, of Antwerp, Ohio, died at the scene.

Later, at a hospital, after Mansfield was medically cleared for arrest, police informed him why he was being arrested.

Mansfield responded, “No way, I killed someone?”

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Indiana Courts

Courts - "Federal Judge Bars 'Sexting' Prosecution of Pennsylvania Girls"

By now the ILB has a long list of entries on sexting, but an AP story today indicates that the case that started it all has (see 3/27/09 ILB entry) now been settled.

Posted by Marcia Oddi on Tuesday, May 04, 2010
Posted to Courts in general

Monday, May 03, 2010

Ind. Decisions - Transfer list for week ending April 30, 2010

Here is the Clerk's transfer list for the week ending April 30, 2010. It is 2 pages long.

Three transfers were granted last week. they are detailed in this ILB entry from Friday.


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, May 03, 2010
Posted to Indiana Transfer Lists

Environment - "State breaks silence on 'Easterly's Pile'"

"Easterly's pile" has been the subject of several earlier ILB entries. Today Gitte Laasby of the Gary Post Tribune reports in a story that begins:

BURNS HARBOR -- For the first time in five months, state officials are breaking their silence about waste piles dumped at ArcelorMittal Burns Harbor named after the state's top environmental official.

In November, the Post-Tribune broke the story about the waste, which ArcelorMittal officials have named "Easterly's Pile" after Indiana Department of Environmental Management Commissioner Tom Easterly. He was the top environmental official at ArcelorMittal's predecessor, Bethlehem Steel, from 1994 to 2000.

Easterly has declined to comment.

Gov. Mitch Daniels revealed Friday he has inquired about the waste.

"I've been asking a lot of questions and I'm trying to make certain this thing is appropriate. I know we've displeased you guys mightily on some of these things," he told the Post-Tribune editorial board.

Also Friday, IDEM officials told the Post-Tribune that the waste piles near Lake Michigan existed long before Easterly's tenure at Bethlehem Steel.

"They've been conducting similar activity in this area since the early 1980s, prior to Tom Easterly's arrival at the Burns Harbor facility in September 1994," IDEM spokeswoman Amy Hartsock said in an e-mail to the Post-Tribune.

It's the first time IDEM officials made any indication about whether Easterly had a connection to the waste.

Bethlehem Steel recycled various wastes in its sinter plant in the mid-1980s. But under Easterly's watch, the company reported to the U.S. Environmental Protection Agency in 1999 that although it had stopped recycling 14 years earlier, it still had treatment plant sludge and other waste sitting in the open.

In its latest inspection report, IDEM indicated it is not taking enforcement action against ArcelorMittal because the company has periodically recycled some waste and has applied for a landfill permit to dispose of the waste. The company is allowed to stockpile waste for recycling for up to six months.

It isn't clear exactly how much of the waste in Easterly's pile in the northeast corner of the property is recycled.

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Environment

Law - "Illinois hair-braiding bill offers regulatory compromise"

The Sunday NWI Times had this lengthy story by Karen Hawkins -- some quotes:

Oumou Wague has been braiding hair in her Chicago shop for more than a decade, carrying on a tradition passed down for generations in her native Senegal. To braiders, her talent for weaving women's hair into elaborate styles isn't just a livelihood, it's an art form.

But in the eyes of state regulators, it's also illegal.

Illinois requires hair braiders to get a cosmetology degree _ which can take 1,500 hours and cost $15,000 _ and then apply for a license, just like people who give haircuts, manicures and facials. Proponents say the rules are needed to protect consumers if they develop problems such as hair loss or have service complaints.

But the law seems ridiculous to many braiders, the majority of whom are African and African-American women who learned as children and have refined their talent in kitchens and on stoops for generations.

"Hair braiding is not cosmetology," said Alie Kabba, executive director of the Chicago-based United African Organization. "You cannot ask an engineer to get a degree in history."

In a clash between rules and tradition, hundreds of braiders have chosen to ignore the law _ including Wague, who said threats by state regulators to shut down her shop forced her to go underground, working only with established clients.

