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Wednesday, June 30, 2010

Ind. Decisions - Court issues five more opinions this afternoon

In Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General, an 8-page, 5-0 opinion, Justice Boehm writes:

This case addresses the jurisdiction of state agencies and the State Employee Appeals Commission (SEAC) to consider ethics code violations in ruling on terminations of state employees. A 2005 statute gave SEAC jurisdiction to review terminations of state employees by either the employee's agency or the Ethics Commission. We hold that this amendment authorized SEAC to consider ethical violations among other grounds for termination in conducting this review, but did not otherwise affect the general rule that the Ethics Commission has exclusive jurisdiction to interpret the state Ethics Code. Ghosh's attempt to review his termination by the Indiana Department of Environmental Management (IDEM) in this subsequent Ethics Commission proceeding is therefore barred by IDEM's earlier unappealed decision to terminate him. We also uphold the Ethics Commission's sanction against Ghosh. * * *

The trial court's holdings that Ghosh is collaterally estopped from challenging his termination, that Ghosh violated the Ethics Code, and the $456.96 penalty are affirmed.
___________
[ILB - a footnote cites] Sullivan v. Day, 681 N.E.2d 713, 716 (Ind. 1997) (an agency is entitled to great deference on judicial review for its interpretations of its own regulations).

In The Kroger Co. v. Lu Ann Plonski , a 12-page, 5-0 opinion, Justice Rucker writes:

A business invitee of a grocery store was assaulted in the store’s parking lot. The store contends in part that because the assault was not reasonably foreseeable it owes no duty to the invitee. We granted transfer to explore this issue. * * *

Claiming injuries as a result of the assault, Plonski filed a complaint for damages against Kroger on September 30, 2005. After the parties conducted discovery, on March 26, 2007, Kroger filed a motion for summary judgment arguing (i) it owed no duty to Plonski, (ii) if it owed a duty the duty was not breached, and (iii) in any event Plonski’s injuries were not proximately caused by Kroger’s conduct. As a part of its motion Kroger designated, among other things, the affidavits of three Kroger employees: the Risk Manager, the Safety Manager, and the Head Cashier. The affidavits of the Risk Manager and Safety Manager asserted in essence that the Kroger store is located in a part of the city that has a reputation for low levels of criminal activity. And that in the two-year period before October 2, 2003, there was only one report of criminal activity occurring on the store’s premises. Id. The affidavit of the Head Cashier essentially alleged that the assailant who attacked Plonski was not a guest or patron of the Kroger store. * * *

Here, Kroger as the moving party failed to carry its burden of demonstrating that criminal activity on its premises at the time of the Plonski assault was not foreseeable. Thus, Plonski was not required to provide contrary evidence. * * *

Summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). And this is so because “negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person – one best applied by a jury after hearing all of the evidence.” Id. In this case Kroger has persuaded us no differently.

Conclusion. The trial court properly denied Kroger’s motion for summary judgment. We therefore affirm the judgment of the trial court.

In Curtis F. Sample v. State of Indiana , a 6-page opinion, Justice Rucker writes:
Because the trial court (a) provided over Sample’s objection an instruction which minimized the jury’s power of discretion in making a determination on habitual offender status, and (b) provided a “law and facts” instruction that rendered meaningless the jury’s Article I, Section 19 authority, the trial court committed reversible error. Consequently, Sample is entitled to have the habitual offender adjudication vacated.

Conclusion. We affirm Sample’s convictions and sentences for attempted murder and criminal confinement. However, we vacate the habitual offender adjudication and remand this case to the trial court for a new habitual offender phase of trial.

In Luis E. Duran v. State of Indiana, an 11-page, 5-0 opinion, Justice Boehm writes:
Police attempting to execute an arrest warrant broke into the defendant’s home where they did not find their suspect, but happened on evidence of an unrelated crime. The police acted solely on the basis of uncorroborated information from an anonymous source, and without any immediate need to prevent ongoing crime or flight. We hold that the entry into the defendant’s home violated both the federal and state constitutions and the evidence must be suppressed. * * *

We have determined that the police did not have a reasonable basis for their suspicion that Hernandez was in Duran’s apartment, and thus the degree of suspicion was not high. At the same time, the degree of intrusion into Duran’s personal space was very high, and the degree of law enforcement needs was low. As such, the officers’ selection of and subsequent forceful entry into Duran’s apartment was unreasonable and violated Article I, Section 11 of the Indiana Constitution.

Conclusion. For the reasons set forth in this opinion, the trial court’s denial of Duran’s motion to suppress is reversed.

Dickson, Sullivan, and Rucker, JJ., concur.
Shepard, C.J., concurs in result with separate opinion.[which concludes] I would say that this is a sufficient basis for a belief that Duran was in the apartment where they attempted to arrest him. I join in reversing because it was not a reasonable basis for doing so in the middle of the night to arrest a relatively immobile suspect.

In Austin Knight v. State of Indiana , a 5-page, 3-2 opinion, Justice Rucker writes:
Austin Knight pleaded guilty to several felony offenses for which he was sentenced to an aggregate term of seventy years. Under our constitutional authority we revise the sentence to a total aggregate term of forty years. * * *

Conclusion. We remand this cause to the trial court with instructions to enter a sentence consistent with this opinion.

Shepard, C.J., and Sullivan, J., concur.
Dickson and Boehm, JJ., dissent without separate opinion.

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Coverage of Voter ID ruling today [Updated]

Re the opinion issued earlier today (ILB summary here), Deanna Martin and Charles Wilson of the AP have this story.

Masson's Blog had this post, headed "Indiana Supreme Court Holds Voter-ID Law Is Not Facially Invalid; Permits Future 'As-Applied' Challenges."

Election Law Blog has this brief post.

[Updated at 3:00 PM] Jon Murray of the Indianapolis Star has now written a long story on the decision, headed "Indiana justices uphold voter ID law." Some quotes:

The Indiana Court of Appeals had ruled last year that the law was unconstitutional in a 3-0 decision because of exemptions from the voter ID rule for mail-in absentee voters and for residents of state-licensed care facilities that serve as polling places.

But today, the state Supreme Court brushed aside the importance of those exemptions because they are based on legitimate reasons or apply to very small portions of the population. * * *

In an earlier case based on alleged violations of the U.S. Constitution, the U.S. Supreme Court upheld Indiana's law in a 6-3 decision. The League then filed its lawsuit in 2008, focusing exclusively on the Indiana Constitution. It argued the voter ID law had created a new qualification for voting and was being applied unequally to voters, violating the Equal Privileges and Immunities provision.

"In our view, however, the Voter ID Law's requirement that an in-person voter present a government-issued photo identification card containing an expiration date is merely regulatory in nature," the state Supreme Court's opinion says.

But the court ruled only on the general constitutional challenge, holding open the door for the possibility of a more specific challenge to the law by otherwise qualified voters actually kept from voting by the ID requirement. Opponents have cited some circumstances, including a dozen nuns in St. Joseph County in Northern Indiana who weren't allowed to cast ballots in the 2008 primary because they lacked valid IDs. * * *

The court ruled that the specifics of the law satisfy Indiana's requirements for uniformity and reasonableness in election regulations, despite the two exceptions. "They apply only with respect to special alternative voting accommodations in which the photo identification requirement would be impracticable, unnecessary, or of doubtful utility."

In his dissent, Boehm wrote that the League deserved its day in court to prove its claims about the law. He also went further, declaring: "I think both precedent and the language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification for casting a ballot," and as such, would require a constitutional amendment to enact.

"The majority finds the voter ID to be a reasonable implementation of the registration requirement," Boehm's dissent says. "The problem, of course, is that the plaintiffs claim that some eligible citizens are unable or unwilling for various legitimate reasons to obtain a voter ID, particularly in light of the recent restrictions designed to address national security concerns.

"We ordinarily give wide latitude to legislative judgment on matters of reasonable relationship in classifications created by statute. But any limitation on the right to vote surely strikes at one of the core values embodied in the Indiana Constitution."

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "Tipping the Scales: In the south, women have made huge strides in the state judiciaries"

A fascinating, and timely, article in the July ABA Journal. The Journal cover has photos of three state chief justices, from the states of Alabama, Florida, and Georgia. All three are women.

Here are a few quotes from the long story by Mark Curriden:

Once a year, the chief justices of the Southern state supreme courts gather to share experiences, learn from judicial educators, discuss trends that are common in the court systems of the Deep South and seek solutions. Last year, when the elite group of jurists gathered in Nashville, Tenn., they recognized that they themselves are a trend: Eight of the 13 Southern states—Alabama, Florida, Georgia, Louisiana, North Carolina, South Carolina, Tennessee and Texas—have female judges leading their courts of last resort—more than any region in the country.

"We all looked at each other and noticed that there were a lot of us,” says Tennessee Supreme Court Chief Justice Janice Holder. “While it wasn’t a coordinated event, it didn’t just happen either.”

Twenty states across the nation now have a woman serving as chief justice—more than at any time in the history of the United States.

In fact, women compose 26 percent of state judiciaries, compared with 22 percent of the federal judiciary, according to The American Bench: Judges of the Nation, a new report by Forster-Long Inc.

Women now make up 48 percent of law school graduates and 45 percent of law firm associates, according to the report.

Nowhere have the gains in gender diversity been greater than in the South. Four of the states in that region—Florida, Georgia, Kentucky and South Carolina—have as high or higher percentages of women on their state courts as do California, Connecticut, Illinois, Michigan and New Jersey, all of which are considered much more liberal or progressive in seeking diversity.

But it is in the Southern supreme courts where the gender diversity is most obvious and publicly displayed.

“I ask people if they know how many women chief justices there are, and they answer two or three,” says Alabama Chief Justice Sue Bell Cobb. “When I tell them, they are shocked. But it really blows them away when I tell them how many there are of us in the South.”

Former Georgia Chief Justice Leah Ward Sears, who retired last summer, had the same experience.

“The South often gets a bad rap for race and gender,” says Sears, who was her state’s first female chief justice and second African-American justice. “But I would go to New York and tell people that I was chief justice, and they would be floored.”

Nine of the 13 state supreme courts in the South have multiple women as justices, as does the District of Columbia. Five states have three or more—the Texas Court of Criminal Appeals, which is that state’s court of last resort on criminal matters, has four female judges. Tennessee is one of three states with a majority of women on its supreme court. Michigan and Wisconsin are the other two. Two states have no women as justices, and neither—Idaho and Indiana—is in the South.

The article ends with a great graphic, identifying states with a woman cheif justice, states where there are over 50% women on the highest court, and states with over 40%.

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Courts in general

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

For publication opinions today (5):

In John Bragg and Built on Foundation v. City of Muncie and The Housing Authority, an 8-page opinion, Chief Judge Baker writes:

A plaintiff-developer claims that the designated evidence in the underlying summary judgment proceeding is conflicting as to whether the defendant, the City of Muncie, was justified in inducing the repudiation of an urban development contract that the developer entered into with the executive director of Muncie’s housing authority. Although the developer’s arguments are focused on whether the City tortiously interfered with the agreement, this case is really about whether a valid contract even existed.
Appellants-plaintiffs John Bragg and his company, Built On Foundation, Inc., (collectively, Bragg), appeal the trial court’s grant of summary judgment in favor of appellee-defendant City of Muncie (City) and the Muncie Housing Authority (MHA), claiming that a genuine issue of material of fact exists regarding Bragg’s claim for tortious interference with a contract. More specifically, Bragg contends that the trial court erred in concluding as a matter of law that the City’s “interference” with the purported land purchase and development contract that Bragg entered into with MHA’s executive director the City was justified. Concluding that the trial court properly entered summary judgment for the City, we affirm.
In Brightpoint, Inc. and Brightpoint Europe A/S v. Steen F. Pedersen, a 13-page opinion, Judge Najam concludes:
In sum, none of the four issues raised by Brightpoint and BPE demonstrate an erroneous determination by the trial court or an abuse of discretion in the court's application of the rule of comity. The Indiana litigation and the Danish litigation involve the same parties, substantially identical subject matter, and substantially similar remedies. Additionally, it was within the court's discretion to consider the Danish litigation the first-filed action. As such, we cannot say that the trial court abused its discretion when it granted Pedersen's Motion to Dismiss based on comity.
In A.S. v. State of Indiana , an 18-page opinion, Judge May concludes:
While A.S. should not have been subjected to detention without counsel or a valid waiver of counsel, we may not reverse her ultimate adjudication as a delinquent; she was represented by counsel at the time of her final hearing, her hearing was held within sixty days as required by statute, and she was not entitled to a jury trial. We accordingly affirm in part and reverse in part.
Michael L. Smith v. State of Indiana - "The trial court did not abuse its discretion in declining Smith’s proposed mitigators, and his sentence is not inappropriate. However, the probation condition regarding polygraph tests must be amended. Affirmed in part, reversed in part, and remanded."

In Stacey Fowler v. State of Indiana , a 10-page opinion, Judge Vaidik writes:

Stacey Fowler appeals her conviction for Class B misdemeanor battery. We hold that (1) the victim's booking card from a prior, unrelated arrest was admissible under the public records exception to the hearsay rule, (2) introduction of the booking information did not violate Stacey's Sixth Amendment confrontation rights, (3) even if the exhibit was unnecessarily cumulative, Stacey fails to establish that she was prejudiced as a result of its admission, and (4) any alleged error in the exclusion of the arresting officers' out-of-court statements was waived for failure to make an offer of proof. We affirm the judgment of the trial court.
NFP civil opinions today (6):

Carmen Kelleher v. Carol Mason (NFP)

Patton Homes, LLC, et al. v. Robert Bellows, et al. (NFP)

Thaddeus Joseph Zysk v. Jennifer Kelly Zysk (NFP)

Jon Marc Kaetzel and Beverly K. Kaetzel v. Kaetzel Trust, et al. (NFP)

Term. of Parent-Child Rel. of J.G. & J.R.; A.R. v. IDCS (NFP)

Guardianship of Alice L. Schoonover (NFP)

NFP criminal opinions today (8):

John Offett v. State of Indiana (NFP)

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

Eddie D. Lowe v. State of Indiana (NFP)

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

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

Danny T. Dunlap v. State of Indiana (NFP)

Lawrence Brown v. State of Indiana (NFP)

Richard Joslyn v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Following the Indiana Supreme Court selection process [Revised]

Updating earlier ILB entries, applications for the Supreme Court vacancy are due by noon today. See this ILB entry from June 2 for details on the selection process.

The Supreme Court press office has now issued a revised announcement headed: "Applications for Supreme Court Vacancy Made Available To Press and Public." It reads:

On Thursday, July 1st a press release will be posted to the courts.in.gov website naming all applicants for the position of Supreme Court Justice.

On Friday, July 2nd at 8:30 a.m. EDT a release will be posted to the court website listing the applicants and the day, time and location of each applicant interview. The press release will also include a link to individual applications without writing samples.

The press and public are invited to view applications, with the voluminous writing samples, in person on Friday, July 2nd from 1 p.m.- 4 p.m. EDT in the Law Library on the third floor of the State House. Application photocopies can be made on the library copier for 25 cents a page. The copier takes 1 and 5 dollar bills, change is not available.

On July 8th or July 9th a press release naming the semi-finalists will be posted to the courts.in.gov website. The exact date of the release will depend on Judicial Nominating Commission deliberations. The semi-finalists will be named after the executive session concludes. When a list of all semi-finalist applicant interview times is available it will also be posted online.

On July 30th a press release naming the three finalists will be posted online. The vote on the final nominees is public, and the release will be posted shortly after the public vote.

The interviews are open to the press and public.

This is great.

Also great: The ILB is very pleased to announce that Joel Schumm, IU-Indianapolis law professor, has agreed to cover the interviews for the ILB. We plan comprehensive coverage, beginning with the list of applicants, their applications, their writing samples, and their interviews before the Commission.

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Ruling on Voter ID? Yes, here it is.

Abdul Hakim Shabazz has just posted:

I just word the Indiana Supreme Court has upheld the state’s Voter ID is constitutional. The ruling was 4-1.
The ILB has checked the docket; Here is what it says:
6/30/10 2010 TERM
WE AFFIRM THE JUDGMENT OF THE TRIAL COURT
GRANTING THE APPELLEE'S MOTION TO DISMISS AND
REJECTING THE PLAINTIFFS' CLAIMS THAT THE INDIANA
VOTER ID LAW CONTRAVENES ARTICLE 2, SECTION 2 OR
ARTICLE 1, SECTION 23 OF THE INDIANA CONSTITUTION.
------------ DICKSON, J.
SHEPARD, C.J., AND SULLIVAN AND RUCKER, JJ., CONCUR.
BOEHM, J., DISSENTS WITH SEPARATE OPINION.
26 PAGES KM
For background on League of Women Voters, et al. v. Todd Rokita, argued March 4, 2010, a case of national interest, start with this ILB entry from March 1, 2010, and these resource pages from Nov. 18, 2009.

9:09 AM: Here is the just posted, 26-page page opinion, filed at 8:30 AM:

In League of Women Voters, et al. v. Todd Rokita, a 26-page, 4-1 opinion, Justice Dickson writes:

The sole plaintiffs in this case, the Indiana State and Indianapolis chapters of the League of Wom-en Voters, brought this action seeking a declaratory judgment that the Indiana Voter ID Law violates Ar-ticle 2, Section 2, and Article 1, Section 23 of the Indiana Constitution. The trial court granted the defendant's motion to dismiss, concluding that the Voter ID Law did not violate either constitutional provision. The Court of Appeals reversed. League of Women Voters of Ind., Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 2009). We granted transfer, thereby automatically vacating the opinion of the Court of Appeals and accepting jurisdiction over the appeal, pursuant to Indiana Appellate Rule 58(A). Determining that this case presents only facial challenges to the constitutionality of the Voter ID Law, we now affirm the trial court’s dismissal of the complaint, but without prejudice to future as-applied challenges by any voter unlawfully prevented from exercising the right to vote.

The relief the plaintiffs seek is a declaration that it was beyond the power of the legislature to re-quire any voters to identify themselves at the polls using a photo ID. Voters have long been required to identify themselves at the polls by announcing and signing their names. Neither of the constitutional pro-visions the plaintiffs invoke prevents the legislature from promulgating a new way for voters to identify themselves. It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID. The plaintiffs' claim for relief cannot be granted and dismissal was appropriate. No individual voter has alleged that the Voter ID Law has prevented him or her from voting or inhibited his or her ability to vote in any way. Our decision today does not prevent any such voter from challenging the Law in the future. * * *

Shepard, C.J., and Sullivan and Rucker, JJ., concur.

Boehm, J., dissents with separate opinion [which begins, at p. 19] I respectfully dissent. In broad brush, the issue in the federal constitutional challenges to Indiana’s voter identification law was whether the burdens this requirement imposed on some citizens’ right to vote were severe enough to overcome the presumption we give to all acts of the General Assembly. The Supreme Court of the United States resolved that issue against the plaintiffs, at least as far as any provision of the Federal Constitution is concerned. Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1615 (2008). The majority for the most part addresses this case as if that were the issue before us today. The majority categorizes the voter ID requirement as a regulation implementing the registration requirement and concludes that a regulation is valid if ―reasonable and uniform.‖ The majority dismisses the acknowledged problems that some voters may have in obtaining a voter ID as justified by perceived benefits in the integrity of the election.

As I see it, the state constitutional claim is quite different. The principal issue in this case is not a balancing of the relative benefits, if any, of a voter ID requirement against the problems that requirement creates for some citizens, if perhaps relatively few. The central question is who gets to resolve that issue under the Indiana Constitution. Under our Constitution some issues are immunized from revision by the temporary majority that comprises one session of the legislature, and must be addressed by the more deliberate and time consuming process of constitutional amendment. Article 16 of the Indiana Constitution permits amendment of the Constitution by agreement of a simple majority of each house in two successive General Assemblies, followed by approval by the voters of this state. This process is far less difficult than the approval by two-thirds of each house of Congress and ratification by three-quarters of the state legislatures needed to amend the Federal Constitution. U.S. Const. art. V. But it nonetheless represents the decision of the framers of our State Constitution to reserve some issues from the normal legislative process and require a more deliberative process, more extended debate, and a consensus over a longer period of time than is needed for ordinary legislation.

One of the subjects that the Indiana Constitution reserves to the amendment process is the "qualifications" for voting. The question in this case is whether our State Constitution permits one session of the General Assembly to impose a voter ID requirement on Indiana voters, or requires that two successive sessions of the legislature agree that this measure is necessary, and then submit it to the voters for the people to make the final decision. For the reasons given below, I think both precedent and the language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification for casting a ballot. That requirement therefore can be imposed only if two successive sessions of the General Assembly and the voters of this state agree it is appropriate.

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Judicial mandate efforts in the news

Clark County - Updating this May 26, 2010 ILB entry headed "Clark judge asks state Supreme Court to order probation funding", the Louisville Courier Journal reported July 29th:

The Indiana Supreme Court has selected Leanna Kay Weissmann, a lawyer in Lawrenceburg, as special judge for Clark County Superior Court Judge Jerry Jacobi's lawsuit against the Clark County Council.

Jacobi has asked the Supreme Court to order the council to provide $94,823 to his court to operate his probation department through the year.

Jacobi argues in his lawsuit that the council failed to provide the money necessary to operate the department when developing and then cutting the county's 2010 budget.

Council members have acknowledged some confusion in budgeting for Jacobi's court because of a misunderstanding in the form in which Jacobi presented his proposed budget to the council. But council members say they don't know where they can find the money because few reserves are available after state finance officials required the county to cover a $3.1 million budget deficit at the end of last year.

St. Joseph County - Updating this ILB entry from June 22nd, headed "Court says Nemeth can't mandate all probate court spending". the South Bend Tribune editorializes today:
At first glance, one might be inclined to congratulate the St. Joseph County Board of Commissioners on a ruling June 22 by the Indiana Supreme Court. The high court reversed much of a lower court decision in support of St. Joseph Probate Judge Peter J. Nemeth's mandated staff raises and Juvenile Justice Center renovations.

A closer look at the ruling shows that the outcome of the case isn't quite so clear-cut.

But one thing is apparent: Settlement of the disputes between Nemeth and the commissioners shouldn't have taken more than a year and a high court ruling. The fact that the two parties failed to work out their differences delayed the resolution of some important matters and ended up costing taxpayers more money at a time when there is none to spare.

It is true that the state Supreme Court ruling reversed much of the mandated funding sought by Nemeth (and approved by a lower court) to pay for personnel raises and JJC renovations. But it allowed a significant amount as well. * * *

Bottom line: Of the $373,996.74 in purchases, renovations and raises that Nemeth had mandated, he got $123,792.50, and the taxpayers got stuck with the lawyer bill.

We'd say the results were mixed — except, for course, for the part about the taxpayers.

There was one benefit of this long, contentious process that shouldn't be overlooked: clarification of the judge's authority.

If a mandate is issued, the judge had better be prepared to show that it's justified by a clear and present danger to the operation of the court. The justices were adamant that they are unwilling to support mandates for expenditures that are merely reasonable.

Under the law, they must be absolutely necessary.

It is our hope that this clarity will lead to more willingness on the part of those with conflicting views to resolve their intra-county differences. If it does, taxpaying residents of St. Joseph County will be better served.

Posted by Marcia Oddi on Wednesday, June 30, 2010
Posted to Indiana Courts

Tuesday, June 29, 2010

Environment - DC Circuit rules unilateral administrative cleanup orders do not violate due process [Updated]

"Superfund is Constitutional" is the heading to this entry by Jonathan H. Adler at the Volokh Conspiracy.

[Updated 6/30/10] "DC Circuit Shoots Down G.E.’s ‘Super’ Argument" is the heading to this WSJ Law Blog entry today.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Courts in general | Environment

Ind. Law - "Non-code" ordinances in Kokomo?

In an entry earlier today, the ILB quoted from a story in the Kokomo Tribune, including:

The Kokomo horse owner learned Monday she’s apparently on the wrong side of a 1966 law against keeping “domestic animals” — defined as horses, cows, sheep, goats and hogs — within city limits.

But the existence of the law wasn’t discovered until months after Neal paid thousands to locate a horse barn on her South Union Street property.

A clerk apparently happened upon the 1966 ordinance in a drawer. It is not a part of the Kokomo Code of Ordinances, which is posted by the City Attorneys' Office on the City of Kokomo website. The provisions re animals are in Title IX, Section 90 - Animals.

This is the 1985 Kokomo Code of Ordinances. as amended, which replaced the 1975 Code. Title I, Section 10.11 of the current Code provides:

This code, from and after its effective date, shall contain all of the provisions of a general nature pertaining to the subjects herein enumerated and embraced. All prior ordinances pertaining to the subjects treated by this code shall be deemed repealed from and after the effective date of this code of ordinances.
According to the story today:
King, however, said the mistake was most likely made in the 1980s, when the city’s book of ordinances, the city code, was updated.

One animal control ordinance might have caused some confusion during the update, according to King.

An unrelated animal control ordinance — one dealing with rabid and diseased animals — had been added to the books, superseding certain older animal control ordinances, King said.

That “new” animal control ordinance did not supersede the 1966 domestic animal ordinance, he said, but nonetheless the domestic animal law apparently was left out of the new code book on the assumption that it did.

All of that confusion aside, the 1966 law is still in effect, King said, because the council never repealed or amended it.

Of course they did -- Section 10.11 repealed and replaced all prior ordinances pertaining to subjects (including "animals") treated by the Code. The "long lost" and suddenly rediscovered 1966 ordinance now claimed to be the law has not been the law, IMHO, for at least 25 years, and perhaps 35, if it was not a part of the 1975 codification either.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Indiana Law

Ind. Courts - "Gag order possible in Carmel case: Judge could rule next month on whether to prohibit comment"

Carrie Ritchie reported today in the Indianapolis Star:

NOBLESVILLE, Ind. -- A judge could decide next month whether to issue a gag order to limit public comment in the case of four former Carmel High School basketball players accused of physically violating students in a locker room and on a team bus.

Attorneys for some of the defendants and one of the accusers seem to agree such an order would level the playing field in the case, which has attracted endless media attention and public scrutiny since the allegations first came to light this spring.

But is curtailing out-of-court comment really in the public's best interest?

"Ensuring the rights of a fair trial is always in the public's interest," Steve Key, general counsel for the Hoosier State Press Association, said Monday. "The question is what needs to be done to ensure a fair trial."

Key wouldn't speculate on whether the request would be approved, but he said gag orders are rarely issued, especially in cases involving misdemeanor charges, because there are other ways to ensure a fair trial.

One way to do so could be to move the trial, which attorneys for one defendant requested earlier this month.

Hamilton Superior Court Judge William Hughes could rule at a hearing July 9 on the gag order, which would prevent attorneys, prosecutors, investigators, police, court employees, witnesses and anyone involved in the case from talking publicly about some aspects of it. A ruling on the change of venue request could come July 29.

Reporter Jon Murray has a side-by to the story that includes:
When has a gag order been issued recently? Three years ago, a Boone County judge issued a gag order without either party asking for it in the case of former Indianapolis Colts quarterback Jack Trudeau, who was facing felony charges related to a party with alcohol involving high school students at his Zionsville home. Metro-area media had covered the case widely.

When is a gag order considered "justified"?
A state courts guide on gag orders, which cited a ruling by the Indiana Court of Appeals in 1998, advised that a gag order is justified only if "there is a reasonable likelihood that pretrial publicity will prejudice a fair trial."

"The trial court must examine the nature and extent of the pretrial publicity to determine whether this reasonable likelihood standard has been met," the ruling said. "Before a trial court may enter an injunction against speech, the trial court must decide whether alternative means would effectively mitigate the prejudicial effect of pretrial publicity."

That guide is at www.in.gov/judiciary/pubs/media-guide/gag-orders.html.

Would such an order affect news reporting?
No. The media may report freely.

The story includes links to the 3-page Motion Regarding Pretrial Publicity and the 12-page Supporting Memo.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Indiana Courts

Ind. Decisions - "That was fast: Ind. Supreme Court issues library appeal opinion today"

At Justice Watch, a blog by Indianapolis Star reporter Jon Murray posted this long, worth-reading entry a few minutes ago.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts three more opinions today

First, here is the library case mentioned in this post yesterday.

In Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., a 27-page, 5-0 opinion, Justice Sullivan writes:

The Indianapolis-Marion County Public Library (“Library”) seeks to hold two subcon-tractors and an engineer responsible for negligence in rendering their respective services during the renovation and expansion of its downtown Indianapolis library facility. In accord with the analysis of the trial court and Court of Appeals, we affirm the trial court's dismissal of the Library's claims of negligence against the defendants. Primarily because the Library is connected with the defendants through a network or chain of contracts in which the parties allocated their respective risks, duties, and remedies, those contracts, and not negligence law, govern the outcome of the Library's claims. * * *

That having been said, we return again to a point made several times in the course of this opinion: that the economic loss rule is a general rule that admits of exceptions for contracts for services in appropriate circumstances. Indeed, we have mentioned possible exceptions (for purposes of illustration only) – lawyer malpractice, breach of a duty of care owed to a plaintiff by a fiduciary, breach of a duty to settle owed by a liability insurer to the insured, and negligent misstatement – that suggest situations in which the economic loss rule would not apply in the services context.

If called upon, we might well recognize an exception to the general economic loss rule in such limited circumstances. However, the policy justifications for the economic loss rule dis-cussed throughout this opinion amply support applying the rule to products and services alike.

Conclusion. We affirm the judgment of the trial court.

In U.S. Bank, N.A. v. Integrity Land Title Corp., a 10-page, 5-0 opinion, Justice Sullivan writes:
A lender seeks to hold a title commitment issuer, with which it had no contractual privity, liable for negligence in failing to uncover a defect during the title search. The title company claims it has no contractual obligation to lender, and that the so-called “economic loss rule” pre-vents lender from recovering in tort. We provide extensive background on the economic loss rule, a rule that prevents recovery in tort for purely pecuniary harm, and the exceptions to the rule in another case we decide today, Indianapolis-Marion County Public Library v. Charlier Clark & Linard, PC, – N.E.2d –, No. 06S05-0907-CV-332, slip op. (Ind. June 29, 2010). Because we find that the facts of this case fit within one of the exceptions to the economic loss rule, namely the tort of negligent misrepresentation, we hold that applicable tort law permits U.S. Bank's tort claim to go forward. [Emphasis by ILB]
In Kenneth Brown v. State of Indiana, a 5-page, 5-0 opinion, Justice Boehm writes:
We hold that a claimed error in admitting unlawfully seized evidence at trial is not preserved for appeal unless an objection was lodged at the time the evidence was offered. We also hold that such a claim, without more, does not assert fundamental error. * * *

The convictions and sentence are affirmed

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov. - "Woman may lose horse because of ordinance in barn"

Incredible!

First there was the original story. Here is an AP story, with photo, from June 21, 2010. Some quotes:

KOKOMO – A Kokomo man is protesting a backyard barn his neighbor has built to house her horse, saying the structure and its occupant are bringing down his property values.

Morris Parks says Kokomo shouldn't allow livestock within city limits. But neighbor Dyanna Neal says she told city officials what she intended to do with the barn when she applied for the permit, which was approved.

Kokomo has no ordinance against keeping livestock in the city. * * *

Parks is Neal's only residential neighbor. The area also includes an auto parts store, a church and a strip club.

"I wouldn't put something like this in if I lived in Forest Park," Neal told the Kokomo Tribune. "It's not like I'm in a residential area where it's house, house, house."

Glen Boise, the Kokomo/Howard County Plan Commission director, said Neal was honest about why she wanted to build the structure.

He said it's unusual for a city of Kokomo's size to lack an ordinance on urban livestock.

"I know we used to have an ordinance, but I don't know what happened to it," he said.

Boise said enacting an ordinance now could have broader ramifications because of annexations the city is seeking that could bring more livestock within city limits.

Now today the Kokomo Tribune has this story by Scott Smith headlined "City finds 1966 ordinance banning horses: Urban colt owner could be fined." Some quotes:
Dyanna Neal may soon be getting a letter from the city, telling her she can’t keep Poco the Judge in her backyard anymore.

The Kokomo horse owner learned Monday she’s apparently on the wrong side of a 1966 law against keeping “domestic animals” — defined as horses, cows, sheep, goats and hogs — within city limits.

But the existence of the law wasn’t discovered until months after Neal paid thousands to locate a horse barn on her South Union Street property.

Now Neal said she may sue the city to recover what she spent building the structure, if she’s forced to quarter her 11-month-old colt elsewhere.

“I did all of this above board. I never tried to deceive anyone,” she said at Monday’s meeting of the Kokomo Common Council. “I bought a show horse for my 11-year-old, and people have tried to say the horse stinks, that it’s dirty and that it causes health problems. Well it doesn’t stink, and it’s not dirty.”

Neal received a permit to build the barn after telling Kokomo-Howard County Plan Commission director Glen Boise she intended to stable a horse there.

Boise, who admits Neal was up front about her intentions, gave her the building permit in December 2009.

Earlier this month, Neal’s next-door neighbor took his complaint about the horse to the city council.

At the June 14 council meeting, Boise said he thought there was an ordinance against keeping horses in town, but couldn’t find it when he looked through the city code.

The mystery of the missing ordinance apparently was solved last week, when Kokomo City Clerk Brenda Ott discovered the ordinance during a search of city archives.

Monday, Kokomo Common Council attorney Corbin King gave council members a copy of the ordinance, which specifically bans keeping horses within city limits.

“All I can tell you is there’s an ordinance against it,” council president Mike Kennedy, D-At Large, told Neal Monday.

Prior to Monday’s council meeting, Kokomo city attorney Peju Okanlami said she would send a letter to Neal, informing her she was in violation of a city ordinance.

Kennedy said the council couldn’t make an exception for Neal.

“That would be no different than me telling you that you can go 50 mph on Markland Avenue, when everyone else has to go 35,” Kennedy said.

Neal tried to protest that she had a permit. Kennedy said the permit wasn’t for a horse.

“[Boise] did not give you a permit to have a horse; he gave you a permit to build a structure,” Kennedy said. “It was his mistake, I guess; it was somebody’s mistake.”

King, however, said the mistake was most likely made in the 1980s, when the city’s book of ordinances, the city code, was updated.

One animal control ordinance might have caused some confusion during the update, according to King.

An unrelated animal control ordinance — one dealing with rabid and diseased animals — had been added to the books, superseding certain older animal control ordinances, King said.

That “new” animal control ordinance did not supersede the 1966 domestic animal ordinance, he said, but nonetheless the domestic animal law apparently was left out of the new code book on the assumption that it did.

All of that confusion aside, the 1966 law is still in effect, King said, because the council never repealed or amended it.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)

For publication opinions today (6):

In Michael Harrison v. Veolia Water Indianapolis, LLC, a 16-page opinion, Judge Barnes writes:

Michael Harrison appeals the trial court's grant of summary judgment in favor of Veolia Water Indianapolis, LLC (“Veolia”). We reverse and remand.

The sole restated issue before us is whether Veolia is entitled to summary judgment because it is a political subdivision of the State, and Harrison failed to give it notice of his claim against it in accordance with the Indiana Tort Claims Act (“ITCA”). * * *

We hold that Veolia is not a political subdivision of the State for purposes of ITCA. The trial court erred in concluding otherwise and granting Veolia's motion for summary judgment on the basis that Harrison failed to provide Veolia with notice of his injury pursuant to ITCA. We reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.

In Paternity of H.S.; P.S. v. R.F. , a 7-page opinion, Judge Bradford writes:
Appellants/Petitioners Peggy and Hans Schmitter appeal from the trial court’s entry of summary judgment in favor of Appellee/Respondent Robert W. Fawley in their paternity action against him and the denial of their request for genetic testing of Fawley. We affirm. * * *

Fawley’s uncontradicted designated evidence shows that Busch adopted Hans in 1975. * * *

Regardless of the plain language of the statute, we conclude that adoption of the Schmitters’ argument would lead to a patently absurd and unjust result in this case and potentially in many others. We cannot believe that the General Assembly intended to allow for compelled genetic testing even in cases, such as this one, where there is no legitimate chance of establishing legal paternity. The Schmitters’ paternity action was correctly dismissed, and it would therefore be pointless to allow genetic testing now. We observe that it would be especially pointless in cases such as this, where the Schmitters’ paternity action is clearly barred by estoppel, as Peggy consented in Busch’s adoption of Hans. * * *

The advent of more sophisticated genetic testing has done nothing to alter our view that “[t]he purpose of the blood [or genetic] test is to determine paternity.” Rundel v. Shady, 492 N.E.2d 694, 697 (Ind. Ct. App. 1986). Once that purpose no longer exists, the need for testing under Indiana Code section 31-14-6-1 evaporates. See id. (affirming denial of mother’s request for blood test to determine paternity of putative father where his paternity was conclusively admitted by their joint pleadings). We conclude that a mere desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal paternity is not possible. The trial court correctly denied the Schmitters’ motion to compel genetic testing on Fawley.

In Paternity of K.D.; T.N. v. B.D. , a 21-page opinion that deserves close reading, Judge Najam writes:
T.N. (“Mother”) appeals the trial court's order prohibiting her from discussing legal proceedings with the media following the establishment of paternity in her child K.D. Mother contends that the order violates her right to freedom of speech under the First Amendment to the United States Constitution and Article I, Section 9, of the Indiana Constitution. We conclude that the juvenile court's order is an invalid prior restraint on Mother's free speech rights. We further conclude that the confidentiality provisions in the Indiana Code and Administrative Rule 9 do not prohibit Mother from talking to others about the case based on her knowledge obtained independent of the juvenile proceedings. To the extent the order prohibits such communication, the juvenile court erred. We reverse and remand with instructions. * * *

Having determined that the Order is an invalid prior restraint, we next must consider how to reconcile the conflict between Mother's freedom of speech and the State's interest in protecting the identity of the child and the allegation that she was a victim of abuse. While the juvenile proceedings at issue here are presumptively open, the records of the proceedings and information acquired exclusively from those proceedings, are confidential. But that does not prevent litigants from discussing matters learned outside of the proceedings that pertain to the juvenile case. With these things in mind, we are left with the unenviable task of fashioning instructions for the juvenile court * * *

We reverse the juvenile court's Order and remand for the court to enter a new order in accordance with this opinion. Specifically, we instruct the court to enter a new Order that prohibits Mother from disclosing to the media or anyone else information that Mother learned exclusively through the juvenile proceedings. The new order shall also prohibit Mother from disclosing K.D.'s name or using a pseudonym similar to K.D.'s name.

In City of Indianapolis v. Olive Duffitt , a 20-page opinion, Judge Bradford writes:
In this interlocutory appeal, Appellant-Defendant the City of Indianapolis challenges the trial court's denial of its motion for summary judgment in Appellee-Plaintiff Olive Duffitt's tort action against the City for damages arising out of certain injuries sustained from her fall on the sidewalk. Upon appeal, the City claims that Duffitt's tort claim is barred on discretionary function immunity grounds under the Indiana Tort Claims Act (ITCA). * * *

We have concluded that the City is entitled to discretionary immunity from Duffitt's claim and that her individual challenges to the City's evidence do not alter that conclusion. Accordingly, we reverse the trial court's denial of summary judgment and remand with instructions to enter summary judgment in favor of the City.

Randy Edward Johnson v. State of Indiana - "Based on the foregoing, we conclude that the trial court conducted an adequate inquiry into Johnson’s complaints regarding the quality of his trial counsel’s representation while his criminal case was unfolding and that the State did not commit prosecutorial misconduct during closing arguments."

Lorenzo A. Taylor v. State of Indiana - "The charge for conspiracy to commit dealing in cocaine should have been submitted to the jury as a Class B felony rather than a Class A felony. We reverse and remand to the trial court with instructions to enter Taylor’s conspiracy conviction as a Class B felony and to resentence him. However, Taylor’s convictions and sentences for both dealing in cocaine and conspiracy to commit dealing in cocaine do not violate the prohibition against double jeopardy. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion."

NFP civil opinions today (5):

Kathy Hardesty v. Larry Vickery (NFP)

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

Saundra and Clyde Smithson v. Howard Regional Health System (NFP)

Billy Dix v. Indiana State Department of Health (NFP)

Donald Fisher v. Tower Bank and Trust Company (NFP)

NFP criminal opinions today (10):

Adam Gibson v. State of Indiana (NFP)

Christopher Deardorff v. State of Indiana (NFP)

James Daugherty v. State of Indiana (NFP)

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

Sheldon Fogleman v. State of Indiana (NFP)

Spencer Jones v. State of Indiana (NFP)

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

Cynthia Sericati v. State of Indiana (NFP)

Alvino Pizano v. State of Indiana (NFP)

Kevin Holloway v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Ind. App.Ct. Decisions

Law - "Financial Regulatory Bill: Jobs Bill for Lawyers?"

That is the headline to this article today by Zach Lowe of The American Lawyer. It begins:

We chuckled Sunday at the kicker to this story in The New York Times about the major role regulators will play over the next few years in terms of translating the 2,300-page financial regulatory bill Congress is expected to pass this week from theory into reality.

According to the NYT, lawyers who work at the intersection of finance and Washington rule making are going to be in such high demand that a joke is apparently going around D.C.: "Congress finally passed a jobs bill -- full employment for lawyers."

Here is another area -- the WSJ Law Blog has an entry today headed "In the Wake of Big Gun-Control Ruling, There Will Be Litigation," that begins:
In the wake of Monday’s Supreme Court decision expanding gun rights, once near certainty has emerged: there will be litigation, write the WSJ’s Vanessa O’Connell and Gary Fields in Tuesday’s paper.

The decision will likely trigger a flood of suits in states and cities with restrictive laws, so it could take years before the practical impact of the ruling is clear.

The reason behind this near-certainty: The ruling — despite its 214-page length (with concurrences and dissents) — is vague. While it requires states to respect a federal right under the Second Amendment to keep and bear arms, but it doesn’t say specifically how broadly the right extends.

So gun-rights groups are preparing to file suits in states with restrictive laws—in particular New York and California—while groups favoring gun control said they were confident most rules would pass constitutional muster.

Among the restrictions likely to be in play are assault-weapons bans, registration rules and state laws that give governments permission to suspend certain gun rights in emergencies.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to General Law Related

Courts - More on "Rick Pitino extortion trial judge asked to reconsider media restrictions"

Updating this ILB entry from June 26th, Andrew Wolfson reports today in the Louisville Courier Journal:

A federal judge has dropped his order barring reporters from interviewing Karen Cunagin Sypher during her July trial on charges of trying to extort money from University of Louisville men's basketball coach Rick Pitino.

The Courier-Journal filed a motion last week saying that the order violated the First Amendment rights of the newspaper and of Sypher.

U.S. District Judge Charles R. Simpson III on Monday issued new guidelines that now prohibit interviewing Sypher only during court proceedings.

The previous order suggested that any reporter who interviewed Sypher anywhere could be banned from the trial.

Simpson also issued another order saying he would comply with a U.S. Supreme Court ruling on jury selection by deciding on a question-by-question basis whether prospective jurors can respond confidentially to sensitive inquiries.

The newspaper's lawyers had questioned whether closing portions of jury selection might run afoul of the Supreme Court's rules.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Courts in general

Ind. Decisions - Two opinions this morning from the Supreme Court

In Andre Peoples v. State of Indiana, a 7-page, 5-0 opinion, Justice Sullivan writes:

Defendant Andre Peoples pled guilty in 2008 to dealing cocaine after having had accumulated two prior unrelated felonies, one for dealing cocaine and one for forgery. The general rule of law is that individuals who have been convicted of three unrelated felonies of any kind are eligible for enhanced sentences as “habitual offenders.” But a special rule enacted in 2001 limits the use of certain substance offenses in making this calculation. At issue in this case is whether Defendant’s instant dealing offense is to be counted in calculating the total number unrelated felony convictions an individual has for drug dealing. We hold that it does.
ILB: This is interesting. The Court writes:
In 1977, the Legislature authorized enhanced sentences for “habitual offenders,” individuals who had been convicted of three unrelated felonies. [IC 35-50-2-8 (Supp. 1977)]. In 2001, the Legislature restricted use of the “habitual offender statute to enhance further the sentences imposed for a plethora of . . . drug-related felonies.” Mills v. State, 868 N.E.2d 446, 451 (Ind. 2007). Public Law 291, section 226 specifically limits instances when a drug offense can be counted for habitual offender purposes. See 2001 Ind. Acts 2786-87 (codified as I.C. § 35-50-2-8(b)(3)(C) & (d)(3)(C) (Supp. 2001)).

Under the 1977 statute, a single felony drug conviction had counted as one of the three requisite felonies to qualify an offender for a habitual offender enhancement. After the 2001 amendment, two felony drug convictions were required. Thus, the Legislature’s action required a greater degree of recidivist behavior before a drug offender could be adjudicated a habitual of-fender. Because the 2001 amendment was contained in the bill enacting the biennial state budget, the change may have reflected a concern over the fiscal impact of incarcerating drug offenders. * * *

When the State filed Defendant’s habitual offender charge, he had accumulated one felony drug conviction. But we do not read the language of sub-section (a) to preclude the State from filing habitual offender charges with respect to a defendant who, if convicted on the underlying charges, will have accumulated two unrelated felony drug convictions by the time habitual offender proceedings commence. After all, subsection (a) was written in 1977, but subsections (b)(3)(C) and (d)(3)(C) were written in 2001 by the conference committee on the budget bill.[6] It is not surprising that the provisions do not mesh perfectly. But their thrust is unmistakable: while a single felony drug conviction is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the instant offense.

We affirm the trial court’s habitual offender enhancement of Defendant’s sentence.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
________
[6] See Indiana General Assembly House Bill 1001 Archive (2001), http://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2001&session=1&request=getBill&docno=1001 (last visited June 24, 2010) (providing legislative history of this provision).

ILB: This language could be taken to demolish any arguments in future case that there are any limits to what can be "rolled into" the budget bill.

In Myron Owens v. State of Indiana, a 5-page, 5-0 opinion, Justice Boehm writes:

The Indiana habitual offender statute enhances the penalty for crimes by offenders with two prior unrelated felony convictions, but counts only certain offenses as prior felonies. We hold that a conspiracy to deal conviction is not equivalent to a dealing conviction for the purposes of this statute.
Owens was listed in this ILB entry yesterday. It was argued Dec. 10, 2009. Peoples was argued Jan. 7, 2010.

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Library wins one ruling in appeals court, waits for Indiana Supreme Court on another" [Updated]

Yesyerday's Court of Appeals decision in Indianapolis-Marion Co. Library v. Thornton Thomasetti Eng. (ILB summary here) is the subject of a post at Justice Watch blog by Indianapolis Star reporter Jon Murray. Some quotes:

The Indiana Court of Appeals ruled today that the Indianapolis library system may pursue a new trial over the bungled Central Library project on a claim that had been axed by a Boone County judge last year. This ruling is the latest in the Indianapolis-Marion County Public Library's drawn-out effort to recoup millions in damages from an engineering firm involved in the renovation and expansion project, New York-based Thornton Tomasetti. But it's possible the Indiana Supreme Court will be asked to review today's decision before any new trial can occur. * * *

[I]n one of two active appeals by the library, the Court of Appeals today ruled in the library's favor and reinstated a claim that Thornton Tomasetti breached the standard of professional care owed to the architectural firm, Woollen, Molzan and Partners.

"It is up to a jury to determine whether (Thornton Tomasetti) committed such a breach and the damages, if any, to which WMP may be entitled," the decision says.

The library is still awaiting word from the Indiana Supreme Court on its other appeal, which deals with whether to reinstate direct negligence claims against Thornton Tomasetti.

The case awaiting an opinion from the Supreme Court, Indianapolis Marion County Pub. Library v. Charlier Clark & Linard, P.C., argued Sept. 15, 2009, was listed (as "IMCPL ") in this post yesterday by the ILB of argued cases from 2009 awaiting opinions by the Supreme Court.

[Updated] Today's Star has this story by Jon Murray, headed "Ruling could help library recover money."

Posted by Marcia Oddi on Tuesday, June 29, 2010
Posted to Ind. App.Ct. Decisions

Monday, June 28, 2010

Ind. Decisions - Supreme Court answers certified question

In Sylvia B. Piven, et al. v. ITT Corporation, Inc. , issued this afternoon, a 10-page, 4-0 opinion on a "Certified Question from the United States District Court, Southern District of New York," Chief Justice Shepard writes:

In 1986, the Indiana General Assembly adopted a new framework for business corporations. Broadly put, this case turns on whether that framework largely relies on business judgments by corporate directors in deciding whether a company should pursue certain claims it might have, or instead looks favorably to derivative suits initiated by individual stockholders. We conclude that the statute‘s text, its history, and our caselaw militate in favor of the former.

In particular, the U.S. District Court for the Southern District of New York has asked us about the standards to be applied under Indiana law for determining whether a shareholder can be excused from demanding that a corporate board act and whether a board deciding not to act stands in the way of the shareholder‘s suit. Pursuant to Indiana Appellate Rule 64, Judge Cathy Seibel has certified the following question:

What standard should be applied in determining whether a director is ―disinterested‖ within the meaning of Indiana Code § 23-1-32-4(d), and more specifically, is it the same standard as is used in determining whether a director is disinterested for purposes of excusing demand on the corporation‘s directors under Federal Rule of Civil Procedure 23.1 and Rales v. Blasband, 634 A.2d 927, 936 (Del. 1993)?
We have accepted this certified question and now hold that the Indiana Business Corporation Law employs the same standard for showing ―lack of disinterestedness‖ both as to the composition of special board committees under Indiana Code § 23-1-32-4 and to the requirement that a shareholder must make a demand that the corporation‘s board act unless the demand would be futile.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

And it is not one that was listed in this ILB entry earlier today. This case was argued less than two months ago, on 4/29/10.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, a 6-page, 4-1 opinion, Justice Dickson writes:

In this action for damages the plaintiffs allege that Deputy Brad Craven of the Cass County Sheriff's Department discharged his taser gun into Richard Patrick Wilson three times, two of which occurred after Wilson was laying immobile on the ground. Seeking immunities under the Indiana Tort Claims Act, the defendants obtained summary judgment from the trial court. The Court of Appeals affirmed the summary judgment for the Deputy, but reversed summary judgment as to the Sheriff. Wilson v. Isaacs, 917 N.E.2d 1251, 1258 (Ind. Ct. App. 2009). Both defendants sought transfer, challenging the partial reversal of summary judgment.1 We hold that a law enforcement officer's use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary judgment. * * *

We reverse the trial court's grant of summary judgment as to the plaintiffs' liability claims against the Sheriff of Cass County for the conduct of Deputy Craven. As to the plaintiffs' claims against Deputy Craven personally, we summarily affirm the decision of the Court of Appeals affirming summary judgment.

Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents without opinion.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Indianapolis-Marion Co. Library v. Thornton Thomasetti Eng. , a 22-page opinion, Judge Crone writes:

The Indianapolis-Marion County Public Library (“the Library”) appeals the trial court's grant of summary judgment in favor of Thornton Tomasetti Engineers (“TTE”) on three cross-claims against TTE that were assigned to the Library by Woollen Molzan and Partners, Inc. (“WMP”), pursuant to a settlement agreement between the Library and WMP. We affirm in part, reverse in part, and remand for further proceedings.

Issues: I. Did the trial court err in granting summary judgment in favor of TTE on the cross-claim for common law indemnity? II. Did the trial court err in granting summary judgment in favor of TTE on the cross-claim for contractual indemnity? III. Did the trial court err in granting summary judgment in favor of TTE on the cross-claim for breach of professional standard of care?

Note the footnote on the final page:
[13] We are unsympathetic to the Library's argument that affirming the grant of summary judgment would violate public policy by discouraging settlement. The Library could have protected itself by requiring express indemnity clauses in all contracts and ensuring that WMP possessed adequate assets and insurance for the $100 million construction project. WMP could have taken similar precautions. Moreover, the Library and WMP negotiated the Agreement at arms length and with the assistance of counsel. “[T]he general rule of freedom of contract includes the freedom to make a bad bargain.” Ind. Bell Tel. Co. v. Mygrant, 471 N.E.2d 660, 664 (Ind. 1984).
In Julianne E. Tamasy v. Peter S. Kovacs , a 26-page opinion, Judge Bradford writes:
Appellant/Respondent Julianne E. Tamasy (“Mother”) appeals the trial court's order granting physical custody of the parties' children to Appellee/Petitioner Peter S. Kovacs (“Father”). Mother raises several issues on appeal, which we restate as follows:

I. Whether the trial court abused its discretion in denying Mother's request to transfer the custody proceedings to Massachusetts; II. Whether the trial court abused its discretion in excluding certain testimony at trial; III. Whether the trial court abused its discretion in modifying the previous custody order; and IV. Whether the trial court abused its discretion in issuing the July 23, 2009 order regarding Mother's emergency motion to compel parenting time.

Concluding that the trial court did not abuse its discretion in any regard, we affirm.

In American Family Insurance v. Beazer Homes, et al., a 10-page opinion, Judge Brown writes:
American Family Insurance Co. (“American Family”) appeals the trial court's dismissal of its claim for failure to prosecute against Beazer Homes Indiana, LLP (“Beazer”), Pritt Electric, Inc. (“Pritt”), and Ken Maddox Heating and Air Conditioning, Inc. (“Maddox”). American Family raises one issue, which we revise and restate as whether the trial court abused its discretion in dismissing American Family's claim under Indiana Trial Rule 41(E). We reverse and remand. * * *

The sole issue argued on appeal is whether the trial court abused its discretion in dismissing American Family's claim pursuant to Indiana Trial Rule 41(E). American Family argues that “[w]ithin 60 days of Superior Court 14 receiving the case, counsel for American Family discovered that the summons [to Maddox] had never been issued, contacted the court, and caused the summons to be issued, all before the trial court's „call of the docket' notice,” and that its “actions, bringing in an additional defendant necessary for complete adjudication of the case, showed cause to the trial court prior to the May 15, 2009 hearing that the action should not be dismissed under Rule 41(E).” * * *

Under the circumstances of this case, we conclude that the trial court abused its discretion when it imposed the harshest possible sanction of dismissing American Family's lawsuit. Although we do not condone American Family's counsel's failure to appear at the May 15, 2009 hearing, we nevertheless find that some of the factors set forth in Belcaster outweigh other considerations in this case. * * *

For the foregoing reasons, we reverse the trial court's order dismissing American Family's claim and remand with instructions for the trial court to reinstate American Family's cause of action.

In Elmer D. Baker, v. State of Indiana, a 5-page opinion on rehearing, Judge Crone writes:
Elmer D. Baker petitions for rehearing in Baker v. State, 922 N.E.2d 723 (Ind. Ct. App. 2010), in which we affirmed his convictions on two counts of class A felony child molesting and one count of class C felony child molesting. We grant Baker’s petition for the sole purpose of clarifying our holding on the issue of the amendment of the charging information but affirm our decision in all respects. * * *

We clarify our holding to state that the applicable deadline for amending the information is not “before the commencement of the trial” that ended in a mistrial; rather, it is “before the commencement of the trial” that was held on the amended charges, and the one from which Baker filed his appeal. We affirm our original decision in all respects. Affirmed.

RILEY, J., would deny
VAIDIK, J., concurs

NFP civil opinions today (3):

In Stardust Development, LLC v. City of Bloomington (NFP), Judge Vaidik writes:

A tree branch fell onto the plaintiff's residential property and punctured the roof. The plaintiff hired a private company to remove the branch. The plaintiff then brought this action against the City of Bloomington to recover the cost of the tree branch removal. The small claims court entered judgment in favor of the City. The court found that the plaintiff, by not initially requesting that the City remove the branch, failed to mitigate its damages. We conclude that the small claims court's findings are not sustained by the record evidence. We reverse and remand with instructions. * * *

The City bore the burden to prove both that Stardust failed to act reasonably and that its failure resulted in additional quantifiable injury. We find that the City introduced insufficient evidence as a matter of law to meet its burden, and the small claims court therefore erred by entering judgment in the City's favor. Accordingly, we reverse and remand with instructions that the court enter judgment in favor of Stardust for its cost incurred in removing the tree branch.

In Martin Serrano v. State of Indiana and the City of Fort Wayne (NFP), a 16-page, 2-1 opinion, Judge Kirsch writes:
Martin Serrano appeals the trial court's judgment in favor of the State of Indiana and the City of Fort Wayne (collectively “the State”) ordering the forfeiture of his truck, which was seized following a traffic stop. Serrano presents several issues for review, of which we find the following dispositive: whether sufficient evidence was presented to support the civil forfeiture of his truck. We reverse. * * *

We, therefore, conclude that the State failed to demonstrate a nexus between Serrano's possession of cocaine residue and the use of his truck. The trial court erred in finding that Serrano's truck was subject to forfeiture. Reversed.

ROBB, J., concurs.
FRIEDLANDER, J., dissents with separate opinion.

Term. of Parent-Child Rel. of T.L.; H.L. v. IDCS (NFP) - "H.L. (“Mother”) appeals the involuntary termination of her parental rights to her child, T.L. Concluding that the Indiana Department of Child Services, Allen County (“ACDCS”), presented clear and convincing evidence to support the trial court's judgment, we affirm."

NFP criminal opinions today (4):

Eliud A. Delgado v. State of Indiana (NFP)

Travis Halveland v. State of Indiana (NFP)

Maurice Hairston v. State of Indiana (NFP)

Jason D. Arbuckle v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - Governor announces first comprehensive review of Indiana's criminal code and sentencing policies since 1976 [Updated].

Governor Daniels has issued a very long press release this morning. Read it in conjunction with this ILB entry from March 17, 2010, headed "Indiana's Jump in inmates is biggest in U.S: State prison population rose 5.3 percent last year."

[Updated 6/29/10] Niki Kelly of the Fort Wayne Journal Gazette has a story today headed "State to visit sentencing guides: Surging prison rolls, spending underscore need, Daniels says."

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending June 25, 2010

Here is the Clerk's transfer list for the week ending June 25, 2010. It is two pages (and 27 cases) long.

Four transfers were granted last week, and there was one dismissal.

Two of the transfers were granted "with opinion": Curtis Outlaw v. State of Indiana and Steven T. Marbley-El v. State of Indiana on 6/24/10 - see this ILB entry summarizing the opinions.

Here are the two transfers:

One case, Term. of Parent-Child Rel. of A.K.; A.S. v. IDCS, was dismissed. The ILB reported the dismissal in this 6/25/10 entry: "In the absence of any showing that the opinion is adverse to the party seeking transfer, the Court DISMISSES the transfer petition."

__________

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, June 28, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Indiana Supreme Court opinions which may be decided before July 1

The U.S. Supreme Court is ending its term today. Four opinions are expected. Generally, Supreme Court opinions do not hold over from term to term.

The Indiana Supreme Court does not have an official term. However, Court statistics and reports are issued on a fiscal year basis - the state fiscal year ends June 30th.

Joel Schumm, IU-Indianapolis law professor, send this report to the ILB last evening:

Although the end of the Court's fiscal year usually means a big push to release opinions, the voter ID case is relatively young among those awaiting a decision.

The most recent handdowns have largely been cases argued last year (e.g., Richardson, Whatley, Malenchik).

Dugan v. Mittal Steel is a surprising exception; it was argued in April and decided in June.

I count eleven cases argued last year (2009) that are still awaiting decisions:

I had forgotten how quickly the Terre Haute mayor case (Burke v. Bennett) was decided: only nineteen days after it was argued. The court was able to decide it narrowly and unanimously.

I suspect that will be more difficult with the voter ID case (League of Women Voters, et al. v. Todd Rokita, argued March 4, 2010), although the Court is probably trying to decide more quickly than other cases because of its broad impact and the not-so-distant November election.

The Governor's other "favorite case", the card-counting case of Thomas v. Grand Victoria Casino, was argued April 7 (the same day as Mittal Steel).

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - SCOTUS action today

Via SCOTUSblog, we are following the SCOTUS action on the final day of its term. Decisions are anticipated in four cases, including the Chicago gun case and a much-awaited patent case. Check back.

The WSJ Law Blog has this new post headed "High Court Extends Second Amendment to States." It also reports that "the Supreme Court will also consider Arizona’s controversial law on hiring illegal workers."

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Courts in general

Ind. Law - State health officials are urging eligible low-income women to apply for a state program offering free treatment for breast or cervical cancer

From the AP:

Indiana health officials are urging eligible low-income women to apply for a state program offering free treatment for breast or cervical cancer.

The General Assembly passed a law last year that extended Medicaid coverage to eligible women aged 18 to 64 who have been diagnosed with breast or cervical cancer. Since the law went into effect a year ago, it has helped 73 women receive treatment for breast of cervical cancer.
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To qualify, women must be Indiana residents under age 65 with no credible health insurance and household incomes less than twice the federal poverty level. They also must need treatment for breast or cervical cancer. Women who believe they might be eligible can call the Indiana Family Helpline at 1-800-433-0746.

For background on this law, start with this ILB entry from May 13, 2009, which quotes a WSJ story from 2007:
The Wall Street Journal lists 21 states "where uninsured women with breast or cervical cancer are denied Medicaid coverage if they wern't diagnosed at the right clinic. The list includes Indiana.
See also this update from June 22, 2009.

As the ILB wrote in 2009:

Kudos to Senator Becker for initiating this bill (SEA 554-2009), to second author Senator Delph, and to the long list of Senators and Representatives who signed on as co-authors.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Indiana Law

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

July 1 will be here in a few days, marking the start of another quarter. Before that happens, sign on as an ILB supporter!

Thanks to attorney Gary P. Price, who signed on Friday as an individual ILB Law Firm Supporter.

Check the Law Firm and Individual Attorney Supporters page, always linked in the upper right-hand corner of the ILB. You or your firm could join the list of supporters right now, helping to insure the ILB's continuation (and perhaps even new features).

Take a look at the ILB Supporter Agreement that you can fill out and mail.

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

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to About the Indiana Law Blog

Courts - Ruth Bader Ginsburg loses husband Marty after 56 years of marriage. One of the great feminists married to another

So writes Slate's Dahlia Lithwick this morning on Twitter, with a link to this story with a great photo of the couple.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Courts in general

Ind. Gov't. - More on "Lawmaker defends roles on call center Sought welfare site in Marion, in a building he has a stake in"

Updating this ILB entry, the Fort Wayne Journal Gazette has an editorial today building on its Sunday story. It begins:

“It would be extremely expensive for the state to cease the contract. At this point, it would be a step in the wrong direction.”

– State Rep. P. Eric Turner, R-Cicero, defending the state’s welfare privatization contract in comments to the Marion Chronicle-Tribune on July 23, 2008

“Our goal would be to make sure the call center is an important and effective part of the hybrid the governor has proposed.”

– Turner, on Oct. 17, 2009, after the contract was canceled, in response to concerns the Marion call center might be closed

“I’m very offended by this legislation, that a 10-member committee will affect 350 to 400 jobs in Marion.”

– Turner on Jan. 29, criticizing a bill that would increase oversight of welfare service contracts, including the Marion call center operation

Turner might well be a champion for jobs in his central Indiana district, but voters will have to decide if the low-wage call center positions were his primary motivation or his own financial interest in the call center itself.

The Journal Gazette’s Angela Mapes Turner reported Sunday that the assistant minority leader is part owner of a company his son created to buy the call center building in May 2008. Affiliated Computer Services, a partner in the failed $1.16 billion welfare privatization contract, was leasing the former middle school from Marion Community Schools when the sale closed. Rep. Turner does not list the name of the company on his required statement of economic interests, even though he discloses other joint real estate ventures with his son.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Indiana Government

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

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

From Sunday, June 27, 2010:

From Saturday, June 26, 2010: From late Friday afternoon, June 25, 2010:

Posted by Marcia Oddi on Monday, June 28, 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 6/28/10):

Next week's oral arguments before the Supreme Court (week of 7/5/10):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/28/10):

Tuesday, June 29th

Wednesday, June 30th

Next week's oral arguments before the Court of Appeals (week of 7/5/10):

Next Wednesday, July 7th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, June 28, 2010
Posted to Upcoming Oral Arguments

Sunday, June 27, 2010

Ind. Gov't. - "Lawmaker defends roles on call center Sought welfare site in Marion, in a building he has a stake in"

Angela Mapes Turner of the Fort Wayne Journal Gazette has this lengthy story today. The detailed and well worth reading story begins:

FORT WAYNE – A state representative who fought hard for a controversial call center created in his district as a part of Indiana’s failed welfare privatization effort has a financial stake in the building that houses it.

Rep. P. Eric Turner, R-Cicero, says his investment in the building owned by his son is a non-issue. But critics say the link should have been disclosed during the many public debates about problems with the IBM-led welfare changes.

House Speaker Patrick Bauer, D-South Bend, said he doesn’t believe anything illegal transpired, but the case, combined with others, fosters a culture of secrecy in Indiana government. Bauer believes the Marion call center should lead to full disclosure on state leases.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to Indiana Government

Ind. Law - Many new laws take effect Thursday, July 1st

Several newspapers this morning have stories about new Indiana laws that take effect Thursday. (BTW. these stories could be even more useful to readers if they consistently included at least the bill number of the legislation described.)

Niki Kelly reports in the Fort Wayne Journal Gazette on "four of the most significant new laws." Some quotes:

Rep. Matt Bell, R-Avilla, pushed the universal carding measure contained in Senate Bill 75 after it was studied and approved by an interim study committee on alcoholic beverages.

He said it was necessary because a high number of alcoholic beverage retailers were found to be in violation of underage drinking laws in undercover stings. * * *

Another law that goes into effect didn’t get much attention during the year but could play a role in upcoming elections.

The law prohibits a homeowners association from adopting or enforcing restrictive covenants or rules banning the display of political or candidate signs.

Associations around the state were doing so, and several constituents brought the issue to the General Assembly. Legislators found this to be a violation of free speech and passed Senate Bill 64 to allow the signs with certain limitations. * * *

The most controversial bill becoming law this week is one allowing workers to bring guns to work if they are left in locked vehicles.

Many businesses previously had bans on firearms in their parking lots and buildings, based on the rights of a business to secure its private property.

But Republicans and Democrats sided with the Second Amendment rights of Hoosiers to carry weapons, saying they should be allowed to have the guns for self-defense. .

“People will have the right to carry their legally owned firearms secured in their vehicles to their place of work,” said Rep. Bob Bischoff, D-Lawrenceburg. “The weapon will have to be stored in the locked vehicle’s trunk or glove compartment or kept out of plain sight.

It cannot be carried into the workplace, unless expressly allowed by the employer.”

The provision in House Bill 1065 could still be challenged in court, though.

Kevin Brinegar, president of the Indiana Chamber of Commerce, said a working group of chamber businesses is considering possible litigation.

He said there are two likely grounds for suing. First is that the law favors a person’s Second Amendment gun rights over the Fourth Amendment property rights of a business.

“We have a clash of rights here clearly. That’s been the rub,” Brinegar said. “Ultimately, the Indiana or U.S. Supreme Court will have to determine the question.”

A second avenue for litigation is equal protection. That’s because lawmakers included a host of exemptions in the bill for certain properties but not others. The exemptions include schools, utilities, domestic violence shelters and child care centers. * * *

Finally, another law going into effect could help single parents provide for their children.

It requires casinos to intercept slot machine winnings of $1,200 or more to pay outstanding child support obligations. It would kick in only if the person is considered delinquent – owing more than $2,000 or at least three months behind on payments. * * *

The state’s casinos resisted, saying private enterprise shouldn’t be required to collect money for the state. But Gov. Mitch Daniels pushed Senate Bill 163 through to improve the state rate of collecting child support.

And from a sidebar to the FWJG story:
A few other new laws that go into effect Thursday:

• Indiana’s graduated driver’s license law for teenagers pushes back when teens can get their license. Teens who take driver’s education will now get a license at 16 years and six months. It previously was 16 years and one month. Teens who don’t take driver’s education will now get a license at 16 years and nine months instead of 16 years and six months.

• A new law limits motorcycle handlebars to no higher than the shoulders when the rider is in the rider’s seat. Previously, handlebars could not be more than 15 inches above the rider’s seat.

• 16-year-olds can now donate blood with written permission from their parents.

• A new law requires a retailer that sells drugs containing ephedrine or pseudoephedrine to post a sign warning that it is a criminal offense for a person to buy drugs containing more than certain quantities of ephedrine or pseudoephedrine.

The Louisville Courier Journal's Lesley Stedman Weidenbener's story today also highlights these requirements effective July 1: "retailers selling alcohol will be forced to card everyone who looks 50 years old or younger, gamblers delinquent on their child support could lose their jackpots and people will be able to keep guns in their cars at most workplaces." In addition:
[A]nother new law will prevent the public from gaining access to records about gun permits.

Up to now, the public could find out the names and other identifying information about people who have received permits to carry handguns. The new law makes that information private, although state, federal and local law enforcement officials will still have access.

"In my view, the individual rights of citizens who have licenses to carry concealed weapons are more important than public access to that information," state Rep. Peggy Welch, D-Bloomington, said in a statement about the law. "The Indiana General Assembly overwhelmingly decided to come down on the side of protecting personal information, particularly when that information is derived from a constitutional right."

More from the LCJ story:
Most of the laws that will go into effect later this week passed the General Assembly during this year's legislative session. But one big change for teens passed in 2009, even though it doesn't take effect until Thursday.

It pushes back the age when teens can get obtain a driver's license. Starting Thursday, teens who take drivers' education training will have to wait until age 16 and six months to receive a license - five months longer than under current law.

Teens without the training will have to wait until 16 and nine months to get a license.

The changes were part of a bill that also banned teen drivers from using cell phones or other mobile devices while driving. That part of the bill went into effect last year.

Earlier this year, the General Assembly passed a bill backed by Gov. Mitch Daniels to crack down on parents who are delinquent paying child support.

The most noted provision is one that would require casinos to withhold jackpots from parents substantially behind on their payments.

But the law's sponsor, Rep. Linda Lawson, D-Hammond, said many of its other provisions are more powerful.

The law expands the use of sanctions - including the cancellation of benefits - against families who receive welfare assistance but fail to cooperate with prosecutors trying to collect back child support payments. It also makes a series of changes meant to bring the state's child support programs into compliance with federal rules.

"These changes will help make sure that parents will be required to support their own children, rather than having Indiana taxpayers do it," said Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council.

Another new law tweaks Indiana's alcohol laws. It allows alcohol sales during voting hours on Election Day and expands Sunday bar hours to match those on other days of the week.

It also requires retailers selling carryout alcohol to verify the age of any customer who looks younger than 50 and allows microbreweries to conduct take-out sales on Sundays, as wineries already do.

"Microbreweries are local, small businesses that support a craft, providing jobs and bringing visitors to the community," said Sen. Vi Simpson, D-Ellettsville, one of the bill's co-authors. "The new law will provide brewers with the same opportunity as local wineries to offer carryout sales of their product during Sunday tastings and events."

Lu Ann Franklin takes a different tack on her story today in the NWI Times, looking at three Indiana laws effective July 1 that provide more consumer protection. Some quotes:
MERRILLVILLE | Hoosiers will get more consumer protection thanks to three laws that go into effect Thursday.

The laws target abandoned medical records, foreclosure consultants and appraisal management firms, said Indiana Attorney General Greg Zoeller during a news conference Friday at state offices in the Chase Bank Building.

Senate Enrolled Act 356 authorizes the attorney general's office to obtain and store abandoned health care records or any other records with personal identifying information. The law also allows Zoeller's office to destroy the records if they cannot be returned to their owners. * * *

House Enrolled Act 1235
was enacted to prevent property appraisal fraud, which Zoeller said was one of the contributing factors in the mortgage meltdown because properties were dramatically overvalued. Some appraisers were from out of state and never saw the property they were appraising, he said. * * *

House Enrolled Act 1332 makes important changes to Indiana laws blocking unscrupulous operators from committing mortgage fraud as foreclosure consultants.

"In the last three months, our office has filed lawsuits against or reached settlements with 14 foreclosure consultants from around the nation," Zoeller said. "We're focusing on protection rather than restitution with this law."

This new law requires any for-profit company offering foreclosure consultant services to register a $25,000 surety bond with the attorney general's office. Surety bonds are an insurance policy in case a company defrauds a consumer. Current Indiana law requires a surety bond, but companies didn't have to provide proof of bonding by filing with the state.

This law also adds a criminal penalty for knowingly violating the foreclosure consultant law and expands the definition of credit service organizations to include debt settlement companies and companies that negotiate interest rate reductions.

Here is the 10-page, 2010 Enrolled Act Summary, prepared by legislative staff - it includes effective dates.

[More] From the AP, this story in the LCJ this story (again with no bill #) that begins:

BLOOMINGTON, Ind. -- Indiana blood centers hope a new state law spurs donations from teenagers and helps bolster supplies during the summer months, when donations typically drop off.

Starting July 1, Indiana will be one of 24 states with laws specifically encouraging 16-year-olds to donate blood.

Teenagers must meet new physical requirements established in 2009 and present a consent form signed by their parents or guardians.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to Indiana Law

Ind. Law - "Secretary of state could be the key to who controls House"

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story today about how "The winner of the secretary of state's race in November will determine who controls the Indiana House if the parties tie with 50 members each." More:

Twice in the past 25 years the House has been evenly split. The first time -- after the 1988 election -- the chamber elected co-speakers. One Democrat. One Republican. They alternated days in control.

The same was true in House committees. Each had two chairs -- one from each party -- and they alternated control of the meetings.

It worked, but not that well. So the General Assembly passed legislation to deal with future ties.

The law now says that if there is an equal number of Republican and Democratic members in the House, control will go to the party that won the governor's race or the secretary of state's race -- depending on the year.

And the law already has been used.

Voters split the Indiana House 50-50 again in the 1996 election. This time, Democrats took control because Democrat Frank O'Bannon won the governor's race.

So Democrats elected a speaker who appointed committee chairmen. They still had only 50 votes in the 100-member chamber, but they had more control over the agenda than did Republicans.

Currently, Democrats control the House 52-48. But if Republicans have the good election year that many political observers predict, it would not be hard to imagine another 50-50 split.

ILB: Some digging has produced this ILB entry from Nov. 7, 2004. quoting an erroneous report that "the House will change to an odd number of members when it redistricts following the 2000 census" to prevent the possibility of a 50-50 split, and then pointing out that that never happened.

Instead, IC 2-2.1-1-7.5 (the law referenced by Ms. Weidenbener), passed in 1995, remains in effect. It provides that, in the event of a 50-50 split:

(c) The speaker of the house of representatives and the principal clerk of the house of representatives shall be elected by the members of the house of representatives affiliated with the political party whose:
(1) candidate was elected governor at the previous general election; or
(2) candidate was elected secretary of state at the previous general election, if the governor was not elected at the previous general election.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to Indiana Government | Indiana Law

Courts - SCOTUSblog presents "The scenario for Monday: How closing day will unfold"

Tomorrow is a very big SCOTUS day. The final four decisions of the term will be issued. It is Justice Stevens' final day on the Court. And the Kagan nomination hearings begin in the Senate Judiciary Committee. SCOTUSblog lays it all out here.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to Courts in general

Ind. Law - Another update on "Shoe camera man charged with voyeurism"

Updating this collection of ILB entries, WISHTV 8 reported Friday "Shoe Cam voyeur charges dropped." Some quotes:

INDIANAPOLIS (WISH) - A man charged with videotaping up the skirts of girls and women at Castleton Square Mall is asking a judge to dismiss the charges. Prosecutors are calling David Delagrange a voyeur and have charged him with 10 counts of the crime along with four counts of attempted child exploitation and one misdemeanor count of resisting arrest.

But law experts say although secretly videotaping up people's skirts may seem very wrong to most, it's not a crime according to current state law. * * *

"Those charges would have to be dropped because quite simply a court would have to dismiss them because there's no basis for them," said Henry Karlson, a retired IU law professor.

According to Indiana statute, voyeurism is defined as peeping in a dwelling or dressing room. Videotaping up someone's skirt does not apply. And in court today, the prosecution conceded it doesn't have a voyeurism case and agreed to drop those charges.

But because four of the victims are children, prosecutors are also charging Delagrange with attempted child exploitation. Karlson believes those charges will be dismissed as well because he believes it's difficult to prove child exploitation unless the perpetrator is videotaping a child whose genitalia is exposed. Karlson argues videotaping a clothed child does not meet the definition of attempted child exploitation.

That means with the exception of a misdemeanor charge, there's a real possibility Delagrange could walk.

Commissioner Stan Krowe is hearing the case. He tells 24-hour news 8 that all 10 voyeurism charges will be dropped. The prosecution is fighting efforts to dismiss the attempted child exploitation charges. Krowe is expected to make a ruling on that part of the dismissal motion by June 25th.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to Indiana Law

Law - "Families are confused over health-care law's coverage for young adults"

This is a useful article from today's Washington Post, reported by N.C. Aizenman. Here is how it begins:

It is among the top early selling points of the health-care overhaul -- a new rule that has particular appeal for middle-class, middle-age voters: Young adults who lack health insurance will soon be able to remain on their parents' plans until age 26.

But although Obama administration officials note that the provision will help millions, the benefit is proving less immediate than many families expect.

The administration's success in convincing dozens of insurers to comply with the provision earlier than the law requires has left many parents with the impression that their adult children will be eligible for continuing coverage far sooner than is likely to be the case, experts said.

According to the law, health plans don't have to comply until their first renewal date after Sept. 23. For some plans, that's as soon as October. For many, it's January. For others, the compliance date won't be until May.

That means many college seniors whose parents' health plans allowed them to stay on until they graduated this spring may face a gap in coverage until the new requirement kicks in.

Soon after the law was passed, Health and Human Services Secretary Kathleen Sebelius called on insurers to close the gap by complying with the law early in such cases. More than 60 major insurance companies and several large employers agreed to do so.

But just because an insurer offers to keep new graduates on the plan doesn't mean the employer subscribing to the plan will take the insurer up on the option.

Posted by Marcia Oddi on Sunday, June 27, 2010
Posted to General Law Related

Saturday, June 26, 2010

Courts - "Rick Pitino extortion trial judge asked to reconsider media restrictions"

Updating this ILB entry from June 23rd on the Rick Pitino extortion trial, Andrew Wolfson of the Louisville Courier Journal reports in a story that begins:

The Courier-Journal has asked a federal judge to reconsider his order barring reporters from interviewing Karen Cunagin Sypher during her July trial on charges of trying to extort money from University of Louisville men's basketball coach Rick Pitino.

Attorneys for the newspaper said in a motion filed Friday that the order violates the First Amendment by imposing a prior restraint on the media and gagging a defendant in a criminal trial.

The newspaper's lawyers also asked U.S. District Judge Charles R. Simpson to clarify his ruling that prospective jurors may be allowed to respond to some portions of a jury questionnaire in chambers, with the media excluded. The questions include prospective jurors' attitudes toward abortion and allegations of sexual assault.

Setting ground rules for the July 26 trial, Simpson said last week that "anyone other than the court or defendant's counsel who attempts to communicate with defendant in any way will be ejected from the courtroom and permanently barred from the proceedings."

More from the story:
Sypher, the estranged wife of the U of L basketball team's equipment manager, is charged with trying to extort money and cars from Pitino in exchange for her silence on allegations that they had sex in 2003 at a Louisville restaurant.

She also is accused of lying to the FBI and with another count of extortion for allegedly having her divorce lawyer send a letter to Pitino demanding $10 million in exchange for her silence "on allegations of a criminal nature."

Pitino has admitted he had sex with Sypher once in 2003 in a Louisville restaurant but denied her claim that he raped her, an accusation that Jefferson Commonwealth's Attorney Dave Stengel later decided was "void of credibility."

In a motion filed by attorneys Jon Fleischaker, Kenyon Meyer and Jeremy Rogers, The Courier-Journal says the First Amendment prohibits a court from restricting the news media from communicating, or attempting to communicate, with a party outside of the courthouse.

"Nor can a court ... prohibit a criminal defendant from talking outside of the courthouse about matters concerning him or her," the motion says. "Such orders are prior restraints of the first order and are clearly unconstitutional."

The attorneys say that conditioning attendance at a trial on compliance with the order would constitute "a double violation of the First Amendment."

Posted by Marcia Oddi on Saturday, June 26, 2010
Posted to Courts in general

Courts - "High court ruling could help convicted region politicians"

Teresa Auch Schultz reported June 25 in the Gary Post Tribune in a story that begins:

A U.S. Supreme Court decision that narrows the use of honest services fraud could mean changes in the convictions of several local officials, including Dozier Allen Jr. and Robert Cantrell.

The court, in three decisions issued Thursday, ruled that the use of honest services could only be applied to people who took bribes or kickbacks, instead of people who had misled their employer or office in another way.

Bryan Truitt, a local attorney who has worked with several politicians who were tried on honest services fraud, said his client who would most likely be affected was Cantrell. The longtime Democratic operater was convicted on 11 counts of fraud for not reporting financial ties to a firm he aided in getting a contract with the North Township Trustee's office while Cantrell worked for the trustee.

"There's no allegations of bribes or kickbacks, so I think that one is going to have to be reversed," Truitt said in regards to Cantrell's conviction.

Cantrell was convicted on other charges, too, but the honest services charge helped to increase his prison sentence to seven years, Truitt said. Cantrell was already appealing his sentencing to the 7th U.S. Circuit Court of Appeals, but Truitt said he would likely add this to his arguments.

Allen, the former Calumet Township trustee, and some of his co-defendants could see their entire convictions thrown out, Allen's attorney, Scott King, said.

Allen and his deputies Wanda Joshua and Ann Marie Karras were convicted on honest services charges of taking money that was supposed to be used for data collection.

Posted by Marcia Oddi on Saturday, June 26, 2010
Posted to Courts in general

Ind. Gov't - More on the 476 pages’ worth of detailed budget cuts [Updated]

Updating this ILB entry from yesterday, several reporters have reviewed the information in yesterday's data dump by the Governor's office.

Niki Kelly of the Fort Wayne Journal Gazette writes:

Many of the cuts have been reported in the media during the last year but others were new. A few agencies declined to give specifics, such as the Indiana Department of Education.

Most agencies reported freezing salaries, not filling vacant positions, reducing travel expenses and various efficiencies.

Here are some highlights from other agencies:

State Personnel Department: Deactivated 301 human resource staff positions by consolidating human resource services, saving $14.9 million. About 30 more positions will be eliminated in the fiscal year starting in July, saving $1.8 million.

Inspector General: Relocated offices, saving about $60,000 in each year of the biennium.

State Student Assistance Commission of Indiana: Reduced staffing through retirement, disciplinary dismissals; suspended the Hoosier Scholars award – a $500 non-renewable award given to college freshmen based on merit.

Department of Child Services: Between 10 percent and 17 percent cuts in several preventive programs, including Healthy Families; elimination of 75 positions through reorganization of finance and administrative functions. * * *

Family and Social Services Administration: Canceled numerous contracts with providers; reduced Medicaid reimbursement rates for hospitals; cut reimbursement rates for other programs serving those with autism and mental illness.

Indiana State Police: Closing four police posts; laid off 42 motor carrier inspectors. * * *

Department of Labor: No longer provides business cards for employees. * * *

Indiana Department of Environmental Management: Suspended various grant and loan programs.

Department of Natural Resources: Closed Ernie Pyle historic site; closed campground at Williams Dam; reduced pool hours; closed Indiana State Museum on Mondays.

Deanna Martin of the AP reports:
Some agency responses are more informative than others.

State Superintendent of Public Instruction Tony Bennett said in his letter to Simpson that the Department of Education cut its operational budget by more than 25 percent since he took office in January 2009. The letter said the department has used technology and "identified savings in all areas of the IDOE," but offered no further specifics.

Other departments listed more detailed changes they've made to save cash. Many agencies said they've cut staff, reduced out-of-state travel, encouraged unpaid leave, left vacant positions unfilled or recycled letterhead and other stationery.

_ The Department of Transportation said it has reduced payroll through attrition and without laying off any workers. The fiscal year 2010 budget allows for more than 4,300 workers, but the department is running with about 3,900 workers now. The Department has also reduced the motor pool fleet by nearly 300 vehicles over the last 3 years.

Mary Beth Schneider and Bill Ruthhart report under the headline "Daniels releases budget cut information: Indiana House Speaker B. Patrick Bauer wanted line-item info." Some quotes:
The 476 pages, though, are hardly in a user-friendly format. Instead, they are letters to Simpson from every state agency, some accompanied by dozens of pages of news stories, in which each agency director outlines the various steps his or her agency has taken to meet Daniels' demands for budget cuts as the sour economy has shrunk incoming tax revenues.

Still, Simpson said, "any information is better than what we have had. It's a gesture. The governor has changed his position on whether this information should be secret."

But House Speaker B. Patrick Bauer, D-South Bend, called it a "gesture with no punch behind it."

The information dumped by the governor's office, he said, is hardly what Democrats were looking for.

"I was just trying to see where the line items are in this, and they're not there," Bauer said. "I'd say it was a feel-good item, where each department is giving verbiage to protect what they did, but it's no real insight into how the budget and what programs were cut. We need to know what the cuts are and whether they are sustainable."

Most of the agencies cite things such as a pay freeze, which Daniels has ordered the past two years; leaving vacant positions unfilled; and cuts in travel expenses and take-home vehicles.

Among other cuts:

• The Department of Administration noted that janitors will work in the daytime, rather than at night, and it has cut the public hours of the Statehouse and government centers by an hour, with buildings open now from 7:30 a.m. to 5 p.m. instead of 7 a.m. to 5:30 p.m.

• The Bureau of Motor Vehicles said it had eliminated the $5 discount for motorists who renew online and renegotiated supply contracts at lower costs.

• The Department of Correction replaced kosher and halal meals for Jewish and Muslim inmates with enriched vegetarian meals, cut the pay for officers in training, decreased adult education and raised the co-pay offenders pay for medical treatment to $7 from the previous $5.

Bauer, though, said the hundreds of pages were "not, in any way, detailed."

For example, he said, the documents mentioned a general cut of 25 percent to the Department of Education but did not specifically lay out how those spending trims were achieved, such as by eliminating positions or programs.

State Budget Director Chris Ruhl defended the administration's response, saying in an e-mail that "this is a 100-percent response rate from the agencies. The 476 pages speak for itself."

See for yourself. Take a look here, at the nearly 30 MB, 476 page, scanned file.

One wonders if this document is the first example of the new "transparency website" that the Governor's budget office reportedly is working on - see this ILB entry from yesterday.

[Updated on 6/28/10] - Lesley Stedman Weidenbener of the Louisville Courier Journal has a comprehensive story this morning on the "475 pages of information about the administration's cost-cutting efforts" released late Friday by Gov. Mitch Daniels' office.

Posted by Marcia Oddi on Saturday, June 26, 2010
Posted to Indiana Government

Friday, June 25, 2010

Ind. Gov't. - Still more on "Indiana GOP senators are asking Mitch Daniels to create a state budget 'transparency website.'"

Updating this ILB entry from earlier today, the Governor has now issued a response to Senator Simpson's request. Late this afternoon, Jane Jankowski of the Governor's Office sent out this message:

State agencies and quasi-state entities that received letters earlier this month from state Senator Vi Simpson requesting information about their budget reductions have all responded. The state budget office has collected all of the responses and posted them at the link below. There are 57 responses representing 63 entities.
Unfortunately, the document posted by the Budget Agency is one, nearly 30 MB, 476 page, scanned file, about as unwieldy as one could get. Maybe it was because of their haste to get the information out ....

Here is the link.

Right now it is not searchable, it is not indexed, it does not have table of contents. It would be easy enough to do all that. For starts, the ILB has reprocessed the file, easily reducing its size by 2/3. But the link above is to the 30 MB file on the Governor's site.

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Indiana Government

Ind. Decisions - Supreme Court dismisses transfer petition because opinion not adverse to petitioner

In Matter of Termination of Parent -Child Relationship of A.k., A.S. and O.K. v. IDCS, a 2-page Order Dismissing Transfer Petition filed June 21, 2010, the Court writes:

The Indiana Department of Child Services (DCS) filed a petition to terminate the parental rights of A.S. and O.K.. The trial court granted that petition and issued an order terminating parental rights. While this appeal was pending, the Court of Appeals ordered the trial court "to enter a revised final order that contains complete findings of fact and conclusion of law that are fully supported by the evidence and that provide an explanation as to how its factual findings support its order." Matter of Termination of Parent-Child Relationship of A.K. 924 N.E.2d 212, 217 (Ind. ct. App. 2010). After the trial court revised its final order, the Court of Appeals affinned the trial court's revised order. Id. at 224.

DCS then filed a petition to transfer under Indiana Appellate Rule 57, inviting this Court to address whether a trial court hearing a parental rights termination case is required to make findings as required by the Court of Appeals in this case.

Appellate Rule 57 applies to a petition "to transfer an appeal from the Court of Appeals to Supreme Court after an adverse decision by the Court of Appeals." App. R. 57(A) (emphasis added). It provides that transfer may be sought "from adverse decisions" issued by the Court of Appeals in the form of a published opinion, memorandum decision, any amendment or Inodification of a published opinion or memorandum decision, or an order dislnissing an appeal. App. R. 57(B) (emphasis added.)

DCS does not allege that the opinion of the Court of Appeals was adverse to it. In fact, DCS acknowledges that the Court of Appeals' opinion was "in DCS' favor." (Trans. Pet. at ii n.5.) In the absence of any showing that the opinion is adverse to the party seeking transfer, the Court DISMISSES the transfer petition. The Clerk is directed to certify the Court of Appeals' opinion immediately in accordance with Appellate Rule 65(E).

And here is the well worth reading ILB summary of the March 31, 2010 opinion of the Court of Appeals (2nd case)

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana faces $1.2M food stamp sanctions from feds"

Here is the AP story by Ken Kusmer, as it appears in the Bloomberg Business Week - Some quotes:

The federal government has levied a $1.2 million penalty against Indiana's human services agency for miscalculating food stamp benefits at a rate more than one-and-a-half times the national average last year, state officials learned Thursday. * * *

FSSA anticipated the penalty, disclosing in its lawsuit against fired welfare intake contractor IBM Corp. last month that it expected it to be as high as $2 million. FSSA spokesman Marcus Barlow blamed the mistakes on Armonk, N.Y.-based IBM and said the state would attempt to recover the penalty in its lawsuit.

See this May 13, 2010 ILB entry for details on the lawsuit.

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Indiana Government

Ind. Decisions - One Indiana opinion today from 7th Circuit

In Lincoln Nat'l. Life v. Bezich (ND Ind., Van Bokkelen), an 8-page opinion, Judge Wood writes:

This petition for permission to appeal arises out of a class action lawsuit that Peter Bezich is attempting to pursue in the state courts of Indiana. Bezich’s complaint asserts that Lincoln National Life Insurance Company breached the terms of certain variable life insurance policies it issued. Each month, Lincoln deducts cost-of-insurance charges from the accounts of its policyholders; the charges, Bezich contends, are not determined based on expected mortality, as promised by the policy. Lincoln attempted to remove the suit to federal court under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453, but the district court remanded the suit based on CAFA’s exception to federal jurisdiction for an action “that solely involves a claim . . . that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder).” Id. § 1332(d)(9)(C). In this court, Lincoln would like to challenge the district court’s conclusion that § 1332(d)(9)(C) applies. It contends that its petition raises a “novel and important issue” under CAFA: “whether contract claims grounded in the traditional insurance features of variable life insurance policies, as opposed to those related to their security features, qualify under the securities exception to CAFA.” Because we agree with the district court that § 1332(d)(9)(C) applies, and this also means that we lack appellate jurisdiction, we dismiss the petition for leave to appeal. See 28 U.S.C. § 1453(d)(3). * * *

We conclude that Bezich’s claim “relates to the rights, duties, . . . and obligations relating to or created by or pursuant to . . . [a] security,” as defined in the 1933 Act, and thus we have no jurisdiction to entertain its petition for review of the district court’s order remanding the case to state court. DISMISSED FOR WANT OF JURISDICTION.

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

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

For publication opinions today (3):

In Weigand Construction Company, Inc. v. Ball State University Board of Trustees , a 19-page opinion, Chief Judge Baker writes:

Appellants-defendants/cross-appellees Weigand Construction Co., Inc. (Weigand), and Ohio Farmers Insurance Co. (the Surety), appeal the trial court’s orders denying their motion to dismiss the complaint against them that was filed by appellee-plaintiff/cross-appellant Stephens Fabrication, Inc. (Stephens), denying their summary judgment motion, and granting Stephens’s summary judgment motion. Weigand argues that this lawsuit did not survive Stephens’s voluntary bankruptcy proceedings and that Stephens’s claim for additional compensation was not timely made pursuant to the terms of the parties’ contract. Finding that the lawsuit survived bankruptcy but that the claim was not timely made, we affirm in part, reverse in part, and remand with instructions. * * *

In sum, we have found that Stephens’s claims against Weigand, Weigand’s Surety, and BSU survived the bankruptcy proceedings. Given that ruling, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection to Stephens. We have also found, however, that Stephens’s Claim for additional compensation was untimely under the terms of the relevant contracts and that Weigand is entitled to enforce the contractual provisions in this regard. Therefore, we reverse the trial court’s summary judgment order.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to enter summary judgment in Weigand’s favor and calculate the amount of damages owed to Stephens, which is the total sum of $39,408.09 plus attorney fees, pre- and post-judgment interest, and costs of collection.