Now Illinois lawmakers are trying to carve out some relief. Under legislation that passed the House and Senate and awaits the governor's signature, braiders who prove they've practiced their craft for at least two years could automatically get a hair-braiding license after paying a fee. New braiders could get a license after undergoing 300 hours of training in braiding methods and sanitation.

"At the end of the day, this bill is about creating opportunities for people who want to scale up businesses, who want to create jobs, who want to pay taxes," said Rep. Will Burns, the bill's lead House sponsor.

What about Indiana? Here is the report by the Institute for Justice referenced in the Times story. According to the Report, Indiana's status is unclear:
While not specifically mentioned in the statute, braiding is included in the cosmetology curriculum and is probably categorized as cosmetology. To become licensed as a cosmetologist, hairbraiders in Indiana must pass a test and take a 1,500-hour cosmetology course.

Source: Ind. Code § 25-8-2-5(a)(1) (2005); Ind. Admin. Code tit. 820, r. 4-4-4(a) under “hairstyling” (2005); Ind. Code § 25-8-9-3(3) & (4) (2005); Ind. Code § 25-8-5-3(1) (2005).

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to General Law Related

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):

Donald Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana case today

In Goudy v. Basinger, Sup. (SD Ind., McKinney), a 15-page opinion, Judge Bauer writes:

An Indiana jury convicted Walter Lee Goudy of murder and attempted murder in December 1995. After exhausting the remedies available to him in Indiana courts, Goudy filed the instant habeas corpus petition in the district court under 28 U.S.C. § 2254. That court denied his petition. He timely appealed. At issue in this case is whether the government’s failure to disclose three eyewitness statements that implicated one of its main witnesses, and the failure of Goudy’s counsel to introduce his brother’s tape-recorded confession as evidence denied Goudy a fair trial. * * *

Goudy presses two claims on appeal. He argues that the prosecution violated his right to a fair trial under Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to turn over witness statements identifying Kaidi Harvell as one of the shooters and suggesting that Harvell spoke with one of Goudy’s alibi witnesses. Goudy also claims that his counsel’s failure to introduce Romeo Lee’s recorded confession at trial deprived him of the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The district court denied both claims and we review de novo. * * *

In short, Goudy has shown that the state court’s decision on his Brady claim involved an unreasonable application of clearly established federal law. Rather than applying a “reasonable probability” standard for materiality of suppressed evidence as required by United States v. Bagley, 473 U.S. at 682, the court unreasonably required Goudy to show that the suppressed evidence would establish his innocence. The court did not recognize Bagley’s requirement that the effect of suppressed evidence be assessed cumulatively. Clearly established federal law entitles Goudy to have the exculpatory evidence considered under these standards. * * *

[B]ecause we hold that the Brady error alone denied Goudy a fair trial, we need not reach the question of whether he also was denied the effective assistance of counsel.

III. CONCLUSION. For the reasons stated above, we conclude that the Court of Appeals of Indiana unreasonably applied federal law when it determined that prior statements of identification by witnesses the government suppressed did not create a reasonable probability of a different result in Goudy’s trial. Therefore, we REVERSE the district court’s holding and remand with instructions to grant Goudy’s request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. If the state elects not to retry Mr. Goudy within 120 days, he shall be released from confinement.

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Ind. (7th Cir.) Decisions

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

Updating this Feb. 22, 2010 ILB entry on the Pew Report, here is a report from the Center for State & Local Government Excellence, titled "The Funding of State and Local Pensions: 2009–2013." Appendix A beginning at p. 11 shows "Ratio of Assets to Liabilities for State and Local Plans 2001–2008, and Projections for 2009."

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Indiana Government

Ind. Gov't. - "Job seekers tap library computers in droves"

Chelsea Schnieder Kirk reports today in the Gary Post Tribune:

Most Sundays, the line in front of Central Library in Merrillville forms long before the branch opens at 1 p.m.

The people outside wait to complete the same task -- filing their weekly unemployment claim on the Indiana Department of Workforce Development's website.

"There's always a big rush when the state's site is available," said Carolyn Strickland, head of reference for the Lake County Public Library. "That's the way people need to file now, online."

As the economy tanked, the library saw a 28 percent increase in computer usage. An estimated 244,596 hours were logged on library computers in 2009, and this year's usage is on track to far exceed those numbers. Along with unemployment claims, a majority of those people also are using computers to update resumes and look for jobs.

Amanda Keaton of Merrillville comes to the branch about every other week to fill out job applications.

"Most of the jobs now do online and have gone paperless," Keaton said. * * *

While use steadily increased, libraries have dealt with their own economic restraints. Both Porter and Lake county systems are on hiring freezes. Porter's budget for this fiscal year was slashed by $605,000, which affects the amount of technology available to patrons and the purchasing of books and periodicals.

"It has been a little bit harder than in the past," Strickland said. "But we do make the effort to do one-on-one helping with individuals."

Lake County expanded Sunday hours at the Dyer/Schererville Branch to accommodate those needing to file for unemployment, and librarians added links to the Department of Workforce Development's website on desktops. WorkOne refers people to the library system if they lack Internet access. * * *

[M]ost jobs require applicants to file online.

"A lot of people, no matter what job it is, even if it's a stocker in a local grocery store, if they go in and ask about a job or if they're taking applications they give them a Web address to apply for it online," Strickland said. "A lot of these people don't have e-mail accounts or computers at home with Internet access."

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Indiana Government

Environment - "Kentucky tries to interest fishermen to haul in huge carp"

James Bruggers reports today in the Louisville Courier Journal in a story that begins:

They say they taste like tuna. Or cod. Or a cross between scallops and crabmeat.

But whether Asian carp from Kentucky ends up on a restaurant plate, or as lobster bait, the state is working to develop markets for the fish they fear could — if left unchecked — threaten the ecological balance of the Ohio River and other waters.

“This is a pretty serious situation,” said Ron Brooks, director of fisheries for the Kentucky Department of Fish and Wildlife Resources. “It’s definitely one of the most important problems we are going to have to deal with for a while.”

The silver and bighead varieties of Asian carp, have made their way up the Ohio from the Mississippi River, and have also gotten into the popular Barkley and Kentucky lakes in western Kentucky.

The fear is that these Asian carp, which can grow to 100 pounds, will crowd out more desirable native fish like sauger, white bass, crappie and catfish that help support a nearly $1 billion a year recreational fishing industry in Kentucky. They are also causing problems for people who fish for a living.

“It’s got so bad now, you can’t catch anything but them,” said commercial fisherman Ronnie Hopkins. “If we don’t do something about them, in another five years, there won’t be no bass and crappie, (and) no paddlefish.”

But it can get worse, Brooks said.

“All you have to do is look at the Illinois River and see how bad it can get,” Brooks said. — An overabundance of exotic carp there has caused sauger numbers to plummet, he said.

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Environment

Ind. Gov't. - "Attorney for East Chicago nets big contract "

Steve Zabroski reports today in the NWI Times:

EAST CHICAGO | The struggling city's top lawyer -- who also is a cousin of the embattled mayor -- received a new contract last week that could be worth as much as $268,000 a year.

Corporation Counsel Carmen Fernandez was one of the first employees whom Mayor George Pabey hired when he took office in December 2004.

Without comment, the Board of Public Works and Safety last week approved a professional services agreement with Fernandez.

The contract dwarfs the pay rate of lawyers for other nearby cities. The corporation counsel for Hammond, a city nearly three times the size of East Chicago, is paid $55,349 annually.

The new contract with Fernandez sets a base retainer of $8,000 per month as well as all city employee benefits, including health insurance, and use of a take-home city vehicle.

She also will be paid $160 per hour for all hours worked beyond 50 hours in any one month, according to the contract.

The corporation counsel job has been considered full time at 35 hours per week. At that rate, the retainer of $96,000 per year plus 90 hours of "overtime" each month results in an annual $268,000 gross, not including benefits and the car.