In Fred Giddings v. State of Indiana , an 8-page opinion, Sr. Judge Barteau writes:
Giddings raises one issue for our review, which we restate as: Whether Giddings’ appellate counsel was ineffective because she did not raise on direct appeal the issue of unanimous verdicts. * * *

We hold that Castillo is not applicable in child molest cases, and appellate counsel was not ineffective for not raising the case and the issue of unanimous verdicts.

In F.E.C.I. v. Workforce Development, an 11-page opinion, Judge Bradford writes:
Franklin Electric raises three issues, which we restate as whether the LALJ incorrectly concluded that Franklin Electric, FEM, and FES were only one employer for purposes of the Act. We affirm. * * *

In summary, we conclude that the LALJ correctly disregarded the corporate forms of FEM and FES for purposes of the Act. Allowing FEM and FES to qualify as independent new employers would work an injustice to the taxpayers and citizens of the State of Indiana.

NFP civil opinions today (1):

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

NFP criminal opinions today (2):

In the Matter of R.K. v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Ind. App.Ct. Decisions

Law - More on: "Dawn Johnsen: Let Me Be Clear, I Have No ‘Regrets’ "

Updating this ILB entry from June 18, 2010, NPR's Morning Edition today has a similar story - the blurb:

One of the White House's failed nominees is packing up her belongs and moving back to Indiana after a fight that lasted almost two years. Dawn Johnsen's nomination to lead the Justice Department's Office of Legal Counsel was derailed, and she withdrew her nomination two months ago. About the bruising experience, she said she has "no regrets."
In addition, Prof. Johnsen's 16-minute speech to the American Constitution Society National Convention is now available for viewing, here.

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to General Law Related

Courts - Final four SCOTUS decisions expected Monday; also 1st day of Kagan hearings

Debra Cassens Weiss of the ABA Journal Blog has a very good overview of what is anticipated Monday from the Supreme Court.

Monday is also the first day of the Senate Committee hearings on the Kagan nomination The Committee has a webpage with links to her questionnaire, plus thousands of supplemental documents.

Here is the Judiciary Committee's official hearing notice and witness list.

And here are the Kagan emails. First read this introduction, which notes:

Since emails sent on government IT systems are public records, such a posting should be standard procedure in the future for any presidential nominee with prior public service.

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Courts in general

Ind. Gov't. - More on "Indiana GOP senators are asking Mitch Daniels to create a state budget 'transparency website.'"

Updating yesterday's ILB entry, here are several stories on the topic:

"House speaker wants more accessible government data"
is reported by the AP's Deanna Martin, and appears in the Louisville Courier Journal. Some quotes:

Democrats have been complaining in recent months of a "culture of secrecy" in the Daniels administration. They say they have sent his office repeated requests for information about state budget cuts and so far have not received the data they are seeking.

Republican leaders in the Senate said Thursday that taxpayer confidence would improve if the state had a website with "one-click access" to budget data.

Senate President Pro Tem David Long, R-Fort Wayne, wrote a letter along with Appropriations Chairman Luke Kenley, R-Noblesville, and Tax and Fiscal Policy Chairman Brandt Hershman, R-Lafayette, asking Daniels for the new website.

"Even in states where pioneering transparency websites already exist, there are opportunities to improve by providing citizens more detailed information; longitudinal spending data of prior fiscal years; results and outcomes of expenditures; and township, municipal, county and local school district figures," Kenley said.

The state Office of Management and Budget said it is already working on a new website that would include information on the state budget, revenue, expenditures, employees, contracts, stimulus funding and performance measures. The office said the tentative plan is to have the website up six to eight weeks after the fiscal year closeout in July. * * *

But Democrats say Daniels' administration has been secretive about certain information, and Bauer said it could be an issue heading into November's elections.

Senate Minority Leader Vi Simpson, D-Bloomington, said Thursday that the government website needs to have detailed information.

"To make government more open and more accessible to the public, it's going to require more than posting budget figures and agency totals," she said. "We also want to shine the light on what programs have been cut within individual departments and how much those programs have been cut."

Simpson has complained that state budget officials haven't given her a list of exactly what was cut. The Daniels administration has said that it set overall cut targets but left specific decisions up to individual agencies.

Kevin Allen writes in the South Bend Tribune that:
Apparently, Indiana's state government could be more transparent.
Well, yes.

Posted by Marcia Oddi on Friday, June 25, 2010
Posted to Indiana Government

Thursday, June 24, 2010

Ind. Decisions - Supreme Court issues two this afternoon

Curtis Outlaw v. State of Indiana is a 2-page per curiam opinion that is quicker to read than to quote. It involves this distinction:

In 2001, the legislature established two separate misdemeanor classes for operating a vehicle while intoxicated. Operating a vehicle while “intoxicated” is a Class C misdemeanor. See Ind. Code § 9-30-5-2(a) (2004). Operating a vehicle while intoxicated “in a manner that endangers a person” is a more serious Class A misdemeanor. See I. C. § 9-30-5-2(b) (2004). * * *

The Court of Appeals reversed that conviction on grounds that, although the State proved Outlaw was intoxicated, the State failed to present any evidence on the element of endangerment. See Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App. 2009).

The conclusion:
We grant transfer, adopt and incorporate by reference the opinion of the Court of Appeals pursuant to Indiana Appellate Rule 58(A)(1). The Class A misdemeanor conviction is reversed.
Steven T. Marbley-El v. State of Indiana - In a second, little over 2-page, per curiam opinion, the court grants the petition to transfer jurisdiction, and summarily affirms the Court of Appeals, writing:
Blakely’s analysis does not apply here because Marbley-El committed the robbery after Indiana’s legislature enacted the present “advisory” sentencing scheme. Courts may now impose any sentence within the statutory range for the crime; a sentence at the high end of the range under the present scheme is not an “enhanced sentence” for Blakely and Smylie purposes. See, e.g., Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). Therefore, Marbley-El was not entitled to a jury determination of the factors that led to his six-year sentence, and the trial court correctly did not advise him that he was.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana GOP senators are asking Mitch Daniels to create a state budget 'transparency website.'"

So writes Eric Bradner of the Evansville Courier & Press on Twitter.

For background start with this ILB entry from June 8, 2010, and be sure to follow the two links in the first sentence.

[More] Bradner now provides a pointer to this post from the Indiana Senate Democrat's blog, The Briefing Room.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Indiana Government

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

For publication opinions today (0):

In Douglas Covey v. State of Indiana , a 13-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the State presented sufficient evidence to prove that Covey delivered and possessed methamphetamine in, or within 1,000 feet of a family housing complex, the trial court did not commit fundamental error by not instructing the jury on mitigating facts which Covey had not placed in issue, and the trial court did not abuse its discretion by admitting the methamphetamine as evidence. Affirmed.
NFP civil opinions today (0):

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

Robertson Developers v. Jerry T. Hodges, et al. (NFP)

Kimberly K. Beard v. Ronald K. Beard (NFP)

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

NFP criminal opinions today (0):

Donald Wilson v. State of Indiana (NFP)

Androuckoo Jones v. State of Indiana (NFP)

Carleon M. Ragsdale v. State of Indiana (NFP)

James Walsh v. State of Indiana (NFP)

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

Anthony H. Taylor v. State of Indiana (NFP)

Terrence Hopson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Ind. App.Ct. Decisions

Courts - Still more on Doe v. Reed

Election law expert Rick Pildes has a entry titled "The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed," here on Balkinization blog.

And Tom Goldstein has expanded his earlier post to conclude:

the decision is perhaps most significant for what it means for disclosure provisions under consideration in the pending campaign finance legislation that would respond to the Court’s Citizens United decision. There seems a solid group of five votes to uphold virtually any disclosure regime. But today’s ruling does not suggest that any member of the Citizens United majority would retreat from that decision to uphold provisions limiting corporate expenditures in elections.
Rick Hasen of Election Law Blog has not yet weighed in. Check back.

[More] Hasen has now posted this entry titled "Initial Thoughts."

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Courts in general

Courts - New decisions from the SCOTUS this morning [Updated]

Again, via SCOTUSblog. Only 11 cases left to be decided, and two days scheduled, today and next Monday (which is also the first day of the Kagan hearings). Check back in a few minutes ....

The first decisions are the honest services cases, Skilling, Black, and a third, Weyhrauch.

The final opinion today is Doe v. Reed - From the SCOTUSbloig comment: The Court rules that disclosure of the information on petitions for ballot referenda does not, as a general matter, violate the First Amendment However, the Court rules that compelled disclosure of this information is subject to review under the First Amendment.The challengers get to try and make out the claim that this is a special case.The Court concludes that the broad challenge made by the petition-signers in this case must be rejected.

No decisions in the Chicago gun case or the patent case, Bilski. Four cases left altogether: Free Enterprise Fund, Bilski, Christian Legal Society, and McDonald v. Chicago.

[Updated] Here is the Seattle Post coverage of the Doe ruling, reported by Chris Grygiel. It begins:

The Supreme Court ruled Thursday that the names of people who signed petitions in an attempt to overturn a new gay rights law in Washington must be made public, a victory for state officials who said the case was a test of open government laws.

Justices ruled 8-1 in a case called Doe V. Reed. Only Justice Clarence Thomas dissented.

They heard oral arguments in Washington, D.C., April 28.

"This is a good day for transparency and accountability in elections--not just in Washington but across our country," Washington Attorney General Rob McKenna said. "We're pleased the Supreme Court ruled in favor of disclosure, upholding the public's right to double-check the work of signature gatherers and government -- and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret." * * *

One of the attorneys for the group seeking to keep the names private, James Bopp, Jr., had said people have a right to participate in the political system without the government compelling them to identify themselves.

Bopp, the general counsel for the Indiana-based James Madison Center for Free Speech, said it's appropriate for governments to check and make sure initiative and referendums have enough signatures to qualify for the ballot, but releasing that information to the public would violate people's rights.

And here is what Tom Goldstein just wrote at SCOTUSblog:
By a broad eight-to-one majority in an opinion by the Chief Justice, the Supreme Court today held in Doe v. Reed that signatories of referendum petitions generally do not have a constitutional right – i.e., a right that would trump state open government laws – to keep their identities private. But the Court held – again, by the same broad majority – that courts should consider in any given case whether a particular referendum presents sufficiently unique circumstances that anonymity is required. It therefore permitted the claim to anonymity in this case, which involves a referendum on gay rights, to proceed in the lower courts. But their chances of prevailing appear very slim, as five members of the Court either expressed significant doubts about their claim or expressly rejected it.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Courts in general

Not law but interesting - "iPhone economics and lower barriers to entry"

Planning to develop iPhone apps? Read this first, then decide what your objectives are.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to General News

Courts - "Assessing the Changing World of Civil Procedure Post-'Twombly,' 'Iqbal'"

Jeff Jeffrey of The National Law Journal has a story dated June 21st that begins:

The impact of two landmark Supreme Court rulings that changed the standards civil lawsuits must meet to proceed is still unclear, a panel of lawyers said Friday during a discussion at the American Constitution Society's annual conference.

The panel, titled "Access to Federal Courts after Iqbal and Twombly," was billed as a freewheeling "bull session" by moderator Arthur Miller, a law professor at NYU Law School.

Miller opened with a brief explanation of Bell Atlantic Corp. v. Twombly, an antitrust case that established the requirement that civil complaints be demonstrably "plausible," and 2009's Ashcroft v. Iqbal, which expanded that requirement to all federal civil complaints.

Here is a list of earlier ILB entries on Iqbal.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Courts in general

Environment - "Commercial fishermen found the 3-foot-long, 20-pound carp in Lake Calumet on Chicago's South Side"

From the AP, via the Gary Post-Tribune this morning:

CHICAGO -- A single Asian carp has been found for the first time beyond the electric barriers constructed to keep the dreaded invasive species out of the Great Lakes, state and federal officials announced Wednesday.

Commercial fishermen found the 3-foot-long, 20-pound carp in Lake Calumet on Chicago's South Side, about six miles downstream of Lake Michigan, according to the Asian Carp Regional Coordinating Committee.

Here is a list of earlier ILB entries on Asian carp.

Posted by Marcia Oddi on Thursday, June 24, 2010
Posted to Environment

Wednesday, June 23, 2010

Courts - Civil commitment laws for sex offenders squeeze states' budgets

An AP story today by Martiga Lohn focuses on the 20 states with civil commitment laws for sex offenders who have finished their sentences, and specifically, the burdensome costs of such programs. Some quotes:

Keeping sex offenders locked up in treatment after they finish their prison sentences emerged as a popular get-tough tactic in the 1990s, when states were flush with cash. But the costs have soared far beyond what anyone envisioned.

An Associated Press analysis found that the 20 states with so-called "civil commitment" programs will spend nearly $500 million this year alone to confine and treat 5,200 offenders still considered too dangerous to put back on the streets.

The annual costs per offender topped out at $175,000 in New York and $173,000 in California, and averaged $96,000 a year, about double what it would cost to send them to an Ivy League university. In some states, like Minnesota, sex offender treatment costs more than five times more than keeping offenders in prison. And those estimates do not include the considerable legal expenses necessary to commit someone.

The programs have created a political quandary for lawmakers who desperately need to cut spending in the midst of a recession but don't want to be seen as soft on rapists and child molesters.

"I've heard people in a lot of the states quietly say, 'Oh, my God, I wish we'd never gotten this law,'" said W. Lawrence Fitch, a professor at the University of Maryland School of Law. "No one would ever dare offer repeal because it's just untenable."

More from the story:
"It's easy to say, 'Lock everybody up and throw away the key,'" said state Rep. Michael Paymar, a St. Paul Democrat who heads a public safety budget panel. "But it's just not practical."

The laws have withstood legal challenges all the way to the Supreme Court. They are considered constitutional as long as their purpose is treatment, not detention. But living up to that standard can cost far more than traditional prison. And the costs persist for years because most inmates will never be released. * * *

In most states, the number of confined sex offenders has steadily increased, requiring ever-greater spending.

Iowa spends nearly $7 million to confine 80 offenders, almost double 2005's $3.6 million budget for 48 patients. Virginia's program has swelled from 45 patients five years ago to more than 200 this year, with annual costs climbing from $10 million to almost $16 million.

Some states have steered clear of the civil-commitment system, partly because of financial reasons. In Louisiana, legislation died last year after top lawmakers questioned the cost and constitutional issues. Vermont legislators rejected a similar proposal.

Indiana does not have such a law, as far as I know. Here is a report prepared by the State of Washington in 2005, comparing the 17 state laws then in effect.

And here is a valuable survey of all sex offender laws (including civil commitment laws), from LLRX.com.

See also "Can sex offenders be held after serving criminal sentences?" from CNN, 1/12/10.

Posted by Marcia Oddi on Wednesday, June 23, 2010
Posted to Courts in general

Courts - Here is the juror questionaire in the Rick Pitino extortion case

From the Lexington Herald-Leader:

The jury questionnaire, released Wednesday, includes multiple questions about a potential juror's connections to the [University of Louisville], along with questions about the publicity the case has received and attitudes about extramarital affairs.

Hundreds of potential jurors have received the questions in advance of the trial of Karen Cunagin Sypher, who has pleaded not guilty to trying to extort money from Pitino, retaliating against a witness and lying to the FBI. She is accused of demanding college tuition for her children, her house to be paid off and $10 million.

The U.S.D.C. for the Western District of Kentucky has a special webpage for the case, which includes the docket, with links to the PACER documents, at no charge. Nice touch!

And here is the juror questionnaire.

Posted by Marcia Oddi on Wednesday, June 23, 2010
Posted to Courts in general

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

For publication opinions today (1):

In Noe Romo v. State of Indiana , a 13-page opinion by Judge Darden, the issues were:

1. Whether the trial court erred in admitting transcripts of the taped drug transactions.

2. Whether the State failed to establish a proper foundation for the transcripts.

3. Whether the trial court improperly permitted a witness to give opinion testimony without a proper foundation.

The court affirmed.

NFP civil opinions today (1):

Mary Ann Dandino v. Luisito C. Gonzales, M.D., and Elkhart Clinic, LLC (NFP)

NFP criminal opinions today (1):

I.S. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 23, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One (so far) today from the Supreme Court

In Indiana Patient's Compensation Fund v. Gary Patrick, an 8-page, 5-0 opinion, Justice Sullivan writes:

A father brought a claim under the Adult Wrongful Death Statute for his son's death caused by the negligence of medical providers following an automobile accident. The father also brought a derivative claim under the Medical Malpractice Act for his own emotional distress. Because damages for emotional distress are not available under the Adult Wrongful Death Statute, a parent cannot bring a derivative claim seeking such damages under the Medical Malpractice Act.

Posted by Marcia Oddi on Wednesday, June 23, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Checking out the juror pool via the internet

IU Law's Joel Schumm sends this story from the July 2010 issue of the ABA Journal about lawyers using the internet to sort through the jury pool names, as soon as they are made available. Some quotes:

Paralegals carrying laptops equipped with 3G and wireless cellphone lines accompany Los Angeles County plaintiffs lawyer Paul Kiesel to court when it’s time to pick a jury. Providing that they can pick up a signal, the workers do real-time social media searches while the clerk reads the names of jury panel members.

In Los Angeles County, how jury panel members’ names are released is left to the judge’s discretion. On big cases, Kiesel says, the court might release names the evening before selection begins. But more commonly, counsel finds out who is on the panel as the members walk in.

“Last month I had 50 jurors, and as the court clerk read out the names, I had two people in the courtroom and a third person back at the office, with all three of them doing research,” says Kiesel, a partner with Kiesel, Boucher & Larson. Junior lawyers also assisted, and Kiesel estimates the social media research for that case cost less than $5,000. * * *

For the most part, state courts allow lawyers to bring laptops into court rooms, but Googling the jury panel isn’t what they have in mind, says Paula Hannaford-Agor. She directs the Center for Jury Studies at the National Center for State Courts.

“It’s hard to make a broad generalization, but it’s fair to say the bench is more protective of juror privacy,” she says, adding that online snooping “tends to creep jurors out when they’re aware of it.”

Kiesel says no judge has banned him from using the Internet in jury selection. That sort of mandate, he adds, would violate the First Amendment.

Hannaford-Agor allows that the searches would be hard to police.

“This is a really fluid area right now, and no one in the legal community is adequately keeping up with the technology or some of the implications,” she says. “So if you call me again in six months, I might have a different answer.”

Prof. Schumm notes:
I think most courts provide the juror names the morning of trial, unless it's a high profile case where questionnaires are completed in advance. If an anonymous jury is ordered, though, research would not be possible.
Schumm points to a 19-page, 2007 COA opinion by Judge Bradford, Major v. State, which discusses in detail the use of an anonymous jury:
Major’s first challenge is to the trial court’s empaneling an anonymous jury. He contends that the use of an anonymous jury, especially in this case where the trial court failed to justify it, constituted an abuse of discretion and denied him certain Federal Constitutional rights, including his right to a fair trial under the Fourteenth Amendment and his right to trial by an impartial jury under the Sixth Amendment. The State responds by arguing that an anonymous jury was justified under the facts of this case. Both parties agree that this is an issue of first impression in Indiana. * * *

In evaluating the instant case, we observe that pursuant to the above precedent and as the State concedes, a determination as to the propriety of an anonymous jury requires judicial consideration on a case-by-case basis and is not justifiable based solely upon a local rule authorizing the wholesale use of anonymous juries. Here, the trial court provided no case or fact-specific justification in permitting the empanelment of an anonymous jury. Indeed, the court’s only justification for empaneling this anonymous jury was the apparent local rule allegedly permitting Lake County juries to be anonymous, as well as the fact that the jurors’ names were available if necessary to resolve any improprieties. In light of our above standard requiring the trial court, in empaneling an anonymous jury, to make a factual determination that the jury needs protection, we conclude this was error. See Williams, 690 N.E.2d at 169-70 (holding that additional restrictions to the unfettered access of the public and press at trial must be justified by trial court findings).

See also this ILB entry from April 7, 2004, on juror secrecy, and this one from Dec. 31, 2004.

Posted by Marcia Oddi on Wednesday, June 23, 2010
Posted to Indiana Courts

Tuesday, June 22, 2010

Ind. Decisions - "Court says Nemeth can't mandate all probate court spending"

The Supreme Court's decision today in In the Matter of Mandate of Funds; St. Joseph County Commissioners and St. Joseph County Council v. The Hon. Peter J. Nemeth and the St. Joseph Probate Court (see ILB summary here) is the subject of a story reported by Erin Blasko, now posted on the South Bend Tribune website. Some quotes:

Indiana Supreme Court justices ruled Tuesday that Probate Judge Peter J. Nemeth cannot force county officials to rubber-stamp his spending requests for staff raises and building renovations.

The court's opinion was forced by an ongoing dispute between the St. Joseph County Board of Commissioners and Nemeth.

Nemeth issued a series of judicial mandates in 2009 after commissioners refused to release money for raises and renovations at the Juvenile Justice Center totaling more than $300,000.

The 25-page opinion represents a victory of sorts for commissioners in that it reverses key portions of a lower court ruling handed down in October and favorable to Nemeth.

In broad terms, the opinion approves a minor pay raise for one employee and expansion of the day reporting program but disapproves seven other pay raises, a new courtroom and replacement of some equipment.

The opinion leaves unresolved a dispute involving the sale of land adjacent to the JJC to accommodate expansion of Ivy Tech State College.

Commissioners reacted favorably to the opinion Tuesday. * * * Both [commissioners] said the opinion sends a message to judges about the limits of mandate power and the need to work with officials on budget issues.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - U.S. Magistrate Judge vacancy created due to the elevation of Judge Jane E. Magnus-Stinson to the bench of the U. S. District Court

Actually, two openings:

See here for details.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Indiana Courts

Ind. Courts - "Seventh Circuit finds inadequate district court's sparse justification for way below-guideline sentence"

That is the heading to an entry this afternooon in the Sentencing Law Blog, about a decision of the 7th Circuit today in a case out of the Central District of Illinois. Prof. Berman ends the entry:

In the weeks after Booker was handed down, I highlighted in this post that district judges should "Always remember to show your work." More than five years after Booker, it seems that some district judges are still struggling to understand that this is classic suggestion for math class remains very important for modern federal sentencing.

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

Ind. Decisions - Supreme Court agrees with hearing officer that attorney who cited vacated opinion did not engage in professional misconduct

In In re Jack Rogers, a published judgment in favor of respondent, dated June 21, 2010 and posted this afternoon, signed by CJ Shepard with all justices concurring, the charge was:

Charge: The Commission alleges that Respondent violated Professional Conduct Rule 3.3(a)(1), which prohibits knowingly making a false statement of law to a tribunal and/or failing to correct a false statement of law previously made to the tribunal by the lawyer.

Facts: While representing a criminal defendant at a suppression hearing, Respondent cited a Court of Appeals opinion that had been vacated and replaced by a decision by the Indiana Supreme Court. The case was Trimble v. State, 816 N.E.2d 83 (Ind. Ct. App. 2004), vacated, 842 N.E.2d 798 (Ind. 2006). The hearing officer in this case found Respondent to be credible when he testified that he had not knowingly cited incorrect law and did not intend to mislead the trial court. The hearing officer concluded the Commission had failed to produce clear and convincing evidence that Respondent violated Rule 3.3(a)(1) and recommended that the Court enter judgment in favor of Respondent. The Commission did not file a petition for review.

The hearing officer appointed by the Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," was the Honorable Kenneth H. Johnson. His reported was unchallenged. The Supreme Court writes:
Accordingly, we accept the hearing officer's findings of fact, and on those findings we conclude that Respondent did not engage in professional misconduct. The Court therefore enters judgment for Respondent.
The ILB asked IU-Indy Law Prof Joel Schumm for his thoughts on the ruling. Schumm responded:
The factual findings of the hearing officer seem particularly significant in cases like this. If Judge Johnson had found the respondent was not credible, he would surely have found a violation--and the Indiana Supreme Court would have affirmed.

I wish we knew more of the specific facts. If a lawyer uses Westlaw or Lexis, this should never happen. Lexis shows a red stop sign and references the Indiana Supreme Court case at the top of the opinion. Westlaw shows a red flag and notes transfer was granted. Although I preach about this to first-year law students, every year at least one will cite a vacated opinion.

Was the lawyer using the books and did not Shepardize or KeyCite the case? Or did he not know the significance of a grant of transfer? Ethical violation or not, this is poor advocacy for a client and seems likely to harm a lawyer's credibility with the judge and opposing counsel.
I agree with Professor Schumm. It would be beneficial to other attorneys, and to law students, to see the details of Judge Johnson's report.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Major changes in child support law to take effect July 1.

Here is a press release issed today by State Rep. Linda Lawson (D-Hammond) about SEA 163 (PL 80-2010):

INDIANAPOLIS – Indiana will see its first major overhaul in child support laws in nearly two decades when a sweeping reform package approved by lawmakers takes effect on July 1, according to State Rep. Linda Lawson (D-Hammond).

“While most of the attention on this initiative has focused on a provision that requires casinos to withhold winnings from parents who ignore court-ordered child support obligations, it is important to remember that change is one small part of a comprehensive package of reforms that will substantially improve the way that our state handles the collection and payment of support,” said Lawson, who served as the primary Indiana House sponsor of Public Law 80.

“These changes will help make sure that parents will be required to support their own children, rather than having Indiana taxpayers do it,” said Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council.

One provision expands the use of sanctions – cancellation of benefits – against families receiving Temporary Assistance for Needy Families (TANF) benefits when they fail to cooperate with Title IV-D child support prosecutors.

“Indiana law presently allows prosecutors to pursue sanctions only when attempting to establish paternity for a child,” Lawson said. “Starting July 1, they will be able to pursue sanctions when needed in order to establish a support order or enforce an existing order.

“At the same time, we will be giving prosecutors the ability to pursue sanctions for failure to cooperate against non-parents, as well as parents,” she added. “This would include caretaker relatives such as grandparents, aunts and uncles who may be receiving TANF benefits for a child, but are failing to cooperate with prosecutors in establishing and enforcing child support orders against the parent or parents of the child in their care.

“Officials have found the failure by non-parent caretakers to cooperate with child support enforcement to be a growing problem,” Lawson said. “Including non-parents in sanctions will help address these concerns and allow the obligation for financial support of children to be placed on the parents.”

Lawson said the new law makes a series of changes to bring Indiana into compliance with federal child support regulations. These changes cover such areas as immediate income withholding, license suspension and medical support.

“All court orders will be required to explicitly address income withholding, which enables an employer to deduct child support from a worker’s pay and forward those funds to the child support agency for distribution,” Lawson said.

“We also add alcoholic beverage servers and gaming-related licenses to the types of professional licenses and permits that can be suspended in the event that the holder is delinquent in paying child support,” she continued. “It is important to note that a non-compliant parent can avoid suspension of a license or permit by setting up a payment plan to address their delinquency with the child support prosecutor.”

Public Law 80 also will require either or both parents to provide medical support, rather than primarily the non-custodial parent, and authorizes the child support prosecutor to petition the court to include medical support in the order.

“We also made changes to the provisions that help officials locate individuals who owe support,” Lawson noted. “This will enable the Child Support Bureau to have access to the same systems available to the Bureau of Motor Vehicles (BMV) and law enforcement. It also details the types of government agencies and private entities – such as utilities, cable companies and banks – that must provide information to IV-D child support prosecutors.”

Finally, the new law requires custodial and non-custodial parents to provide residential addresses, phone and driver’s license numbers to the clerks of court.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Adam Starr v. State of Indiana, a 6-page opinion, Judge Bailey writes:

Adam Starr (“Starr”) appeals his conviction of Refusal to Identify Self, a Class C misdemeanor, presenting the sole issue of whether a vehicular passenger is subject to the same criminal penalties by refusing to identify himself when, unlike the driver of the vehicle, there was no reasonable suspicion that he had committed an infraction or violated an ordinance. We reverse. * * *

In the context of a traffic stop for a vehicular violation, the Good Faith Belief statute provides for detention of a person who, in the “good faith” belief of the officer, “has committed an infraction or ordinance violation.”2 Ind. Code § 34-28-5-3. The Refusal to Identify Self statute then criminalizes the refusal to comply with an officer’s lawful request under the statute authorizing detention. In this instance, although Starr was “stopped” when the vehicle in which he was a passenger was “stopped,” there is no showing that Starr was stopped as a consequence of any conduct on his part. There was no reasonable suspicion that he had committed an infraction or ordinance violation, giving rise to an obligation to identify himself upon threat of criminal prosecution.

Accordingly, Starr did not fall within the purview of the Refusal to Identify Self statute. His conviction must be reversed.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Ind. App.Ct. Decisions

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

In U.S. v. Wheaton (ND Ind., Springmann), a 3 page opinion, Judge Posner writes:

The defendant’s supervised release was revoked because he admitted having violated its terms by helping to distribute marijuana; by way of sanction the judge ordered him to serve 36 months in prison. The defendant appealed. His lawyer has filed an Anders brief in which he reviews the grounds for an appeal and concludes convincingly that all would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Only one point in the brief warrants discussion. The defendant admitted as we said that he had violated the terms of his supervised release, and, as the Anders brief explains, there can be no doubt that the admissions were knowing and voluntary, so that any challenge to them would be certain to fail. But we add that the defendant could not prevail even if the admissions were not shown to be knowing and voluntary. For he does not ask to withdraw the admissions. He objects to the 36- month prison term that the judge imposed but not to the revocation of supervised release on the basis of the admissions he made. * * *

The logic of Knox extends to a case (also one of first impression) in which the defendant does not challenge the revocation of his supervised release. We hold therefore that he cannot be allowed to challenge admissions that undergird that revocation. He can challenge them and the revocation, but if he is content with the revocation (fearing the possible consequences of a new revocation hearing) he cannot challenge it indirectly by attacking the admissions on which it was based.

Counsel’s motion to withdraw as counsel is granted and the appeal dismissed.

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

Ind. Decisions - Supreme Court issues opinion in St. Joe. judicial mandate case

In In the Matter of Mandate of Funds; St. Joseph County Commissioners and St. Joseph County Council v. The Hon. Peter J. Nemeth and the St. Joseph Probate Court, a 25-page, 3-2 opinion, Justice Sullivan writes:

This case addresses disputes between the St. Joseph Probate Court and the St. Joseph County Commissioners over land, renovations, and salaries at the Thomas M. Frederick Juvenile Justice Center in St. Joseph County. As explained below, we approve certain renovations such as those prompted by the need to close down some residential sections of the Center to save money. We disapprove the mandate for a new courtroom and most of the mandated salary in-creases. We remand the dispute over land adjoining the Center for an adjudication on the merits. * * *

From time to time – as has happened in this case – a disagreement over court resources between a judge and county government will prove to be so intractable as to require litigation. In 1976, this Court adopted T.R. 60.5, establishing orderly procedures for the resolution of intra-county disagreements about court funding. * * *

In 2008, an informal working group of county government representatives and trial court judges proposed to us several changes in T.R. 60.5. First, they suggested that the rule explicitly provide for referring such disagreements to mediation. Second, they suggested that when it be-came necessary to appoint a special judge to adjudicate such disagreements, that special judge not be a sitting or prior judge but instead a practicing lawyer. And third, they suggested that the rule specify that any attorney fees awarded by a special judge in such cases be paid at a rate not greater than the reasonable and customary hourly rate for an attorney in the county. We very much appreciated the suggestions of the working group and adopted their proposals by Order dated February 4, 2009.

This is the first case utilizing the 2009 amended procedures of T.R. 60.5. * * *

In Mandate 1, the court states that when the County adopted an ordinance for issuance of bonds for the construction of the Center in 1993, the ordinance provided that the bond proceeds were to be used to pay for the cost of acquiring, constructing, and equipping the Center, which was to be located in an area bounded by four named streets. The bonds were accompanied by an official statement declaring that the proceeds were to be used to purchase land and construct and equip the Center. As constructed, the Center stands on the western part of the designated land, while the eastern part of that land remains undeveloped.

After Ivy Tech State College expressed an interest in purchasing the eastern part of the land, the court met with the St. Joseph County Commissioners and stated that the eastern land is necessary for effective operation of juvenile justice in the County. Determining that the Com-missioners would sell off the eastern land unless ordered otherwise, the court issued Mandate 1, stating that a transfer of the land to Ivy Tech or another buyer would violate the terms of the bond issue and restrict the ability of the court to expand the Center or juvenile services in the future. Mandate 1 directs that the Commissioners shall not sell, assign, or otherwise transfer any interest in the land without the court's consent. * * *

Relevant to Mandate 2, the court in November 2008 proposed certain renovations in the Center, replacement of some of its equipment, and transfers of funds within court-related ac-counts in the County's 2008 budget to make available money for those renovations and replace-ments. A bill transferring the sum of $401,929 from various court-related accounts within the County's 2008 budget to other court-related accounts within the budget was approved by the St. Joseph County Council and the Commissioners in December 2008. But later that month when the court timely submitted specific purchase order requests accompanied by vendor/contractor estimates, quotes, and proposals for particular renovations and replacements, the Commissioners did not approve many of the purchase order requests. Mandate 2 describes the unapproved purchases as necessary to juvenile justice in the County and orders the Council and the Commis-sioners to approve purchase order requests totaling $313,788.74.3

Prior to Mandate 3, the court submitted to the Council and Commissioners a budget re-quest for 2009 that included $60,208 in annual raises for eight employees at the Center: two court employees and six employees of the juvenile detention facility. Judge Nemeth met with the Council and Commissioners (hereinafter collectively “Commissioners”) and attempted to demonstrate the need for those raises, but the Commissioners did not approve them. Mandate 3 orders the Commissioners to approve the appropriation of funds for those raises and to use the County's supplemental Juvenile Probation Services Fund (“JPS Fund”) to pay for the raises. * * *

The Mandates at issue in this case were issued by Judge Nemeth on February 4, 2009. As such, they triggered the procedures of T.R. 60.5 as newly amended.

Initially, we referred these cases for mediation. When mediation proved unsuccessful, we appointed William F. Satterlee, III, a practicing lawyer in Valparaiso, as special judge to hear the matters and make findings regarding the mandates. * * *

As indicated above, we reverse the dismissal of Mandate 1 and remand it for a trial. We affirm in part and reverse in part Mandate 2 and Mandate 3 as indicated above. Finally, we affirm the award of attorney fees and remand for a determination and award of the court's appellate attorney fees.

Shepard, C.J., and Rucker, J., concur.
Dickson, J., concurs in part and dissents in part with a separate opinion in which Boehm, J., con-curs.

Dickson, Justice, concurring and dissenting

I concur except as to Part IV, in which the Court reverses the dismissal of Mandate 1 and remands it for further proceedings. Believing that the special judge was correct to dismiss Mandate 1, I dissent to this part of the opinion. In all other respects, I concur.

Boehm, J., concurs.

[Emphases by ILB]

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "In Law Schools, Grades Go Up, Just Like That"

Long and fascinating story today in the NY Times, reported by Catherine Rampell. Some quotes:

One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average.

But it’s not because they are all working harder.

The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.

In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient. These include law schools like New York University and Georgetown, as well as Golden Gate University and Tulane University, which just announced the change this month. Some recruiters at law firms keep track of these changes and consider them when interviewing, and some do not.

Law schools seem to view higher grades as one way to rescue their students from the tough economic climate — and perhaps more to the point, to protect their own reputations and rankings. Once able to practically guarantee gainful employment to thousands of students every year, the schools are now fielding complaints from more and more unemployed graduates, frequently drowning in student debt. * * *

Harvard and Stanford, two of the top-ranked law schools, recently eliminated traditional grading altogether. Like Yale and the University of California, Berkeley, they now use a modified pass/fail system, reducing the pressure that law schools are notorious for. This new grading system also makes it harder for employers to distinguish the wheat from the chaff, which means more students can get a shot at a competitive interview. * * *

Many hiring partners say they read Above the Law, a legal blog, that gleefully reports (and mocks) grade changing efforts — from leaked student memos — even when schools themselves don’t announce the changes.

Employers say they also press law schools for rankings, or some indication of G.P.A.’s for the top echelon of the class. And if the school will not release that information — many do not — other accolades like honors and law journal participation provide clues to a student’s relative rank.

“Every year we do our homework,” says Helen Long, the legal recruiting director at Ropes & Gray, a firm with more than 1,000 lawyers. “And besides, if a school had a remarkable jump in its G.P.A.’s from one year to the next, we receive a big enough group of résumés every year that we’d probably notice.”

Smaller firms, however, may not have the resources to research every school’s curve, and may see too few students from any given school to track changes from year to year.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to General Law Related

Ind. Gov't. - "Tippecanoe County residents ask for moratorium on wind turbines"

Interesting article today by Dorothy Schneider in the Lafayette Journal Courier:

A group of rural Tippecanoe County residents who have lingering concerns over the impact of wind energy development asked county commissioners Monday to press "pause" in the process.

Jim Pairitz, who lives on County Road 1200 South near West Point, asked for a moratorium on accepting applications or granting permits for large turbine systems. He said he was asking on behalf of other residents from Randolph, Wayne and Jackson townships in southern Tippecanoe County.

"This would be to the benefit of all parties involved and would allow enough time to update the (zoning ordinances)," he said. "We ask that you start the process to find out what a moratorium would look like." * * *

The county completed a lengthy review and revision of its wind farm rules in April. And planning officials here are expecting an application for the county's first large-scale wind farm development to come this summer.

But Pairitz said there's new information that should be considered before such a project is reviewed in Tippecanoe County. He and other residents have brought information to various county committees about health concerns resulting from proximity to wind turbines.

The 1,000-foot setback outlined in the county ordinance may not be sufficient to protect nearby residents, Pairitz said.

Earlier this month, a committee of the county's Area Plan Commission authorized the formation of a study committee to look into those claims.

Sallie Fahey, executive director of the Tippecanoe County Area Plan Commission, said a total moratorium sought by Pairitz would impact plans expected to come this summer from Chicago-based Invenergy Wind LLC.

Invenergy's plans could lead to a project in southwestern Tippecanoe County and portions of neighboring Fountain and Montgomery counties. A vice president with the company could not be reached for comment on the potential moratorium Monday. The size and the scope of the project were not available on Monday.

Fahey said Monday that companies such as Invenergy might take legal issue with a moratorium being imposed on development. As far as she's aware, Tippecanoe County has never imposed a moratorium on a specific type of development, Fahey said.

"Indiana is a pretty pro-property rights state," she said. "To me, that means if wind energy companies have already purchased easements, there's going to be some major curtailment of business operations. That's probably going to be an issue."

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Environment | Indiana Government

Ind. Courts - "Slaying trial set; accused man can't have public defender"

The ILB can't remember another recent story reporting that a court denied a public defender in a criminal case. (See this ILB entry from Aug. 20, 2009.) This case has been in the local news, here is today's story from the Indianapolis Star. Note also the defendant's employer:

During his initial hearing in Marion Superior Court, Anthony "Joe" Sachse's request for a public defender was denied by a judge, based on his income and assets. Sachse is an engineer for the Indiana Department of Environmental Management. * * *

Judge Sheila A. Carlisle entered a not-guilty plea on Sachse's behalf and set a hearing for review of counsel for July 2. His trial was set for Aug. 23.

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Indiana Courts

Ind. Courts - Bar license of accused Rep. Delaney assailant suspended [Updated]

The ILB first heard about this last night, but didn't find the order on the court's website. Still no order, but there is a brief story today in the Indianapolis Star:

The Indiana Supreme Court on Monday suspended the law license of an Indianapolis attorney while he awaits trial on charges that include attempted murder.

Augustus Mendenhall, 39, has been jailed on $3 million bond since he was accused of trying to kill Democratic state Rep. Ed DeLaney, also an Indianapolis attorney, by holding him at gunpoint and severely beating him during an encounter Oct. 31 in Carmel.
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The Supreme Court's Disciplinary Commission requested the emergency license suspension. Mendenhall's attorney, Jack Crawford, said he consented.

Mendenhall's trial is set for Sept. 7 in Hamilton Superior Court.

Here is the Mendenhall docket, from the Roll of Attorneys.

For background, start with this ILB entry from Nov. 5, 2009.

[Updated at 11:00 AM] Here now is the interim suspension order in In the Matter of Augustus Mendenhall. Note that: "All Justices concur except Sullivan and Boehm, JJ., who are not participating in this case."

Posted by Marcia Oddi on Tuesday, June 22, 2010
Posted to Indiana Courts

Monday, June 21, 2010

Courts - Women lawyers, a moving target?

Two headlines posted today on the the ABA Law Blog caught my eye:

"Kagan E-Mails Reveal a ‘Sharp-Elbowed and Sometimes Salty-Tongued Lawyer’", found here, and

"Women Lawyers Need to Exude More Confidence, Federal Judge Says", found here.

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Courts in general

Courts - More on "Study Finds Blacks Blocked From Southern Juries"

Updating this ILB entry from June 3, 2010, NPR's All Things Considered also had a brief story about the study yesterday. The WSJ Law Blog adds value this afternoon with an entry linking to a story in the Sioux City Journal, writing:

But another issue, less commonly reported, is that it can be hard for courts to get a representative percentage of minorities merely to show up for jury duty. This article in the Sioux City Journal discusses the challenges that some Iowa courts have in assembling diverse juries.

In Dakota County, Iowa, the population is 30 percent Latino, but Latinos make up a smaller percentage of eligible jurors, the newspaper reports.

Eligible jurors are drawn from drivers-license and voter lists. But, as a court administrator told the Sioux City Journal, “there are people who choose not to vote. There are people who do not have driver’s licenses.”

Iowa courts could expand their search for eligible jurors by tapping into lists compiled by utility companies, for example, but that requires a considerable investment of time and resources.

Doug Roehrich, a local attorney who has taken part in more than 100 jury trials in Sioux City and South Dakota, told the Sioux City Journal that he advises clients who are minorities not to expect to see many people who look like them in the jury pool.

“When we have the jury pool come in, there may be a few minorities, but that’s pretty rare,” he said. “For some reason we just don’t seem to get a lot of minorities on the jury panel. That’s not to say that the jury is going to be unfair.”

What about Indiana? The Indiana Jury Pool project has won awards - this release from Nov. 1, 2006 reports: "The new jury pool list combined data from the Indiana Bureau of Motor Vehicles (BMV) and Department of Revenue (DOR), capturing anyone with a license or state ID card or who works or pays taxes."

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Courts in general

Ind. Decisions - 7th Circuit issues one Indiana opinion today, involving a doctor much in the news in NW Indiana, and the relationship between the federal and state actions

In Medical Assurance Co v. Amy Hellman (ND Ind., Sharp), a 22-page opinion, Judge Wood writes:

Dr. Mark Weinberger maintained a prosperous ear, nose, and throat practice (commonly called “ENT” by people whose first loyalty is not to J.R.R. Tolkien) in Merrillville, Indiana. Unfortunately, that was not enough for him; he supplemented his income by using his practice to defraud numerous insurance companies of millions of dollars. In September 2004, while vacationing with his wife in Greece, Weinberger “went for a run” and did not come back. At the time, it seemed that Weinberger had no intention of returning to the United States, in all likelihood because he was facing $5.7 million in creditor claims and 22 criminal counts of billing fraud upon his return. The U.S. government took various steps, including having an international arrest warrant issued, to locate Weinberger. The parties have informed us that Weinberger was arrested in Italy in December 2009, he has been extradited to the United States, and he is now facing health care fraud charges in the Northern District of Indiana. These facts, however, are of only peripheral concern to us for the present case.

Criminal charges are not the only allegations pending against Weinberger. He is also facing more than 350 medical malpractice claims, most of which were filed after his disappearance. These claims have been proceeding through Indiana’s medical malpractice process. Weinberger’s medical malpractice insurance carrier, the Medical Assurance Company, Inc. (“Medical Assurance”), has been conducting his defense, but Weinberger’s disappearance prompted it to file this suit. The insurance contracts between Medical Assurance and Weinberger include a typical cooperation clause, which requires Weinberger to participate in his defense. Needless to say, Weinberger was not cooperating during his extensive European “vacation.” Frustrated, Medical Assurance brought a declaratory judgment action in federal court in Indiana asking the court to declare that Weinberger breached his responsibilities under the contract and therefore Medical Assurance no longer has a duty to defend or indemnify him.

The district court was concerned that such a declaration would intrude too severely on the state medical malpractice actions. It thought that Medical Assurance could not show that Weinberger’s lack of cooperation was prejudicing the company without improperly interfering with the state cases. It therefore decided to refrain from going forward pending the resolution of the state court proceedings, and it issued a stay of the federal proceedings. In this appeal, Medical Assurance argues that the court erred in doing so and that it should have proceeded to resolve the merits of the declaratory judgment action. We conclude that Medical Assurance is correct. Although district courts enjoy some discretion over requests for declaratory judgments, that discretion is not unlimited. We therefore remand this case to the district court with instructions to lift the stay and to proceed to the merits. In so doing, the court will be able to take into account Weinberger’s return to Indiana and any other pertinent developments. defend or indemnify him.

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

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Philip Cleer v. State of Indiana , a 5-page opinion, Judge Barnes writes:

Cleer raises one issue, which we restate as whether the operation of a sobriety checkpoint violates the separation of powers provision of the Indiana Constitution. * * *

Cleer argues that sobriety checkpoints violate the Indiana Constitution’s separation of powers provision because conducting checkpoints is not specifically authorized by the General Assembly. * * *

Cleer argues that the General Assembly has authorized the detention of an individual only when “a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation . . . .” Ind. Code § 34-28-5-3. Because it is undisputed that Cleer did not commit any infraction or ordinance violation at the time he was directed into the checkpoint, he contends Sergeant Payne was without a legislative basis to detain him.

At issue here, however, is not the commission of an infraction or ordinance violation.2 Operating while intoxicated is either a misdemeanor or felony. See Ind. Code Chapter 9-30-5. To the extent Indiana Code Section 34-28-5-3 is considered the legislative authorization to detain a person suspected of committing an infraction or ordinance violation, there is no indication that the General Assembly has denied law enforcement the ability to detain a person suspected of committing a misdemeanor or a felony. Further, Cleer cites no authority for the proposition that the General Assembly is required to specifically authorize detention in all criminal investigations.

There is no dispute that the crime of operating while intoxicated was legislatively defined, and law enforcement has not usurped the General Assembly’s authority to define crimes and penalties by conducting sobriety checkpoints. Without more, Cleer has not established that the checkpoint violated the separation of powers provision of the Indiana Constitution.

NFP civil opinions today (3):

Guardianship of Carrie Etta McGoffney, Incapacitated Adult (NFP) - "Under the facts and circumstances of the present case, we are unable to conclude that the trial court abused its discretion in appointing Ivy, as opposed to Kelly, as Carrie’s guardian."

Kassahun T. Metaferia v. John Ancelet (NFP) - "Metaferia’s claimed errors do not rise to the level of fundamental error in a civil context. Accordingly, we conclude that he is not entitled to a new trial."

Richard A. Brown v. Mary Brown Whitledge (NFP) - "The dissolution court’s conclusion that substantial changes have occurred in several factors as a result of Father’s behavior and the harm to D.C. as a result of Father’s behavior is not clearly erroneous."

NFP criminal opinions today (5):

Leo D. Youngblood v. State of Indiana (NFP)

Randolph Bishop v. State of Indiana (NFP)

Cherrice Avant v. State of Indiana (NFP)

Bradley Baker v. State of Indiana (NFP)

Marcel Roundtree v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 18, 2010

Here is the Clerk's transfer list for the week ending June 18, 2010. It is three pages (and 35 cases) 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, June 21, 2010
Posted to Indiana Transfer Lists

Courts - More on today's SCOTUS rulings

Updating the entry from this morning, SCOTUSblog, that blog has posted this summary of the decision today in Monsanto Co. v. Geertson Seed Farms. A quote:

At issue in the case was what injunctive relief a district court may order to remedy a procedural violation of a federal environmental statute – here, the National Environmental Policy Act (NEPA).
[More] "High court lifts ban on biotech alfalfa" is the heading to an AP story that begins:
The Supreme Court on Monday lifted a nationwide ban on the planting of genetically engineered alfalfa seeds, despite claims they might harm the environment.

In a 7-1 vote Monday, the court reversed a federal appeals court ruling that had prohibited Monsanto Co. from selling alfalfa seeds because are resistant to the popular weed killer Roundup.

The U.S. Agriculture Department must now decide whether to allow the genetically-modified seeds to be planted. It had earlier approved the seeds, but courts in California and Oregon said USDA did not look hard enough at whether the seeds would eventually share their genes with other crops.

"This Supreme Court ruling is important for every American farmer, not just alfalfa growers," said David F. Snively, Monsanto's senior vice president and general counsel. "All growers can rely on the expertise of USDA, and trust that future challenges to biotech approvals must now be based on scientific facts, not speculation."

A federal judge in San Francisco had barred the planting of genetically engineered alfalfa nationwide until the government could adequately study the crop's potential impact on organic and conventional varieties.

And here are a number of Twitter reactions to the ruling today.

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Courts in general

Ind. Gov't. - "Online voter registration arrives July 1 "

Bob Kasarda reports today in the NWI Times:

As the Indiana Supreme Court wrestles with accusations that the state's voter ID law is an obstacle to casting a ballot, state officials are preparing to offer an additional and, for some, easier way to register to vote. [ILB - note distinction between registering to vote, and casting a ballot, in person]

Any Hoosier with a valid driver's license or state identification card will be able to register or update an existing registration online at www.indianavoters.com starting July 1, according to Jim Gavin, communications director for Indiana Secretary of State Todd Rokita.

The service is the latest addition to a website that allows voters to confirm their registration, locate polling places, inquire about the status of a provisional ballot, learn which candidates are on their ballot and obtain contact information for local election officials.

The online registration is being made possible because the new system is able to obtain an electronic copy of the applicant's signature from the identification records at the Indiana Bureau of Motor Vehicles, Gavin said.

The online applications will be routed to election officials in the appropriate county via the Statewide Voter Registration System, he said. It then will be up to those local election officials to confirm or reject the applications or seek more information within a seven-day pending period, he said.

County officials also will have the ability to transfer online registration applications to another county when necessary.

Online registration was approved by state lawmakers last year with bipartisan support. The move is part of an ongoing effort to reduce errors associated with paper-based registration applications.

The new registration effort comes as the Indiana Supreme Court ponders a constitutional challenge to a requirement that voters show a photo driver's license or state ID card before receiving a ballot at the polls.

It was argued in March that the time, cost and effort of obtaining the photo identification pose an unfair burden to some.

The state countered that the requirement is no different than other voting regulations, such as registration, specific voting hours and requiring voters to sign the poll book.

The state's high court is reviewing a September 2009 ruling by the Indiana Court of Appeals that found the voter ID requirement runs afoul of Indiana's Constitution by treating in-person voters differently than absentee voters. Mail-in voters do not have the same identification requirement as in-person voters.

ILB - The oral argument in League of Women Voters, et al. v. Todd Rokita was held March 4, 2010.

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Indiana Government

Environment - "Property owners are wary of being hit with the 'brownfield' label"

A lengthy story on brownfields today in the NWI Times, reported by Sarah Tompkins. A quote:

Northwest Indiana has scores of properties not being used to their maximum capacity, locals officials say, but it is not always easy for communities to get grants to fund remediation.

It can be just as difficult for residents to get a comprehensive list of environmentally scarred properties, and owners are wary of being hit with the "brownfield" label.

A brownfield is an inactive piece of real estate that may pose -- or is perceived to pose -- health and environmental threats, according to the EPA, which can make potential owners hesitant to redevelop the land.

"People can get quite upset having their property listed as a brownfield," said Kay Nelson, environmental director for the Northwest Indiana Forum, a business group. "They don't understand how broad that definition is, so they think that if their property is called a brownfield, it puts an extremely negative adjective on their property."

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Environment

Courts - SCOTUS issues more opinions this morning

Via SCOTUSblog, three opinions so far, none of the bigees (although I'm sure they are bigees for some ...). The fourth and final opinion was just issued, also not one many people have been watching for.

There are 11 cases left to be decided. There will be opinions Thursday and next Monday (which is also the first day of the Kagan hearings).

Posted by Marcia Oddi on Monday, June 21, 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 over the weekend from the ILB?

From Sunday, June 20, 2010:

From Saturday, June 19, 2010:

Posted by Marcia Oddi on Monday, June 21, 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 6/21/10):

Thursday, June 24

Next week's oral arguments before the Supreme Court (week of 6/28/10):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 6/21/10):

Tuesday, June 22nd

Next week's oral arguments before the Court of Appeals (week of 6/28/10):

Next Tuesday, June 29th

Next Wednesday, June 30th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, June 21, 2010
Posted to Upcoming Oral Arguments

Sunday, June 20, 2010

Ind. Law - Confusing golf cart story last Friday on Indy 6 [Updated]

"Golf Cart Law Limits Man's Mobility: Golf Cart Drivers Now Required To Have Licenses" is the headline of this story from June 18, 2010 on Indy 6 News., reported by Rafael Sanchez:

FAIRMOUNT, Ind. -- A Fairmount family wants an exception to a state law requiring driver's licenses for those who drive golf carts on the roads.

The issue has been controversial in the town of Fairmount, where 94 people have been issued permits to operate a golf car on the roads, 6News' Rafael Sanchez reported.

But the town council passed an ordinance last fall to mirror state law, requiring drivers to be licensed for the first time.

Dick Nolder, 67, who has a disability but lives independently, said he uses his golf cart, which he got in part through a state grant, to get around town.

"It means a lot to me. I've been independent for a long time, and I just would like to continue to be that way," he said.

Nolder's brothers and sisters said they think it's unfair that people with scooters and mopeds don't need to be licensed, while a golf cart constitutes as a vehicle.

"He's had his life turned upside down by having it (his golf cart) taken away from him," said Dick Nolder's brother, Tom Nolder.

Fairmount Town Marshal Roger Reneau said there are no exceptions made in the state's statue that would allow Nolder to keep his golf cart without getting a license.

"I agree it is confusing. We explain that to people basically on a daily basis," he said.

Starting on July 1, a new state law will close a loophole that did not allow counties to require drivers of golf carts be licensed.

"Our interpretation is that if you're driving on the road, you need a driver's license to drive a golf cart," said Bureau of Motor Vehicles spokesman Greg Lubsen.

What is wrong with this report?

Golf carts could not be legally driven on Indiana roads and streets (whether or not the driver had a license) until the General Assembly passed a law in 2009 authorizing cities and towns to pass ordinances allowing the use of golf carts within the city or town limits, under specific conditions.

The ILB has entries on this issue going back a number of years. See, for instance, this ILB entry from June 9, 2006. The City of Lebanon had passed an ordinance allowing the use of golf carts on city streets. The Indiana State Police began issuing tickets: "state police told the city the carts aren't considered motorized vehicles that can be licensed and therefore aren't street legal."

Confusion ensured, with many localities passing ordinances permitting the use of golf carts, while ISP and BMV raised objections. A series of ILB entries before the 2008 session provides a taste:

April 18, 2008: "Ind. Law - State police say golf carts are illegal on city streets, period."

August 20, 2008: "Pressure for allowing golf carts on public streets continues"

August 26, 2008: "State Police issue golf carts press release" and August 27, 2008

August 29, 2008: "The golf cart issue seems to be snowballing"

Sept. 2, 2008: "Golf carts, state police policy collide"" -- the definitive article.

After another year passed, the 2009 session passed HEA 1483
, giving "cities and towns permission to allow golf carts on their streets and highways, effective July 1."

During the special session that followed, the law was "clarified" to make it clear that counties did not have the same authority as cities and towns. As a result, the law since July 1, 2009 has been that municipalities could pass ordinances permitting the use of golf carts on their streets, but not outside their municipal limits. From a May 30, 2009 ILB entry quoting a Fort Wayne Journal Gazette editorial:

Golf carts. More and more people are using them for basic short-distance transportation. But last year, the Indiana State Police made it clear they would enforce laws regulating them. Those laws, practically speaking, essentially banned golf carts from streets. The laws required golf carts to have license plates if they are used on public streets and roads. And to be eligible for a license plate, a cart had to have basic safety equipment, including seat belts, windshield wipers, lights and turn signals.

A statewide policy is problematic. If they’re used on relatively quiet streets and roads, golf carts can be practical, inexpensive, non-polluting and convenient transportation. On busier streets and highways, though, they are a safety hazard.

So lawmakers arrived at the reasonable solution of giving individual cities and towns the power to legalize golf carts on local streets beginning July 1.

At their discretion, city and town councils can decide whether the carts should be legal and, if so, whether they must display a slow-moving vehicle sign or have a flashing yellow or red light. Operators must have driver’s licenses.

The matter had become an issue in towns like Hamilton, north of Fort Wayne. Officials there had previously legalized golf carts, unaware that current state law prohibited them. The mayor of Mitchell, south of Bedford in Lawrence County, encouraged citizens to drive golf carts – until a resident was ticketed by the county sheriff’s department.

By August of 2009, however, it became clear that limiting the law to cities and towns was resulting in problems. Read:

Aug. 5, 2009
: "New golf cart law, as amended, may work a hardship on those outside Culver town limits"

Aug. 9, 2009
: "New golf cart laws may need corrective amendments"

Dec. 13, 2009
: "Legislation proposed to remedy Indiana's 2009 golf cart legislation"

March 18, 2010: "Golf Cart Bill Doesn't Get a Vote in the Legislature"

The 2010 bills to expand the authority to authorize use of golf carts to counties, as well as cities and towns, failed to pass, leaving the law as it passed in 2009:

IC 9-21-1-3.3: Ordinances regarding use of golf carts on highway

Sec. 3.3. (a) A city or a town may adopt by ordinance traffic regulations concerning the use of golf carts on a highway under the jurisdiction of the city or the town. An ordinance adopted under this subsection may not:

(1) conflict with or duplicate another state law; or
(2) conflict with a driver's licensing requirement of another provision of the Indiana Code.
(b) A fine assessed for a violation of a traffic ordinance adopted by a city or a town under this section shall be deposited into the general fund of the city or town.
(c) A person who violates subsection (a) commits a Class C infraction.

As added by P.L.150-2009, SEC.12. Amended by P.L.182-2009(ss), SEC.292.

This law was not changed in 2010 to extend its application to counties.

In sum, what is wrong with the Ch. 6 story is: First, before the 2009 General Assembly changed the law, driving a golf cart in Fairmount could get you a ticket. With the 2009 change, the town could (and did) pass an ordinance allowing use of golf carts on the town streets, if the carts met certain conditions, and if the driver met the legal requirements for driving a vehicle on the town streets (i.e. a driver's license). Second, it is still illegal for anyone, whether or not they have a driver's license, to drive a golf cart outside the town limits, because the proposal to allow counties to authorize golf carts on their roads did not pass.*
_______
*If, as the Ch. 6 report states, a new state law will take effect July 1 extending the authority to counties, the ILB has been unable to find it. Let me know ...

[Updated on June 21st at 8:03 AM] I sent a "heads up" to Rafael Sanchez late last evening, linking to this entry and asking "If you do have a cite to a law expanding the authorization to counties, I'd love to have it." I just received this response:

Good morning. I’ll back to you later today with the BMV cite of the law.

Thanks
Rafael

[Updated on June 23rd at 10:15 AM] I contacted Rafael again last evening -- I have yet to receive any cite to a law that expands the authorization to counties.

Posted by Marcia Oddi on Sunday, June 20, 2010
Posted to Indiana Law

Environment - "Smart Moves on Drilling in New York"

A June 16, 2010 column in the NYT, by Peter Applebome, begins:

It may be hard to believe, but New York’s dysfunctional state government has done one big thing right over the past three years.

While neighboring Pennsylvania and other states have rushed pell-mell into the Northeast’s version of an energy boom — making some people richer and some environments poorer — and while concern has steadily risen about the evolving industrial practices used to extract gas from shale, New York and Gov. David A. Paterson have held back. Instead of jumping in, the state has written fairly tough regulations that are still being tweaked and has added extra protections for the most sensitive areas, particularly the upstate watershed that provides drinking water to nine million people in New York City and its suburbs and exurbs to the north.

For background on the new approach to gas extraction, start with this ILB entry from Dec. 9, 2009.

For more on the Gasland, the documentary that won awards at the Sundance Film Festival, check here. If you scroll down the page, you can see the clip of theclip of the man lighting his tap water that has been on TV lately.

Posted by Marcia Oddi on Sunday, June 20, 2010
Posted to Environment

Environment - New air standards in the works: potential Indiana impact

Dan Stockman of the Fort Wayne Journal Gazette writes about upcoming changes in a lengthy story that begins:

Indiana’s governor had come to what many believe is the state’s capital of pollution to trumpet historic reductions in the poisons dumped into the air.

“Today is an historical first and a major milestone,” Gov. Mitch Daniels told the Gary Chamber of Commerce on April 30 as he announced that, for the first time in the state’s history, all 92 counties had met federal standards for ground-level ozone, a powerful respiratory agent and the main ingredient in smog.

It was indeed a major milestone – if it were 1997.

“There’s two ways to look at it,” said Frank O’Donnell, president of Clean Air Watch, a Washington-based environmental watchdog. “It’s a sign of progress, and that’s a good thing. It shows we can make progress toward clean air without disrupting the economy.”

But the standard Indiana met is woefully out-of-date.

“The less good news is those standards are no longer viewed as adequate for protecting people’s health,” O’Donnell said. “Even the EPA under President Bush recognized that.”

The standards Bush’s Environmental Protection Agency set in March 2008 would have replaced the looser 1997 rules. But those standards were never implemented because states, public health and environmental groups sued the government when it was revealed the proposed standards were weaker than what the EPA’s own scientists had said was needed. In essence, the EPA was accused of violating federal law by not enforcing the Clean Air Act.

But even under the never-implemented 2008 standard, at least a dozen Indiana counties would be in violation, the EPA estimates. And now, under President Obama, the EPA is proposing even tougher standards, which could put 27 Hoosier counties in violation, including Allen and Huntington.

The American Lung Association’s annual State of the Air report has given Allen County a grade of F two years in a row because of ozone levels.

Daniels admits the state is trying to hit a moving target.

“This is a limbo contest; each time we get under the bar, we know that soon we’ll be aiming for one that’s even lower,” Daniels said.

For now, no one knows how much lower. The EPA expects to announce its proposal by Aug. 31; the agency has already said the ozone standard will be between 60 parts per billion and 70 parts per billion. The current standard – the one set in 1997 – is 85 parts per billion.

“The bottom line is the standard needs to be more protective,” O’Donnell said.

The story continues with sections on economic sanctions and safety.

Posted by Marcia Oddi on Sunday, June 20, 2010
Posted to Environment

Ind. Courts - "Tippecanoe County may open 2nd public defender office"

Sophia Voravang reports today in the Lafayette Journal Courier:

Tippecanoe County may need to create a separate office of part-time special public defenders to help with criminal cases that involve more than one defendant.

That's because the public defender's office is no longer taking on co-defendant cases, in response to an Indiana Supreme Court disciplinary ruling last year for an Indianapolis attorney who was a part-time public defender in Putnam County.

The attorney was cleared of misconduct, but language in the high court's decision suggested that a public defender's office is equivalent to a law firm, according to Larry Landis, executive director of the Indiana Public Defender Council.

Attorneys from the same law firm cannot represent clients who are co-defendants.

"It's considered a conflict of interest," Landis said. * * *

[Amy Hutchison, Tippecanoe County's chief public defender,] is proposing a separate office of three, part-time special public defenders to handle conflict cases.

She presented the idea -- and two other plans -- on June 8 to the Tippecanoe County Council. No action was taken at the meeting, but it will be discussed further this summer.

Council president Andy Gutwein agreed with Hutchison that a separate office would be the best option.

If approved, it would likely consist of private attorneys who already are part-time public defenders, but they would not be under Hutchison's supervision. The cost would be $75 an hour, which is the current amount private attorneys are paid when appointed as special public defenders, Hutchison said.

She said creating a separate office also would mean decreased caseload for her office.

What was the disciplinary ruling? It was In re Rucker, issued March 11, 2009. See the ILB summary here.

Posted by Marcia Oddi on Sunday, June 20, 2010
Posted to Indiana Courts

Saturday, June 19, 2010

Law - Four Indiana congressmen sign on to liquor distributors' nationwide anti-wine-shipping bill

Congress is considering legislation, proposed by wholesale distributors, that could limit wineries' ability to sell and ship directly to consumers, according to a May 14, 2010 Washington Post story quoted in this ILB entry. There is more detail in this May 5th entry.

All of that is brought home to Indiana by this week's "Uncorked" column by Dan and Krista Stockman in the Fort Wayne Journal Gazette. The Stockmans write about "the influence that the nation’s liquor distributors wield when it comes to protecting their legal monopoly" and note that, until now, "those efforts by distributors have been piecemeal, state by state.," but no longer:

On April 15, U.S. Rep. Bill Delahunt, R-Mass., a Republican from Massachusetts, introduced a bill written by a liquor distributors’ trade group. The bill attempts to make it basically impossible to challenge state laws regulating alcohol shipping, even if they are blatantly discriminatory against other states.

See, many states, including Indiana, used to have laws that allowed in-state wineries to ship wine directly to customers but prohibited out-of-state wineries from doing so. The U.S. Supreme Court in 2005 said the Constitution’s Commerce Clause prohibits states from discriminating against each other that way. Either allow all wineries to ship or no wineries to ship, the court said.

This new bill would not only make that kind of discrimination OK but also spells out that there is almost no way to challenge that discrimination.

Certainly no upstanding members of Congress would fall for such a charade, would they? Well, 118 members of the House have so far, signing on as co-sponsors.

From Indiana, Rep. Andre Carson, Rep. Joe Donnelly, Rep. Brad Ellsworth (who is running for the U.S. Senate) and Rep. Peter Visclosky have all signed on. * * *

It is small, family wineries and people who love their wines that would suffer, while the only ones to gain would be big distributors that would see what is already a legal monopoly and make it an unassailable, unchallengeable monopoly.

And do you think that monopoly will not run roughshod over small wineries and their customers? Remember, this is the same group that already was willing to put every winery in Indiana out of business – and your General Assembly, which calls itself pro-business, pro-small business, pro-family business, pro-farm, pro-tourism and pro-agri-tourism, was ready to do it for them.

It was only because of your calls and letters that their first effort was – barely – stopped, and even then it resulted in a compromise that is still hobbling Indiana’s wineries to this day, to the point that one winery went out of business because of it.

So while you sit there and read this, you may be getting mad, you may be getting outraged, you may be telling your significant other to read it and post it on Facebook or Tweet it, but are you angry enough to pick up the phone and call Ellsworth or Visclosky or Donnelly or Carson? Angry enough to write a letter?

The ILB has many earlier entries on wine shipping - see the list here.

Posted by Marcia Oddi on Saturday, June 19, 2010
Posted to General Law Related

Ind. Gov't. - "Ind. levee creates flood insurance dilemma"

Howard Greninger reported June 14th in the Terre Haute Tribune Star:

A levee that protects residents of West Terre Haute is facing de-accreditation from the Federal Emergency Management Agency, meaning that a majority of homeowners in the town will be required to buy flood insurance if accreditation is not re-established.

While the levee, constructed in the early 1970s, may be in good operating condition, it lacks required federal documentation that allows the town to be listed as a moderate flood insurance risk. It is the only FEMA-certified levee in Vigo County.

Without its accreditation, an estimated 787 parcels in the town will be classified as a high insurance risk area and flood insurance will be required of any homeowner with a mortgage, said Roger Denick, an engineer for Strategic Alliance for Risk Reduction (STARR), a consulting group for FEMA.

The average cost of $100,000 of flood insurance is about $500 a year under the National Flood Insurance Program; however, some policies under preferred risk insurance cost between $205 to $263 a year depending on location, according to Allstate’s insurance Web site.

Denick and Mike Hanke, an engineer for FEMA, provided information Monday to members of the West Terre Haute Town Council during a public meeting about FEMA’s de-accreditation process.

The West Terre Haute Levee Association and the Town of West Terre Haute will receive a FEMA de-accreditation letter within a month. The next step will involve changing FEMA’s flood insurance rate map, which will take a minimum of 18 months, followed by a public meeting and a 90-day period for residents to file objections challenging the new map.

For the area to regain its accreditation, a professional engineer must provide data and documentation and sign off that the levee system will provide protection before a new FEMA map is designated.

The engineer, among several requirements, must sign off that the levee is 3 feet above a base flood elevation; an analysis is done that demonstrates there is no appreciable erosion of levee embankments; and that the embankment is stable and that seepage will not jeopardize its foundation.

However, such engineering services could cost $250,000 to $425,000, said Arbie Montgomery, a founding member of the West Terre Haute Levee Association. * * *

How did de-accreditation happen?

FEMA is changing its flood insurance rate maps from paper maps to digital maps, Denick said. Under a 1986 regulation, any changes in these maps require that certified levees meet federal accreditation standards. The flood insurance map for West Terre Haute was last changed in 1983, said Jeremy Weir, executive director of the Vigo County Area Planning Department.

A letter from FEMA was sent to the levee association and copied to the Town Council on Feb. 13, 2007, stating that officials had two years to provide accreditation documentation. A 12-month report was due Nov. 12, 2008. No such report was filed with FEMA.

The final accreditation documentation was due Nov. 12, 2009, but was not filed with FEMA, Denick said, starting the de-accreditation process.

“We have no way of determining if this levee meets the federal standards or not, so we have to initiate the de-accreditation,” Denick said. “FEMA wants to ensure the levee was designed properly and does meet requirements.”

Montgomery said there had been a proposal by the levee association to increase taxes for the engineering documentation, but that was never approved.

McClain said no matter how it happened, the Town Council must now find a solution, “even if that means the town must take over the levee association,” he said. “We are all in this together. We are going to try to figure this out.

“The levee association doesn’t answer to the [town] board, but the board now is going to get very involved to make sure this paperwork gets filed and to make sure we get certified. We are going to check what our options are and we are going to try to find out what funds are available out there, as $425,000 is a lot of money that West Terre Haute doesn’t have,” McClain said.

Posted by Marcia Oddi on Saturday, June 19, 2010
Posted to Indiana Government

Environment - "Net Benefits of Biomass Power Under Scrutiny"

Updating this list of earlier ILB entries on biomass power, the NY Times has a long story by Tom Zeller Jr. -- here is a quote:

[P]ower generated by burning wood, plants and other organic material, which makes up 50 percent of all renewable energy produced in the United States, according to federal statistics, is facing increased scrutiny and opposition.

That, critics say, is because it is not as climate-friendly as once thought, and the pollution it causes in the short run may outweigh its long-term benefits.

The opposition to biomass power threatens its viability as a renewable energy source when the country is looking to diversify its energy portfolio, urged on by President Obama in an address to the nation Tuesday. It also underscores the difficult and complex choices state and local governments face in pursuing clean-energy goals.

Biomass proponents say it is a simple and proved renewable technology based on natural cycles. They acknowledge that burning wood and other organic matter releases carbon dioxide into the atmosphere just as coal does, but point out that trees and plants also absorb the gas. If done carefully, and without overharvesting, they say, the damage to the climate can be offset.

But opponents say achieving that sort of balance is almost impossible, and carbon-absorbing forests will ultimately be destroyed to feed a voracious biomass industry fueled inappropriately by clean-energy subsidies. They also argue that, like any incinerating operation, biomass plants generate all sorts of other pollution, including particulate matter. State and federal regulators are now puzzling over these arguments.

Posted by Marcia Oddi on Saturday, June 19, 2010
Posted to Environment

Environment - More on: After 5 years of study, proposal to regulate outdoor wood-fired boilers moves to a preliminary hearing before the APCB

Updating this ILB entry from June 2, 2010 (and a long list of earlier ILB entries), Rick Callaahan of the AP has a story today on the proposed rules. Some quotes:

A five-year effort to restrict use of outdoor wood-burning furnaces is nearing a vote before a state panel, raising concerns from some rural residents who rely on the devices to heat their homes and water.

An estimated 8,000 Indiana residents use the furnaces, called wood boilers or hydronic heaters, to heat their homes during cold weather. Wood burned inside them heats water that's then tapped to both warm homes and provide hot water.

But some neighbors who live downwind of the devices say their exhaust fills their yards with choking, irritating fumes and forces them to keep their windows closed much of the year.

Northern Indiana resident James Donnelly said that since a neighbor installed a wood boiler six years about 270 feet from his rural LaPorte County home, he and his wife, Susan, have endured smoke that's ruined their quality of life.* * *

Scott Deloney, chief of IDEM's Office of Air Quality, said in some cases the air near one of the outdoor boilers can exceed the federal health standard for fine particulate matter. Those tiny particles can worsen respiratory problems, such as asthma, in the elderly, children and people sensitive to smoke and soot.

While wood boilers are mostly in rural areas, they can also be found in small towns and cities where they're more likely to generate complaints due to the proximity of homes.

Deloney said IDEM hopes the rules, once approved, can clear the air and provide protections for residents who've complained of breathing problems and burning eyes.

"We've heard from people who say it's absolutely intolerable, and certainly some people are very sensitive to smoke," he said. "Others have complained that smoke has gotten into their draperies and furniture."

The Indiana Air Pollution Control Board could vote on preliminary approval of the rules as soon as July 13, after a public hearing in Indianapolis. The earliest the draft rules could get final approval would be early next year.

If that happens, Indiana would join about a dozen other states with boiler restrictions.

The state's proposed rules include a requirement that all new wood boilers sold, installed or purchased in the state be certified through a U.S. Environmental Protection Agency program that endorses only boilers with low emissions levels.

Another provision would require boilers within 150 feet of another home to have a chimney that's at least five feet higher than the nearest home's roof to disperse the smoke.

But what's most upset wood boiler owners is a proposal to ban their use in June, July and August if an occupied residence is less than 300 feet away. Those homeowners would need to buy a water heater to provide hot water in those three months.

Jodi Perras, executive director of Improving Kids' Environment, said she and others worried about the health impact of wood boiler smoke favored an earlier version of the draft rules that called for a ban from May 1 to Sept. 30 - the state's main smog season.

Deloney said the summer ban was scaled back because boiler owners complained that they sometimes need to heat their homes when cold spells hit in May and September.

Despite the shorter summer ban, Perras said she's glad the state is moving to put restrictions on boilers. She said a provision that would permit homeowners to burn only clean woods - those not treated or varnished - and renewable solid fuels is also badly needed.

"Right now you can burn anything you want to in one of those things, and people do," Perras said. "Responsible owners don't, but there are some who throw treated wood or even their trash into them, trash that could contain household chemicals."

Posted by Marcia Oddi on Saturday, June 19, 2010
Posted to Environment

Ind. Decisions - "Court says Mittal didn't defame worker"

The Supreme Court's June 17th decision in Christine Dugan v. Mittal Steel, USA, Inc., et al. (ILB summary here) is the subject of a brief story today in the Gary Post-Tribune by Christin Nance Lazerus. A quote:

According to the ruling, Christine Dugan was working for Mittal Steel in 2004 when a supervisor, Jay Komorowski, made statements about the Dugan to other employees.

Komorowski told company investigators he suspected Dugan of stealing time by working in a "core exchange" scheme with her boss, as well as an air compressor from Mittal. Dugan argued that the statements are false.

Dugan was eventually discharged by Mittal, and she then filed a grievance.

In the ensuing arbitration, Mittal Steel was ordered to reinstate her with back pay. After her reinstatement, Dugan filed a defamation suit.

The court determined that only one of the statements qualified as defamation per se, and it was protected by qualified privilege since Kom-orowski was helping with an internal investigation that resulted in criminal charges.

The court found his statements were based on years of gathering information from others with knowledge and that his resulting concerns and opinions were expressed to the security chief in good faith.

Posted by Marcia Oddi on Saturday, June 19, 2010
Posted to Ind. Sup.Ct. Decisions

Friday, June 18, 2010

Ind. Decisions - Supreme Court issues order denying mandamus petition

The 6/18/10 order is State ex rel William and Dalia Wendt v. Indiana Tax Court. The order denies relators' petition for writ of mandamus and prohibition.

What is this about? See this 5/19/10 ILB entry quoting an unfortunately no longer available May 19, 2010 story by Stan Maddux in the South Bend Tribune. (However, note that the Mr. Wendt in the SBT story is "George," not "William.")

[More] See also this 5/25/10 story by Alicia Ebaugh in the LaPorte Argus-Herald that states:

Long Beach residents Bill and Dalia Wendt have petitioned the Supreme Court, challenging the Tax Court’s jurisdiction to hear McDaniel’s case. The Tax Court cannot issue a settlement if it has no jurisdiction to hear a case.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Answer to "Which Justice was it?"

Updating this ILB entry from earlier today, and this one from yesterday which asked whether you could identify the justice whose cell phone rang during an oral argument yesterday by the ring tone -- the theme from "The Sting." Here are the final poll results (although the poll may keep operating until the end of the day):

Which Justice was it?

Shepard, CJ -- 35% (13 Votes)
Boehm, J -- 14% (5 Votes)
Dickson, J -- 32% (12 Votes)
Rucker, J -- 11% (4 Votes)
Sullivan, J -- 8% (3 Votes)

37 Total Votes

The answer? The ILB has it on good authority that the ring tone belonged to --- the justice with the second longest tenure.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 23 NFP)

For publication opinions today (2):

In Randyl A. McCauley, et al. v. James S. Harris and Diance C. Harris , a 12-page opinion, Judge Crone writes:

The trial court granted the Harrises’ request for a permanent injunction against the McCauleys enjoining them from interfering with the Harrises’ use and enjoyment of a thirty-foot-wide ingress and egress easement which runs over the McCauleys’ property. The trial court also ordered the McCauleys to remove that portion of a pole barn which encroaches on the Harrises’ easement and awarded damages to the Harrises for expenses incurred as a result of the McCauleys’ interference with the Harrises’ use of the easement. We affirm.

The sole restated issue presented for our review is whether the trial court applied the correct legal standard when it concluded that the Harrises, as grantees of a specific and defined easement for ingress and egress, have the right to clear and pave the entirety of their thirty-foot-wide easement which also necessitates removal of a portion of the McCauleys’ pole barn. * * *

The evidence supports the trial court’s finding that the McCauleys have continually interfered with the Harrises’ enjoyment of their easement by obstructing access as well as interfering with excavation attempts. Moreover, contrary to the McCauleys’ assertion, their construction of a pole barn within the easement was a use of the property for a purpose inconsistent with the enjoyment of the easement by the Harrises, and in view of the fact that the Harrises intend to clear the easement in its entirety, the pole barn represents a material impairment of the easement. The evidence indicates that the McCauleys had actual and record notice of the exact boundaries of the easement and nonetheless erected a permanent structure within the boundaries of the easement. The McCauleys erected that structure at their peril. The trial court did not err when it ordered the McCauleys to remove that portion of the pole barn that lies within the Harrises’ easement. We affirm the judgment of the trial court in all respects.
________________
[6] We recognize that the relationship between the McCauleys and the Harrises is quite contentious. However, we hope that these neighbors can learn to coexist peacefully. Accordingly, while the Harrises are legally within their rights to clear the entire thirty-foot width of their easement, we ask that the Harrises take some pause before doing so. We encourage the Harrises to be mindful of the great inconvenience and expense that removal of a permanent structure will impose upon the McCauleys to the extent that the Harrises may be willing to pave a lesser portion of the easement in certain locations so as to obviate the need for removal of the pole barn. In simple terms, just because one can legally do something does not necessarily mean one should. [ILB emphasis]

In KB Home Indiana Inc. v. Rockville TBD Corporation, a 23-page opinion, Chief Judge Baker writes:
Today we consider the delayed ramifications of a party’s discharge of pollutants onto real property that was once farmland but subsequently became a residential subdivision. While the owner of the subdivision claims that it is entitled to recover damages for negligence, nuisance, and trespass, the defendant-company insists that the subdivision’s actions against it are precluded under various theories, including the economic loss doctrine. The trial court sided with the defendant-company. We believe that the owner may proceed on the theory of negligence.

Appellant-plaintiff KB Home Indiana, Inc. (KB), appeals the trial court’s grant of summary judgment in favor of appellee-defendant Rockville TBD Corp. (Rockville), on its claims for negligence, trespass, and nuisance as a result of chemical leakage from Rockville’s predecessor’s manufacturing site. Specifically, KB argues that the trial court erred in granting summary judgment with regard to these claims because a) the economic loss doctrine is not applicable in these circumstances; b) the designated evidence failed to establish that the damages to KB were not foreseeable as a matter of law with regard to the nuisance claim; and c) it was mistakenly assumed that a trespass occurred as soon as the chemical pollutants entered the land rather than when damages were ascertainable.

We conclude that the trial court erred in holding that the economic loss doctrine precludes KB from pursuing its negligence claims against Rockville. However, we affirm the trial court’s entry of summary judgment for Rockville with respect to KB’s claims against it for trespass and nuisance. As a result, we reverse in part, affirm in part, and remand this cause for trial on KB’s negligence claim.

NFP civil opinions today (8):

Christina Cisternino v. Grant Communications, Inc. (NFP)

P.G. v. T.G. (NFP)

Anthony Emmett Collett v. Kelly Jean Collett (NFP)

C.E. v. Review Board (NFP)

Bob Gasich, et al. v. East Chicago Indiana Redevelopment Comm. (NFP)

Bernard J. Arvin v. Capital One Bank (NFP)

FK, Inc. v. See USA, LLC (NFP)

Patsy C. Battin v. Curtis R. Battin (NFP)

NFP criminal opinions today (15):

State of Indiana v. John W. Holler (NFP)

Daniel L. Anway v. State of Indiana (NFP)

Douglas W. Kemp v. State of Indiana (NFP)

James Huesman v. State of Indiana (NFP)

Timothy E. Strowmatt v. State of Indiana (NFP)

Jerome McKinney v. State of Indiana (NFP)

Adrian Cole v. State of Indiana (NFP)

Sherrie K. Hansen v. State of Indiana (NFP)

Mark Taylor v. State of Indiana (NFP)

Kerwin M. Ward v. State of Indiana (NFP)

Linda Ruth Parks v. State of Indiana (NFP)

Angel Abarca v. State of Indiana (NFP)

Bray A. Tibbs v. State of Indiana (NFP)

William T. Casbon v. State of Indiana (NFP)

Darren A. Snyder v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Advocates decry cuts to Indiana's home health care program"

Ken Kusmer of the AP has this story in today's Louisville Courier Journal that begins:

INDIANAPOLIS -- Advocates say a decision by Indiana's human services agency to cut a home health care program for aged and disabled people will cost the state about $4 for each $1 the belt-tightening saves.

The Indiana Family and Social Services Administration told Area Agencies on Aging that a 15 percent cut in funding for the program known as CHOICE will take effect with the start of the new state fiscal year on July 1, saving about $7.3 million from the program's $48.8 million annual budget.

But representatives of the Indiana Home Care Task Force, United Senior Action of Indiana, the Indiana Alliance for Retired Americans and the Generations Project said the loss of CHOICE services such as physical therapy, medication setup and transportation will force people into nursing homes at a cost about 11 times higher than in-home services.

"Home health care is the least expensive option, by far," said Jim Wallihan, president of USA-Indiana.

CHOICE stands for the Community and Home Options to Institutional Care for the Elderly and Disabled. The state-funded program served 9,225 people last year. It serves a wide range of people, but a typical recipient is a woman age 85 or older living alone who has circulation, muscle or nerve problems, or a combination of them, according to an FSSA report.

Agency spokesman Marcus Barlow said most state programs have been cut during the current economic turndown, allowing Indiana to avoid running up deficits or raising taxes. He also said not every person on CHOICE qualifies for nursing home care.

More from the story:
Since CHOICE is not an entitlement program, it has a waiting list that has grown to about 3,200 names in recent years, the advocates said.

The 2009 CHOICE annual report showed the average monthly cost for services was $424, compared to $4,576 per month for nursing homes. Since the state paid 37 percent of Medicaid, its share of that nursing home bill came to $1,693, or about four times what it would cost CHOICE.

For the full year, the average CHOICE recipient cost the state $5,086, compared to $54,911 for Medicaid-funded nursing home care. CHOICE saved the state $18,470 per person last year and the federal government $31,355, according to the report by FSSA's Division of Aging.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Indiana Government

Ind. Courts - More on: Ringtone fails to interrupt Supreme Court oral argument

The ILB will report the final vote tally and correct answer late this afternoon. If you think you know "Which Justice was it?" vote here.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Indiana Courts

Ind. Gov't. - "Republican leaders in the Indiana Senate want the city of Bloomington to think twice about its decision to boycott Arizona businesses because of that state's new Immigration law"

The Chicago Tribune and USA Today have picked up AP reporter Deanna Martin's story today.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Indiana Government

Courts - "Stevens' Recusal Makes Difference in Fla. Property Ruling" [Updated]

Tony Mauro reports in The National Law Journal today that Justice Stevens figured prominently in another SCOTUS decision yesterday (in addition to the NLRB ruling he authored):

In its ruling Thursday in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Supreme Court was badly divided, producing no majority opinion and leaving the breadth of its impact unclear. Four justices said a judicial decision that extinguishes property rights can be viewed as a taking under the Takings Clause, but four other justices said that issue did not need to be resolved in this case. In either case, the Court was unanimous in upholding a Florida Supreme Court decision about oceanfront property lines that a group of affected property owners had challenged.

What about the ninth vote? That was missing, because Justice John Paul Stevens had recused abruptly in the case at the oral argument stage. And though it's hard to say for sure how the case would have turned out if Stevens had stayed in the case, there probably would have been a majority for some proposition -- making it clear yet again that the recusal of a single justice can make a big difference in a case.

"The fact that Justice Stevens recused in this case was very consequential," said Fordham Law School dean William Treanor, a Takings Clause expert. Stevens has "the narrowest view of the Takings Clause" on the Court, Treanor said, so probably would have been a a vote for the position that judicial rulings can't be takings. At the very least, Stevens' absence "shifted the dynamics" of the Court's decision-making, Treanor said.

[Updated at 1:17 PM] Read or listen to this over 5 minute-long story today by NPR's Nina Totenberg headed "High Court Rules Against Beachfront Homeowners."

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Courts in general

Ind. Courts - Marion Judge Ayers name "being floated" for the Supreme Court

The upcoming 6/21/10 issue of Indiana Legislative Insight ($$) publishes an item the ILB also heard earlier this week:

The name of Marion County Superior Court Judge Cynthia J. Ayers is also being floated as a potential Indiana Supreme Court candidate. Judge Ayers was first elected to the bench 10 years ago after experience as deputy prosecutor and an attorney for a state agency. She has served as presiding judge of the Marion Superior Court, and is well-known to the appellate bench by virtue of her service on the Indiana Supreme Court Character & Fitness Committee and the Supreme Court's Judicial Technology and Automation Committee (JTAC). Appointing a female African-American would be a political plus for the Governor.
ILB: Applications are due Wednesday, June 30th, by 4:30 PM. From the instructions:
6. Applicants who plan to deliver their applications on or just before the Wednesday, June 30, 2010 deadline will help the Commission organize the interview process by notifying Commission staff during the preceding week of their intentions. This information is not binding and will be kept confidential.

7. Upon the Commission’s receipt of ten complete applications from a candidate, the candidate’s name will be made public. I.C. § 33-27-3-2(d). After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records. I.C. § 33-27-3-2(d)(1).

8. The Commission will conduct public interviews in Indianapolis on Tuesday, July 6 and Wednesday, July 7, 2010 after which the Commission will select a number of candidates as semi-finalists for second interviews scheduled for Friday, July 30, 2010. Upon the conclusion of the second round of interviews, the Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2. Candidates must be available on the interview dates, including evening hours.

9. The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation. Letters of recommendation may be sent to the Commission’s office, and will be forwarded immediately to each Commission member. (Judges and other judicial officers are not prohibited under the Code of Judicial Conduct from writing on behalf of candidates on the basis of personal knowledge of the candidates’ qualifications.) Letters sent to individual Commission members will be distributed to all other members. Most Commission members prefer to not meet with candidates except during the interviews.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Vacancy on Supreme Ct

Law - "Dawn Johnsen: Let Me Be Clear, I Have No ‘Regrets’ "

From the American Constitution Society blog this morning:

Dawn Johnsen, President Obama's initial nominee to head the Office of Legal Counsel (OLC) provided a ringing call for young lawyers and other advocates of progressive values to stay to true to their principles and not fear speaking out on behalf of them for fear of losing potential political rewards.

Johnsen, an Indiana University law school professor and former OLC lawyer in the Clinton administration, was nominated more than a year ago to lead the OLC, which provides legal analysis on potential actions by the executive branch. Johnsen's nomination was defeated by a sustained threat of a Republican filibuster, largely because of her criticisms of the OLC's work during the Bush administration. Specifically, Johnsen tagged the OLC's advice on torture of military detainees to be legally reckless. She withdrew her nomination earlier this year.

Tonight at the start of the 2010 ACS National Convention, Johnsen announced she was rejoining the ACS Board of Directors and that she had no regrets, whatsoever, about her outspoken criticism of the Bush administration OLC's office and its disastrous advice on the treatment of military detainees.

Stay true to your principles and do not be cowed into silence by political ambitions, she urged the packed Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C.

Video of Johnsen's remarks will be available soon on the ACS Web site. [ILB - check back here]

David Ingram has more details on Johnsen's 13-minute speech in this story from The Blog of Legal Times, including:
A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”

Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.

Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.

“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to General Law Related

ind. Decisions - Supreme Court posts June 17th opinion

In Christine Dugan v. Mittal Steel, USA, Inc., et al. , an 8-page, 5-0 opinion, Justice Dickson writes:

In this action for defamation per se and intentional infliction of emotional distress, the plaintiff appeals from the grant of summary judgment for the defendants. The Court of Appeals reversed in part. Dugan v. Mittal Steel USA, Inc., 911 N.E.2d 692 (Ind. Ct. App. 2009). We granted transfer and now affirm the grant of summary judgment, concluding that the material facts are not in dispute and that a qualified privilege applies to preclude the defamation action.

The plaintiff, Christine Dugan, was working for Mittal Steel in 2004 when the defendant Jay Komorowski, a supervisor at Mittal Steel, made statements about the plaintiff to other Mittal Steel employees. Mittal Steel eventually discharged the plaintiff, and she then filed a grievance. In the ensuing arbitration, Mittal Steel was ordered to reinstate her with back pay. Appellant's App'x at 77. After her reinstatement, the plaintiff instituted this action against Komorowski and Mittal Steel. The defendants sought summary judgment, which the trial court granted, finding (a) that neither statement constituted defamation per se, (b) that both statements were protected by a qualified privilege and there was no evidence of abuse of privilege, and (c) that the claim of intentional infliction of emotional distress was not supported. The plaintiff appealed only as to the defamation claims.

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "High Court Rules On Beaches, Texting, Labor Board"

NPR's Nina Totenberg reported this morning on three of yesterday's opinions by the SCOTUS. Read, or listen to, her story here.

BTW, the NLRB decision, overruling the 7th Circuit, was authored by Justice Stevens: "Writing for the high court majority was Justice John Paul Stevens, the court's most liberal member, joined by the court's four conservatives."

Posted by Marcia Oddi on Friday, June 18, 2010
Posted to Courts in general

Thursday, June 17, 2010

Ind. Courts - Ringtone fails to interrupt Supreme Court oral argument

If you have watched the Court's third oral argument today, In the Matter of I.B., you will notice a cell phone ringtone at 18:00. You can't see the entire bench, but it was one of the justice's phone. Justice Sullivan did not seem at all distracted, though, in continuing his question while a colleague reached in his upper pocket and turned off the phone. Can you guess the justice by the ringtone?


Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit NLRB decision overturned today

In New Process Steel v. NLRB, 08-1457, the SCOTUS today ruled that the 5-member NLRB's decisions made with only 2 members (the other positions were vacant) are invalid, overturning 500 decisions. New Process Steel is in Butler, Indiana. Here is the SCOTUSblog wiki page on the case.

This SCOTUSblog entry discusses the opinion. noting that it "took many observers by surprise" and looks at its impact on hundreds of decisions.

See also this lengthy story by Michael Whitney of FireDogLake.

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 6 NFP)

For publication opinions today (4):

In Russel Howard v. American Family Mutual Insurance Company, a 9-page opinion, Judge Robb writes:

Following an automobile accident in which his vehicle was struck by an underinsured driver, Russel Howard sued both the underinsured driver and Howard’s insurer, American Family Mutual Insurance Company (“American Family”), in Kentucky court, seeking damages from the underinsured driver and underinsured motorist benefits from American Family. Howard’s complaint against the underinsured driver settled for policy limits of $25,000, and Howard’s claim against American Family, refiled in Indiana court, was set for a jury trial. In this interlocutory appeal, Howard raises two issues, of which we find the following dispositive: whether the trial court erred by granting American Family’s motion to substitute the underinsured driver as the sole named defendant at trial. Concluding that Indiana law does not allow the underinsured driver’s substitution as a nominal defendant in these circumstances, we reverse and remand. * * *

Indiana law does not allow the underinsured driver’s substitution for American Family as the sole named defendant in this contract case seeking recovery of underinsured motorist benefits. Therefore, the trial court’s grant of American Family’s motion to substitute is reversed, and this case is remanded for further proceedings consistent with this opinion.