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Indiana Government

Ind. Decisions - More on "Term. of Parent-Child Rel. of I.B.; M.L., et al"

Updating this ILB entry from April 30, which lists Term. of Parent-Child Rel. of I.B.; M.L., et al v. IDCS (03A05-0912-JV-676 / 03S05-1004-JV-218) (a 2/17/10 COA opinion) as having been granted transfer, the ILB has obtained copies of the following documents:

Posted by Marcia Oddi on Monday, May 03, 2010
Posted to Indiana Transfer Lists

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, May 2, 2010:

From Saturday, May 1, 2010: From Friday, April 30, 2010:

Posted by Marcia Oddi on Monday, May 03, 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 5/3/10):

Thursday, May 6th

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

Thursday, May 13th

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

Tuesday, May 4th

Wednesday, May 5th

Thursday, May 6th

Friday, May 7th

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

Next Monday, May 10th

Next Wednesday, May 12th

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, May 03, 2010
Posted to Upcoming Oral Arguments

Sunday, May 02, 2010

Ind. Gov't. - PAC opinion on access to certain IDEM records

For several years the ILB wrote of concerns about potentially "secret dockets" in Indiana -- appeals which were not listed on the Clerk's docket so that there was no way for the public to know they existed. This ILB entry from Oct. 8, 2008 reports on the resolution -- cases with confidential filings are recorded on the docket just as other cases, but with notations indicating documents that are confidential.

An April 26, 2010 advisory opinion (10-FC-78) issued by the Indiana Public Access Counselor re "Alleged Violation of the Access to Public Records Act by the Indiana Department of Environmental Management" addresses a related issue. IDEM has been imaging all its documents and making them available via a "virtual filing cabinet," From the opinion:

According to your complaint, you allege that on March 8, 2010, you requested a document listed under “Deerfield Storage Facility” in IDEM’s virtual file cabinet (“VFC”), an online database where members of the public can access public documents. Documents in VFC are assigned one of two designations: (1) “view,” which provides immediate access to the record; and (2) “request,” which directs users to a web page where they can make a written request for the record. * * *

Finally, the APRA does not prohibit IDEM from publicly listing records in a VFC or similar database even if some of those records are confidential. As Ms. Endris notes, the VFC merely lists the existence of various records; it does not make them all immediately available for public inspection. Moreover, nothing in the APRA prohibits an agency from denying access to a confidential record that is listed on a public database. In other words, an agency’s public acknowledgment of the existence of a record is distinguishable from an agency’s disclosure of the record, and nothing in the APRA requires that an agency must produce records merely because the agency has acknowledged their existence.

Posted by Marcia Oddi on Sunday, May 02, 2010
Posted to Indiana Government

Ind. Courts - "Religion, prayer and government"

From a story in the April 16, 2010 issue of USA Today headed "Judge rules National Day of Prayer unconstitutional":

MADISON, Wis. (AP) — A federal judge in Wisconsin ruled the National Day of Prayer unconstitutional Thursday, saying the day amounts to a call for religious action.

U.S. District Judge Barbara Crabb wrote that the government can no more enact laws supporting a day of prayer than it can encourage citizens to fast during Ramadan, attend a synagogue or practice magic.

"In fact, it is because the nature of prayer is so personal and can have such a powerful effect on a community that the government may not use its authority to try to influence an individual's decision whether and when to pray," Crabb wrote.

Congress established the day in 1952 and in 1988 set the first Thursday in May as the day for presidents to issue proclamations asking Americans to pray. * * *

Crabb wrote that her ruling was not a judgment on the value of prayer. She noted government involvement in prayer may be constitutional if the conduct serves a "significant secular purpose" and doesn't amount to a call for religious action. But the National Day of Prayer crosses that line, she wrote.

"It goes beyond mere 'acknowledgment' of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context," she wrote. "In this instance, the government has taken sides on a matter that must be left to individual conscience."

Last week Judge Sarah Evans Barker (SD Ind.) enjoined the Greenwood High School from permitting student-led prayer at its May 28 graduation ceremony - details in this May 1, 2010 ILB entry.

Another notable prayer case within the 7th Circuit was then-district judge David Hamilton's rulng in Hinrichs v. Speaker House Rep. (for background start here).