In Medical Realty Associates, LLC, et al. v. D.A. Dodd, Inc., et al., a 10-page opinion, Judge Riley writes:
Appellants-Defendants, Medical Realty Associates, LLC (MRA), and Hasse Construction Company, Inc. (Hasse) (collectively, Appellants), appeal the trial court’s Order denying their motion to compel arbitration and request to stay the mechanic’s lien foreclosure action initiated by Appellee-Plaintiff, D.A. Dodd, Inc. (Dodd), and declaring arbitration unavailable for a claim brought by Korellis Roofing, Inc. (Korellis). We reverse and remand.

Appellants present two issues for our review, which we restate as:
(1) Whether the trial court erred by denying their motion to compel arbitration and request to stay mechanic’s lien foreclosure with respect to Dodd; and
(2) Whether the trial court made a premature ruling on whether Korellis can be required to submit to arbitration. * * *

[1] [W]e conclude that by the clear unambiguous language of the Dodd Subcontracts, Hasse is given the option to require arbitration of any or all of Dodd’s claims, including those against MRA and Pinnacle Hospital.

On April 10, 2008, Hasse notified Dodd that it was electing to have all claims of Dodd arising out of its demand for payment for work performed on the Pinnacle Hospital project arbitrated. Later, Hasse moved to compel arbitration of Dodd’s mechanic’s lien claim, and we conclude that the trial court erred by denying that motion to compel. * * *

[2] Having reviewed the record, we must agree with the Appellants that the trial court ruled prematurely that Korellis cannot be compelled to arbitrate. * * * Indeed, the Appellants have yet to move that Korellis be
compelled to arbitrate, and without a pending motion, we conclude that the trial court’s determination was unnecessary and premature, and, thus, remand for further proceedings.

In William B. Jones v. State of Indiana, a 5-page opinion, the issue was whether the trial court erred in concluding that a gaming agent of the Indiana Gaming Commission constitutes a “law enforcement officer” for purposes of the offense of Resisting Law Enforcement. Judge Bailey concludes:
The plain language of Indiana Code Article 4-33 states unambiguously the General Assembly’s intent that gaming agents exercise full police power, including the power to arrest suspected offenders. It would be absurd to expect gaming agents to do so without the deterrence provided by the Resisting Law Enforcement statute.

The trial court did not err in concluding that a gaming agent of the Indiana Gaming Commission constitutes a law enforcement officer for purposes of the offense of Resisting Law Enforcement.

In W.H. v. State of Indiana , a 15-page opinion, Judge Vaidik writes:
W.H. appeals his juvenile delinquency adjudication for Class A misdemeanor carrying a handgun without a license. W.H. was standing on a street corner during an outdoor summer convention. He lifted his shirt and showed something in his waistband to a person nearby. Uniformed police officers approached W.H. and asked him to come with them. The officers ultimately searched W.H. and discovered a handgun in his pants pocket. At his delinquency fact-finding hearing, W.H. moved to suppress the State's evidence as the product of an unconstitutional search and seizure. The juvenile court denied the motion. We find that W.H.'s detention was supported by reasonable suspicion and did not offend his federal constitutional rights. We also hold that the stop did not violate W.H.'s state constitutional protections, as the level of suspicion and extent of law enforcement needs outweighed the degree of intrusion. We conclude that the State's evidence was properly admitted and affirm the judgment of the juvenile court. * * *

Here Officers Jones and Garner were on duty at a crowded, outdoor summer convention. They received information over the police radio that a subject was showing something from his waistband to another person. The officers were concerned that the subject was carrying a firearm. There were fifty to one hundred people in the area. The officers approached W.H. and told him to come with them. We find that, based on (1) the degree of suspicion and concern that W.H. had a firearm on his person, (2) the brevity and unintrusive character of the stop, and (3) the need for law enforcement to maintain safety at a crowded city convention, the police officers did not act unreasonably. We conclude that W.H.'s detention did not run afoul of his state constitutional rights.

For the reasons stated, we find that W.H.'s stop-and-frisk was not unconstitutional, and the evidence obtained as a result thereof was properly admitted at his delinquency fact-finding hearing. We affirm the judgment of the juvenile court.

NFP civil opinions today (4):

Burl E. and Carolyn S. Grayson v. United Federal Savings / Loan (NFP)

Daniel Mojica v. Hector Rosario, et al. (NFP)

Paul Roell v. American Senior Communities (NFP)

S.P. v. Review Board (NFP)

NFP criminal opinions today (2):

Patricia Garrison v. State of Indiana (NFP)

Byron D. Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Tax Court opinions, dated 6/16/10

In Mirant Sugar Creek, LLC v. Indiana Dept. of State Revenue, a 14-page opinion, Judge Fisher writes:

Mirant Sugar Creek, LLC (Mirant) appeals the Indiana Department of State Revenue's (Department) denial of its claim for refund of Indiana's Utility Services Use Tax (the USUT) paid on its purchases of natural gas for the month of July, 2006 (the period at issue). The matter, before the Court on the parties' cross-motions for summary judgment, presents the following issues: (1) whether Mirant obtained a ruling from the Department providing that it was not subject to the USUT; and (2) if not, whether Mirant's purchases of natural gas were subject to the USUT. * * *

For the above stated reasons, the Court DENIES the Department's motion for summary judgment in its entirety. The Court, however, GRANTS Mirant's cross-motion for summary judgment in part. Accordingly, the Department's December 4, 2007 order is REVERSED and the Department is ordered to refund to Mirant the USUT taxes it paid for the period at issue.

Mirant Sugar Creek, LLC v. Indiana Dept. of State Revenue (NFP) - Judge Fisher's 12-page opinion deals with evidence issues.

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Ind. Tax Ct. Decisions

Courts - SCOTUS issues opinions today

Watching SCOTUSblog as the opinions are handed down this morning. Of interest:

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "Special prosecutor appointed on Peggy Wilder issue: Scott County attorney to look into allegations of credit card misuse"

Updating this ILB entry from July 18, 2009, David A. Mann reported in the Jeffersonville News & Tribune on June 16, 2010:

Jeffersonville Clerk-Treasurer Peggy Wilder has been charged with conversion, a class A misdemeanor, in relation to allegations that she used a city credit card for personal purchases.

The alleged spending took place between 2004 and 2008, according to a probable-cause affidavit filed in Clark County Superior Court No. 3 along with the charges. The card contained both city and personal purchases and Wilder only had city tax dollars pay for city purchases. Wilder paid for the personal purchases, not the city, according to the affidavit. However, they weren’t always paid back in a timely manner.

The criminal charges have been long in coming, as the purchases were first revealed in an Indiana State Board of Accounts audit report dated Dec. 31, 2008. Prosecutors first got their hands on the information in January 2009.

Clark County Prosecutor Steve Stewart held onto it for about six months, before passing it to special prosecutor Chris Owens, of Scott County, in July. Owens, who filed the charges Wednesday, said it’s taken nearly a year to get the charge filed because of the volume of cases at the Scott County Prosecutor’s Office and because he’d been off work on personal leave.

Indiana statute says that a person who knowingly or intentionally exerts unauthorized control over the property of another commits criminal conversion.

“I just feel like that’s the most applicable charge,” Owens said Wednesday. “I don’t think she ever intended to have the city be out any money.”

Only one count of conversion was filed, he said. Otherwise, a charge would have had to be filed for each time she used the city card for personal purchases. Sorting through that would have become a full-time job, he said.

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Indiana Government

Ind. Courts - Interesting oral arguments this morning before the Supreme Court

A reminder, interesting oral arguments this morning before the Supreme Court, including admission of videotaped confessions, and the right to counsel in civil cases. The entry on the latter case includes links to the petition and responses.

Posted by Marcia Oddi on Thursday, June 17, 2010
Posted to Upcoming Oral Arguments

Wednesday, June 16, 2010

Ind. Decisions - Transfer list for week ending June 11, 2010

Here, finally, is the Clerk's transfer list for the week ending June 11, 2010. It is one page (and one case) long.

One transfer was granted last week, with opinion, in a NFP case decided nearly a year ago by the Court of Appeals.

The transfer list, perhaps in error, lists the full name of J.S. Here is the COA's NFP J.S. v. State, from 6/29/09.

The Supreme Court both granted transfer and affirmed the judgment of the trial court, in a 4-page, 5-0 opinion by Justice Dickson dated 6/9/10. See the ILB summary here, 2nd case.

__________

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 Wednesday, June 16, 2010
Posted to Indiana Transfer Lists

Courts - "Ken Feinberg, America’s problem solver extraordinare!"

Just posted on the WSJ Law Blog, "Ken Feinberg (Who Else?) To Handle Oil-Spill Escrow Fund."

[More] And see "Who is Ken Feinberg?" from the Washington Post.

Posted by Marcia Oddi on Wednesday, June 16, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In John Dyer, David White, and Maurice Dillender v. James H. Hall and Nu-Plaza Yacht Club, a 12-page opinion, Judge May writes:

The plaintiffs John Dyer, David White, and Maurice Dillender (collectively “the Landowners”) own land on the Ohio River. They asked for an injunction and damages, claiming boat docks owned by James Hall and the Nu-Plaza Yacht Club (collectively “Hall”) extend in front of their lots and interfere with their use of the river. The trial court granted summary judgment for Hall, finding the Landowners’ riparian rights do not extend beyond the river’s low water mark and the docks did not interfere with their use of the river. The Landowners raise eight allegations of error, which we consolidate and restate as:

1. The trial court erred in finding the Landowners’ riparian rights extend only to the low water mark;
2. The trial court erred in finding the docks are not a private nuisance because they do not interfere with the Landowners’ use of or access to the river;
3. The trial court erred in finding the construction and maintenance of deadmen located on two Landowners’ lots do not amount to a trespass. * * *

As the landowners designated evidence that gives rise to a genuine issue of fact as to whether the docks and deadmen are a nuisance or a trespass, Hall was not entitled to summary judgment. We accordingly reverse.

In M.T. v. State of Indiana , an 11-page decision, Judge May writes:
The trial court modified M.T.'s probation and committed him to the Department of Correction after a hearing at which the State presented no evidence of the probation violations it alleged. That violated M.T.'s due process rights, and we accordingly reverse. * * *

It was a due process violation to remove M.T. from probation and send him to prison when the State presented no evidence in support of the probation violations alleged as a basis for the modification. We accordingly reverse the modification.

In Jason G. Ertel v. State of Indiana , a 10-page opinion, Judge Riley writes:
Appellant-Defendant, Jason G. Ertel (Ertel), appeals his conviction for operating a vehicle while intoxicated, a Class C misdemeanor, Ind. Code § 9-30-5-2(a).

Ertel raises one issue for our review, which we restate as follows: Whether the trial court abused its discretion when it admitted evidence obtained after Ertel's vehicle was stopped. * * *

The record indicates that Officer Wilcox received a 911 dispatch report that a white male, wearing a red shirt and driving a dark colored car, had rung Reed's doorbell at approximately 2:00 a.m. Officer Wilcox was also told that the driver had driven past Reed's home again, and failed to stop after being flagged down by a neighbor. As Officer Wilcox approached the neighborhood, he noticed a vehicle stopped at a stop sign for approximately five seconds that not only matched the description given by dispatch, but also that the driver “had a red shirt on that match[ed] the description of the person given by our dispatch of the person ringing the doorbell.” (Tr. p. 96). Despite the fact that Ertel argues that waiting at a stop sign for over five seconds was not a violation of traffic laws and consistent with someone who is lost, given the facts as a whole, namely that it was 2:00 a.m. in the morning, that both Ertel and his vehicle fit the description given by the 911 caller, and that Ertel had refused to stop after being flagged by a neighbor, Officer Wilcox had reasonable suspicion to pull Ertel over.

Conclusion. Based on the foregoing, we conclude that the trial court did not abuse its discretion when it admitted evidence obtained after Ertel's vehicle was stopped because Officer Wilcox had reasonable suspicion to conduct an investigatory stop.

NFP civil opinions today (4):

Lorenzo Borders v. City of Elkhart, et al. (NFP)

In George Cox, et al. v. Honorable Roger Davis (NFP), a 5-page opinion with many appellants, Judge May writes:

The Appellants filed a complaint in Harrison Circuit Court against Judge Roger D. Davis of the Harrison Superior Court. Judge Davis moved to dismiss the complaint, and the Circuit Court granted the motion. Because the Appellants have not shown that the Circuit Court had the authority to grant the relief they requested, we affirm. * * *

The complaint challenged the validity of several aspects of the bond schedule and conditions of bond set out in Local Rule LR31-CR00-22. The complaint also alleged Judge Davis routinely holds arrestees for more than forty-eight hours without a probable cause determination and issues arrest warrants for probation violations based on boilerplate language submitted by the Probation Department. Finally, the complaint alleged Judge Davis issued, without a sufficient basis, an arrest warrant for Cox for failure to appear. The complaint requested two forms of relief from the complained of policies: Count 1 requested a mandate “to compel Respondent-Defendant Judge to create and implement policies and procedures which are in compliance with Indiana statutory law and the Indiana and United States Constitutions,” and Count 2 requested that the court “declare the policies and procedures complained of in this complaint to be illegal and enjoin their future use.”

Judge Davis filed a motion to dismiss the complaint on the grounds (1) the Appellants lacked standing; (2) the Harrison Circuit Court lacked jurisdiction; and (3) the case should be dismissed pursuant to Ind. Trial Rule 12(B)(8)3 because it was “the same case” as the individuals’ criminal cases. The trial court granted the motion.

Paternity of R.M., N.C. v. K.M. (NFP)

J.M. Alleged to be C.H.I.N.S.; H.M. and D.M. v. I.D.C.S. (NFP)

NFP criminal opinions today (9):

James A. Barber v. State of Indiana (NFP)

'James D. Boyd v. State of Indiana (NFP)

Rocky D. Beavers v. State of Indiana (NFP)

David Mazhandu v. State of Indiana (NFP)

Michael R. Pollard, Jr. v. State of Indiana (NFP)

Rickey Dawane Gosha v. State of Indiana (NFP)

Herman F. Filice v. State of Indiana (NFP)

Jason Wells v. State of Indiana (NFP)

Larry Andrew Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Evansville attorney, prosecutor candidate indicted on sex charges"

So reports Lydia X. McCoy in the Evansville courier & Press. The story begins:

William Wallace, a local attorney and the Democratic Party's candidate for Gibson County prosecutor in November's election, was indicted Tuesday for allegedly having videotaped sex with a former client to pay off a $550 debt to him for work he did in a civil case.

The woman said on at least one other occasion, Wallace offered to have sex with her and pay her for it because he knew she was having financial issues and needed the money.

Special Prosecutor Jonathan Parkhurst said Tuesday that the Gibson County grand jury heard from eight witnesses before deciding that Wallace should be charged.

He faces four charges that include obstruction of justice and possession of child pornography, both class D felonies; patronizing a prostitute, a class A misdemeanor; and false informing, a class B misdemeanor.

A class D felony carries a term of six months to three years; a class A misdemeanor is from no time to a year; and a class B misdemeanor is no time to 180 days.

Wallace was ordered by Gibson Superior Court Judge Earl Penrod to turn himself in to the county jail Tuesday evening and pay at least $500 of a $750 cash bond.

The attorney, who has worked in both Gibson and Vanderburgh counties, has been in practice since 1989 and is a former public defender for the Vanderburgh County Public Defenders Agency. He also has been an adjunct professor at Oakland City University and serves on a number of boards in the community.

Posted by Marcia Oddi on Wednesday, June 16, 2010
Posted to Indiana Courts

Ind. Courts - "New Hoosier federal judge robed in history"

Jon Murray of the Indianapolis Star has a lengthy story in this morning's paper that begins:

Judge Tanya Walton Pratt's historic confirmation as a federal judge Tuesday by the U.S. Senate will usher in changes at the federal and Marion County courthouses.

She will be the first African-American to serve as a judge in either of Indiana's two federal court districts. The addition of Pratt and Judge Jane Magnus-Stinson, another new appointee confirmed last week, means that three of the five active judges at the U.S. District Courthouse in Indianapolis will be women.

At Marion Superior Court, Pratt's departure from the probate court could be the first of several dominoes to fall as her colleagues jockey for courtroom assignments.

Posted by Marcia Oddi on Wednesday, June 16, 2010
Posted to Indiana Courts

Tuesday, June 15, 2010

Ind. Courts - Another judgeship opens up [Updated]

Jon Murray has a report this afternoon in his Indianapolis Star blog, "Justice Watch," on new federal Judge Tanya Walton Pratt's reaction to her confirmation vote in the U.S. Senate, which she watched on C-SPAN, Murray reports, "with her Marion Superior Court probate staff and her husband, attorney Marcel Pratt." His story concludes:

The Democratic judge's departure will require the appointment of a new Marion Superior Court judge by Gov. Mitch Daniels. The Republican governor is required to choose a Democrat to maintain party balance among Marion County's 36 judges.
[Updated 6/16/10] From Murray's story today in the Star:
Pratt, who has pegged June 25 as her last day, will leave vacancies in her court and on Marion Superior Court's executive committee, where she is one of two Democrats.

Gov. Mitch Daniels, a Republican, must appoint a Democratic successor under an Indiana law that guarantees party balance for Marion Superior Court's 36 judges. Marion Superior Court Presiding Judge Robert Altice said he will miss Pratt's sharp legal mind and leadership on court issues.

Long-tenured Judge Gerald Zore has expressed interest in becoming probate judge, Altice said, but the assignment will be decided by the executive committee.

That would open up Zore's coveted civil court bench, and possibly more courtrooms as judges request new assignments.

Posted by Marcia Oddi on Tuesday, June 15, 2010
Posted to Indiana Courts

Courts - "Supreme Court Rejects New Albany DVD Case: Way now clear for adult store to remain open despite city ordinance"

Updating the ILB entry from earlier today where New Albany said the case was not closed, Mark Kernes reports today for the AVN Media Network:

WASHINGTON, D.C.—Thanks to an excellent analysis by Seventh Circuit Chief Judge Frank H. Easterbrook, the U.S. Supreme Court has denied the petition for certiorari filed by the City of New Albany, Indiana, which sought to overturn a Seventh Circuit panel ruling that the New Albany DVD adult store could continue to operate in the city.

As detailed in our previous story, New Albany DVD—now renamed Cleopatra's—has been winning court decisions ever since the city began litigating its licensing issue, with the trial court judge ruling that under Indiana law, the store, which was lacking only a certificate of occupancy, was entitled to remain open for two years even absent the certificate, since its renovations had been completed before a new city ordinance was passed zoning the store out of its current location.

However, Judge Easterbrook, writing for a unanimous panel, rejected the trial court's interpretation of Indiana law but nonetheless found for the store on a different basis.

"Plaintiff defends its judgment with the argument that New Albany has not established that book and video stores offering only take-home items cause any untoward secondary effects," Judge Easterbrook wrote. "The Supreme Court in [City of Los Angeles v.] Alameda Books and [City of Renton v.] Playtime Theatres held that proof of such effects is essential if municipalities regulate adult establishments differently from the way they regulate other similar businesses—for the sellers of books and movies enjoy constitutional protections that sellers of snow shovels, shoes, and parakeets do not."

As the basis for its new ordinance, the city had relied on the usual "secondary effects" studies, the vast majority of which were conducted more than 20 years ago, but as Judge Easterbrook pointed out, those studies dealt primarily with adult venues offering live entertainment or peep shows, and did not apply to venues offering adult DVDs for off-premises viewing. Moreover, the studies did not deal with the incidence of "morals offenses" like prostitution or lewd exhibition at such take-home venues.

Trouble was, the city had no studies of its own establishing that crime was more prevalent around the adult store than it was around any other venue in the city.

"I've run the crime statistics for the last five years, and [New Albany] DVD has caused zero crime," said Steve Mason, the store's attorney.

"Recognizing that prior studies had lumped bookstores, peep shows, and exotic dancing establishments together, New Albany offered some anecdotal justifications in the district court," Judge Easterbrook reported. "It cited testimony in some earlier cases by people complaining about pornographic litter near adult bookstores, and it suggested that these stores may expose their customers to thefts. The former line of argument rests on the fact that some customers are bound to throw away wrappers, which may have images inappropriate for children. The 'theft' line of argument starts with the premise that many customers of adult establishments pay in cash, which makes them a target for thieves."

However, the panel dismissed such allegations as "paternalistic," and noted that they didn't come close to creating enough of a problem to tip the balancing test announced by Justice Anthony Kennedy in his Alameda Books decision, since virtually no crimes could be traced to the store's existence.

"In Renton, the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not," Justice Kennedy wrote. "The challenge is to correct the latter while leaving the former, as far as possible, untouched. If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of the speech substantially undiminished, there is no First Amendment objection. ... On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself."

So far, the city is on the hook for over $300,000 in legal fees to New Albany DVD from its attempts to close down the store, and would incur thousands in additional (taxpayer) expenses if it chooses to try to pursue the case further, but City Attorney Shane Gibson will reportedly "consult with a Tennessee attorney who has represented the city [likely Scott Bergthold of the Community Defense Counsel] before deciding what to recommend" to the city council.

Posted by Marcia Oddi on Tuesday, June 15, 2010
Posted to Courts in general

Ind. Courts - More on: Tanya Walton Pratt set for Senate vote

The Senate roll call is occurring right now.

[12:13 PM] Updating this ILB entry from yesterday, Tanya Walton Pratt has just been confirmed unanimously (95-0) by the U.S. Senate to be United States District Judge for the Southern District of Indiana.

[More] WTHR.com has posted this story on Judge Pratt. Some quotes:

Washington - A vote in the US Senate is going down in Indiana history Tuesday.

Tanya Walton Pratt has been confirmed as US District Judge for the Southern District of Indiana. She becomes the first African-American federal judge in Indiana history, and the fourth woman to serve as federal district court judge for the state. [ILB: She joins Jane Magnus-Stinson, who was confirmed last week and sworn in yesterday, and Judge Sarah Evans Barker in the South District of Indiana. Judge Theresa L. Springmann serves in the Northern District.] * * *

Judge Pratt has served as a judge in the probate division of Marion Superior Court. She previously served as a judge in that court's criminal division from 1997 to 2008, where she handled major felonies and presided over 20 to 35 jury trials annually. She has been honored as "Outstanding Judge of the Year" by the Indiana Coalition Against Sexual Assault.

Prior to her time on the bench, Judge Pratt worked as an attorney in private practice and as a deputy public defender in Marion Superior Court. Judge Pratt is a graduate of Spelman College and Howard University School of Law.

Posted by Marcia Oddi on Tuesday, June 15, 2010
Posted to Indiana Courts

Courts - "New albany city attorney said Monday the U.S. Supreme Court’s decision to stay out of New Albany’s legal battle with an adult book store doesn’t mean the case is closed"

Re the denial yesterday of the City's petition for cert to the SCOTUS in the case of City of New Albany, Ind. v. New Albany DVD (see ILB entry from 6/14/10 here), Daniel Suddeath reports today in the New Albany News & Tribune:

City Attorney Shane Gibson said Monday the U.S. Supreme Court’s decision to stay out of New Albany’s legal battle with an adult book store doesn’t mean the case is closed.

The city has been involved in ongoing litigation with the former New Albany DVD — now called Cleopatra’s — since 2004 when the store attempted to launch at 601 W. Main St.

A six-month moratorium on new adult businesses was ordered by the City Council that kept the store from opening. New Albany DVD sued, and a federal court awarded the store a temporary injunction allowing it to remain open while the 7th U.S. Circuit Court of Appeals reviewed the city’s defense.

In 2009, the Chicago-based U.S. Circuit Court of Appeals ruled New Albany “inadequately justified” its claim that adult entertainment stores contribute to secondary effects such as crime and litter, therefore upholding the federal court’s determination.

The city petitioned the U.S. Supreme Court to rule on the lower court’s decision, but it announced Monday that it would not examine the case.

“The issue that we wanted hopefully cleaned up and cleared up that probably would have resolved the case has not been cleaned up or cleared up,” Gibson said.

The matter has never gone to trial but has been based on the federal court injunction which has not settled the case, Gibson continued.

He maintained the ruling by the Appeals Court that New Albany didn’t provide enough proof of secondary effects of an adult business went against precedent.

The decision “in our opinion set a new standard as far as what kind of record a community needed to justify its ordinances,” Gibson said.

The city will now review the situation to conclude if it will proceed with additional legal action, he added.

“Obviously, we’re disappointed that the Supreme Court didn’t take a good look at [the case] and the potential precedent it could set for communities such as ours,” Gibson said.

Here is a long list of ILB entries on the case.

Posted by Marcia Oddi on Tuesday, June 15, 2010
Posted to Courts in general

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

For publication opinions today (1):

Jeffrey D. Boggs v. State of Indiana - "On his way back to his car, Deputy Pettit shined his flashlight into the Bronco, testifying that he did so because he was looking for Boggs who was not in the house and the officer knew that Boggs drove the Bronco. Because Deputy Pettit restricted his movement to places where visitors might be expected to go and never left the normal routes of ingress and egress, this observation inside the Bronco was not an illegal search and did not violate the Fourth Amendment. See Divello, 782 N.E.2d at 437. Additionally, Deputy Pettit did not have to move or manipulate anything in order to observe the tank in the backseat area of the Bronco, and the use of the flashlight did not transform the officer's observation into a search. Therefore, because Deputy Pettit was on Boggs's property for legitimate purposes, because he did not stray from the places a visitor might go, and because he did not move or manipulate anything in order to make his observation, we conclude that the officer's observation of the tank inside of the Bronco did not violate the Fourth Amendment, and the trial court did not abuse its discretion in admitting the evidence seized pursuant to the search warrant."

NFP civil opinions today (0):

NFP criminal opinions today (9):

Paul Morris v. State of Indiana (NFP)

David Eugene Ball v. State of Indiana (NFP)

Lonnie Ray Stone v. State of Indiana (NFP)

Percy L. Lipscomb, Jr. v. State of Indiana (NFP)

Roderick M. Walsh v. State of Indiana (NFP)

Andres Sanchez v. State of Indiana (NFP)

Michael Deneal v. State of Indiana (NFP)

Kelly Swegman v. State of Indiana (NFP)

Brandon Puckett v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 15, 2010
Posted to Ind. App.Ct. Decisions

Monday, June 14, 2010

Ind. Decisions - Transfer list for week ending June 11, 2010

No transfer list has as yet been posted on the Court site for the week ending June 11, 2010..

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Indiana Transfer Lists

Ind. Courts - More on: Robocall suits in two courts

Updating this ILB entry from this morning, quoting from the Brown Circuit Court ruling in State v. FreeEats, FreeEats has just released a long statement for the press on the decision, headed "Indiana Law Interfering With Citizens' Free Speech Rights Found Unconstitutional." Some quotes:

Free political speech and the rights of the citizens of Indiana to communicate openly with each other about politics, government activity and elections received a big boost in Indiana, when on June 10, 2010, a Special Circuit Court Judge announced his decision in the case of the State of Indiana v. FreeEats.com, Inc., in favor of the Defendant, FreeEats.com, Inc., and its clients.

At issue was the application of Indiana's Automated Dialing Machines Statute ("ADMS") (Indiana Code 24-5-14) prohibiting "automated" calls and whether it applied to the "Artificial Intelligence Call" (AIC) systems employed by FreeEats. The state had sued FreeEats saying that its calls on behalf of one of its clients violated the ADMS. FreeEats sought an Order prohibiting Indiana from applying the ADMS law to its AIC systems and successfully argued that prohibiting the use of the more efficient, faster and less expensive "Artificial Intelligence Call" (AIC) processes it employs unduly restricted the ability of citizens to communicate about political and election matters, and violated the Freedom of Speech provisions of the Indiana Constitution and was, therefore, unconstitutional.

In addition, FreeEats argued successfully that the ability of the "Artificial Intelligence Call" (AIC) system to obtain consent from respondents is just as efficient and effective as the ADMS's requirements to use live operators with the added advantage of being at least (i) 10-times less expensive; and (ii) 25-times faster in getting the messages out to Indiana voters.

In its ruling, released Thursday, June 10, 2010, the Court agreed, saying, "The state has identified that the sole purpose of the ADMS is a limitation on the total volume of automated calls. Such a limitation has the sole effect of limiting the political speech in question. It has no effect whatsoever on whether an individual receiver of the call might perceive the call to be annoying or a nuisance. Nor would the individual receiver of the call have a different opinion if the call were made by a live operator. Thus the effect of the ADMS to the extent that it requires such calls to be made by a live operator as opposed to an automated system, is to materially burden the political speech in question, not protect the peace and quiet of the Indiana residents in their homes."

This case was brought by former Indiana Attorney General Steve Carter. The parties are hopeful that current Indiana Attorney General Greg Zoeller will recognize the significant free speech benefits of the judge's decision and avoid prolonging costly litigation over a matter that is so important to the rights of the citizens of Indiana.

ILB: So, you get a robocall from FreeEats while you are eating dinner. The recording apparently asks for your consent to receive calls from FreeEats. It can only understand "yes" or "no." If you say "yes," then you will have elected, according to the court, to waive the no-call law for calls from FreeEats. You have consented. But what happens if you say "no"? Will you continue to receive the "yes/no" robocalls?

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Ind. Trial Ct. Decisions

Environment - More on: Concerns raised about BP's Whiting project, in light of the Gulf spill [Updated]

Those of you who read this ILB entry earlier today will be interested in this article on the Brookings website, about potential oil drilling in the Great Lakes.

[Updated almost immediately] Ironically, as soon as I posted the above, I saw this editorial from the Gary Post-Tribune that begins:

The Rev. Jesse Jackson is blowing more smoke than any stack in Northwest Indiana. But instead of particulate matter, he's spewing distortions, unsound science and outright falsehoods about BP, and particularly its Whiting refinery.

Chief among the errors is a real whopper: BP plans on drilling in Lake Michigan just as it's drilling in the Gulf of Mexico, where its well is spewing millions of gallons of crude oil into the water.

Let's repeat that sludge: BP will drill in Lake Michigan.

Who knew?

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Environment

Ind. Decisions - 7th Circuit rules on Wisconsin issues re party affiliation, public endorsement, and personal solicitation re candidates for trial court election [Updated]

From The Honorable John Siefert v. Wisconsin Judicial Commission, a 45-page 2-1 opinion by Judge Tinder (Judge Rovner's dissent begins on p. 33):

The plaintiff, John Siefert, is an elected Wisconsin circuit court judge in Milwaukee County. He would like to state his affiliation with the Democratic Party, endorse partisan candidates for office, and personally solicit contributions for his next election campaign, but is concerned because these activities are prohibited by the Wisconsin Code of Judicial Conduct. Rather than violate the code and face discipline, Siefert filed suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the members of the Wisconsin Judicial Commission, the body that enforces the Code of Judicial Conduct. After considering the parties’ cross-motions for summary judgment, the district court granted Siefert’s motion, declared the rules prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates, and personally soliciting contributions unconstitutional, and enjoined the defendants from enforcing these rules against Siefert. The Commission appeals. We affirm the district court’s holding on the partisan affiliation ban but reverse the district court’s ruling that the bans on endorsing partisan candidates and personally soliciting contributions are unconstitutional. * * *

For the foregoing reasons, we AFFIRM the district court’s judgment in favor of Siefert with respect to the party affiliation ban, SCR 60.06(2)(b)1, but REVERSE the district court’s judgment with respect to the public endorsement and personal solicitation bans, SCR 60.06(2)(b)4 and SCR 60.06(4).

Rovner, Circuit Judge, dissenting in part. Protecting judicial integrity is a government interest of highest magnitude, as is protecting the rights guaranteed by the First Amendment. Reconciling these two competing interests is no small feat, and when evaluating the party membership restrictions in Section II.A and the personal solicitation restriction in Section II.C, I believe the majority successfully navigates the competing concerns. As for the ban on endorsements of partisan candidates, the majority and I begin at the same starting point—with the notion that endorsements of candidates in political elections are troubling and have the potential to compromise judicial impartiality. I part ways with the majority, however, where it applies the balancing test from Pickering and Connick to the endorsement ban. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 142 (1983). Because I believe this is the wrong test to apply, I respectfully dissent. * * *

Although I disagree with the majority about the proper test to apply, it is likely that under different circumstances our outcome would nevertheless be the same and I would find myself concurring in the result. My dissent stems entirely from the unique situation presented here. Wisconsin has opted to elect judges in popular elections and has further mired those judges in that political process by allowing them to make nonpartisan endorsements. Endorsements undermine the integrity of the judiciary regardless of whether they focus on partisan or non-partisan races. Once Wisconsin greased the slope for non-partisan endorsements, it should not have been surprised that partisan endorsements could come sliding after. Wisconsin has failed to demonstrate that its endorsement ban is narrowly tailored to prevent the harm it asserts.

[Updated at 4:00 PM] Here is what the Milwaukee Journal Sentinel isreporting about the opinion:
Madison — Wisconsin judges can join political parties but cannot endorse partisan candidates or directly solicit campaign donations, a federal appeals court ruled Monday.

State judges were barred from joining political parties starting in 1968, though in practice judges have distanced themselves from parties for more than a century. But last year, U.S. District Judge Barbara Crabb overturned the ban on First Amendment grounds.

A three-judge panel of the 7th Circuit Court of Appeals on Monday agreed with Crabb that judges can join parties but overruled her on other aspects of the case. Crabb had ruled judges could endorse partisan candidates and make direct appeals for campaign cash, but the appeals court said the state's ban on those practices is acceptable.

The appeals court decision and Crabb's earlier ruling mean judges can join political parties and tell voters about it. But judges will not have their partisan ties printed on ballots.

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Ind. (7th Cir.) Decisions

Environment - Concerns raised about BP's Whiting project, in light of the Gulf spill

"Will Gulf oil spill sink BP's Whiting project?" That was the headline to this story in the Gary Post-Tribune dated June 13, 2010, reported by Gitte Laabsy. The story deals with the company's loss of value due to the Gulf spill. A quote:

A severe stock tumble has led to rumors that BP will go bankrupt, be bought up, or cut down on investments like the Whiting $3.8 billion expansion. One New York stock analyst said BP's survival is at stake, but that it can survive if it limits dividends to shareholders and prioritizes which investment projects to move forward with.

"There's rumors the company will be dismantled, be acquired by another rival. I think there's a lot of rhetoric. I don't think that will happen," said Fadel Gheit, managing director for Oppenheimer & Co. in New York.

And from a letter to the editor in today's Indianapolis Star:
After reading an online account detailing the last 10 years of BP's safety and maintenance failures and reluctance to change, I have a question. Is anyone in Indiana taking a hard look at BP's Whiting refinery operation? I understand some of Gov. Mitch Daniels' kid-glove treatment of BP and his wanting to keep BP and its revenues and taxes here. But if he and the Indiana Department of Environmental Management aren't gearing up to take a hard look at the operation of this facility, we are being poorly served.

When BP's attention and funding are being diverted to the Gulf, this is the most critical time for IDEM or the responsible state agency to be most diligent in oversight.

With a major refinery near Lake Michigan and Chicago, the potential for disaster is huge if they slip up on what historically has been a responsibility they have not taken seriously.

Kevin Sage
Bargersville

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Ronald D. Dean v. State of Indiana , an 8-page opinion, Judge Riley writes:

Dean contends that the trial court erred by finding that it lacked jurisdiction to reopen the cause and hear Dean’s request for payment of his expert witness fees. Specifically, Dean asserts that because the trial court had established independent jurisdiction over the persons and subject matter, its authority is not derivative of the Michigan trial court that had jurisdiction over the divorce proceedings. As a result, Dean maintains that the trial court’s jurisdiction survived the settlement of the divorce proceedings and as such the cause can be reopened to hear the issue of expert witness fees. * * *

Based on the foregoing, we find that the trial court lacked jurisdiction to reopen the cause for the sole purpose of collecting expert witness fees incurred in a discovery deposition which was conducted pursuant to Indiana Trial rule 28(E). Affirmed.

In C.E.K., II v. State of Indiana , a 5-page opinion, Judge Najam writes:
C.E.K., II appeals the juvenile court’s order that he register as a sex offender. C.E.K. raises a single issue for our review, namely, whether our Supreme Court’s recent decision in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), abrogated the subject matter jurisdiction of juvenile courts to order juveniles to register as sex offenders. We hold that it did not. Accordingly, we affirm the court’s order. * * *

C.E.K. contends that our decision in K.J.P. was abrogated by our Supreme Court’s more recent decision in Wallace. In Wallace, our Supreme Court only considered whether the Act constituted retroactive punishment forbidden by the Ex Post Facto Clause of the Indiana Constitution. In holding that the Act was unconstitutional as applied to the defendant in that case, the court determined that six of the seven factors relevant to its inquiry pointed to the statute having a retroactive punitive effect. Wallace, 905 N.E.2d at 384. Seizing on that analysis, C.E.K. contends that if the Act is punitive, then the juvenile court lacks subject matter jurisdiction to apply it.

C.E.K. reads too much into Wallace. The court did not hold that the Act is facially unconstitutional, and C.E.K. does not (and cannot) raise an ex post facto challenge to the juvenile court’s order that he comply with the Act. Further, in a companion case to Wallace, the court held that the Act was “non-punitive when applied to” another defendant. Jensen v. State, 905 N.E.2d 384, 394 (Ind. 2009). Thus, while the Supreme Court recognized that the Act had punitive elements that forbade its retroactive application under Indiana’s Ex Post Facto Clause, the court did not hold that the Act is a wholly punitive measure that would violate the juvenile code’s rehabilitative policies. Accordingly, K.J.P. is still good law and C.E.K.’s argument that the juvenile court lacked subject matter jurisdiction must fail. We affirm the court’s order that C.E.K. must comply with the Act’s registration requirements.

In Steve Pigg v. State of Indiana , a 12-page opinion, Judge Riley writes:
Appellant-Petitioner, Steve Pigg (Pigg), appeals the trial court's denial of his motion to compel the delivery of money from his attorney pursuant to Ind. Code § 33-21-1-9. We affirm. * * *

Based on the foregoing, we conclude that the trial court did not abuse its discretion by ordering a trial by affidavit, and that Kiefer proved that no unearned portion of the retainer fee paid on Pigg's behalf remained at the termination of his representation of Pigg. Therefore, the trial court did not err by denying Pigg's motion for the delivery of money.

NFP civil opinions today (1):

S.H. v. Review Board (NFP)

NFP criminal opinions today (5):

Diosha L. Lamb v. State of Indiana (NFP)

Vickie A. Chaffins v. State of Indiana (NFP)

Robert D. Storey v. State of Indiana (NFP)

Christopher Roberts v. State of Indiana (NFP)

Rick Glascoe v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS news from today [Updated]

Updating this ILB entry from June 9th, headed "Indiana confrontation clause case being considered for cert by SCOTUS at the conference tomorrow," the Supreme Court today announced that it had denied certiorari in Pendergrass.

The SCOTUS issued four new opinions this morning,none of them were on the most-watched list. See this SCOTUSblog entry for details of today's opinions.

The Court will issue another batch of opinions this Thursday.

[Updated at 11:21 AM] Here is a cert denial the ILB missed. The AP is reporting under the heading "Supreme Court won't get involved in fight over adult store opening in small Indiana town":

10:14 AM EDT, June 14, 2010
WASHINGTON (AP) — The Supreme Court won't get involved in an Indiana town's fight to close an adult book and movie store.

The high court on Monday refused to hear an appeal from the city of New Albany, Ind. City officials have been trying to shut down New Albany DVD since 2004.

When the store first tried to open, the city council adopted a six-month moratorium on new sexually oriented shops. The store's owner sued, claiming the city violated his right to free expression.

The case is City of New Albany, Ind. v. New Albany DVD, 09-1027. Here is a long list of ILB entries on the case.

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Courts in general

Courts - "Repeat DUI offenders a challenge for law enforcement"

David Singleton reported June 13, 2010 in the Scranton Pa Times-Tribune about "double DUIs" - cases where motorrists arrested for driving under the influence are released only to be arrested again, sometimes after an accident:

Such double DUIs are infrequent but not rare, here or elsewhere. There have been at least three in Northeast Pennsylvania already this year, including a man who was arrested twice in two hours on March 5 by state police in Monroe County.

The Lackawanna County district attorney's office contends Mr. Kern's release after his Dickson City arrest was handled appropriately. However, that such incidents can and do happen raises questions about policies covering the release of suspected DUI offenders, especially at a time when driver impairment is increasingly tied to drugs other than alcohol, as apparently was the case with Mr. Kern.

Around the country, such policies vary by state and even by local jurisdiction.

In Pennsylvania, there is no required "sobering up" period, either by statute or uniform policy, before law enforcement must release a DUI suspect from custody. The state's Rules of Criminal Procedure mandate the prompt release of DUI drivers in most cases.

Mark Neil, a senior attorney with the National Traffic Law Center, said at least eight states have mechanisms for holding motorists arrested for driving under the influence of alcohol until their blood-alcohol level drops to a certain threshold.

"Most of the time it's not law, but it is policy," Mr. Neil said.

Alabama is among the most stringent. Under statewide policy, a DUI driver in Alabama is jailed until his blood-alcohol level reaches zero, said Brandon Hughes, traffic safety resource prosecutor for the Alabama District Attorneys Association. A suspect who refuses to submit to a blood-alcohol test is held for a full 24 hours.

"They want to make sure you are free of alcohol," Mr. Hughes said. "They certainly aren't going to guess and let you out."

In Indiana, law enforcement officials are authorized to hold suspects nabbed for alcohol-related DUI for varying lengths of time based on their intoxication level at the time of arrest.

For example, according to a chart approved by the Indiana legislature for determining the minimum time of detention, a suspect with a blood-alcohol level of 0.10 can be held for two hours, after which the level would typically have fallen below the 0.08 threshold for legal intoxication. Someone with a reading of 0.16 - double the limit - can be detained for nine hours.

"This is for public policy reasons that are obvious," Deborah Reasoner of the Indiana Prosecuting Attorneys Council said in an e-mail. "We don't want to release an alleged drunk driver and have them repeat the offense and kill someone, and for civil liability reasons related to the safety of the public."

Ms. Reasoner said the underlying statute has passed constitutional muster. A 2001 Indiana Court of Appeals ruling held that DUI detentions are not punishment but rather serve the function of protecting the public from drunken drivers. As a result, the court found, they do not violate a suspect's protections against double jeopardy.

In many other jurisdictions, including Pennsylvania, it is common practice to release a DUI suspect into the custody of a sober, responsible adult, but even those policies can have permutations.

For example, in North Carolina, if no sober adult comes forward to take responsibility for a drunk driver, law enforcement can hold the offender until his blood-alcohol level drops below 0.05. The final judgment on when to release the suspect lies with a magistrate.

New Jersey's statute
covering a suspect's release to a responsible adult - known as "John's Law" after a man killed by a drunk driver who got back behind the wheel after his release following an earlier DUI - also requires police to impound a DUI suspect's vehicle for 12 hours after the arrest.

There is much more to the lengthy story.

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Courts in general

Ind. Courts - Robocall suits in two courts

Tricia L. Nadolny reports today in the Indianapolis Star about a suit in federal court, in a story that begins:

An Illinois-based nonprofit is suing the state of Indiana in federal court, claiming its law banning robo-calls violates the group's right to free speech.

Patriotic Veterans Inc. is challenging a 1988 law that prohibits using automatically dialed phone calls to deliver a prerecorded message unless consumers have given consent. The group said it plans to use the calls leading up to the November general election.

Indiana Attorney General Greg Zoeller said in a news release that he will defend the law.

"Hoosiers have said in no uncertain terms that they detest robo calls, don't want to be disturbed by such intrusions -- and they value the privacy that our state's laws afford them," Zoeller said in the release.

Patriotic Veterans claims the Indiana law is pre-empted by a similar but a more lenient federal law on robo-calls that took effect Sept. 1. Both laws ban prerecorded telemarketing calls unless the consumer has given consent, but the federal law makes exceptions for nonprofit groups, telephone carriers and politicians, among others.

And here is an order filed June 10, 2010 in a case in state court - Brown Circuit Court. Some quotes from the order by Special Judge Kenneth G. Todd, the case is State v. FreeEats:
FreeEats.com, Inc. (hereafter ''FreeEats''), a Delaware corporation located in Virginia, uses an artificially intelligent calling ("AIC") system to contact residences throughout the United States via telephone on behalf of its clients. The system's prerecorded messages are interactive, and they conduct polls, identify supporters of political issues and candidates, and encourage voting. With the system, FreeEats could call 1,700,000 Indiana residences in 7 hours. It calls residences as many as three times before leaving messages on answering machines but never makes any calls between 9:00 P.M. and 8:00 A.M.

During the congressional campaign in September 2006, FreeEats used its AIC system to disseminate a political message in Indiana for the Economic Freedom Fund ("EFF'). As evidenced by State's declarant John Vanderlippe's recording, the prerecorded messages only responded to some words, such as ''yes,'' ''no,'' and ''repeat'' They identified the EFF but did not identify FreeEats or explain how to register do-not-call requests, and they repeatedly failed to answer the question "Who is behind this call?" On behalf of the State of Indiana (hereafter "State''), the Attorney General filed a complaint for damages and an injunction in state court on September 18, alleging that the EFF and ten John Does had violated the Automatic Dialing
Machines statute ("ADMS',), Ind .. Code § 24-5-14. The EFF agreed to be preliminarily enjoined. * * *

Finally, potential harm to FreeEats outweighs potential harm to the State. FreeEats's clients' politica1 calls would be limited or even eliminated by the cost of obtaining consent in a form the ADMS would recognize. Their political message would not reach as many Indiana residences as quickly, and it would be irreparably hanned. The State characterizes its potential harm as the invasion of Indiana residences' privacy. However, it is not clear that privacy is less invaded when consent is obtained, consistent with the ADMS, by operators instead of Ale systems. Furthermore, the core constitutional value of political speech is at stake for FreeEats, and it greatly outweighs the State's interest in protecting residential privacy from telephone rings. As the Supreme Court noted in Price, ''the law does not deal in trifles, and mere annoyance or inconvenience is not sufficient" to justify interference with § 9 liberties. 622 N.E.2d at 964.

The State may not enforce the ADMS against calls disseminating political messages when the residences receiving those calls have consented, even if that consent was obtained by an AIC system. Enforcing the ADMS in that manner would materially burden the core constitutional value of political speech, which is stringently protected by Article 1, § 9 of the Indiana Constitution. However, the State may enforce the ADMS against calls disseminating political messages when the residences receiving those calls have never consented. Requiring FreeEats to obtain consent .. and allowing it to use its Ale system to do so, would not materially burden its political speech.

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Indiana Courts

Ind. Courts - Tanya Walton Pratt set for Senate vote

Last Monday, June 7, 2010, Jane E. Magnus-Stinson was confirmed by the U.S. Senate to be United States District Judge for the Southern District of Indiana.

The second nominee for the S.D. Indiana, Tanya Walton Pratt, is now set for a Senate vote on Tuesday, June 15th, per this Executive Calendar posting via Thomas.loc.gov -- at p. 2:

Ordered, That at 11:30 a.m. on Tuesday, June 15, 2010, the Senate proceed to executive session to consider the following nominations on the Executive Calendar:
  • Tanya Walton Pratt, of Indiana, to be United States District Judge for the Southern District of Indiana,
  • Brian Anthony Jackson, of Louisiana, to be United States District Judge for the Middle District of Louisiana, and
  • Elizabeth Erny Foote, of Louisiana, to be United States District Judge for the Western District of Louisiana.
Ordered further, That they be debated concurrently for a total of 20 minutes, with time equally divided and controlled between the Senator from Vermont (Mr. Leahy) and the Senator from Alabama (Mr. Sessions), or their designees; that upon the use or yeilding back of time, the Senate proceed to vote on the confirmation of the nominations, in the order listed; that after the first vote, the succeeding votes be limited to 10 minutes each; that upon confirmation, the motion to reconsider be made and laid on the table, the President be immediately notified of the Senate's action and the Senate then resume legislative session.

Posted by Marcia Oddi on Monday, June 14, 2010
Posted to Indiana Courts

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

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

From Sunday, June 13, 2010:

From Saturday, June 12, 2010:

Posted by Marcia Oddi on Monday, June 14, 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 6/14/10):

Thursday, June 17th

  • 9:00 AM - State of Indiana v. Craig Cooper ( 49S02-1004-PC-220) - In post-conviction proceedings, the Marion Superior Court vacated Cooper’s guilty plea to operating a vehicle while an habitual traffic offender on grounds an inadequate factual basis had been established at the guilty plea hearing. A divided Court of Appeals affirmed in State v. Cooper, 918 N.E.2d 355 (Ind. Ct. App. Dec. 15, 2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
    [ILB - this was a 2-1 Dec. 15, 2009 opinion where the majority wrote: Specifically, the State argues that Cooper's request for post-conviction relief should have been denied because, even though the date and location of the offense were not specified in the factual basis during the guilty plea hearing, Cooper has failed to demonstrate how he was prejudiced by those “irregularities.” Concluding that the post-conviction court properly granted Cooper's request for relief, we affirm.]

  • 9:45 AM - James A. Carr v. State of Indiana (25S04-1004-CR-219) - The Fulton Superior Court admitted a videotaped confession over Carr's objection, and a jury found him guilty of murder. Finding no error with respect to admission of the confession and other arguments raised on appeal, the Court of Appeals affirmed the conviction in an unpublished memorandum decision. Carr v. State, No. 25A04-0906-CR-356, slip op. (Ind. Ct. App. Feb. 4, 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
    [ILB - this was a NFP COA opinion issued Feb. 4, 2010, where the COA held: (1) Carr's proceedings did not violate the speedy trial provisions of Indiana Criminal Rule 4, (2) Carr's confession to law enforcement was not procured in violation of his Miranda rights, (3) the trial court did not err by prohibiting cross-examination into Carr's level of intoxication during his custodial interrogation, and (4) the court did not err by refusing to instruct the jury on various lesser-included offenses.]

  • 10:30 AM - In the Matter of the Termination of the Parent-Child Relationship of I.B.; M.L. v. Indiana Department of Child Services (: 03S05-1004-JV-218) - The Bartholomew Circuit Court entered a judgment terminating parental rights and later issued an order denying a request to appoint counsel to represent the mother in an appeal. The Court of Appeals affirmed the trial court’s decision not to appoint appellate counsel. Matter of Termination of Parent Child Relationship of I.B.; M.L. v. Indiana Dep’t Child Servs., 922 N.E.2d 62 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
    [This ILB has had several entries about this case, involving the right to counsel in civil cases, including; (1) the COA opinion summary on 2/17/10; (2) copies of the petition to transfer, response, and reply.]

Next week's oral arguments before the Supreme Court (week of 6/21/10):

Next Thursday, June 24

  • 9:00 AM - Bradley Love v. Robert Rehfus ( 30S01-1004-CV-162) - Bradley Love, a firefighter, filed a complaint against Fire Chief Rehfus and the Sugar Creek Township Fire Department alleging his termination by the Chief violated his First Amendment rights. The Hancock Circuit Court granted the defendants summary judgment. The Court of Appeals reversed and remanded addressing whether an email sent by Love was speech protected by the First Amendment, and whether the Township could be held liable if the Chief's termination violated Love's rights. Love v. Rehfus, 918 N.E.2d 448 (Ind. Ct. App. 12/22/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

  • 9:45 AM - Jeffrey Tharp v. State of Indiana (49S02-1005-CR-256) - The Marion Superior Court found Tharp guilty of invasion of privacy, a Class A misdemeanor, with respect to a protective order. The Court of Appeals reversed. Tharp v. State, 922 N.E.2d 641 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
    [ILB - ILB summary of Feb. 18, 2010 COA opinion here, 4th case, where the Court wrote: "Because the State did not prove Tharp knew he was subject to an active order of protection, we reverse his conviction."


This week's oral arguments before the Court of Appeals (week of 6/14/10):

Monday, June 14th

  • 2:00 PM - Bonnie T. Paloutzain, et al v. Belle Delint-Eaglesfield, et al (49A02-0908-CV-817) - This case involves an inter vivos trust executed by Alex Taggart in 1953 which provided for the "surviving children" of his son, Henry Taggart, who at the time was unmarried and had no children. Also at the time the trust was executed, the stranger to the adoption rule was in effect and provided that when one makes provision in his will for a child or children of some person other than himself, he will be presumed not to have included an adopted child or children of such other person, unless there is something in the will or in the extraneous circumstances to rebut that presumption. Henry later married and adopted two children, divorced, and then had three natural children from another marriage. The stranger to the adoption rule was abrogated in 1953 for wills; however, the Trust Code was not amended to abrogate the rule until 2003. This case presents an issue of first impression concerning the retroactivity of the 2003 Trust Code amendment to Alex's trust. The trial court interpreted Alex's trust as including the adopted children, and the natural children now appeal. The Scheduled Panel Members are: Judges Riley, Vaidik and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]

Wednesday, June 16th

  • 1:00 PM - Eric C. Danner v. State of Indiana (71A03-1001-CR-13 ) - Following a bench trial in the St. Joseph Superior Court on charges of misdemeanor possession of marijuana and felony dealing in cocaine, the trial court found Eric C. Danner guilty of those charges and sentenced him to an aggregate term of thirty years executed. In Danner's direct appeal from his conviction, he argues that the trial court erroneously admitted evidence discovered during an inventory search of Danner's car prior to impoundment, alleging that police officers did not follow departmental procedure regarding such searches and otherwise violated both state and federal constitutional protections from unreasonable searches and seizures. The Scheduled Panel Members are: Judges Kirsch, May and Mathias. [Where: Hoosier Boys State at Trine University, Angola, Indiana]

Next week's oral arguments before the Court of Appeals (week of 6/21/10):

Next Tuesday, June 22nd

  • 10:00 AM - S. T. v. Community Hospital North In-Patient Psychiatric Unit (49A04-0910-CV-617) - S.T. was ordered committed to the Community Hospital psychiatric unit on the ground she was dangerous to herself or others. She had attempted suicide by ingesting a bottle of Tylenol. After she was admitted, she verbally expressed anger but was not violent toward anyone, and she swallowed some earrings. She argues that evidence was insufficient to support the determination she was dangerous. The Scheduled Panel Members are: Judges Bailey, May and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 1:00 PM - Samuel Neal v. William J. Cure, et al (49A04-0908-CV-468) - Neal sued Cure after a pollutant leaked from Cure's property onto Neal's. Cure's tenant, a dry cleaner, occupied Cure's property when the pollution occurred. The trial court granted summary judgment for Cure on the ground Cure was not responsible for the tenant's actions and had no duty to prevent the pollution, and Neal appeals. The Scheduled Panel Members are: Judges Bailey, May and Barnes. [Where: Court of Appeals Courtroom (WEBCAST)]

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, June 14, 2010
Posted to Upcoming Oral Arguments

Sunday, June 13, 2010

Law - "Legacy for One Billionaire: Death, but No Taxes" (Ripped from the Headlines)

This story from last Tuesday's NY Times bears some similarities to a recent episode of Law & Order, but I was certainly not the first to notice.

First, the Times story: David Kocieniewski reported:

A Texas pipeline tycoon who died two months ago may become the first American billionaire allowed to pass his fortune to his children and grandchildren tax-free.

Dan L. Duncan, a soft-spoken farm boy who started with $10,000 and two propane trucks, and built a network of natural gas processing plants and pipelines that made him the richest person in Houston, died in late March of a brain hemorrhage at 77.

Had his life ended three months earlier, Mr. Duncan’s riches — Forbes magazine estimated his worth at $9 billion, ranking him as the 74th wealthiest in the world — would have been subject to a federal tax of at least 45 percent. If he had lived past Jan. 1, 2011, the rate would be even higher — 55 percent.

Instead, because Congress allowed the tax to lapse for one year and gave all estates a free pass in 2010, Mr. Duncan’s four children and four grandchildren stand to collect billions that in any other year would have gone to the Treasury. * * *

The bonanza in tax savings for Mr. Duncan’s descendants is sure to be unsettling to those who have paid estate taxes on more modest wealth — until Jan. 1 of this year, it applied to any estate valued at more than $3.5 million, taxing only the money exceeding that threshold, or $7 million for a couple’s estate.

Although the tax affects only about 5,500 estates a year, it is such an incendiary issue that when Congress unexpectedly let it lapse at the end of 2009, financial advisers warned that it might play a macabre factor in the end-of-life decisions being weighed by heirs of elderly Americans. Some estate lawyers worried that tax considerations might prompt their clients to keep an ill relative on life support through the end of 2009 to get the favorable treatment — or worse, resist life-prolonging measures to hasten a relative’s demise before the end of 2010. [L&O!]

The one-year lapse in the estate tax was signed into law by President George W. Bush in 2001, an accounting quirk in his package of tax cuts. Although Democrats pledged to close that gap and reinstate a tax for 2010 when they took control of Congress, they failed to reach an agreement last December. The Senate Finance Committee is now trying to forge a compromise that would reinstate the tax, but even if that effort succeeds, it is unclear whether any changes might be retroactive and applied to those who have died so far in 2010.

Many lawyers say Mr. Duncan’s heirs have the means and motivation to wage a fierce court battle to challenge the constitutionality of any retroactive tax.

On June 11 the NY Times ran this column by Paul Sullivan -- some quotes:
THE disappearance of the federal estate tax this year has created confusion and frustration among the wealthy, even among those who stand to benefit from it. And this has sent them in droves to amend documents that they may have to change again next year. * * *

How this boon to tax advisers happened is yet another chapter in the partisan gridlock common to Washington these days. At the end of 2009, Max Baucus, the Montana Democrat who is chairman of the Senate Finance Committee, tried to extend for three months the existing estate tax laws, put in place in 2001. But when that motion failed, the estate tax expired for the first time since 1916.

What this has meant is that the heirs of wealthy people who die this year will owe no taxes. An extreme case, as detailed in an article in The New York Times on Tuesday, is that of Dan L. Duncan, who died two months ago with an estimated wealth of $9 billion. His heirs will inherit his estate without paying the 45 percent tax that was in effect in 2009, billions that would have gone to the Treasury.

But it is possible that next year will bring cases of the other extreme, when the amount exempt from the federal estate tax falls to $1 million, its 2001 level, from $3.5 million in 2009, and the rate rises to 55 percent, from 45 percent.

“Dan Duncan dies and pays nothing, but the guy who dies with his house worth $2 million next year and his estate is going to pay $550,000,” said Lance S. Hall, president of FMV Options, a firm that values estates. “Is that fair?”

While there were rumblings at the beginning of the year that Congress might reinstate the estate tax and make it retroactive to Jan. 1, it has made no progress on the issue. And the death of someone as wealthy as Mr. Duncan makes a retroactive tax unlikely.

“Now we’re way beyond that consideration,” Mr. Kesten said. “This single family could outspend the I.R.S. in litigating this.” * * *

The real problem comes for the merely rich — individuals worth more than $1 million and less than $3.5 million and couples with net worths of $2 million to $7 million who previously did not have to worry about the estate tax. If Congress fails to act again this year, the estate tax laws next year will revert to their levels before 2001, and that could snare a host of people who set up the estate plans on the assumption that there would be no tax when they died.

“If Congress does nothing, there would be a sevenfold increase in the number of estates subject to the tax than if the exemption stayed at $3.5 million,” said John Dadakis, partner at the Holland & Knight law firm.

As the law stands, the heirs of a single person who dies next year with more than $1 million would be subject to a 55 percent tax. (For couples, it is $2 million.) Heirs of that same person, with a $3.5 million estate, would have paid nothing in 2009 but could pay as much as $1.375 million in 2011, depending on the level of planning. And while this wealth may seem high in many parts of the country, it has professionals on the coasts grumbling.

“In the Northeast, where people own their own homes and have owned them for decades and have money in their retirements, there tend to be a lot of millionaires,” Mr. Kesten said. “It would sweep a whole chunk of the upper-middle class into what used to be a fairly elite group.”

Mr. Sullivan's column points out another aspect of the problem:
[T]he assets of people who died under the old estate tax regime were valued at the date of their death for tax purposes. Any capital gains on, for example, stocks purchased decades earlier — which would have been subject to tax if sold — were erased. That is no longer the case, and figuring out what is owed requires determining the original purchase price — however long ago that was.

Without an estate tax this year, the Internal Revenue Code grants an artificial step-up in basis, as it is called, of $1.3 million to be used at the executor’s discretion and $3 million on assets passed to a spouse. The only glitch is the Internal Revenue Service has yet to issue documents to record how this exemption has been applied.

“The absurdity of it all is there is not even an I.R.S. form yet to do this,” Ms. Hader said. “My client who died on Jan. 2. Even if we wanted to comply with the law as it exists now, we can’t.”

“We are aware of the increasing need for direction from the I.R.S. on this issue,” the agency said in a statement. “We will be working closely with the Treasury Department to provide answers as quickly as possible, and, if necessary, to develop a new form.”

While the tax would not be due until April 15, 2011, the problem comes when heirs need to sell something. If they received a long-held position of stock, they might want to sell part of it to diversify their holdings or raise cash. But they would incur a 15 percent capital gains tax on the appreciated amount.

It is trickier for property. John Nuckolls, national director of the private client tax services practice at the accounting firm BDO, said a friend in Iowa inherited a farm from his mother that he wanted to sell. With a basis near zero, it was worth more than the $1.3 million that the I.R.S. step-up in basis would exempt but less than the $3.5 million exemption in 2009. If he sells it this year, he will incur capital gains tax.

But that is little compared with what heirs to a moderately wealthy person may pay if Congress does not act.

Now back to Law & Order. This May 22, 2010 entry from the Wills, Trusts & Estates Prof Blog includes a clip from the May 10th, episode of Law & Order entitled The Taxman Cometh.

Posted by Marcia Oddi on Sunday, June 13, 2010
Posted to General Law Related

Ind. Law - More on "Allen County hires outsiders to defend in abortion dispute"

Yet another story today on Fort Wayne's new ordinance, this one by FWJG reporter Angela Mapes Turner. (See entry on yesterday's story here.) Today's story is headed "Legal team touts 83% success rate." Some quotes:

The Christian legal group defending Allen County against a lawsuit challenging its patient-safety ordinance is one of the best-funded and most successful of its type in the country.

Even if Allen County residents haven’t heard of the Alliance Defense Fund, chances are they’re familiar with the organization’s work. The group, which boasts a winning record, says it has fought battles similar to the one it will wage for the county.

Several government agencies nationwide have allowed the group to go to bat for them on social and religious issues. Locally, it was involved in a federal court case out of Huntington County. * * *

Although this fight would be the Alliance Defense Fund’s most visible in northeast Indiana, it wouldn’t be the first time the organization has jumped into the fray of local court battles.

Last year, the group filed a friend-of-the-court brief in U.S. District Court in Fort Wayne on behalf of the Huntington County Community School Corp. but did not represent the school district in a lawsuit to block a religious education program at Horace Mann School.

A parent represented by the American Civil Liberties Union sued the school district to shut down the program, arguing that the school district violated the First Amendment by allowing the program to be conducted on school property during instructional time.

That case was settled last year when the school district agreed to remove trailers where Bible lessons were taught from school grounds and pay a settlement.

The group has fought to uphold gay-marriage bans and helped lead the legal challenge to San Francisco’s same-sex unions. An attorney for the Alliance Defense Fund has argued in Indiana for a constitutional marriage amendment limiting marriage to a man and woman. * * *

If success can be measured in financial terms, the Alliance Defense Fund is well-positioned.

Its assets totaled more than $33.7 million in 2008, the most recent year data was available from GuideStar, an organization that tracks non-profits.

Alliance Defense Fund touts its successes in the courtrooms as well. In 2008, the Alliance Defense Fund had an 83 percent success rate in all cases litigated to conclusion, and since it began in 1994, the group and its allies have won more than three out of four cases, according to the Alliance Defense Fund’s website.

Allen County commissioners said its offer to defend the county for free is the Alliance Defense Fund’s top selling point, downplaying the abortion issue and saying Klopfer brought abortion to the forefront by challenging the ordinance.

“We have not made this about abortion,” Commissioner Nelson Peters said Friday. “We’ve made this about general patient safety.”

But whether or not there is a financial cost, Americans United’s Lynn said, there can be a cost in having a partisan organization represent the county.

“Sometimes these groups pressure communities into fighting legal battles they have no chance of winning,” he said. “Some of these cases can deeply divide communities.”

Katie Blechacz, a spokeswoman for the Alliance Defense Fund, would not say whether the group approached Allen County to offer help or whether the county asked for it.

Blechacz said there has not been a case that directly mirrors the one it will take on in Allen County. But some cases have similarities, and there are many cases of the Alliance Defense Fund representing governmental bodies, she said.

In 2007, Missouri Gov. Matt Blunt’s administration retained Alliance Defense Fund attorneys after Planned Parenthood filed a lawsuit against a state law that would require abortion clinics to be designated as ambulatory surgical clinics. The law meant those clinics would have to meet specific safety standards, similar in intention to Allen County’s ordinance.

More recently, Alliance Defense Fund has represented parties working with the Arizona attorney general to defend Arizona’s informed-consent law. That suit pairs the Alliance Defense Fund with the Bioethics Defense Fund and Life Legal Defense Fund as co-counsel, and it pits them against the same opponent as in the Allen County case, the Center for Reproductive Rights.

The ILB has been unable to determine the final outcome of the Missouri challenge.

Posted by Marcia Oddi on Sunday, June 13, 2010
Posted to Indiana Law

Ind. Law - More on: "Legislator who created ID bill regarding alcohol now wants the law changed"

Following on a story June 11th, the South Bend Tribune has another story today, by a second reporter, Daryl Bjorass, this one headed "Get ready to show your ID for Indiana alcohol purchases." Some quotes from the lengthy story:

What do Betty White, B.B. King and Neil Armstrong all have in common?

Well, if they're in Indiana anytime after July 1, they'll all be required to show ID if they want to buy alcohol.

Senate Enrolled Act 75 is a new law that will require liquor and convenience stores, pharmacies and supermarkets to check photo IDs for anyone purchasing alcohol, regardless of their age.

And that was never the intention, according to the bill's co-author, Republican Sen. Ron Alting from Lafayette.

"It caught us all off guard," Alting said. "We thought we looked at the wording pretty carefully."

Alting said Senate Enrolled Act 75 was supposed to help stop alcohol from getting into the hands of minors.

Instead, it's going to create a lot of confusion at the checkout counter.

It's an example of poor public policy, Alting said. The cloudy language was a result of Indiana legislators having too much on their plate.

The law had a number of alcohol reforms rolled up into one bill; they included extending Sunday hours for bars, allowing liquor stores to sell alcohol on Election Day and Sunday carryout sales for microbreweries.

"There were so many things going into one bill," Alting said. "We apologize, that was never the intent."

State Rep. Ryan Dvorak, D-South Bend, called the law sloppy.

Dvorak was one of 21 representatives who voted no to the changes in legislation.

He raised issues in regard to changing Election Day sales as well as the carding requirement.

"Making an 80-year-old person show their ID when you clearly know they're not underage is unnecessary," Dvorak said.

The bill passed through the Indiana House of Representatives 74-21 in February and through the State Senate 28-17 on March 1.

He agreed with Alting, saying the law was a result of having a limited amount of time to pass legislation.

The carding change probably wouldn't have passed if it were on its own, he said.

Some people, like Joe Lackey, president of the Indiana Grocery and Convenience Store Association, said the law wasn't strong enough.

"That 85-year-old guy in a wheelchair has a small price to pay," Lackey said. "You got your wallet out anyway, what's the big deal?"

Lackey said customers will be surprised at first, but with time they'll get used to it. * * *

Lackey wants to get rid of the human element of deciding who is young enough to get carded.

"This has been an ongoing problem with us," Lackey said. "Anytime you try to guess who reasonably appears to be of age, you're going to have mistakes and you're going to have errors."

Lackey wants Indiana lawmakers to put a universal product code on state licenses that could be swiped on cash registers to determine whether someone is of age.

Posted by Marcia Oddi on Sunday, June 13, 2010
Posted to Indiana Law

Ind. Courts - Marion County Juvenile Court Judge Marilyn Moores, a Lt. Colonel, is off to Afghanistan for a year [Updated]

Not as a judge advocate, but as a horse expert, part of an agricultural support team. According to a long story in the Indianapolis Star today by Jon Murray, which the Star in its wisdom has elected not to put on line, Judge Moores began active duty last week and her deployment starts August 22nd. Judge Moores has spent a year planning for her absence from the busy court. In her stead, provided the Supreme Court approves, Magistrate Gary Chavers will hold the reins as pro tem judge.

[Updated at 4:37 PM]
The story on Judge Moores is now available -- read it here.

Posted by Marcia Oddi on Sunday, June 13, 2010
Posted to Indiana Courts

Saturday, June 12, 2010

Ind. Law - "Allen County hires outsiders to defend in abortion dispute"

Updating this ILB entry from June 10, 2010, where the Fort Wayne Journal Gazette reported that the county commissioners were discussing hiring the Allied Defense Fund to serve as primary legal counsel for the county in a recent lawsuit against a new ordinance, Amanada Iacone of the FWJG reports in this June 11th story:

The Allen County commissioners today agreed to hire the socially conservative Alliance Defense Fund to defend against a lawsuit seeking to overturn the county’s new patient safety ordinance.

The commissioners unanimously approved a resolution that appoints the attorney Steven Aden and the Defense Fund as the county’s primary legal counsel.

The alliance of Christian attorneys focuses on areas of litigation that affect religious liberty, marriage, the family and the sanctity of life, including abortion and assisted suicide related cases.

The commissioners defended the move before their vote.

Some may question the motive behind the ordinance and the commissioners' hiring decision, but the ordinance was intended to address general patient safety, not abortion, Commissioner Nelson Peters said.

Commissioner Bill Brown blamed the man who brought the lawsuit against the county for making the ordinance about abortion.

Dr. George Klopfer, the lone surgical abortion provider in Fort Wayne, sued the county in May seeking to overturn the county’s new patient safety ordinance, claiming it presents an undue burden on women seeking such services, is unconstitutionally vague, violates patients’ rights to privacy, discriminates against certain classes of doctors and seeks to regulate an area already regulated by the state.

Klopfer is represented by the American Civil Liberties Union and the Center for Reproductive Rights. * * *

nitial hearings have already been in held Allen Superior Court. However, county attorney Bill Fishering believes the case will end up in federal court, Peters said.

Posted by Marcia Oddi on Saturday, June 12, 2010
Posted to Indiana Law

Ind. Courts - Class action filed re State's failure to timely process unemployment claims

The 12-page complaint, filed yesterday by the ACLU on behalf of John Gorman and those similarly situated, contends:

51. As set forth above, the defendants fail to issue unemployment compensation benefits when due, and fail to issue first level benefit decisions in unemployment appeals with the greatest promptness administratively feasible or within the time limits provided by federal regulations, and their actions are therefore in violation of federal law (42 U.S.C. § 503(a)(1» and accompanying regulations.
Access it here.

Posted by Marcia Oddi on Saturday, June 12, 2010
Posted to Indiana Courts | Indiana Government

Ind. Courts - "State's toxicology department might be better off on its own than under the administration of IU's medical school"

Supplementing these ILB entries from May 13, May 14, and May 29, 2010, that is how this story by Will Higgins in today's Indianapolis Star begins, reporting on the Friday's report of "a panel charged with investigating the troubled department." (It is unclear whether there was a written report, none is available on the Governor's Council's website, but neither are any details on the 5-member group, any minutes, etc.)

More from today's story:

The five-member group, appointed by the Governor's Council on Impaired and Dangerous Driving in March, found that "the placement of the Indiana State Department of Toxicology at the Indiana University School of Medicine is not compatible with the medical school's mission," said Linda Chezem, a former appeals court judge who led the group.

That finding could be Round 1 of a long battle because IU wants to hold on to the department it has administered for more than half a century.

A group of IU administrators attended the panel's presentation, joined by former Marion County Prosecutor Scott Newman, whom IU expects to hire as a consultant to help make improvements and restore lost confidence among the state's prosecutors. * * *

The Governor's Council voted unanimously to accept its panel's recommendations and agreed to form a task force to explore new legislation that would separate the toxicology department from the university.

The General Assembly approved the arrangement in the 1950s, and it would be up to the legislature to change it.

Indiana's is thought to be the only state toxicology department in the nation operated by a university.

A parallel problematic situation, IMHO, involves the Indiana state chemist being part of Purdue University. See these ILB entries from Feb. 14 and May 25, 2010.

Posted by Marcia Oddi on Saturday, June 12, 2010
Posted to Indiana Courts | Indiana Government | Indiana Law

Courts - SCOTUS term's pending cases

SCOTUSblog has a good roundup by Anna Christensen of what is likely coming yet this month. The intro:

So far, the Court has decided fifty-three of its argued cases this Term, including all cases argued during the October Sitting. However, twenty-four argued cases are still pending, and are expected to be decided before the end of the Term. Below the jump, you’ll find a list of all this Term’s outstanding cases and the issues involved, organized by sitting.
Three of the most anticipated:
McDonald v. City of Chicago (08-1521)
Argued: Mar. 2, 2010
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

City of Ontario v. Quon (08-1332)
Argued: Apr. 19, 2010
Issue: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, when the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Doe v. Reed (09-559)
Argued: Apr. 28, 2010
Issue: (1) Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.

Posted by Marcia Oddi on Saturday, June 12, 2010
Posted to Courts in general

Friday, June 11, 2010

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

For publication opinions today (2):

In Sam's East, Inc. v. United Energy Corporation, Inc., et al. , a 9-page opinion, Judge Basrnes concludes:

Here, the BZA found that the need for the variance arose because the property was purchased and permitted for a gas station before the ordinance was amended. This finding, however, does not relate to the uniqueness of the property but, instead relates to the uniqueness of Sam's history with the property. Because this finding is not indicative of some condition peculiar to the property that limits the property from being developed in a manner consistent with the Overlay Zone, it is more appropriately considered under the unnecessary hardship requirement of Indiana Code Section 36-7-4-918.4(4). To hold otherwise would be to overlook the statutory requirement that the variance be related “to some condition peculiar to the property.” I.C. § 36-7-4-918.4.

It is clear the BZA had broad discretion to make factual determinations; however, the BZA did not have discretion to incorrectly interpret or define the condition peculiar requirement. Although the BZA's finding that the property was purchased and permitted for a gas station prior to the amendment of the Overlay Zone is supported by the record, that finding does not support the conclusion that the variance could and/or should be granted based on the condition peculiar requirement.

The trial court properly reversed the issuance of the variance because the BZA's findings do not support the conclusion that the need for the variance arises from a condition peculiar to the property. We affirm.

In Larz A. Elliott v. Rush Memorial Hospital , a 17-page opinion, Judge Barnes writes:
Conclusion. The trial court erred in concluding that the Defendants enjoy complete statutory immunity from any civil liability related to Elliott's claims of battery and negligence. However, Elliott's claims fall outside the parameters of the Act because he was not a “patient” of the Defendants. On that basis, we affirm the trial court's dismissal of Elliott's proposed complaint. Affirmed.
NFP civil opinions today (5):

In Cedar Mill Homeowners v. Patrick Bocian (NFP), a 4-page opinion, Judge Bailey writes:

Patrick J. Bocian failed to make his Homeowner’s Association dues payment, and Cedar Mill turned the matter over to the Tanner Law Group to collect the delinquent amount. On November 9, 2009, Cedar Mill filed a Notice of Claim against Bocian for the $375 in outstanding dues plus court costs and attorney fees. After a hearing, the small claims court entered judgment in favor of Cedar Mill for $375 plus court costs. This appeal ensued regarding attorney’s fees. * * *

[T]here is no proof that legal action was necessary because Bocian was never notified of the dues he owed.

Moreover, the amount of the trial court’s award of attorney’s fees must be supported by the evidence. Dempsey v. Carter, 797 N.E.2d 268, 275 (Ind. Ct. App. 2003), trans. denied. The trial court awarded $0 in attorney’s fees, which is supported by the evidence: Cedar Mill failed to present any evidence supporting the amount of attorney’s fees it was seeking. Therefore, the trial court did not abuse its discretion in awarding no attorney’s fees to Cedar Mill. Affirmed.

Gregor W. King, et al. v. Hamilton Southeastern Utilities (NFP) - "Gregor and Delores King appeal the amount of damages entered after a jury trial for the valuation of their land affected by the acquisition of a temporary and permanent easement by Hamilton Southeastern Utilities, Inc. (“HSU”) by eminent domain. We affirm."

K.T. v. Review Board (NFP) - "K.T. appeals the decision of the Indiana Department of Workforce Development Unemployment Insurance Review Board (“the Review Board”) affirming the decision of the administrative law judge (“ALJ”) to dismiss her appeal as untimely. We affirm."

In Jenny Stacey v. Judy Morrow, et al. (NFP), an 8-page opinion, Judge Darden concludes:

We find that the trial court did not abuse its discretion when it determined that it was in C.'s best interest for Grandparents to have visitation with her. Based upon the evidence presented and the fact that C. was three years of age at the time, we do not find that the trial court's grant of visitation for a seven-hour period each week is an abuse of discretion as exceeding the bounds of “occasional, temporary visitation” contemplated by the Act.
Angela (Stowers) Earle v. Bryan Stowers (NFP) is a 22-page, 2-1 opinion in which the majority concludes:
In conclusion, we hereby reverse and remand the trial court with instructions to conduct an evidentiary hearing for the purpose of determining Father's child support arrearage; interest thereon; and Father's ability to pay his child support arrearage in a timely and reasonable manner. In addition to hearing evidence on Father's child support arrearage, the trial court also shall consider competent evidence in determining whether Mother is entitled to reimbursement from Father for Son's postsecondary education expenses; whether Son is emancipated; and/or whether child support shall be terminated pursuant to Indiana Code section 31-16-6-6.
NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "Legislator who created ID bill regarding alcohol now wants the law changed"

Kristin Bell reports today in the South Bend Tribune:

MISHAWAKA — A new law taking effect on July 1 could be changed again when lawmakers return in January.

Starting in July, no matter how old you are, you will be carded. Whether you are 22 or 82, you will have to show ID to purchase alcohol in Indiana.

The law will apply to any store selling "carryout" alcohol — that means liquor stores, convenience stores, and supermarkets. But the creator of the law says that is not how he wanted the law to work.

State Sen. Ron Alting of Lafayette originally drafted a bill to allow microbreweries to sell carryout on Sundays. The law was changed in committee and, among other things, requires clerks to check everyone's ID.

Now Alting says he looks forward to changing it back.

"The intent was you only card for carryout — anyone that looks age 50 or less," Alting said in a phone interview with WSBT.

Much to the surprise of Alting, there has been a lot of support for the law. In fact, many stores have already implemented the policy, even though the law doesn't go into effect until July. Most hope it will cut down on alcohol sales to minors, by making ID checks routine.

"If you want to get alcohol, show your ID. That way there is no guess,” said Sgt. Regis Thimons with the St. Joseph County Sheriff's Department.

"What it is going to prevent is a sale being made to a 19-year-old who may look 26 or 27," said Scot Imus, executive director of the Indiana Petroleum Marketers and Convenience Store Association (IPCA).

Imus cites a two-year undercover study by the Alcohol Tobacco Commission that found a 35 percent failure rate when it came to selling alcohol to minors in Indiana. He says that is why many of the IPCA member businesses voluntarily began carding every customer. Now, this new law will reinforce what Imus says businesses are already doing.

"We would hope that people understand that the few seconds it takes to show a clerk an ID is going to be well worth it if it prevents just one instance of alcohol winding up in the wrong hands," Imus said.

But not everyone agrees. State Rep. Ryan Dvorak voted against the law because he says the ID provision didn't make sense and was drafted poorly.

The 2010 law is SEA 75.

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to Indiana Law

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

Updating this ILB entry from Feb. 24, 2010, Carrie Ritchie reports today in the Indianapolis Star:

Three school districts suing the state for more funding are expected to respond today to the state's motion to dismiss the lawsuit.

The state argues that the districts, led by Hamilton Southeastern Schools, have no standing to sue.

Political subdivisions such as school corporations have no sovereign authority, so they cannot challenge the constitutionality of state law, according to an e-mail from Bryan Corbin, spokesman for the attorney general's office.

The state also claims that school funding is a legislative issue and it wouldn't be appropriate for a judge to rule on it.

Patricia Whitten, a Chicago-based attorney representing the schools, said she has strong arguments to refute those claims and that past cases show that schools can sue. * * *

Attorney General Greg Zoeller, who's representing the state, criticized the lawsuit in February, calling it a waste of taxpayer money. * * *

But the schools claim they have to do something, and that their attempts to lobby legislators have failed.

HSE grew by 10,000 students from 1999 to 2009, according to the lawsuit, and district officials say enrollment is increasing by about 800 students each year, but the district expects its per-student funding to decrease through 2011.

All three districts are making cuts to make ends meet, and voters last fall approved a property tax increase to give HSE an extra $38.5 million over seven years.

The schools don't plan to drop the lawsuit unless legislators fix the formula to give growing districts their fair share of the money, Whitten said.

"We haven't heard anything that would cause us to drop it at this point."

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to Indiana Government

Law - "Restoring leadership and integrity to the Office of Legal Counsel"

Dawn Johnsen is identified in her Washington Post column today as "The writer, a professor at Indiana University Maurer School of Law in Bloomington, Ind., served at the Office of Legal Counsel from 1993 to 1998, including as the acting assistant attorney general." Some quotes:

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding. * * *

Proposals for radical reform to make the OLC independent from the sitting president are wrongheaded. The office's political leadership should be committed to the administration's success and must have the president's confidence, lest the president or other administration officials avoid bringing the most difficult and consequential issues for review. And when the OLC says no, it should stand ready to assist the administration in developing lawful means of achieving its legitimate ends.

The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks. Nor should such a critical office go without a confirmed head. It is time for the swift confirmation of an assistant attorney general and a renewed bipartisan commitment to the integrity of the OLC's work.

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to General Law Related

Environment - More on: Gov. Mitch Daniels announces a major land conservation initiative

Updating this ILB entry from yesterday, this morning Gov. Daniels announced the second-part of the program. Today's news release begins:

SCOTTSBURG, Indiana (June 11, 2010) - Governor Mitch Daniels today announced a second major land conservation project in as many days - this one targeting more than 25,600 acres along the Muscatatuck River known as Muscatatuck Bottoms in Scott, Jackson and Washington counties.

On Thursday in Terre Haute, Governor Daniels announced a 43,000-acre conservation initiative along 94 river miles of the Wabash River and Sugar Creek.

"We're out to create something of lasting and large importance for our state and protect its natural beauty. With these projects, we aim to make Indiana a destination point for waterfowl, a destination point for tourists, and to become a national leader in wetlands and wildlife protection," said the governor.

Muscatatuck Bottoms contains the largest least-fragmented complex of bottomland forest remaining in Indiana. The forest is characterized by several species of oak, hickory and sweet gum.

The site provides habitat for a number of species of conservation concern, including such birds as the least bittern, yellow-crowned night heron, red-shouldered hawk and Cerulean warbler. Two state-endangered reptiles, the Kirtland's snake and copperbelly watersnake, also are found there, as is featherfoil, a state-endangered plant.

Also today, Bill Ruthhart of the Indianapolis Star has a story headed "Daniels' wetlands plan is called 'amazing'." Some quotes:
Gov. Mitch Daniels on Thursday unveiled the state's most aggressive conservation initiative in recent history, promising to preserve thousands of acres of wetlands in two areas.

Daniels said the state would try to acquire 43,000 acres in the flood plain of a 94-mile stretch of the Wabash River from Shades State Park south of Crawfordsville to Fairbanks Landing Fish & Wildlife Area south of Terre Haute.

Today, he'll announce a similar initiative for the Muscatatuck River in southeastern Indiana * * *

"This is the most amazing and perhaps the most significant investment in conservation in a generation in Indiana," said Mary McConnell, state director for The Nature Conservancy of Indiana. "It's exactly the kind of project we should be working on as a state." * * *

The state will use $21.5 million from the Lifetime License Trust Fund, a state account dedicated to conservation, and $10 million from the U.S. Fish and Wildlife Service to begin acquiring the land. The Lifetime License Trust Fund collected money from the sale of lifetime hunting, fishing and trapping licenses, which were discontinued in 2005.

Daniels said the $31.5 million in cash would be used to leverage additional federal funding, as well as private contributions.

Nick Heinzelman, director of land acquisition for the state Department of Natural Resources, said that money would not be enough to buy all of the land but would go a long way. None of the land, he said, would be taken forcibly by eminent domain.

"This will all come from voluntary sellers. Some will want to sell now; others may wait," Heinzelman said. "Any land that comes up for sale, we'll be there to buy it right away."

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to Environment | Indiana Government

Courts: More on "Distasteful speech protected, too"

Last Sunday the Fort Wayne Journal Gazette published a commentary authored by their Washington editor, Sylvia A. Smith. The subject: protests at funerals for Amercian solders. Per this ILB entry from June 6, 2010, Ms. Smith's commentary began:

I do not think the Supreme Court should rule the hatemongers can’t do what they do, and I think Indiana’s attorney general was wrong to add our state’s lobbying power to the 47 other states that asked the court to let them stunt the First Amendment when it comes to speech most people find reprehensible.
Today on its editorial page, the FWJG publishes a response by AG Zoeller. A quote:
The Indiana Attorney General’s Office often joins friend-of-the-court briefs filed in the U.S. Supreme Court in cases involving interaction between state and federal laws. We don’t bring “lobbying power” to the U.S. Supreme Court as Smith’s column put it, but my attorney general colleagues and I often present a united front before the high court.

There are compelling constitutional rights in this case which necessitate that one person’s rights give way to the other. The key to weighing these rights is the private nature of the funeral that was meant to allow the grieving Snyder family to bury their son. Their private service must be given protection not afforded public events. The Constitution does not protect interruptions by the vicious taunts of strangers who had no connection to them or their son.

This case is not about censorship of an individual by government. Instead, this is a civil tort, filed by one private individual against another. Phelps chose to wage his war of words against entire segments of society by directing his vitriol at the family of Lance Cpl. Snyder, who never was in a position to influence nationwide social trends.

To violate the sanctity and solemnity of a private funeral and purposefully inflict anguish on the mourners is an intentional infliction of emotional distress. And the First Amendment does not preclude liability for extreme, outrageous expressions that intentionally inflict distress on private citizens.

Posted by Marcia Oddi on Friday, June 11, 2010
Posted to Courts in general

Thursday, June 10, 2010

Ind. Courts - "Judge changes mind on deal"

From the LaPorte Herald Argus today, this brief story:

A woman was almost off the hook until a judge learned it wasn’t the first time she was accused of theft from an employer.

Stacey McGuirl, 23, had her plea agreement that called for one-year probation on Class A misdemeanor conversion rejected Wednesday when La Porte Circuit Court Judge Tom Alevizos had a change of heart upon discovering she was convicted in 2004 of stealing from another employer.

“I don’t have a problem with this plea if it were her first time doing it but she’s already convicted of doing the same thing,’’ Alevizos said. * * *

Before rejecting the plea, Alevizos said he was going to order her to pay $100 a month until her obligation to the bookstore was satisfied.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Ind. Trial Ct. Decisions

Environment - "Covering The Environmental Beat In Northwest Indiana"

Dave Dempsey of Ecolocalizer has a great article today on the Gary Post Tribune's outstanding environmental reporter, Gitte Laasby. It begins:

During the last year, three newspaper reporters covering environmental and Great Lakes matters full-time have left the beat as their former homes downsize. Only a handful of such reporters remain. The youngest and most enterprising is Gitte Laasby of the Post-Tribune in Merrillville, Indiana.

A native of Denmark and a 2004 master’s graduate of the Michigan State University School of Journalism – known for its outstanding Knight Center for Environmental Journalism – Laasby broke a 2007 story about a proposed ammonia dumping increase by the local BP refinery into Lake Michigan. Picked up by Chicago and eventually Great Lakes regional media, the story stirred up public outrage. Ultimately, BP promised not to increase its discharge. More recently, Laasby broke a story about a pile of contaminated material a few hundred yards from Lake Michigan at what is now the ArcelorMittal steel facility at Burns Harbor. “Easterly’s pile” was nicknamed for the-then superintendent of environmental affairs at the company when it was U.S. Steel. Thomas Easterly is now the commissioner of the Indiana Department of Environmental Manage.

There are plenty of opportunities for Laasby to unearth similar stories in northwest Indiana. Although only about 45 miles in length, the state’s Lake Michigan shoreline begins not far east of Chicago and has been heavily industrialized for a century. The Indiana Dunes National Lakeshore and state park are anchored in the midst of steel plants, many now closed, coal fired power plants and other pollution sources. The pollution history of the region has spawned an active citizenry of environmental advocates.

Following the intro are a series of questions and thoughtful answers.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Environment

Environment - Gov. Mitch Daniels announces a major land conservation initiative

Lesley Stedman Weidenbener of the Louisville Courier Journal has a story here. Here is the long news release.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Environment | Indiana Government

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

For publication opinions today (4):

Viola Parsley, et al. v. Loogootee Realty, LLC - "We can conceive of many foreseeable dangers inherent in living in a nursing facility such as Loogootee and from which Loogootee had a duty to protect its residents. We cannot agree, however, that a person driving a vehicle across the front porch and through the wall of the facility was one of them. No questions of fact remain with respect to the element of duty under this theory of liability."

The Guardianship of E.F., Jr. - "Gail French Pheffer appeals1 the trial court's grant of a motion to dismiss filed by Edwin French III (“Ed III”). Pheffer raises two issues, which we consolidate and restate as whether the trial court erred by granting Ed III's motion to dismiss under Ind. Trial Rule 12(B)(6). We reverse."

In C.T. v. Indiana Department of Child Services Gammon , a 13-page opinion, Judge Vaidik writes:

C.T., pro se on behalf of himself and his minor son T.T., appeals the trial court's entry of summary judgment in favor of Ronald Beahm, M.D. Specifically, C.T. contends that Dr. Beahm, who served as T.T.'s pediatrician and was aware that T.T. was born prematurely and had respiratory problems, had a duty, pursuant to Indiana's child abuse and neglect reporting statutes, to report to the proper authorities that T.T.'s mother was smoking in T.T.'s presence, which amounted to child abuse or neglect. Because Indiana does not recognize a private right of action for failure to report child abuse or neglect, we affirm the trial court's entry of summary judgment in favor of Dr. Beahm. * * *

As a final matter, counsel for Dr. Beahm asks us to award them attorneys' fees and costs for the many hours they have expended “in deciphering and responding to the inappropriate, and at times incoherent and unintelligible, argument contained in [Father's] brief. [Father] has continually attempted to use his pro se status as an excuse for his disregard for procedural rules.” According to Indiana Appellate Rule 66(E), “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees. The Court shall remand the case for execution.”

Counsel argue that attorneys' fees and costs are appropriate “given the overall frivolous and harassing nature” of this appeal. Although Father's adherence to our appellate rules has been far from perfect, he has submitted an appellate brief that substantially complies with our rules. We thus decline to award attorneys' fees and costs to Dr. Beahm's counsel.

Jeffrey E. Akard v. State of Indiana - "Appellant-Defendant Jeffrey E. Akard filed a Petition for Rehearing of this Court's March 30, 2010 Opinion, increasing Akard's sentence pursuant to the requested Indiana Appellate Rule 7(B) review. We grant the Petition for Rehearing for the limited purpose of clarifying the characteristics of a 7(B) review."

NFP civil opinions today (0):

NFP criminal opinions today (4):

Caylin Black v. State of Indiana (NFP)

Kenneth Wilson v. State of Indiana (NFP)

Steven Wilson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Ind. App.Ct. Decisions

Courts - Justice Souter's Harvard Commencement remarks

Here, via the Harvard Gazette, is the text of the remarks Justice David Souter delivered at Harvard's 359th Commencement. And here is the entire event via YouTube.

Much has been written about the address, including, yesterday, this essay by Dahlia Lithwick of Slate that begins:

Almost two weeks ago, former Supreme Court Justice David Souter gave the commencement speech at Harvard, a speech that's been variously described by some of my favorite legal writers as a denunciation of "originalism," a defense of "living constitutionalism," and a suggestion that "judicial activism" is a game both liberals and conservatives can play. But the striking aspect of Souter's remarkable speech is that it rejected virtually all of these easy ideological labels and addressed itself to two much simpler questions: Is the meaning of the Constitution clear? And is the task of divining that meaning easy? These incisive questions themselves beg an even more pressing constitutional question: Why must justices first leave the bench before they can speak seriously about the importance of the court?
Here, from June 3, is NYT commentary by Linda Greenhouse.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Courts in general

Courts - "400 drunken-driving convictions in D.C. based on flawed test, official says"

Mary Pat Flaherty of the Washington Post reports today:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.

Nickles's office has begun notifying the drivers, a move that immediately triggered at least one lawsuit against the District and could lead to requests for expungements, new trials and even deeper skepticism about the integrity of testing. Challenging test results is at the heart of drunken-driving cases, and this revelation will only strengthen those challenges, defense attorneys said.

The District's badly calibrated equipment would show a driver's blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said. * * *

The machines have been under investigation by Nickles's office since February, when an outside consultant working for the city suspected an accuracy problem. The District has replaced the breath equipment with another brand and has begun to devise stricter standards for testing the accuracy of the machines to put the city more in line with nearby jurisdictions.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Courts in general

Ind. Courts - “This may well be the first time an Indiana judge presided over a hearing in an Indiana courtroom while being physically located in another state"

Pat Munsey reports today in the Kokomo Perspective:

On Wednesday, June 2, there were 11 Drug Court program hearings scheduled to be heard in Howard Superior Court 1. The judge was 800 miles away in Boston, attending the annual training conference of the National Association of Drug Court Professionals. Usually, on the rare occasions, such as this, when Menges is unavailable, Erik May, the juvenile drug court referee, or senior judge Dennis Parry presides over the specialized program hearings.