All is by way of introduction to this excellent editorial today in the LA Times. Some quotes from the lengthy piece:

Into this welter of confusion arrives the Lancaster City Council, which invites clergy from throughout the city to start its meetings with a prayer. Almost always, these are Christian clergy. The American Civil Liberties Union fired off a warning letter to the city, saying there had been complaints about the number of these prayers that are given "in the name of Jesus Christ" or with other clear references to specific religions. The city countered with a ballot measure, which voters passed last month, supporting a continuation of the current practice.

But voters' preferences cannot overrule constitutional protections or legal precedent in such matters. If a government body is promoting the establishment of religion, that's a violation of the 1st Amendment. The problem is that the courts have not always been clear; often, the particular circumstances of a case play a role in the decision. In 1983, for instance, the Supreme Court held that starting a legislative session with prayer does not violate the Constitution; it pointed to this country's long history of beginning government meetings with prayer, though it also noted that the prayer involved was ecumenical in nature and did not advance one religion over another. Such traditional prayer in civic settings has become a part of the culture, the justices wrote. This concept has come to be known as "ceremonial deism." But the exception applies only to legislative bodies, including city councils; it does not allow even nondenominational prayer as a formal part of a public school day, though in many schools students recite the Pledge of Allegiance, including its "one nation, under God" clause.

A 2000 Superior Court decision narrowed in on situations like the one in Lancaster. Ruling on prayers before Burbank City Council meetings that used the phrase "in the name of Jesus Christ," the court said that invoking a deity specific to one religion implies an endorsement of that religion by the city government. Ecumenical prayers are thus considered kosher; denominational prayers are not.

Posted by Marcia Oddi on Sunday, May 02, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Police reaping more drug money"

Some quotes from a long story today by Jeff Wiehe of the Fort Wayne Journal Gazette:

In recent years, both the Fort Wayne Police and Allen County Sheriff’s departments have seized a growing amount of money in federal cases. Unlike in state-level cases, police agencies can keep a large amount of the cash they take in federal cases.

A study released last month by the Institute for Justice – a non-profit, libertarian organization – graded each state on its police seizure laws and how law enforcement used such laws. The report, “Policing for Profit,” gave Indiana a C+.

Indiana’s state laws, which do not allow law enforcement to gain monetarily from seizing money, were given a B+ by the study’s authors. The grade was lowered because in Indiana, police have the option of following federal laws that let them keep more cash after a seizure.

But officials with both the Fort Wayne Police and Allen County Sheriff’s departments said the reason for the rise in federal seizures is not to make a buck. Rather, more and more cases are meeting the standards of prosecution as federal crimes.

Basically, officials said they are finding suspects with larger amounts of drugs in their possession or working longer-term cases that expose larger drug operations.

“I think if you have someone in office doing that, they shouldn’t be in office,” Allen County Sheriff Ken Fries said in response to the notion of profit-motivated police work. “You do not go out and enforce the laws to make money. You go out and enforce the laws to protect people.”

After police confiscate money or property during the course of a case, it becomes a civil court matter involving the Allen County Prosecutor’s Office or the U.S. Department of Justice.

The county prosecutor’s office files 100 to 120 such confiscation cases a year, said Deputy Prosecutor Jack Roebel, who handles the local cases.

Most involve people found with drugs, drug paraphernalia, cash or a combination of the three.

“If I’m a police officer and I stop a person, and they have cash and drugs, my argument is that the cash was either to purchase the drugs or made from the sale of drugs,” Roebel said.

Unlike in criminal court, Roebel does not have to prove beyond a reasonable doubt that the money or property he’s seeking to confiscate is connected to crime.

“My burden of proof is substantially lower than a criminal case,” Roebel said. “I just have to be able to prove to the court that there is some reason to believe the property I’m seeking to forfeit was related to crime.”

At the state level, police and prosecutors can use a seizure to recoup the cost of pursuing that case. They must submit documentation of how much they spent, and they cannot keep more than that total. Any excess goes into the state’s education fund.

“There’s no financial gain for anybody,” Roebel said.

In federal cases, though, police can keep up to 80 percent of money they seize. When more than one agency is involved, that money is divided according to how much time each agency put into the case.

Capt. Jim Feasel of the Fort Wayne Police Vice and Narcotics Unit said a case can be pursued in federal court only if it meets certain requirements. The amount of drugs or money involved plays a part, he said, as do other factors.

“The reason we go federal, it’s not because it’s more bang for the buck, it’s because we have enough information to meet federal guidelines,” Feasel said. “But a lot of times, we don’t have enough.” * * *

In any case, law enforcement officials said, anyone has the opportunity to prove in court that their seized money came from legal means.

“The problem is, forfeiture cases proceed just as any other civil case,” said local attorney Quinton Ellis, who represents some clients trying to get their money back from law enforcement. “It presents an issue for people who have funds forfeited.”

These people must hire a lawyer, and there may be court fees involved. Some cases he can’t take because the clients would be fighting for less money than they’d eventually have to pay him for his time, he said.

“More often than not, it’s just a few hundred dollars, but I’m going to have to put in many, many hours of my time,” Ellis said. “More often than not, people throw up their hands.”

Still, Ellis said that as in any civil case, the two sides can sometimes settle.

Here is a long list of earlier ILB entries on drug forfeitures.

The study referenced in the story is titled "Policing for Profit." Access it here. From the summary:

Policing for Profit: The Abuse of Civil Asset Forfeiture chronicles how state and federal laws leave innocent property owners vulnerable to forfeiture abuse and encourage law enforcement to take property to boost their budgets. The report finds that by giving law enforcement a direct financial stake in forfeiture efforts, most state and federal laws encourage policing for profit, not justice.

Policing for Profit also grades the states on how well they protect property owners—only three states receive a B or better. And in most states, public accountability is limited as there is little oversight or reporting about how police and prosecutors use civil forfeiture or spend the proceeds.

Federal laws encourage even more civil forfeiture abuse through a loophole called “equitable sharing” that allows law enforcement to circumvent even the limited protections of state laws. With equitable sharing, law enforcement agencies can and do profit from forfeitures they wouldn’t be able to under state law.

Posted by Marcia Oddi on Sunday, May 02, 2010
Posted to Indiana Law

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

Updating this ILB entry from April 26, 2010, Linda Greenhouse, the former Supreme Court correspondent for the NY Times who now teaches at Yale Law School, and has also recently become a columnist for the Times, had this column in Saturday's paper. Some quotes:

The latest threat to public safety and morals, evidently, is the video game. Bans on the sale or rental of violent video games to minors are popping up all over the country — eight states so far, along with several local laws. Every one that has been challenged in court has been declared unconstitutional.

So it was baffling this week to find the Supreme Court weighing in where it doesn’t appear to be needed. The court typically takes up only those questions that have produced contradictory rulings in the lower courts; a “conflict in the circuits” is the primary marker of a case the justices deem worthy of their attention. Yet the justices have agreed to hear California’s appeal of a ruling by the United States Court of Appeals for the Ninth Circuit that struck down a state law imposing a fine of up to $1,000 for the sale or rental of a “violent video game” to a person under the age of 18. The 2005 statute defines “violent video game” as one that “appeals to a deviant or morbid interest of minors;” offends community standards; and lacks “serious literary, artistic, political, or scientific value for minors.”

This definition mirrors the way the Supreme Court defines obscenity, a category of expression deemed to lack First Amendment protection. But obscenity, as a legal category, always has a sexual component. California is asking the Supreme Court for a new carve-out from the First Amendment, for depictions of violence when made available to minors. The state “is asking us to boldly go where no court has ever gone before,” the Ninth Circuit panel observed.

Maybe the Supreme Court accepted the case, Schwarzenegger v. Entertainment Merchants Association, simply in order to kill the state’s stunningly broad theory in the cradle. The Roberts court has been highly protective of free speech (too much so, according to critics of the recent campaign finance decision, Citizens United v. Federal Election Commission, which invalidated limits on corporate political speech). And just last week, in United States v. Stevens, the court voted 8 to 1 on First Amendment grounds to strike down a federal law that criminalized “crush videos” and other commercial depictions of animal cruelty.

Or maybe the justices want to spare other courts the need to keep reviewing and declaring unconstitutional an endless assortment of violent-video bans. If so, they could hardly do better than simply to adopt the opinion that Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in 2001, invalidating an Indianapolis violent-video ordinance. It’s hard to top the Odyssey or the Divine Comedy for gruesome depictions of torture and mayhem, Judge Posner said, adding that shielding modern children from violent imagery “would leave them unequipped to cope with the world as we know it.”