However, on June 2, May was also attending the conference, and Parry was unavailable. Menges was faced with either cancelling the weekly hearings, which are an integral part of the Drug Court program or coming up with an alternative.

Prior to leaving for the conference, Menges contacted Terry Tribby, the director of Howard County’s information systems, for help. The collaboration paid off, as they devised a solution which allowed Menges to use his laptop computer to remotely connect to the Superior 1 courtroom via video conferencing.

Using the laptop and the conferencing equipment, Menges connected and conducted the hearings as scheduled from Boston. Laura Stiner, the court reporter, said that in the courtroom everything proceeded as smoothly as usual. Defense attorney Matt Elkin added, “It went really well. This opens up a whole new era in court efficiency.”

When told of the successful experiment, Tribby said, “This confirms that in a pandemic situation we could virtually have judges anywhere in the world where there is an Internet connection and they should be able to continue basic operations. This was a good test of that theory.”

While the Howard County courts have been using video conferencing routinely to conduct hearings, up until now, the judge was always in the courtroom. This marks the first time the judge was remote and the parties were all in the courtroom.

“This may well be the first time an Indiana judge presided over a hearing in an Indiana courtroom while being physically located in another state,” said Menges. “Research has shown that eliminating even one court hearing for a Drug Court program participant has a significant negative impact on their recovery. Prior to today, our only option would have been to postpone the hearings. Thanks to Terry Tribby we didn’t have to do that.

“This technology will never take the place of sitting on the bench and seeing and hearing the participants in person, but it does show that there are a wide range of possibilities to explore while we try to increase the efficiency and efficacy of court proceedings.”

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Indiana Courts

Ind. Gov't. - "Only one state, Indiana, refused to provide any answers on timeliness despite repeated phone and public records requests"

That quote is from a story today in the Panama City Florida News Herald, reported by Michelle Roberts of the AP, and headed "Millions forced to wait for food stamps benefits." A few quotes from the lengthy story:

A review by The Associated Press found that dozens of food-stamp programs in 39 states left at least a quarter of applicants waiting weeks or months for food aid, some in areas that were not particularly hard hit by the economic downturn.

Federal law requires applications for food stamps to be reviewed within 30 days of being filed, and even faster for the poorest families. Failure to do so can subject agencies to federal sanctions and lawsuits, but individual families are largely at the mercy of their local administrators.

Among the excuses for the delays were overburdened bureaucracies, staff shortages or program rules. But that makes little difference to parents with hungry children. * * *

To look at the effect of the recession on the program, the AP gathered monthly numbers of new applications processed and those that took longer than 30 days from every county or region within each state for fiscal year 2009, the first full fiscal year of the recession.

Not every state could provide the data requested by the AP, either because of outdated computer systems or because they do not track the number of applications processed. But 39 states and Washington, D.C., provided overall counts, and 36 states had county or regional data.

Only one state, Indiana, refused to provide any answers on timeliness despite repeated phone and public records requests.

[Kevin Cancannon, undersecretary of the Department of Agriculture, which oversees food stamps] said in an interview with the AP that Indiana is "grossly behind" in processing food stamps after a botched effort to turn the program over to IBM Corp.

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Indiana Government

Ind. Decisions - "Indiana court sets rules for use of tests in sentencing"

The Supreme Court's decision yesterday in the case of Anthony Malenchik v. State of Indiana (ILB entry here) is the subject of an AP story today by Charles Wilson, headed "Indiana court sets rules for use of tests in sentencing" by the Lafayette Journal Courier. Some quotes:

INDIANAPOLIS — Judges can consider psychological test scores when sentencing defendants, but only up to a point, the Indiana Supreme Court said Wednesday.

The tests, commonly used by probation officers, can’t be used to determine how many years a person spends in prison, the justices said in a unanimous ruling.

But the court said judges can use them in related decisions, such as whether inmates must receive drug treatment and in setting terms of probation.

Probation officers across the nation use the tests — chiefly the Level of Service Inventory-Revised, or LSI-R — to assess whether an offender is likely to commit more crimes and determine the level of supervision and type of treatment needed.

And that, the judges said, is the tests’ proper role.

“Such evidence-based assessment instruments can be significant sources of valuable information for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters,” Justice Brent Dickson wrote in the 15-page decision.

But, he said, it was clear the tests were neither “intended nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender.”

The ruling upheld a six-year sentence imposed by a Tippecanoe County judge on Anthony Malenchik on charges of receiving stolen property and being a habitual offender. Malenchik had argued the judge improperly used the test scores as aggravating factors in determining his sentence.

While the justices said the test scores shouldn’t be used as aggravating factors, they did not believe the judge had done so.

The court also upheld an eight-year sentence given to a convicted child molester on the same grounds. [ILB - that was J.S. v. State of Indiana - ILB entry here - 2nd case.]

Posted by Marcia Oddi on Thursday, June 10, 2010
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 09, 2010

Ind. Courts - Delaware Prosecutor McKinney now object of two lawsuits

A story today by Douglas Walker of the Muncie Star-Press appears in that paper today under the headline "Inmates sue over McKinney/DTF 'confidential' settlements" and in the Indianapolis Star under the headline "Felons claim prosecutor took their property." From the story:

MUNCIE -- Attorneys for four convicted felons filed suit Tuesday against Delaware County Prosecutor Mark McKinney over "confidential settlement agreements" that saw the plaintiffs surrender cash and other assets to the Muncie-Delaware County Drug Task Force "while under threat of prosecution."

Also named as defendants in the lawsuit -- which the lawyers seek to expand into a class action suit, potentially on behalf of scores of defendants in local drug cases -- are Delaware County, the city of Muncie and McKinney's predecessor as prosecutor, Richard Reed.

The suit, filed late Tuesday afternoon in Delaware Circuit Court 2, alleges local law enforcement agencies, "working with the county prosecutor, have been taking property from certain criminal suspects in violation of their due process rights."

The lawsuit -- filed by Indianapolis attorneys Cara Schaefer Wieneke and William M. Horne -- seeks to divide their prospective clients into two "subclasses."

One of those subclasses would consist of drug suspects, such as lawsuit plaintiffs Lorenzo Ford and Casey Hammond, "from whom property was seized, no civil forfeiture proceedings were instituted and no attempts were made ... to contact these persons or return their property."

The other subclass would by made up of suspects, including plaintiffs David Cauthen and Michael Gilmore, who signed confidential settlement agreements with McKinney and the DTF to "give up part of all of their property" while still facing possible prosecution.

While a special prosecutor last year found no criminal wrongdoing in McKinney's dual roles as DTF attorney and prosecutor, the Indiana Supreme Court's disciplinary commission almost simultaneously filed a complaint, over the same issues, claiming the prosecutor had violated rules of professional conduct.

A hearing on those allegations is set for July. McKinney -- who couldn't be reached Tuesday night at a cell phone number that is apparently no longer in service -- last month was defeated in the Democratic primary, and will leave office at year's end. * * *

In the wake of hearings, most conducted by Judge Richard Dailey, significant changes have been made in how local forfeiture proceedings are conducted. For instance, members of the prosecutor's staff no longer handle civil forfeiture cases.

A sidebar to the version of the story in the Muncie paper gives summaries of the claims of each of the plaintiffs. The Muncie paper also links to the plaintiffs' 14-page "Complaint for class action certification, declaratory and invunctive relief, return of property, and damages," and to their 5-page "Motion to consolidate all similarly situated causes and to dismiss for failure to prosecute."

The Star-Press today also contains an opinion piece from Larry Riley, who teaches at Ball State, that begins:

The lawsuit we should all have seen coming is now imminent.

A pair of Indianapolis attorneys are ready to file a civil rights lawsuit against the city of Muncie and Delaware County and Prosecutor Mark McKinney for their handling of asset forfeitures by drug defendants.

The suit requests approval of a class action to bring in every defendant who lost money or property without having civil cases filed against them. That would include dozens of defendants who signed infamous confidential settlement agreements, secretly relinquishing cash and other assets, including automobiles, sometimes not even their own.

For those supporters of the beleaguered prosecutor who have carped that former Prosecutor Rick Reed started forfeiture practices but has escaped attention, they get belated consolation: Reed's also named in the suit.

Both Reed and McKinney, who lost his bid for re-election in last month's primary, are named as individuals.

In almost all confidential settlement agreements, McKinney acted ostensibly as private counsel, though he often signed as deputy prosecutor.

In civil cases without CSAs, McKinney acted as a private attorney under contract to the prosecutor for pursuing forfeitures, for which he got 25 percent of the proceeds as legal fees. He also got that percentage of CSA forfeitures.

The suit -- I've seen a draft -- echoes findings of Circuit Court 2 Judge Richard Dailey in 2008, when he opened dozens of cases on his own and held a series of hearings, ultimately resulting in a finding that forfeitures in Indiana must go through court.

The four named plaintiffs -- all currently incarcerated -- who are offered as "representatives" of the class of people who lost assets without going through court are divided into two categories: a "no-contact subclass" and a "CSA subclass."

The two in the latter class were among signatories whose CSAs came to light in 2008 when Dailey, on learning of the secret agreements, ordered all such legal documents held by the joint City-County Drug Task Force be turned over.

Here is a very long list of earlier ILB entries on Delaware County Prosecutor Mark McKinney and the drug forfeiture issues, going back to May 28, 2008, when the Star-Press published a story headed "McShurley vs. McKinney feud lands in Indiana Supreme Court", that began:
The feud between Mayor Sharon McShurley and Delaware County Prosecutor Mark McKinney has now escalated into a legal battle.

McShurley, a Republican, last week filed a formal ethics grievance against McKinney, a Democrat, with the Indiana Supreme Court's disciplinary commission alleging he deceived local courts while handling forfeiture cases involving thousands of dollars in money and assets seized from drug dealers.

On April 16, 2010, the Star-Press reported that "The Supreme Court has not determined any final resolution to the McKinney case." A check of the Roll of Attorneys today shows disciplinary proceedings still pending.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides two today

Malenchik, the case involving the validity of the use of tests in sentencing, is decided today. Here is a long list of earlier ILB entries on the case.

In Anthony Malenchik v. State of Indiana, a15-page, 5-0 opinion (note the amici are listed at the end), Justice Dickson writes:

Following his plea of guilty to Receiving Stolen Property, a class D felony, and his ad-mission to being a Habitual Offender, the defendant was sentenced to a total of six years, with two years suspended. The defendant appeals his sentence and presents two claims: (1) the trial court erroneously considered as an aggravating circumstance the numerical scores reported by the Tippecanoe County Probation Department after it conducted evaluations of the defendant using certain offender risk evaluation and assessment instruments; and (2) his sentence was inappropriate and should be revised. The Court of Appeals rejected both claims and affirmed in a memorandum decision. Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. June 5, 2009). We granted transfer to address the first claim and invited supplemental briefs of the parties and amici curiae. As explained below, we hold that legitimate offender assessment instru-ments do not replace but may inform a trial court's sentencing determinations and that, because the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed, we affirm the sentence. * * *

The results of an LSI-R or SASSI assessment are not in the nature of, nor do they provide evidence constituting, an aggravating or mitigating circumstance. In considering and weighing aggravating and mitigating circumstances shown by other evidence, however, trial courts are encouraged to employ evidence-based offender assessment instruments, including, where appropriate, the LSI-R or SASSI, as supplemental considerations in crafting a penal program tailored to each individual defendant. Neither the LSI-R nor SASSI results were used by the trial judge as an aggravating circumstance in this case, and the trial court did not err in considering the LSI-R and SASSI test results in formulating the defendant's program of penal consequences. Judgment affirmed.

In J.S. v. State of Indiana, a 4-page, 5-0 opinion, Justice Dickson writes:
Appealing his convictions on two counts of Child Molesting, each as a class C felony, the defendant, J.S.[1] has presented several claims, one of which is that the trial court failed to consid-er as a mitigating circumstance the defendant's relatively low score on a Level of Service Inventory-Revised (LSI-R) offender recidivism risk assessment instrument. We grant transfer to ad-dress this issue in conjunction with our decision today in Malenchik v. State, ___ N.E.2d ___ (Ind. 2010). With respect to all other appellate issues raised by the defendant, we summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A)(2). * * *

We understand from the record that the trial court here considered but elected to give no mitigating weight to the defendant's LSI-R score. We do not review this weighing decision. To the extent that the trial judge instead may have refused to even consider the score as a possible mitigating circumstance, such decision would not be an abuse of discretion because the LSI-R score is not in the nature of, nor may it be considered as, an aggravating or mitigating circums-tance. Rather, its function is to "supplement and enhance a judge's evaluation, weighing, and application of the other sentencing evidence in the formulation of an individualized sentencing program appropriate for each defendant." Malenchik, ___ N.E.2d at ___ [slip op. at 11]. We find no error in the trial court's decision to disregard the defendant's LSI-R score.

Transfer is granted, and the judgment of the trial court is affirmed.
______
1 The defendant is an adult, 49 years of age at the time of his sentencing, but is identified by in-itials in these appellate proceedings to enhance the privacy of the child victim, his grandchild.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 19 NFP)

For publication opinions today (8):

In J.M. v. M.A., an 18-page opinion, Chief Judge Baker writes:

In the instant case, we are asked to determine whether a trial court erred by refusing to set aside a default judgment. Although trial courts have broad discretion in applying the Indiana Trial Rules, the rules ―shall be construed to secure the just, speedy and inexpensive determination of every action.‖ Ind. Trial Rule 1. While the entry of a default judgment certainly secures a speedy and inexpensive determination, it may neglect to secure a just determination. In the case herein, we conclude that the default judgment resulted in an unjust determination.

J.M. (Father) appeals the trial court‘s denial of his Motion to Set Aside the Determination of Paternity, which was entered as a default judgment and adjudicated him as the legal father of W.H., a minor. Specifically, Father argues that the trial court should have granted his motion because he is not W.H.‘s biological father and when he signed the paternity affidavit, he was a minor and thought he was consenting to a guardianship. Additionally, Father contends that the trial court exhibited bias towards him and requests that we remand with instructions to assign a different commissioner.

Concluding that the default judgment should be set aside and that Father has demonstrated that a material mistake of fact existed at the time he executed the paternity affidavit, we reverse the decision of the trial court and remand with instructions that the trial court vacate its order adjudicating Father as the legal father of W.H. and ordering him to pay support. Additionally, because the State has conceded that Father is not W.H.‘s biological father, the trial court must set aside the paternity affidavit.

In Fifth Third Bank v. Peoples National Bank , a 14-page opinion, Judge Darden concludes:
The record contains evidentiary support for the trial court's finding that Fifth Third acted inappropriately during the discovery phase of the instant action. On several occasions, Fifth Third provided false and/or misleading responses to PNB's interrogatory questions regarding OMS' deposit account(s) and whether the account(s) were subject to any liens. Fifth Third's conduct caused PNB to expend additional time, means, and funds to secure the relevant and truthful answers to its interrogatories. It was only after the trial court set the matter for an evidentiary hearing, and the president of OMS appeared, that PNB learned that OMS did maintain deposit account(s) with Fifth Third. Thus, rather than remand for a new hearing to determine whether sanctions are warranted, we determine that they are. Therefore, we remand to the trial court with instructions to determine the appropriate amount of sanctions to be assessed against Fifth Third.
In American Heritage Banco, Inc. v. Arthur W. Cranston and Joanne E. Cranston, et al. , a 17-page opinion, Judge Crone concludes:
The trial court erred when it denied AHB's complaint to collect on its promissory note and instead concluded that the Cranstons had proved their affirmative defense and counterclaim for constructive fraud. Accordingly, we reverse the trial court's award of damages and attorney fees in favor of the Cranstons and remand to the trial court with instructions to enter judgment in favor of AHB and all other remedies consistent with this opinion.
Ben and Shona Erwin, et al. v. Brenda Roe involves suit by prior tenants, the Erwins, against owner Roe. Erwin's son D.E. was found chewing on paint chips in house. Starting on p. 20:
In their Complaint, the Erwins argue that after they gave Roe notice that the house contained lead-based paint because D.E. had tested positive for lead poisoning, she refused to cure the condition. Roe contends that according to I.C. § 32-31-8-6(e), her liability began after the Erwins informed her of the problem.

Because our jurisdiction's case law on lead paint litigation is limited, we turn to Brooks v. Lewin Realty III, Inc., 378 Md. 70, 835 A.2d 616 (2003), and find it to be instructive to the current case. * * *

We find there to be a genuine issue of material fact as to whether the Erwins provided Roe with a reasonable amount of time following the notice to cure the defect, whether Roe's conduct was reasonable under the circumstances and the amount of damages owed to the Erwins. Once Roe was made aware of the defect, we find that Roe should have either repaired the problem or should have allowed the Erwins to break their lease and claim damages. In turn, the Erwins are required to demonstrate their damages for moving expenses, finding a comparable living arrangement, and the remainder of the lease. Thus, we remand to the trial court for further proceedings.

Based on the foregoing, we conclude that: (1) the trial court was within its discretion to deny the Erwins' extension of time; (2) Roe is not liable for treble damages with respect to the federal statute; however, knowledge is not a requirement for violation of RLPHRA 40 C.F.R. § 745.118(e); (3) Roe was negligent per se with respect with state tort law; and (4) there is a genuine issue of material fact as to whether Roe was provided with a reasonable amount of time following the notice to cure the defect.

Adoption of J.C., et al.; J.C. v. J.C. - Involves the Sitka Tribe of Alaska and the “existing Indian family” doctrine, where "Indiana's is a minority position."

Company v. Review Board - "Based on the foregoing, we conclude that the Review Board’s decision that Value World has not rebutted the presumption of actual notice was supported by sufficient evidence."

Ebrahima Diallo v. State of Indiana - "Based upon the foregoing, we find as in Jacobs that the State presented sufficient evidence from which a rational jury could conclude that Diallo wanted his customers to believe that his “knock-off” merchandise was genuine, and, thereby, intended to defraud them. His arguments to the contrary merely amount to an invitation that we reweigh the evidence in his favor, which we will not do."

In Indiana Department of Correction v. Douglas Haley , a 12-page opinion, Judge Crone writes:

The Indiana Department of Correction (“DOC”) appeals the denial of its motion to correct error, which challenged the trial court's order granting Douglas Haley's petition for educational credit time. We reverse.

DOC raises two issues, which we restate as follows: I. Whether the trial court erred in granting Haley's petition for educational credit time; and II. Whether the Newton County Special Prosecutor has the statutory authority to represent DOC in this proceeding. * * *

[I] We conclude that the trial court erred in granting Haley's motion for educational credit time based on his completion of the literacy and life skills program. That does not mean that Haley is ineligible for any educational credit time, however. His bachelor's degree may entitle him to two years' education credit time. See Ind.Code § 35-50-6-3.3(a)(3)(D), (d)(4). We observe that nothing in the record shows whether he has already applied for and received such credit time.

II. Representation of DOC Before the Trial Court. Although Haley does not specifically challenge the trial court's grant of DOC's motion to intervene, the parties present arguments regarding whether the special prosecutor has authority to represent DOC in this action, and the trial court granted the motion so that this issue could be addressed. We observe that “[t]he long-standing rule in Indiana has been that a case is deemed moot when no effective relief can be rendered to the parties before the court.” DeSalle v. Gentry, 818 N.E.2d 40, 48-49 (Ind. Ct. App. 2004). However, we may address the merits of a moot case if it involves “a question of great public importance which is likely to recur in a context which will continue to evade review.” Id. at 49. We think this is such a case, and accordingly, we will address whether the special prosecutor has the authority to represent DOC in this action. * * *

The action brought by Haley in the Newton Superior Court seeking educational credit time was based on DOC's denial of his request for educational credit. In other words, the basis of Haley's action is a dispute between an inmate and DOC. In essence, it is an action against the DOC. 5 A dispute as to whether an inmate is entitled to credit time is not a criminal manner, and Haley's action against DOC is not a criminal action. Indiana Code Sections 4-6-1-6 and 4-6-2-1 confer to the attorney general the authority to represent the DOC is such an action. The prosecuting attorney is not authorized by statute to represent the DOC in such an action. See Ind. Code § 33-39-1-5.

NFP civil opinions today (4):

Vicki Sue Maze v. Robert L. Davenport, et al. (NFP)

Company v. Review Board (NFP)

Dennis E. Copenhaver, et al. v. Lincoln Bank (NFP)

Rickey D. Miller and Jennifer Miller v. Art Duncan, M.D. (NFP)

NFP criminal opinions today (15):

Aaron Johnson v. State of Indiana (NFP)

Joseph Williams v. State of Indiana (NFP)

Bruce W. Guess v. State of Indiana (NFP)

Jerome Ford v. State of Indiana (NFP)

Terry Ray Isaacs v. State of Indiana (NFP)

Andrew Tesch v. State of Indiana (NFP)

Anthony L. Beery v. State of Indiana (NFP)

Leeland Runkel v. State of Indiana (NFP)

James Watkins v. State of Indiana (NFP)

Gary Parsley v. State of Indiana (NFP)

Mark Vickery v. State of Indiana (NFP)

Steven T. Hutson, Jr. v. State of Indiana (NFP)

Tara L. Huffman v. State of Indiana (NFP)

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

Matthew Ferry v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Indiana confrontation clause case being considered for cert by SCOTUS at the conference tomorrow

From this just posted "Petitions to Watch | Conference of 6.10.10" entry in SCOTUSblog, about 2/3 of the way down the list:

Case involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Title: Pendergrass v. Indiana
Docket: 09-866
Issue: Whether the Confrontation Clause permits the prosecution to introduce DNA profiles created by polymerase chain reaction and vertical gel electrophoresis, as recorded by a non-testifying lab analyst and a computer, through the testimony of the analyst’s supervisor and a forensic DNA expert.

The entry includes links to the petition for certiorari, brief in opposition, and reply, as well as an amicus brief.

The ILB has had a number of entries on Pendergrass, including this most recent entry from Sept. 29, 2009.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One NFP from tax court

Lawrence Pachniak v. Marshall County, Indiana (NFP), dated 6/8/10. - "The Pachniaks have not demonstrated that their assessment was either excessive or inconsistent with other comparable properties. Accordingly, the Indiana Board’s final determination is AFFIRMED."

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - "Is jailing debtors the same as debtors jail?"

The June 12, 2009 Indiana COA decision in Herman Button v. Sue James is featured in a story today in the Minneapolis Star-Tribune, reported by Chris Serres. He writes:

Herman Button listened in stunned silence as a judge in Perry County, Ind., threatened him with jail time unless he agreed to pay $25 a month toward an eight-year-old housing debt.

Unemployed and living on a disability check, Button decided to fight back after the January 2009 hearing. He and an attorney from Indiana Legal Services appealed, citing the Indiana Constitution's Bill of Rights, which says "there shall be no imprisonment for debt, except in case of fraud."

To Button's surprise, a state Appeals Court judge agreed. "I'm no lawyer, but I knew we abolished debtors prisons in this country a very long time ago," said Button, 50, who now lives in Hawesville, Ky.

The Button case highlights a potential pitfall for creditors that use the law enforcement system to collect old debts. Most state constitutions, including Minnesota's, have clauses dating to the 1850s that expressly prohibit the jailing of people for their debts. As legal actions against debtors intensify, attorneys are taking a fresh look at these clauses.

"We have created a de facto debtors prison system in the United States that is largely unconstitutional," said Judith Fox, a law professor at Notre Dame Law School. "In some parts of the country, people are so fearful of arrest they are scrambling to pay money they might not even owe."

In states such as Indiana and Illinois, people are being locked up for not making court-ordered payments. Known as "pay or stay," it can mean days in jail and multiple arrests for the same debt. Some legal experts say the practice is unconstitutional because the arrest is directly linked to the failure to pay a debt. * * *

In Button's case, the judge threatened him with jail if he didn't pay $25 a month toward a $1,865 judgment. After Button twice said, "I can't," Judge Lucy Goffinet responded, "I'm not going to accept, 'I cannot,' and if the next words out of your mouth are 'I cannot,' Mr. Button, then you'll set ... at the Sheriff's Department until you find a way that, yes, you can," according to the transcript.

Alan White, a law professor at Valparaiso University in Indiana, says even the threat of jail for debts is unconstitutional. He also questioned the practice -- common in Minnesota and elsewhere-- of bail being set at the amount of the debt.

"If, in effect, people are being incarcerated until they pay bail, and bail is being used to pay their debts, then they're being incarcerated to pay their debts," he said.

Here are some quotes from Judge Barnes opinion in Button:
Button argues that he cannot be held in contempt for his failure to pay a debt, that his assets should not be garnished to pay the judgment, and that he should not have to make another court appearance absent a change in his circumstances. * * *

Article 1, Section 22, of the Indiana Constitution provides:

The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.
Relying on this provision, our supreme court has held that because a debtor may not be imprisoned for his or her failure to pay a judgment debt, the debtor may not be imprisoned for proposing the judgment remain unsatisfied until the debtor obtains attachable assets. State ex rel. Wilson v. Monroe Superior Court IV, 444 N.E.2d 1178, 1180 (Ind. 1983). Likewise, Button may not be imprisoned for either his failure to pay the judgment or his failure to propose a suitable payment plan. To the extent the trial court threatened Button with imprisonment, it erred.

Further, any order requiring Button to pay the judgment must be based on evidence of his ability to pay. Here, no evidence was presented indicating that Button had the ability to pay $25.00 per month toward the judgment. Button has established prima facie error. Therefore, we remand for an evidentiary hearing regarding Button‟s ability to pay the judgment prior to the entry of an order requiring him to make monthly payments toward it.

Conclusion. The trial court improperly threatened Button with imprisonment for his failure to propose a plan to pay the judgment, and any order requiring him to pay a judgment must be based on Button‟s ability to pay it. We reverse and remand.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Indiana Decisions

Ind. Courts - How free are we to write and talk about issues before the courts?

The teaser to an article in the 6/9/10 issue of an Indiana legal tabloid-sized newspaper reads:

"Articles about pending cases raise concerns: At least two attorneys are questioning how some legal publications have included articles, columns, or other types of coverage on pending cases, and they worry that these articles may influence the judges on the cases."
In today's article itself, several respected Indiana appellate attorneys dismiss the concerns, citing court rules prohibiting judges from ex parte communications. That these rules extend to legal and procedural issues, as well as factual issues, is made clear by in The Rules of Judicial Conduct Comment 8 to Rule 2.9, Ex Parte Communications, which reads:
[8] A judge is permitted by Rule 2.9(A)(3) to consult about legal and procedural issues with the Indiana Judicial Center or Indiana Supreme Court Division of State Court Administration.
Reading today's article, the concern seems to be about public discussion of a case pending decision by an appellate court, in case a judge might read it.

Should discussion be prohibited in legal publications? What about newspapers and blogs? What about TV? Who should be restricted. Lawyers in the case? The parties? Other lawyers? Anyone with legal background? Writers and reporters?

Perhaps the most prominent example at the moment would seem to be Governor Daniels' statements re the blackjack counting case, which has been argued and is now pending decision by the Supreme Court. See this ILB entry from May 24, 2010, quoting from a LCJ article headed "Gov. Daniels rooting for card counter in lawsuit against casino." A quote:

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 ILB last wrote about this ex parte issue in a May 7, 2009 entry headed "Blogging about cases pending before the Supreme Court," quoting from a Stanford Law Review article headed "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era." The article is aimed at the SCOTUS, and it suggests that the U.S. Supreme Court might adopt a rule that the Justices not read ex parte blog posts, concluding:
Such self-imposed discipline would also have the advantage that it could also extend more broadly to cover material from law reviews and newspapers as necessary, without triggering concerns about unconstitutional restrictions on speech.
In other words, the justices should restrain themselves from taking outside materials into account. One expects that they already do.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Indiana Courts

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

Updating this ILB entry from May 31, 2010, about potential loopholes in HEA 1001, the new lobby regulation law passed this spring, Eric Bradner of the Evansville Courier & Press has a story today headed "Loopholes found in Indiana state lobby law: Ethics law may be looser, not tighter." Some quotes:

Lawmakers involved in crafting the law say that was not their intent. Still, [Sarah Nagy, the executive director of the Indiana Lobby Registration Commission] says legislative intent does not matter to the panel that tracks lobbying reports and enforces the law. Instead, she said, the Indiana Lobby Registration Commission considers only the law's plain language.

What comes next is a public meeting of the four members of the Indiana Lobby Registration Commission, where those four will discuss the law and try to agree on an interpretation of it.

Will the Indiana Lobby Registration Commission interpret the law to mean what legislative leaders such as House Speaker Patrick Bauer, D-South Bend, and Sen. Patricia Miller, R-Indianapolis, said it meant?

Or will lawmakers have to go back to the drawing board and pass fixes when the General Assembly reconvenes in January?

"I will be surprised if they don't, let's put it that way," said Scott Mellinger, one of the commission's members.

Southwestern Indiana lawmakers say they did not know about the loophole when House Bill 1001 was passed during this year's 10-week session, and now that they do, they intend to see that it is fixed next year.

"That's ridiculous. I expect that we will have to make that correction. That just flies in the face of what we were trying to do," said Rep. Suzanne Crouch, R-Evansville. "The intent was to increase transparency, and this doesn't seem to accomplish that."

She said legislators would not have tried to quietly inject language that yanks the rug out from under the entire bill because "the public can see through that in a heartbeat."

Rep. Kreg Battles, D-Vincennes, hopes legislative leaders can reach a "gentleman's agreement" and pass a fix on Organization Day — the day lawmakers return to Indianapolis after the November elections to choose leaders and receive committee assignments.

"The good news is there's no subterfuge. This wasn't intentional," Battles said. "I don't think anybody was aware of the loophole. We thought we were tightening up the law rather than making it more lax. I'll be shocked if we don't fix this."

In what looks like another loophole, the law tried to exempt a list of organizations that provide unbiased information to lawmakers and their staffs.

However, tacked onto the end of that section is: "Any other national organization established for the education and support of legislative leadership, legislators, legislative staff or related government employees."

The problem is, "education" is not defined. So interests ranging from alcohol and gambling to gun rights advocates or environmentalists could organize under the banner of a national trade group and skirt the lobbying rules by claiming they're providing educational support.

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Indiana Law

Environment - "Amish Farming Draws Rare Government Scrutiny"

The NY Times today has a long story by Sindya N. Bhanoo headed "Amish Farming Draws Rare Government Scrutiny." Some quotes:

LANCASTER, Pa. — With simplicity as their credo, Amish farmers consume so little that some might consider them model environmental citizens.

“We are supposed to be stewards of the land,” said Matthew Stoltzfus, a 34-year-old dairy farmer and father of seven whose family, like many other Amish, shuns cars in favor of horse and buggy and lives without electricity. “It is our Christian duty.”

But farmers like Mr. Stoltzfus are facing growing scrutiny for agricultural practices that the federal government sees as environmentally destructive. Their cows generate heaps of manure that easily washes into streams and flows onward into the Chesapeake Bay.

And the Environmental Protection Agency, charged by President Obama with restoring the bay to health, is determined to crack down. The farmers have a choice: change the way they farm or face stiff penalties.

“There’s much, much work that needs to be done, and I don’t think the full community understands,” said David McGuigan, the E.P.A. official leading an effort by the agency to change farming practices here in Lancaster County.

Runoff from manure and synthetic fertilizers has polluted the Chesapeake Bay for years, reducing oxygen rates, killing fish and creating a dead zone that has persisted since the 1970s despite off-and-on cleanup efforts. But of the dozens of counties that contribute to the deadly runoff of nitrogen and phosphorus, Lancaster ranks at the top. According to E.P.A. data from 2007, the most recent available, the county generates more than 61 million pounds of manure a year. That is 20 million pounds more than the next highest county on the list of bay polluters, and more than six times that of most other counties.

The challenge for the environmental agency is to steer the farmers toward new practices without stirring resentment that might cause a backlash. The so-called plain-sect families — Amish and Old Order Mennonites, descended from persecuted Anabaptists who fled Germany and Switzerland in the 1700s — are notoriously wary of outsiders and of the government in particular.

“They are very resistant to government interference, and they object to government subsidies,” said Donald Kraybill, a professor at Elizabethtown College who studies the Amish. “They feel they should take care of their own.”

But the focus on the plain-sect dairy farmers is unavoidable: they own more than 50 percent of Lancaster County’s 5,000-plus farms.

“It’s been an issue over the last 30 years,” Dr. Kraybill said. “We have too many animals here per square acre — too many cows for too few acres.”

For now, the environmental agency’s strategy is to approach each farmer individually in collaboration with state and local conservation officials and suggest improvements like fences to prevent livestock from drifting toward streams, buffers that reduce runoff and pits to keep manure stored safely.

“These are real people with their own histories and their own needs and their own culture,” said John Hanger, the secretary of environmental protection in Pennsylvania. “It’s about treating people right, and in order to treat people right, you’ve got to be able to start where they are at.”

But if that does not work, the government will have to resort to fines and penalties.

Last September, Mr. McGuigan and his colleagues visited 24 farms in a pocket of Lancaster County known as Watson’s Run to assess their practices. Twenty-three of the farms were plain sect; 17 were found to be managing their manure inadequately. The abundance of manure was also affecting water quality. Six of the 19 wells sampled contained E. coli bacteria, and 16 had nitrate levels exceeding those allowed by the E.P.A.

Indiana has a large Amish community in the NE part of the state. Looking back at past ILB entries I found some from 2005 about on proposed changes to land use regulations in Adams County, including the land application of livestock manure. This ILB entry from Jan. 29, 2005 quotes a story that a meeting on the proposed changes "drew a crowd of approximately 100 interested citizens -- 95 percent of whom were members of the Amish community." This entry from Feb. 18, 2005 included this quote:
A proposal that would have required a 600-foot setback from residential properties for manure application by non-intensive livestock producers was relaxed after some Amish farmers said they would be hard-pressed to obey the regulations.

"If I have two acres and a horse, I could have trouble getting rid of my manure," said one Amish farmer of the proposed restrictions.

Added another member of the Amish community, "I couldn't haul my manure; I'd have to move my barn."

Posted by Marcia Oddi on Wednesday, June 09, 2010
Posted to Environment

Tuesday, June 08, 2010

Ind. Decisions - Supreme Court decides one today

Here was the writeup on the Court's Nov. 23, 2009 oral argument calendar:

Walker Whatley v. State of Indiana - A jury found Whatley guilty of possessing cocaine in a quantity in excess of three grams within one-thousand feet of a "youth program center," a class A felony, see Ind. Code § 35-48-4-6(b)(3)(B)(iv). The Marion Superior Court entered judgment accordingly. The Court of Appeals reversed on grounds that Whatley had been near a church, not a youth program center, and directed entry of a conviction as a class C felony. Whatley v. State, 906 N.E.2d 259 (Ind. Ct. App. 5/24/2009), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
In Whaley v. State, an 11-page, 3-2 opinion issued today, Justice Sullivan writes:
The Legislature has declared that if a person commits certain drug offenses within 1,000 feet of a “youth program center,” the penal consequences are enhanced. Defendant Walker Whatley committed such an offense within 1,000 feet of a church with an active youth program. The church constituted a “youth program center” for purposes of the enhancement. * * *

The opinion of the Court of Appeals is vacated. Whatley's conviction and sentence is affirmed.

Shepard, C.J., and Dickson, J., concur.
Boehm, J., dissents with separate opinion in which Rucker, J., concurs. [Justice Boehm's dissent begins] I respectfully dissent. Whatley was convicted of possession of 3.24 grams of cocaine. The penalty for this crime was enhanced from a C felony carrying a maximum sentence of eight years to an A felony with a maximum penalty of fifty years due to the proximity of Whatley's home to Robinson Community Church. The statute here provides for this dramatic enhancement of a sentence if the possession occurs:

(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center.
Ind. Code § 35-48-4-6. Notably, this short list does not include “church,” “place of worship” or other terms that might much more plainly include Robinson Community Church. Nor is there anything in this record indicating that the exterior of the Church revealed the nature or regularity of its youth programs. * * *

[and concludes] The State makes no claim that the structure here was readily identifiable as a youth program center. Rather, the State argues that this enhancement applies irrespective of the appearance of the structure. Because I disagree, I believe the Court of Appeals correctly held that the enhanced sentence should be set aside.

Rucker, J., concurs.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - One Indiana case and one interesting tax case from 7th Circuit today

In U.S. v. Arita-Campos (ND Ind., Simon), a 13-page opinion, Judge Kanne writes:

In September 1993, fourteen-yearold Mario Arita-Campos was apprehended by immigration officials. Because he had entered the United States illegally without inspection, immigration officials determined that he was deportable. When Arita-Campos subsequently failed to appear at his scheduled deportation hearing in February 1994, he was ordered deported in absentia. That order was never executed, however, because Arita-Campos never appeared for deportation. After being apprehended again nearly ten years later in Illinois, in 2004 the government finally deported Arita- Campos per the original order of deportation.

Not to be deterred, Arita-Campos re-entered the country sometime during the following year, 2005. This time he was caught and charged with illegal re-entry after being deported in violation of 8 U.S.C. § 1326(a). But because the 1994 order of deportation, which is the underlying basis for the current offense, was entered in absentia, Arita-Campos moved to dismiss the 2005 indictment, alleging that he never received notice of the 1994 deportation hearing. After the district court denied Arita-Campos’s motion to dismiss the indictment, he pled guilty to the charged conduct but reserved his right to appeal the denial of his motion to dismiss. We now affirm.

In Cathy Marie Lantz v. IRS (U.S. Tax Ct.), a 17-page decision by Judge Posner, the issue is the application of the "innocent spouse rule."

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Who Should Pick Judges: People or Officials?"

Indiana Policy Review has just released this column by Andrea Neal. (The link may not work.) Some quotes:

Despite efforts to give Indiana voters more say on big issues – referenda over public spending being a notable example – there’s no such movement when it comes to judges of the state Supreme Court and Court of Appeals.

Indiana has enjoyed a competent judiciary thanks to: 1) A selection process that uses an appointed commission to narrow down applicants, and 2) has the governor pick from a pool of three finalists and gives the public the chance to throw out rascals every 10 years during “retention votes.” No judge has ever been thrown out that way, but somehow the process works.
The column notes that the "Missouri plan," upon which Indiana's judicial selection process is based, is undergoing some challenges in Missouri and elsewhere. (The ILB has had a number of entries on the Missouri plan issues. See also this May 26th entry at the St. Louis Post Dispatch website.) Neal's column concludes:
Several provisions in Indiana’s law make it unlikely our system could be hijacked by special interests. The seven-member Judicial Nominating Commission is chaired by Chief Justice Randall Shepard and, while it includes three lawyers elected by bar association members, it has three citizen members appointed by the governor. The process is transparent so it’s hard to rig. Applications are all made public and initial interviews are conducted in public.

The bar association likes Indiana’s system so much that it has called for its extension to the trial court level where voters still elect judges on partisan ballots. The argument can be made, however, that lawyers would then have too much say. Our dual system in place since 1972 – one level elected and the other appointive – is itself a check on judicial behavior. If lower court judges act politically they can be reined in on appeal.

Daniels declined to comment for this column in light of the pending appointment. He made his views known in 2009 in vetoing HB 1491, which would have replaced merit selection in St. Joseph County, one of two counties that does not elect trial judges, with elections. He said, “The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded . . . It has produced outstanding jurists and contains sufficient measures of public accountability.”

The same can be said of Indiana’s process for appellate and supreme court judges. It’s why Indiana should stick with the Missouri Plan even if Missouri decides not to.
ILB: The transparency of the Indiana process contrasts with that of some other states using "the Missouri plan," which do not open interviews to the public, etc. Here is what the recently posted notice for the upcoming vacancy in Justice Boehm's seat said on this point:
8. The Commission will conduct public interviews in Indianapolis on Tuesday, July 6 and Wednesday, July 7, 2010 after which the Commission will select a number of candidates as semi-finalists for second interviews scheduled for Friday, July 30, 2010. Upon the conclusion of the second round of interviews, the Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2. Candidates must be available on the interview dates, including evening hours.
Here is a quote from the Kansas City Star on the Missouri process via an Aug. 14, 2007 ILB entry:
The rhetoric keeps getting hotter when it comes to Missouri’s nonpartisan court plan.

State Senate Majority Leader Charlie Shields charged Monday that the Appellate Judicial Commission met in secret to pick the three finalists for the vacant Supreme Court seat “without giving the public notice of their meetings by date, time and place, all of which are required by the Sunshine Law.”

The St. Joseph Republican asked Attorney General Jay Nixon to investigate all seven members of the commission, which picks finalists for top court seats around the state. One member is state Supreme Court Chief Justice Laura Denvir Stith. The commission asserted recently that it did not have to abide by the Sunshine Law since it was governed by court rules. Those rules say the commission’s meetings are closed to the public.

Gov. Matt Blunt has demanded that the commission provide more information about the candidates who applied for the opening on the Supreme Court. The legal community has been critical of the governor and other Republicans who have attacked the state’s judiciary and its nonpartisan judicial selection process.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - "Camm lawyer asks for new judge" [Updated]

Updating this long list of earlier ILB entries re the David Camm murder trials, the most recent being May 6th, Ben Zion Hershberg of the Louisville Courier Journal reports today:

A lawyer for David Camm has asked the Indiana Supreme Court to appoint a new judge to handle the case, possibly including a third murder trail.

The motion, filed Tuesday morning, says Warrick County Superior Court Judge Robert Aylsworth has taken more than the 30 days allowed by state rules to decide how to handle Camm's request for a change of location for a new trial because of intense publicity about the case.

Stacy Uliana, who filed the motion for Camm, declined to comment on it, and Keith Henderson, the Floyd County prosecutor who has said Camm will be tried a third time, hadn't received the motion yet and wouldn't comment.

Camm's lawyers also have asked for a new prosecutor in the case, citing a book contract Henderson has acknowledged negotiating about the case before Camm's second conviction was overturned by the Indiana Supreme Court last year. Henderson has said the contract was negotiated with the understanding that, if the conviction were overturned the contract wouldn't be completed. * * *

If a new judge were appointed by the Indiana Supreme Court, he or she would handle the change of venue, change of prosecutor and other issues that arise in the case, Uliana said. The special judge also could end up handling a third trial, depending on the change of venue ruling.

From a story on WAVE 3:
Camm's lawyers filed paperwork early Tuesday to have Judge Robert Aylsworth removed from the case.

The defense filed what's called a "verified praecipe." It states Judge Robert Aylsworth has failed to rule within 30 days on the pending motion for a change of venue to move the case out of Warrick County. As of Tuesday, 33 days had passed.

The Warrick County clerk has sent notice to the Indiana Supreme Court that the case has been withdrawn from Judge Aylsworth.

[Updated at 4:18 PM] Matt Thacker of the New Albany News & Tribune has now posted this story.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (2):

James Cashman v. The Gables at Brighton Point, HOA (NFP) - dispute over payments to homeowners' association. Inter alia, opinion cites trial court finding that: "Significant in the resolution of this small claims matter on appeal is the court’s finding that 'it also perfectly clear that this litigation was sparked in part and fed by a tremendous clash of egos.'"

Dave Huckaby v. Jasper County Sheriff's Department (NFP) - "Even when we accept Huckaby’s allegations as true which we must when reviewing a dismissal under Trial Rule 12(B)(6), Huckaby’s constructive retaliatory discharge claim does not fall within Frampton or McClanahan. The trial court did not err when it granted the Sheriff’s motion to dismiss Huckaby’s complaint pursuant to Indiana Trial Rule 12(B)(6)."

NFP criminal opinions today (5):

Aaron D. Norman, Sr. v. State of Indiana (NFP)

Andre Powell v. State of Indiana (NFP)

Eugene L. Echols v. State of Indiana (NFP)

Lance Douglas v. State of Indiana (NFP)

Christopher Hickey v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Justices Approve Bureau of Prisons' Calculations for 'Good Time Credit'"

More on one of the SCOTUS decisions yesterday, from Tony Mauro of The National Law Journal. The story begins:

In a decision that affects the prison terms of nearly 200,000 inmates in federal prisons, the U.S. Supreme Court on Monday adopted a formula for calculating "good time credit" for good behavior that results in more time served.

The Court by a 6-3 vote endorsed a long-standing Bureau of Prisons method of calculating good time credit based on the length of time actually served, not the length of the term imposed by the sentencing judge. As Justice Stephen Breyer described it in his majority opinion in the case, Barber v. Thomas, the formula preferred by the Court would result in 470 days of credit for a well-behaved prisoner serving a 10-year sentence, while the method urged by defendants would result in 540 days of credit.

That may not sound like much, but in a strongly worded dissent Justice Anthony Kennedy said the ruling will add "tens of thousands of years" collectively to time served, at a "cost to taxpayers of untold millions of dollars." In human terms, Kennedy added, the ruling will be "devastating to the prisoners who have behaved the best."

Kennedy has long argued in speeches off the bench that American prison terms are too long and punishments are too severe.

Joining Kennedy in dissent were justices John Paul Stevens and Ruth Bader Ginsburg. Justice Sonia Sotomayor, who emphasized during confirmation hearings last year that she disagreed with President Barack Obama's "empathy standard" for new justices, voted with the majority against defendants in the case.

Mary Price, vice president and general counsel of Families Against Mandatory Minimums, said the ruling "is a huge deal for so many prisoners." As a result, she said, "we will continue to overincarcerate many, many people." She said bills have been introduced in Congress to clarify the formula and give prisoners up to 54 days of credit for each year of a sentence, as she says the law requires.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Courts in general

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

Updating this ILB entry from May 29, 2010, Benjamin Lanka reports today in the Fort Wayne Journal Gazette that:

Despite efforts to remove the abortion debate from its patient safety ordinance, strong voices on each side of the issue likely will argue the merits of the new law in an Allen County courtroom.

The county commissioners Monday discussed hiring the Allied Defense Fund to serve as primary legal counsel for the county in a recent lawsuit against the bill.

The fund is a staunch anti-abortion organization, whose website touts its ability to protect life from conception until death.

The group has offered to provide legal defense to the county at no cost.

The defense fund will be pitted against the ACLU of Indiana and the Center for Reproductive Rights, based in New York, which are representing Dr. George Klopfer, operator of Fort Wayne Women’s Health, the sole provider of surgical abortions in Fort Wayne.

County Commissioner Nelson Peters said there is no doubt that using Allied Defense Fund would make abortion a more dominant theme in the argument, despite efforts to make the bill broader than just the one procedure. He added it’s not the county that wants this fight, but the people who filed the lawsuit.

County Attorney Bill Fishering on Monday told the commissioners he had spoken with an attorney at the fund and discussed the organization’s credentials.