Posted by Marcia Oddi on Sunday, May 02, 2010
Posted to Courts in general

Ind. Gov't. - "IBM bills state $125 million"

Angela Mapes Turner reports today in the Fort Wayne Journal Gazette in a long story that begins:

IBM Corp. claims Indiana owes it more than $125 million for ending a controversial welfare contract, including $9.3 million for telephones, computer equipment and furniture.

While the state says much-needed equipment improvements were made, it’s disputing the IBM invoices, which The Journal Gazette received through a public records request.

Critics say the unpaid tabs illustrate a lack of oversight they believe marked the 10-year, $1.34 billion privatization contract, which Gov. Mitch Daniels signed in 2006 but ended late last year.

The Journal Gazette requested copies of all invoices and receipts created between IBM and the state since the Oct. 15 announcement that the IBM contract would be canceled.

The documents also show the state fined IBM $115,000 for underperformance during five months last year. That’s about 1 percent of the $11.5 million in fixed fees the company was receiving each month to administer welfare benefits in 59 of the state’s 92 counties.

Maples also has a related story, headed "State still working on hybrid welfare system." It begins:
The state says it hasn’t decided when it will expand its welfare hybrid system beyond a 10-county pilot region, but the Family and Social Services Administration is promising openness and inclusion in evaluating the new system.

In January, the state began testing a system that combines elements of the modernized and old caseworker systems in Vanderburgh and surrounding counties.

The hybrid plan, like the IBM-led system, relies heavily on private, for-profit companies – a reliance the U.S. Department of Agriculture, which oversees the federally funded food stamp program, has cautioned states against. But it includes more face-to-face contact for clients, an element that IBM’s modernization lacked, critics said.

FSSA spokesman Marcus Barlow said a public advisory group made up of advocates has been created, and FSSA Secretary Anne Murphy has made three trips to the Evansville area to meet with interested parties there.

Answering critics who have said FSSA has been too tight-lipped about changes, Barlow said the agency is doing a full evaluation of the pilot region and will release the results of the evaluation to the public.

When that might happen remains to be determined, and Barlow would not comment on when the hybrid plan might expand to other counties.

Posted by Marcia Oddi on Sunday, May 02, 2010
Posted to Indiana Government

Saturday, May 01, 2010

Ind. Decisions - "Court dismisses lawsuit from Elkhart recycling plant neighbors"

The Court of Appeals decision Friday in the case of Bellows et al v. Board of Commissioners of the County of Elkhart, et al. (see ILB summary here) is the subject today of a brief story in the South Bend Tribune:

INDIANAPOLIS — The Indiana Court of Appeals dismissed a lawsuit from neighbors of the VIM recycling plant in Elkhart.

The neighbors sued, asking for a zoning ruling to reversed after an explosion killed a worker at the plant in 2007.

Friday, the appeals court said the group didn't identify a "legally actionable request" and the original judge did not make a mistake in his ruling.

The court said the County Commissioners and the county Plan Commission should not have been included in the complaint because they didn't have jurisdiction.

Indiana's Attorney General, the state fire marshal and another group of neighbors all have filed other lawsuits against VIM.

For background, see this ILB entry from July 15, 2007, quoting from a South Bend Tribune story headed "What is it going to take to shut this place down?" and this ILB entry from Dec. 21, 2009, headed "Attorney General Greg Zoeller has filed a lawsuit against an Elkhart County recycler with a history of environmental violations, worker-safety violations and public complaints."

Posted by Marcia Oddi on Saturday, May 01, 2010
Posted to Environment | Ind. App.Ct. Decisions

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

Updating yesterday's ILB entry, which includes a copy of Judge Barker's 21-page Order, John Tuohy and Melanie Hayes of the Indianapolis Star have this report this morning. Some quotes:

A judge late Friday granted a preliminary injunction prohibiting Greenwood High School from permitting student-led prayer at its May 28 graduation ceremony.

School officials said they won't appeal U.S. District Judge Sarah Evans Barker's decision, effectively ending the dispute.

In the ruling, Barker wrote that "the process in place permitting a student-led prayer at Greenwood 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."

Greenwood Superintendent David Edds said he was not completely surprised by the ruling.

"We wanted to make the case that we believe it (prayer) has a place in high school graduations," Edds said. "We think the students . . . who made the decision to have a prayer should be able to have that voice as well."

Edds said the district would not hold votes or try to hold graduation prayers in future years.

"The reality is there is a precedent, and the case law that preceded the case today made our challenge difficult," he said.

ACLU-Indiana Legal Director Ken Falk said he was happy about the judge's ruling. The ACLU had filed the suit on behalf of valedictorian Eric Workman, who claimed the graduation prayer violates the First Amendment provision of the separation of church and state.

"This is what the Constitution demands in this instance," Falk said of the ruling. "I would hope that the judge was quite clear in court. She viewed it as a teaching opportunity. I hope everyone understands the scope of the Constitution here." * * *

The ruling came hours after a federal court hearing in which Barker had strongly signaled she would rule against the school district. Barker said the vote trampled the rights of the minority of students who voted against prayer and said the school "put itself in constitutional duck soup."

Barker described Workman's actions as courageous and warned against repercussions against him. * * *

Judy L. Woods, a Bose McKinney & Evans lawyer who represents the Greenwood school district had said the school was not asking Workman to participate in a religious ceremony during commencement, but only "to sit and listen politely."

"Just as people will be asked to listen to Mr. Workman's commencement address politely," Woods said.

During the hearing, the judge aggressively questioned the school attorney. Barker repeatedly asked Woods to show how administrators weren't advocating government-sanctioned prayer.

"You cannot deny that the school's hand was in this from the beginning," the judge said.

The school claims the prayer meets constitutional muster because the students had input and administrators weren't foisting it on them. Woods argued prior court decisions left room for prayer if students approved it. She said Greenwood crafted its process with that in mind.

"The (previous) decision doesn't say you can't have prayer," Woods said. "I think it is a matter of degree."

Judge Barker scoffed at that contention.

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

Posted by Marcia Oddi on Saturday, May 01, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Governor: Bankruptcy law needed in case cities fail "

Jon Seidel of the Gary Post Tribune has this report this morning. Some quotes from the long story:

Gov. Mitch Daniels said Friday it might be time for Indiana to pass a municipal bankruptcy law in case Gary or another insolvent Hoosier city fails to prevent financial ruin in the future.

Such a law is a requirement for any city interested in pursuing bankruptcy, and he said it shouldn't harm Indiana's AAA credit rating, one of the best in the country.

However, Daniels said he still hopes Northwest Indiana's largest city will be able to right its financial ship by developing the Gary/Chicago International Airport or a land-based casino. He even praised Gary City Hall for slashing its tax levy by 24 percent since 2008 with the help of the Indiana Distressed Unit Appeals Board.

"That's not easy to do even as you start, as they did, in a position of lots of excess," Daniels said. "That takes some gumption on somebody's part."

The governor made his comments while meeting with the Post-Tribune editorial board Friday.

The ILB recalls this long entry from July 27, 2009 headed "Southern Indiana town may file for bankruptcy protection," where Herald J. Adams of the Louisville Courier Journal reported:
Facing a debt of $1.45 million over a long-delayed sewage plant project, the Floyd County town of Georgetown has taken the first step toward what would be an unprecedented move for an Indiana municipality — filing for bankruptcy protection.

Whether Georgetown could do that, however, is in dispute. State officials say Indiana law doesn't authorize a town to declare bankruptcy.

Georgetown's leaders “have no authority” to declare the town bankrupt, said Brian Bailey, general counsel for the Indiana Department of Local Government Finance.

Bailey cited a 1994 update to the federal bankruptcy code that says a municipality “must be specifically authorized” by state law to be a debtor, and no Indiana law does that. (Kentucky law authorizes its local governments to file for bankruptcy, but none have ever done so.)

Posted by Marcia Oddi on Saturday, May 01, 2010
Posted to Indiana Government