“I feel very comfortable with them being the lead counsel,” Fishering said. “They are extremely competent and have a good track record.”

While Peters said he has not determined how he will vote – the commissioners will likely make a decision Friday – he said it is likely the firm’s aptitude and cost are more beneficial than a clouding of the issue would be harmful. * * *

County Commissioner Bill Brown said he had concerns about the legal battle turning into an abortion fight and said he hopes Fishering will lead the county’s legal defense and use Allied Defense Fund as special counsel.

“We’re trying to get away from it being about the abortion issue,” he said.

Fishering said the county’s legal team will remain involved in the case, but he said the defense fund will be lead counsel.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Law

Environment - "Reports at BP over years find history of problems"

A long investigative story today by Abrahm Lustgarten and Ryan Knutson of the Washington Post begins:

A series of internal investigations over the past decade warned senior BP managers that the oil company repeatedly disregarded safety and environmental rules and risked a serious accident if it did not change its ways.

The confidential inquiries, which have not previously been made public, focused on a rash of problems at BP's Alaska oil-drilling operations. They described instances in which management flouted safety by neglecting aging equipment, pressured employees not to report problems and cut short or delayed inspections to reduce production costs.

Similar themes about BP operations elsewhere were sounded in interviews with former employees, in lawsuits and little-noticed state inquiries, and in e-mails obtained by ProPublica. Taken together, these documents portray a company that systemically ignored its own safety policies across its North American operations -- from Alaska to the Gulf of Mexico to California and Texas. Executives were not held accountable for the failures, and some were promoted despite them.

The NYT Dealbook column today is headed "Imagining the Worst in BP’s Future." Written by Andrew Ross Sorkin, it begins:
It seems unthinkable, even now, that the disastrous oil spill in the Gulf of Mexico could bring down the mighty BP. But investment bankers get paid to think the unthinkable — and that is just what they are doing.

The idea that BP might one day file for bankruptcy, particularly as part of a merger that would enable it to cordon off its liabilities from the spill, is starting to percolate on Wall Street. Bankers and lawyers are already sizing up potential deals (and counting their potential fees).

Given the plunge in BP’s share price — the company has lost more than a third of its value since Deepwater Horizon blew — some bankers and analysts say BP is starting to look like takeover bait. The question is, who would buy BP, given its enormous potential liabilities?

Shell and Exxon Mobil are both said to be licking their chops. And already, flinty legal minds are dreaming up scenarios in which BP would file a prepackaged bankruptcy and separate the costs of the cleanup — and potentially billions of dollars in legal claims — into a separate corporate entity.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Environment

Law - "Fairfax Virginia police writing fewer tickets because of problematic computer system"

From the June 7, 2010 Washington Post, some quotes from a lengthy story by Tom Jackman:

Fairfax County police launched a computer system in January that was supposed to eliminate mountains of paperwork and allow officers to enter traffic tickets, arrest data and vital intelligence into an online system that would be instantly available to detectives and anyone who needed it.

But the start has been rocky: Through mid-May, Fairfax officers wrote 17,600 fewer traffic tickets, saying that the new system is cumbersome and requires them to write tickets electronically and on paper. The drop was nearly 28 percent compared with the same period last year and translated into more than $1 million in lost revenue for Fairfax, a 30 percent decrease from last year. Drunken-driving tickets have dropped by 24 percent.

Police officials said that they expected a drop in tickets as officers were trained in the new system and that officers would spend more time writing the 150,000 or more tickets Fairfax issues each year because patrol cars do not have bar code scanners or printers.

"It's being phased in," Col. Jim Morris said of the missing technology. He said the sharp decline in tickets is "something we're going to overcome. If it's still down . . . at the end of the summer, then we'll take another look." * * *

Although police anticipated a learning curve as officers adapted to a new way of writing paperless reports, "we're beyond the learning curve," Thielen said. "We're all aware of the system. The problem is, we are now tasked with doing data entry. The system is not user friendly. It's fine if you're a data entry-type person, a computer guy. But the average cop is not a data entry cop. That's not what we signed up for. It's just not our thing."

Officers said the decline in tickets can be attributed to two things: First, officers spend far more time writing summonses and reports, so their production declines. Second, some officers may simply not want the aggravation of spending a half-hour ticketing someone who didn't come to a full stop before turning right, so they may look the other way.

The aggravation of writing reports runs deep among officers on the street. In particular, many said, the new system, called I/LEADS, requires them to fill in many different screens, rather than writing on one or two sheets of paper, and when I/LEADS finds an error, officers said, it doesn't tell where in the report the error is.

"One simple mistake causes you to pull your hair out," one officer said. "You have to search to fix it. It takes a half-hour."

Police commanders and information technology specialists said they are listening to the officers' complaints and adjusting. They have extended the life of a 24-hour help desk, and commanders have reduced the number of incidents that require a report to be filed.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to General Law Related

Ind. Law - Still more on "Shoe camera man charged with voyeurism" [Updated]

Updating this ILB entry from March 19, 2010, which began:

This ILB entry from March 3, 2010 questioned whether charges of voyeurism would stand against a man accused of videoptaping up women's skirts.
Today the Indianapolis Star has a this brief item:
A lawyer for a Fort Wayne man accused of video-recording up the skirts of women and girls at Castleton Square Mall on the Northeastside in February has asked a judge to dismiss charges of voyeurism and attempted child exploitation.

David Delagrange, 40, faces accusations involving 10 females, including four younger than 18. But attorney Vernon Lorenz argues -- and several legal experts have agreed -- that those charges don't cover the alleged activity.

On Friday, a deputy prosecutor indicated in Marion Superior Court that the prosecutor's office does not oppose dismissing the voyeurism charges but argues that the counts of attempted child exploitation should stand.

Court Commissioner Stan Kroh said he would issue a ruling by June 25.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Law

Ind. Courts - "Cell phone ban discussed for Tippecanoe county courthouse"

Sophia Vorvang reports in today's Lafayette Journal Courier:

Tippecanoe County judges rarely hesitate to call out someone whose cell phone rings during courtroom proceedings -- be it family members of a defendant or victim, attorneys or spectators.

At minimum, cell phones are disruptive and a nuisance, said Tippecanoe Superior Court 1 Judge Randy Williams. They also violate an Indiana Supreme Court rule that strictly prohibits outside recording and transmission devices, notes Judge Les Meade of Superior Court 5.

And with so many cell phones capable of taking digital pictures and video, they even pose security risks -- such as during high-stakes criminal trials, according to Sheriff Tracy Brown.

That's prompting the sheriff's office, which is responsible for courthouse security, to review whether cell phones should be banned courthouse-wide.

"It has been an issue in other jurisdictions," Brown said. "This wasn't an issue we had to deal with 10 years ago. But now almost all cell phones are smart phones. ... I would be concerned if someone was taking pictures of witnesses.

"Is that considered a form of intimidation?"

He's seeking feedback from Tippecanoe County judges and looking at how cell phones are being handled at courthouses elsewhere in Indiana. * * *

The Allen County Courthouse in Fort Wayne was the first in Indiana to ban cell phones from the building, beginning in November 2006. Steuben County, also in northeast Indiana, soon followed suit.

Tippecanoe County judges do not have a universal policy on cell phone use in courtrooms, though most developed their own.

For instance, Meade requires all cell phones be turned off before any visitor steps inside Superior Court 5. A sign hangs on the door to his courtroom's public entrance.

Superior Court 5 is one of three high-volume courts in Tippecanoe County, where dozens of people are bound to be packed into the courtroom at one time.

Though Meade agrees that cell phones with cameras can pose security risks, he's hesitant on the need for a courthouse-wide ban.

"Simply because there are a lot of times when people are in the building and need their cell phones for legitimate uses," Meade said. "I wouldn't want to interfere with their ability to get that done. A building-wide ban would do that. * * *

A cell phone ban would be welcomed by Prosecutor Pat Harrington.

He said members of his office have seen incidents similar to what happened last month outside Superior Court 2. They once found a photo of a defendant, taken inside a courtroom, that was posted on the social networking site MySpace.

And during two recent drug-related trials, someone attending those cases was spotted taking pictures via cell phone of witnesses and police officers, Harrington said.

"Obviously it gives us heightened concern for the safety of anyone participating in that trial," he said. "I support the sheriff in reviewing this and moving toward a possible ban."

Harrington said law enforcement officers typically have no recourse, since cameras and photo taking are allowed outside the courtroom.

A full-on ban, however, is unlikely anytime soon, according to the sheriff. But Brown said it's important to review because of advances in technology and the ever-growing cell phone use.

"It would be very difficult to ban the use of cell phones in the building because there are so many legitimate uses," Brown said. "People use it to maintain calendars on and for e-mail.

"I don't know if it's reasonable to completely ban. But it's probable."

Allen County banned cell phones in the courthouse in November of 2006. See this Nov. 22, 2006 ILB post. Interestingly, it was the Allen County judges who made the decision, not the sheriff ...

Subsequent ILB posts have looked at whether the more limited option of banning electronic devices from courtrooms is the answer, and have discussed a new state rule restricting juror use of such devices.

This ILB entry from August 15, 2009, contains discussion whether, ultimately, collecting cellphones at the courthouse door, as in Allen County, may be the best solution.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Courts

Ind. Gov't. - Indiana executive branch budget-cutting secrecy

For background, start with this ILB entry from May 26, 2010, and this follow-up from June 2, 2010.

This editorial appears in today's Fort Wayne Journal Gazette:

At every opportunity, Statehouse Republicans have been eager to credit Gov. Mitch Daniels’ budget cuts with keeping state spending in line. When it comes to identifying those cuts, however, the Daniels administration has been far from forthcoming.

The same transparency Hoosiers are allowed when a two-year state budget is crafted should be permitted when the budget is cut. Sen. Vi Simpson, D-Bloomington, is right to demand a list of cuts made and distributions withheld by state agencies. With or without a response from the administration, lawmakers should pass legislation requiring disclosure of the information.

“We’ve given governors the authority in the past to cut budgets. It’s a good way to run government, but this governor has really overstepped the bounds with that authority,” said Simpson, a member of the Senate since 1984. “Never before has the information from those cuts been withheld. We simply can’t get to it. We don’t know how much has been cut; we certainly don’t know why those programs have been cut.”

Her first request for information went to Daniels in January. The response from state Budget Director Chris Ruhl was that no list of cuts existed, so Simpson sent letters to the 60-plus agencies asking for the information, with a deadline of June 22.

What she does know, from her constituents, is that the governor’s claim of across-the-board cuts of 15 percent is not true for individual programs. State support for public radio and public television has been cut 50 percent; an appropriation for Indiana food banks has been withheld entirely.

There already have been repercussions from the cuts: Until a federal judge blocked the state from cutting subsidies to foster and adoptive parents, the reduction caused adoption numbers to fall from an average of 370 children a month to 70, according to Simpson. That left more children in more costly foster care.

Spending decisions are a reflection of a state’s priorities. They demonstrate the value citizens place on the environment, children, job creation or infrastructure. Voters elect representatives who will speak to their priorities in the state budget. The budget-writing process takes place over months, with hearings and the opportunity for public testimony.

Simpson said the process in the upcoming budget year will be made more difficult by the lack of information. The State Budget Committee will receive a surplus statement at the end of the fiscal year revealing the total cuts made and appropriations withheld, but legislators will not know which programs have been cut.

“I don’t know how they are going to do it,” she said. “At a time when we know it will be a very difficult task, how do you write a budget with so little information?”

Simpson said she has had Republican colleagues urge her to keep up the pressure on the administration because they also are in the dark on where cuts have been made. She’s working with the Democratic caucus now to prepare legislation based on budget disclosure regulations in 32 other states.

The governor pledged in his initial campaign to restore trust in government. In some areas, he has kept that promise. But withholding budget information from the public and from another branch of government engenders no trust.

Posted by Marcia Oddi on Tuesday, June 08, 2010
Posted to Indiana Government

Monday, June 07, 2010

Ind. Courts - More on: Magnus-Stinson set for Senate vote; no word on Tanya Walton Pratt [Updates]

Updating this ILB entry from June 4th, votes are being taken in order on:

  • Audrey Goldstein Fleissig, of Missouri, to be United States District Judge for the Eastern District of Missouri,
  • Lucy Haeran Koh, of California, to be United States District Judge for the Northern District of California, and
  • Jane E. Magnus-Stinson, of Indiana, to be United States District Judge for the Southern District of Indiana
Watching the vote on C-Span 2. At 5:42 PM, EDT, the vote is being taken on Ms. Fleissig. . . .

[Update] Ms. Fleissig was confirmed 90-0 at 5:58. The next vote, on Ms. Koh, will occur at 6:00 PM, and will also be a roll call.

They have just announced that no roll call will be required on the 3rd vote, which will be Ms. Magnus-Stinson.

[2nd Update] Ms. Koh was confirmed, 90-0 at 6:18 PM.

Immediately thereafter, a voice vote on Magnus-Stinson, who was confirmed at 6:19 PM.

[More] At least that is what I think happened, and I was watching. But see this just posted story, headed "Senate Confirms Two Ex-Prosecutors For Judgeships," that omits entirely the third nominee.

[Still more] Here is Jon Murray's just posted Star blog entry.

[Updated 7-8-10] Jon Murray's Star story today is headed "Federal district judge confirmed: Jane Magnus-Stinson is 2nd woman on court; 1 nomination is pending." Some quotes:

The U.S. Senate on Monday confirmed the first of two federal judicial nominees for the Southern District of Indiana.

President Barack Obama's nomination of Jane Magnus-Stinson was confirmed by a voice vote late in the day. She will be the second female judge at the five-judge U.S. District Court, based in Indianapolis. She has worked as a federal magistrate since 2007.
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Still awaiting confirmation for another opening on the same court: Tanya Walton Pratt, Marion County's probate judge, who would be the state's first African-American federal judge. * * *

Magnus-Stinson, who could not be reached for comment, will assume the judgeship vacated last year by Judge Larry J. McKinney, who is semiretired.

Obama has not yet announced his nomination for U.S. attorney for the same federal district, which covers the southern two-thirds of Indiana.

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Indiana Courts

Law - "Could Law School Loans Become More Easily Dischargeable in Bankruptcy? "

Here is a long list of ILB entries re the fact that, under the current law, student loans are almost never dischargable in bankruptcy. David Lat of Above the Law has a post today, referencing stories by New York Times columnist Ron Lieber, discussing whether this situation might change in the foreseeable future.

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to General Law Related

Courts - Monday's orders, explained by Lyle Denniston

In a lengthy and valuable new post, Denniston, of SCOTUSblog, writes that today the Supreme Court:

has put off, until after getting some advice from a state court, a significant test case on the constitutionality of requiring a juvenile to register as a sex offender, if the youth’s crime occurred before the federal law was passed in 2006. That question was before the Court in U.S. v. Juvenile Male (09-940), but the Court indicated Monday that it was not sure that the case remained a live controversy. After it hears from the Montana Supreme Court on that issue, it will decide whether to take the case for review, the Court indicated.
Furthermore:
the Court turned aside the first case to reach it challenging the legality of the federal mandates put on state governments and local school systems by the No Child Left Behind Act, an educational reform measure that was a signature program of the Bush Administration, and continues to have the support of the Obama Administration. Eight school districts, nine states and one city’s teachers unions, and the National Education Association argued in this first appeal that the 2001 law cannot legally impose requirements on local school districts, unless Congress puts up sufficient funds to cover the full costs of carrying out those mandates, which it has not done.

The dispute reached the Court in Pontiac School District, et al., v. Duncan (Education Secretary), 09-852. The Court, accepting the suggestion of the Obama Administration, declined to review the case, following its usual practice of providing no reason for doing so. The Administration had said the case was not a suitable one to test the funding issue, saying the challengers had sued rather than trying first to get changes in their own state programs under the Act, and that they had no support in their challenge by official state education agencies under whose plans they are obliged to satisfy the federal mandates. Moreover, the government brief said, no other federal court has ruled on the compliance issue. The Sixth Circuit Court had split 8-8 in refusing en banc review, thus leaving intact a federal District judge’s ruling rejecting the challenge.

Finally:
The Justices on Monday also refused to hear an issue that they had agreed once before to decide, only to have the issue elude review. The question in the new case, Jones v. Williams (09-948), was whether it violates a criminal suspect’s Sixth Amendment right to counsel if a defense lawyer has refused to accept a pre-trial plea bargain, and the suspect then goes to trial and gets convicted, receiving a longer sentence than offered by prosecutors in the bargain.

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Thomas Gangloff v. Karen Gangloff (NFP) - "Thomas Gangloff appeals the trial court’s order dissolving his twenty-five-year marriage to Karen Gangloff and providing for the custody, parenting time, and child support of his nineteen-year-old daughter. We conclude that the trial court did not abuse its discretion in not including an asset in the marital pot because the asset did not exist when the marital pot closed and in giving no value to another asset because there was testimony that it had no value. We also conclude that the trial court did not abuse its discretion in issuing an order with respect to the parties’ unemancipated child because the parties did not submit an agreement to the trial court; thus, the court was given the issue, and it resolved the issue within the evidence. We therefore affirm."

Stuart Reed, et al. v. Blue River Welding Supply, Inc. (NFP) - "As the Reed defendants point out, there are some circumstances in which an unsigned document may constitute a contract. See Coca-Cola Co. v. Babyback's Intern, Inc., 841 N.E.2d 557, 562 (Ind. 2006). Here, however, the dismissed claims were not premised upon unsigned documents claimed to be sufficient to constitute a contract. The claims specifically premised on the written Product Supply Agreement were properly dismissed for failure to state a claim upon which relief can be granted, which includes failure to prosecute the claim in the name of the real party in interest.
Affirmed.""

NFP criminal opinions today (3):

Joseph McKay v. State of Indiana (NFP)

John R. Kochopolous v. State of Indiana (NFP)

Sean Michael Scott v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit rules on petition to compel a Wis. District Judge to recuse himself

In re: Sherwin-Williams Co., is an 8-page, per curiam opinion, on a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Wisconsin. The panel writes:

In this petition for a writ of mandamus, Sherwin-Williams Company asks us to order District Judge Lynn Adelman to recuse himself from presiding over four cases in which it is a defendant. Sherwin- Williams argues that a law review article co-written by Judge Adelman creates an appearance that the judge will decide the case other than on the merits. Judge Adelman denied Sherwin-Williams’s motion for recusal in the district court, and we do the same for the petition for writ of mandamus.

The basis of Sherwin-Williams’s petition is a 2007 article Judge Adelman co-authored in response to criticism of five decisions issued by the Wisconsin Supreme Court in 2005. One of the opinions discussed was Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005), in which the Wisconsin Supreme Court held that a plaintiff who could prove that he was injured by ingesting white lead carbonate pigments in his home but could not identify the manufacturer of the pigments could nonetheless recover in a suit against pigment manufacturers. Judge Adelman is now presiding under diversity jurisdiction over four cases against manufacturers of white lead carbonate pigments. In each case the plaintiffs seek recovery based on Thomas. Sherwin-Williams is one of the defendants in those cases, and the company asked Judge Adelman to recuse himself from the cases under 28 U.S.C. § 455(a) on the ground that a reasonable person would believe, based on Judge Adelman’s article, that the judge is unable to decide the case impartially. Judge Adelman denied the motion, and Sherwin-Williams renews its arguments in its mandamus petition. * * *

Mandamus is the appropriate vehicle for a challenge to a district judge’s denial of a motion for recusal based on appearance of bias. * * *

Sherwin-Williams contends that a reasonable observer could conclude from Judge Adelman’s article that he believes that Thomas was correctly decided and that he therefore will not consider Sherwin-Williams’s attacks on Thomas fairly. As suggested in our earlier characterization of the article, we do not think that a reasonable person, having actually read the article, would think that Judge Adelman had expressed any view as to the merits in Thomas in arguing that it and the other decisions fell within the Wisconsin high court’s authority. But the bigger failing in this contention is that, as Judge Adelman noted in denying the motion for recusal, his views of Thomas, to the extent he has any, are irrelevant. Because these are diversity cases, Judge Adelman is obligated to follow state law, as interpreted by the state supreme court. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 80 (1938)). He cannot revisit the holding in Thomas, not even if he were persuaded that Sherwin-Williams’s objections are meritorious. See Rennert v. Great Dane Ltd. P’ship, 543 F.3d 914, 917 (7th Cir. 2008). A reasonable person would understand this and would appreciate that Judge Adelman’s impartiality in these cases is in no way called into question by anything he may have said about the merits of Thomas.

Sherwin-Williams also argues that the mere fact that Judge Adelman published an article that defends, in some fashion, a ruling that was favorable to certain leadpaint plaintiffs would make a reasonable person suspect that Judge Adelman has an unusual interest in assisting such plaintiffs—i.e., that he has an ax to grind. But someone who was aware of the controversy regarding the limits of the Wisconsin Supreme Court’s power and knew that federal judges may speak, write, and participate in other activities concerning the legal issues of the day, see Code of Conduct for United States Judges, Canon 4A(1), would find nothing unseemly about Judge Adelman publishing a law review article on the topic. Sherwin-Williams suggests that this scenario is analogous to cases in which recusal has been ordered because of a district judge’s comments to the media or at conferences, but in each of those decisions the commented-upon-case was pending before the district judge. * * *

Sherwin-Williams has not established that Judge Adelman’s article would make a reasonable, thoughtful, and well-informed observer question his impartiality. Accordingly, the petition for writ of mandamus is DENIED.

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - More on: "Courts - "Despite adjustments, court harried in June " [Updated]

The SCOTUS issued three opinions this morning. None of them were the cases of interest on the list in the Biskupic story quoted earlier today. The Court will issue another batch of opinions on June 14th.

Here, per SCOTUSblog, are today's three opinions.

[Updated at 12:31 PM] This posting last hour by Ashby Jones of WSJ Law Blog gives some perspecitve - it begins:

In order for the Supreme Court to wrap down its term, which traditionally ends in late June — and let Justice John Paul Stevens head off to his well-deserved retirement — the men and women (and their clerks), better get to work!

Here’s the deal: As of Sunday, the Supreme Court still had yet to issue 27 of the 78 cases it heard this term. On Monday, the Court issued three opinions, bringing the total to 24.

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Courts in general

Courts - More on: NJ Governor's failure to grant tenure to sitting justice causes controvery

Updating this ILB entry from May 15, 2010, Henry Gottlieb of the New Jersey Law Journal reports today in a long story that begins:

All seven members of the panel that advises New Jersey governors on prospective candidates for the state trial courts have resigned, as protests continue over Gov. Chris Christie's decision to drop Justice John Wallace Jr. from the state Supreme Court.

But the unrepentant Christie administration says "not everyone shares their views" and that the governor will find new outside advisers soon.

Six of the seven members of the Judicial Advisory Panel -- including four former state Supreme Court justices -- explained in a letter to Christie Wednesday that they were quitting because his refusal to reappoint Wallace was "inconsistent with an independent judiciary"

Posted by Marcia Oddi on Monday, June 07, 2010
Posted to Courts in general

Courts - "Despite adjustments, court harried in June "

Joan Biskupic, USA TODAY, has this report:

WASHINGTON — Supreme Court justices front-loaded their calendar this term, holding more oral arguments in the fall and winter and fewer in the spring, hoping to ease the traditional June crunch.

Yet as some of the justices, including John Paul Stevens, have lamented, they entered June — the usual culmination of their nine-month term — a bit behind schedule. So the June frenzy and what retired Justice David Souter recently called "the quickened pace of decisions" endure.

The justices issued five decisions Tuesday and will continue with a new batch today.

Among the remaining 27 cases of the 78 heard are disputes testing individuals' guns rights, the validity of a federal anti-fraud law and whether people who sign petitions for ballot measures can stay anonymous. * * *

Among the cases awaiting decisions:

McDonald v. City of Chicago: testing whether the Second Amendment right to bear arms can be invoked against city and state gun regulations; a 2008 ruling said the Second Amendment could be used to challenge regulations by the federal enclave of Washington.

Black v. United States; Skilling v. United States; Weyhrauch v. United States: testing the constitutionality of a commonly used federal anti-fraud law that makes it a crime to deprive shareholders or the public of "the intangible right of honest services."

Holder v. Humanitarian Law Project; Humanitarian Law Project v. Holder: testing a provision of the 2001 Patriot Act prohibiting "material support" to a designated terrorist group, even when it might involve advice on non-terrorist, humanitarian activities.

John Doe No. 1 v. Reed: testing whether people who signed a petition for a state referendum against gay legal rights have a First Amendment claim to keep their names private.

Christian Legal Society of University of California, Hastings, College of Law v. Martinez: regarding an appeal by a student group denied recognition at a state school because it excluded gay students.

City of Ontario v. Quon: testing whether a police department's review of text messages sent by a SWAT team officer on a department pager, some to his wife and some to a mistress, violated his Fourth Amendment right to privacy.

Posted by Marcia Oddi on Monday, June 07, 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 over the weekend from the ILB?"

From Sunday, June 6, 2010:

From Saturday, June 5, 2010: From late Friday afternoon, June 4 , 2010:

Posted by Marcia Oddi on Monday, June 07, 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 6/7/10):

Next week's oral arguments before the Supreme Court (week of 6/14/10): Next Thursday, June 17th


This week's oral arguments before the Court of Appeals (week of 6/7/10):

Monday, June 7th

Next week's oral arguments before the Court of Appeals (week of 6/14/10):

Next Monday, June 14th

Next Wednesday, June 16th

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, June 07, 2010
Posted to Upcoming Oral Arguments

Sunday, June 06, 2010

Ind. Gov't. - "Legislature sets summer study committees "

Dan Carden reported June 3rd, 2010 in the NWI Times in a story that begins:

State legislators will study health care policy, criminal sentencing, student absenteeism and gaming, along with 12 other topics, in a series of committee meetings this summer to begin crafting legislation for the 2011 session of the General Assembly.

Three different committees will examine the impact to Indiana of the national health insurance reform law.

"That has to be looked at and studied very well because it seems to be shaping and changing as it goes along, so we really don't know the impact," said state Rep. Earl Harris, D-East Chicago. "We want to know how it's going to affect Indiana health care, and we have to work at that very hard."

Republican Gov. Mitch Daniels has produced estimates that Indiana will spend nearly $3 billion on new Medicaid expenses over the next 10 years due to the health law. Democratic leaders, including House Speaker Patrick Bauer, D-South Bend, say the cost to the state will be much less.

Here are links to the LSA interim study committee resolutions adopted at the June 2 meeting: LSA 10-01 and LSA 10-03.

Posted by Marcia Oddi on Sunday, June 06, 2010
Posted to Indiana Government

Ind. Courts - "Two Elkhart County judges: No major drug testing issues"

Tim Vandenack reports in the Elkhart Truth in a long story that begins:

Two Elkhart County judges report no major issues related to the disputed move to a private company to handle administration of drug testing of probationers.

At the same time, the officials are saying it's probably too early to draw any conclusions about Integrity Solutions Group. Both -- Elkhart Superior Court 4 Judge Olga Stickel and Superior Court 5 Judge Charles Wicks -- had favored staying with the county agency that had helped with drug testing instead of going with ISG.

"At least for me, I'm in a process of evaluating it at this point," said Stickel. "We're still trying to see how it's going to work."

Meanwhile, Tonya Gaby, the consultant who steered county officials to ISG, explained the circumstances that led her to recommend the firm. Representatives at two other private drug-testing firms here have since complained about the selection of ISG, saying they would have liked to pitch their own competing proposals to handle drug testing of probationers.

Elkhart County commissioners and the Elkhart County Council axed funding last year for the Elkhart County Alcohol and Drug Abuse Program, leading to its elimination on Jan. 1 this year. ECADAP, which employed six and had a 2009 budget of $320,417, had overseen drug testing of certain low-risk drug and alcohol offenders on probation and referred them to treatment.

In ECADAP's place, commissioners inked a one-year trial contract in February with ISG, effectively privatizing the services ECADAP had overseen and -- this was a big spur -- reducing county expenses, at least theoretically. ISG's initial tasks centered on handling drug testing of all probationers released from the Elkhart County jail, not just the limited group ECADAP had handled. This week the firm launched a new initiative replacing the ECADAP program that referred drug and alcohol offenders to treatment.

Through it all, questions have simmered, and not just from the two ISG competitors miffed at not being able to pitch their own proposals. Commissioner Mike Yoder noted that it's been tough to get solid figures on the number of probationers here, key in determining whether having a private firm like ISG handle drug testing is financially viable. He also alluded to lack of clarity in who has ultimate authority within the county and judicial bureaucracy over issues related to probationers.

Posted by Marcia Oddi on Sunday, June 06, 2010
Posted to Indiana Courts

Courts "Distasteful speech protected, too"

That is the heading to a commentary today in the Fort Wayne Journal Gazette, authored by their Washington editor, Sylvia A. Smith. The subject is protests at funerals for Amercian solders/

The case is Snyder v. Phelps (SCOTUSWIKI here). Cert was granted by the Supreme Court on March 8, 2010. David Savage wrote in the LA Times March 8th:

The Supreme Court agreed Monday to decide on the outer limits of free-speech protection for public protests and to rule on whether a dead soldier’s family can sue fringe religious protesters who picketed near their son’s funeral with signs that said, "Thank God for dead soldiers."

A Maryland jury awarded $10 million in damages to Albert Snyder, whose son Matthew was killed in Iraq in March 2006. He had sued Fred Phelps, the founder of the Westboro Baptist Church in Topeka, Kan., who has traveled the country for 20 years leading controversial protests at funerals for American soldiers.

He claims that God hates America because of its tolerance of homosexuality. He and his small group of followers carried protest signs at the funeral in Westminster, Md., that said, “Fag troops,” “God hates the USA” and “God hates fags.”

But a lawyer for Phelps said his protests were not targeted at Lance Corp. Matthew Snyder, the soldier, but more generally at America and the U.S. military. The protesters were kept at a distance from the church and the burial service. Nonetheless, the jury awarded damages to the Snyder family on the grounds that the funeral protests invaded their privacy and intentionally inflicted emotional distress.

In September, however, the U.S. 4th Circuit Court of Appeals threw out the entire award on free-speech grounds. “Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to concluded that the defendants’ signs are constitutionally protected,” the appeals court said.

Snyder’s family appealed to the Supreme Court, saying the protests had “tarnished” their son’s funeral. “Matthew deserved better. A civilized society deserved better,” they said.

The court announced it had voted to hear the appeal in Snyder vs. Phelps and to rule on whether the right to free speech extended to the right to intrude on a solemn ceremony. The justices will hear arguments in the case in the fall.

Per the SCOTUSWIKI, a number of amicus briefs have been filed on the side of the father, Mr. Phielps, including this one, "Brief for State of Kansas and 47 Other States and the District of Columbia in Support of Petitioner."

Sylvia Smith writes"

I do not think the Supreme Court should rule the hatemongers can’t do what they do, and I think Indiana’s attorney general was wrong to add our state’s lobbying power to the 47 other states that asked the court to let them stunt the First Amendment when it comes to speech most people find reprehensible.

What the justices will do is decide three questions:

Can someone be awarded damages for hurt feelings?

Does the freedom of speech guarantee in the First Amendment trump freedom of religion and peaceful assembly, also guaranteed by the First Amendment?

Is an individual attending a family member’s funeral a “captive audience” who is entitled to the government’s protection from unwanted blather?

This is an emotional issue. No rational, compassionate person wants a grieving family to function, unwittingly, as the backdrop for some misguided goofball’s social commentary. Especially the family of a veteran. Especially during a war.

But there is something worse than a brokenhearted family enduring the tirades of a small, albeit revolting, group. What is worse is what Indiana and 47 other states want the Supreme Court to allow: piercing the heart of the Constitution and the freedoms those veterans fought to preserve.

Forty-two members of the Senate filed a friend-of-the-court brief arguing that “the right to speak freely about matters of public concern does not encompass insults and verbal abuse intended to invade a private memorial ceremony and injure its participants. Respondents were and are free to convey their repugnant message in virtually any public manner they choose. But they were not free to hijack petitioners’ private funeral as a vehicle for expression of their own hate.”

Bravo to the two Hoosier senators, whose names are not on the brief. I hope that means that Sens. Evan Bayh and Richard Lugar take exception to their colleagues’ contention that the Constitution does not protect unmannerly speech and that bruised feelings – no matter how justified – constitute an injury.

Indiana Attorney General Greg Zoeller and 47 other attorneys general say the case boils down to this:

“May the states protect the privacy and emotional health of grieving families from the psychological terrorism of persons who target such families with hostile picketing at funerals and Internet postings that include personal attacks on the families and their deceased children?”

Psychological terrorism? Really?

Let’s put hyperbole aside and take a deep breath.

The Constitution does not guarantee people the right to a solemn funeral. Americans do have a right to speak freely about public matters. Nonetheless, that does not mean the government can’t put some restrictions on how that free speech can be contained. You can’t, for instance, use a jackhammer at 3 in the morning in a residential neighborhood and insist that you are protesting an increase in sewer rates.

However, the court should not conclude that people can collect damages when protesters make them sadder than they already are. The court should also refuse to categorize funeral attendees as a “captive audience” that deserves special government protection.

What the court should do is agree that states could put reasonable restrictions on actions that can disrupt a funeral. Those restrictions must be narrowly drawn, however, and Indiana’s law that prohibits “fighting or tumultuous conduct” within 500 feet of a burial or funeral ceremony is not reasonable. Five hundred feet is nearly 1.5 times the length of a football field. Some city blocks are not much longer than 500 feet.

Distance from a funeral aside, is a mute protester carrying a “God hates fags” sign the same as “fighting or tumultuous conduct?”

The hardest speech to protect is from socially repugnant groups. But if the First Amendment means anything, it’s those groups that need our protection the most.

Indiana's 500 foot limit is contains in IC 35-45-1-3.

There are paraelle to be drawn, of course, with state and federal laws and SCOTUS decisions re abortion protests and buffer zones.

Posted by Marcia Oddi on Sunday, June 06, 2010
Posted to Courts in general

Ind. Gov't. - Chrysler bankruptcy challenge issue in Treasurer's race

Eric Bradner of the Evansvile Courier & Press reports today in a ong story headed "Chrysler bankruptcy drives Ind. treasurer's race." For background, see this list of earlier ILB entries on the lawsuit.

Posted by Marcia Oddi on Sunday, June 06, 2010
Posted to Indiana Government

Ind. Law - "Democratic nominee for Lake County assessor soon may learn the outcome of a state investigation into whether she violated state law by holding driver's licenses in both Indiana and Michigan"

Bill Dolan reports for the NWI Times:

Both Indiana and Michigan state officials have acknowledged Carol Ann Seaton held a Michigan and Indiana driver's license simultaneously for some years, in apparent violation of both states' laws.

A Michigan spokeswoman said her agency canceled Seaton's driver's license in that state for failing to disclose her Indiana license.

[Graig Lubsen, a spokesman for the Indiana Bureau of Motor Vehicles], said holding multiple driver's licenses can be a civil infraction punishable by a fine or a felony if she failed to disclose her Michigan license on recent Indiana driver's license applications. BMV employees are supposed to require applicants to state, under oath, whether they hold out-of-state licenses.

Lubsen said Tuesday evidence in Seaton's case has been turned over to state police. He said any criminal charges would have to be authorized by Lake County Prosecutor Bernard Carter. * * *

Lake County Sheriff Rogelio "Roy" Dominguez, whose department isn't involved in the investigation, recently questioned why Seaton is being singled out for special scrutiny. He said he believes efforts to have her charged as a felon are politically motivated.

Lubsen said earlier this week the BMV isn't treating Seaton's case any differently than many others initiated after BMV Commissioner Andrew Miller stepped up enforcement of state law forbidding multiple licenses.

Posted by Marcia Oddi on Sunday, June 06, 2010
Posted to Indiana Government | Indiana Law

Saturday, June 05, 2010

Ind. Courts - More on: Newton County prosecutor unlicensed

Updating this ILB entry from April 10, 2010, Sophia Voravong reports today in the Lafayette Journal Courier:

Newton County Prosecutor J. Edward Barce should be disciplined via public reprimand for practicing law in Indiana with an inactive license, a Tippecanoe County judge is recommending.

The Indiana Disciplinary Commission filed a complaint in April 2009 against Barce for prosecuting felonies and misdemeanors in Newton County without an active license between Aug. 5, 2005, and Feb. 23, 2009.

Thomas Busch, judge of Tippecanoe Superior Court 2, was appointed by the Indiana Supreme Court to preside over those proceedings. A public hearing was held this past April 9.

Busch filed his 12-page recommendation for "public reprimand" on May 25 -- noting that Barce's misconduct was willful but unintentional. The judge further noted that no evidence has been presented showing that Barce's actions harmed any criminal defendants or cases.

Except for private reprimand and private administrative admonition, a public reprimand is one of the lowest types of punishment an Indiana attorney can receive. * * *

Dennis McKinney, an attorney with the disciplinary commission, said the Supreme Court does not have to accept Busch's recommendation for public reprimand. Barce potentially could be suspended or even disbarred.

Barce's inactive status was brought to light in February 2009 by a Lake County public defender on a case in which Barce was appointed special prosecutor.

That occurred on the first day of the trial of a Gary attorney accused of trafficking drugs to an inmate.

During the April 9 hearing, Barce testified that he did not realize choosing "inactive" on documents for annual registration fees for Indiana attorneys meant he could no longer prosecute cases.

In 2005, Barce had switched from a part-time to full-time prosecutor and closed his Kentland-based civil law practice.

Barce, a three-term elected prosecutor, submitted paperwork indicating "inactive" status again in 2006, 2007 and 2008.

In his recommendation to the Supreme Court, Busch noted that the affidavits signed by Barce were confusing because the forms tried to accomplish three things: an attorney's activity status, related collection fees and whether the attorney was required to participate in the Interest on Lawyers' Trust Accounts program. [ILB - I believe this is the form all attorneys must sign each year]

A full-time prosecutor does not have to participate in that program.

Busch further pointed out that the forms were confusing because of missing signature lines or check boxes. * * *

According to testimony during the April 9 hearing, about 1,850 felony and misdemeanor cases were filed by the Newton County prosecutor's office during the three-plus years that Barce's license was inactive.

Of those, only two defendants have challenged their cases -- both of which were denied.

Posted by Marcia Oddi on Saturday, June 05, 2010
Posted to Indiana Courts

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

Updating this ILB entry from May 25, 2010, Grace Schneider reports today in the Louisville Courier Journal:

Clark Superior Court Judge Vicki L. Carmichael has been appointed as special judge in Harrison County Sheriff Mike Deatrick's criminal case.

The Indiana Supreme Court made the appointment Friday afternoon, acting on a request from Harrison Superior Court Judge Roger Davis.

Davis had excused himself from the case in April, citing inherent conflicts with serving on the case.

The appointment will allow the case, which has been stalled since Deatrick's arrest more than two months ago, to get underway. But the trial, which is scheduled for July 20, is likely to be postponed several months.

Deatrick, 64, was arrested April 1 and charged with 10 felony counts and two misdemeanors after being indicted by a Harrison Superior grand jury.

The case began after two women dispatchers accused the sheriff in May 2008 of sexual misconduct and of attempting to intimidate them when their claims were made public in an employment discrimination complaint.

The sheriff, who leaves office at the end of the year, has continued working at his $85,000-a-year job and hasn't commented about the Indiana State Police investigation that culminated in his indictment and subsequent arrest. He testified for nearly two days before the grand jury, whose proceedings were private. * * *

Carmichael, a Democrat, has a reputation as a no-nonsense judge, having served as Jeffersonville City Court Judge for six years until she ousted two-term Clark Superior Judge Jerry Jacob in the 2006 primary.

Posted by Marcia Oddi on Saturday, June 05, 2010
Posted to Indiana Courts

Friday, June 04, 2010

Courts - More on: "Did a Minnesota judge and his law clerk attempt to collude to put a clerk on the bench? "

Updating this ILB entry from earlier today, Above the Law now has another entry.

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 4, 2010

Here is the Clerk's transfer list for the week ending June 4, 2010. It is one page long.

One transfer was granted this week, with opinion: Christian Hollinsworth v. State of Indiana. See the most recent ILB entry on the decision here, from earlier today.

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions. Note that the search is now current through the 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 Friday, June 04, 2010
Posted to Indiana Transfer Lists

Inbd. Decisions - "State justices slam traffic judge's handling of case that landed woman in jail"

Yesterday's Supreme Court decision in the case of Christian Hollinsworth v. State of Indiana [Marion Superior Court, Criminal Division 13, Judge William Young ], a brief, 3-page, 4-1 per curiam opinion which the ILB decided to set out in full in this entry yesterday, is the subject of a story this afternoon on Star reporter Jon Murray's blog, Justice Watch, and will undoubtedly appear in some form in tomorrow's Indianapolis Star. It begins:

The Indiana Supreme Court could have simply reversed a woman's sentence for driving with a suspended license, a misdemeanor, and the rare one-year jail sentence that resulted. But on Thursday, the justices went further and slammed the behavior of the Marion County traffic court judge, whose handling of the case in February 2009 turned heads. It came soon after Judge Bill Young had moved to the post at traffic court, issuing stiff fines for some and sometimes employing a gruff manner on the bench. In the case that prompted this week's opinion, the justices have ordered a new trial.

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - "Did a Minnesota judge and his law clerk attempt to collude to put a clerk on the bench? "

Remember that this spring a Lake County judge withdrew his candidacy for reelection four minutes before the close of filing for the primary? As the Gary Post-Tribune wrote at the time:

[Judge] Arredondo had filed on Jan. 20 -- the first day of filing -- to make sure no one else got into the race, so that a month later he could deal an ace from the bottom of the deck.

Two minutes before he withdrew, Merrillville Town Judge George Paras filed for Lorenzo's Circuit Court seat.

Yesterday Above the Law had a similar story, involving a Minnesota court. A quote:
As of Tuesday morning, Judge Armstrong was running unopposed. No surprise there.

But then something strange occurred. Shortly before the deadline, Judge Armstrong’s law clerk, Dawn Hennessy, filed to run against her boss. Meanwhile, before anyone realized what was going on, Judge Armstrong withdrew from the race — leaving his law clerk, Dawn Hennessy, running unopposed for a Minnesota district court judgeship. Who says chivalry is dead?

And then things got even more strange….

Judge Thomas Armstrong’s withdrawal was so last-minute that an article in a local newspaper reported that Armstrong and Hennessy were running against each other. That was clearly not the case — as of around noon today, Eastern time, the candidate filings page of the Minnesota Secretary of State website showed Dawn Hennessy as running without opposition.

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Courts in general

Ind. Courts - Still more on the members of the Judicial Nominating Commission

Supplementing this ILB entry from June 2nd, where I noted:

Unfortunately, little biographical information has been located at this time by the ILB for two of the Governor's appointees: Mr. McCashland, other than the statement in the Governor's appointment, "retired government teacher from Brebeuf Jesuit Preparatory School." For Mr. Gavin, "past Kosciusko County Republican chairman."
To remedy this lack of information, I contacted the governor's office requesting additional biographical information on these two governor's appointments. This morning I received this help:
Fred McCashland is a retired government teacher from Brebeuf Jesuit Preparatory School.

Mike Gavin’s title is Senior Vice President, Credit Administration at Lake City Bank in Warsaw.

Here is the Court's website for the Commission, which also serves as the Commission on Judicial Qualifications.

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Michael Berkshire v. City of Logansport, et al. , a 25-page opinion, Chief Judge Baker writes:

Nearly one hundred years ago, Cass County Circuit Judge David D. Dykeman died, leaving certain real property to the City of Logansport to operate as a public park. Although the park has been in operation since the early 1900s, David Berkshire, a Logansport resident, objects to Logansport’s decision to allow the sale of alcohol on the premises. As a result, Berkshire filed an action against Logansport and its Parks and Recreation Board in 2009, claiming that the Park had not been operated and managed in accordance with the directives of Judge Dykeman’s will (Will). Although the trial court found that Berkshire had standing to bring the action, it determined that the statute of limitations had long expired.

Thus, appellant-plaintiff the State of Indiana on the relation of Berkshire appeals the trial court’s grant of appellees-defendants City of Logansport and the Logansport Parks and Recreation Board’s (collectively, Logansport) motion to dismiss Berkshire’s action that sought a writ of mandate, declaratory judgment, and injunctive relief regarding the operation of Dykeman Park. Specifically, Berskshire argues that the trial court erroneously determined that the statutes of limitations barred his action because those statutes do not apply to actions for a writ of mandate.

Moreover, although Berkshire asserts that the trial court correctly entered partial summary judgment in his favor on the issue of standing, he maintains that his motion should have been granted in its entirety because Logansport is improperly attempting to appeal the trial court’s finding that he had standing to raise the issues and it failed to comply with the designation of evidence requirement set forth in Indiana Trial Rule 56(C). Logansport cross-appeals, claiming that the trial court erred in determining that Berkshire could bring his action in accordance with the public standing doctrine.

We first conclude that Logansport did not waive its statute of limitations defense even though it did not raise that defense in its response to Berkshire’s motion for summary judgment. Therefore, Logansport’s cross-appeal is properly before us. We also find that although a citizen in Berkshire’s capacity may have been able to challenge the manner in which the City controlled and managed Dykeman Park at some point, we agree with the trial court’s determination that Berkshire—a citizen of Logansport who makes no claim as an heir of Judge Dykeman—is precluded from attacking the manner in which the City has operated the park for over ninety years. * * *

In light of our discussion above, we conclude that even though Berskhire and similarly-situated Logansport citizens might have had standing at some point to challenge the manner in which Logansport operated and controlled Dykeman Park, we applaud the trial court’s commonsensical approach to this case. Aside from the failure to manage and control Dykeman Park by three Park Commissioners, Logansport complied with the directives that Judge Dykeman set forth in the Will. And Judge Dykeman’s heirs and/or his estate never sought to enforce the specific provisions of the agreement with Logansport regarding the park’s management. Thus, given these circumstances, we cannot say that Logansport’s continuous operation of Dykeman Park in the manner in which it has for the past ninety-plus years is fatal to its future management and control of the park. The theories that Berkshire has advanced supports the trial court’s conclusion that his cause of action against Logansport is time-barred.

In Paternity of X.S.; H.S. v. S.K., a 16-page opinion, Chief Judge Baker writes:
Father and Mother both love their son and have been responsible, dedicated, involved parents. Father met someone who is in the Navy, got married, and has decided to move with his new wife to California, where her ship will be docked. Father, who has been the custodial parent of and primary caregiver for his son with Mother for the past nine years, asked the trial court to permit the child to relocate with Father to California. The trial court denied the request and granted Mother’s request to modify custody so that the child could remain in Indiana. We acknowledge that this situation will undeniably cause heartbreak for one of these parents, who will have to drastically curtail the amount of time spent with their son. Inasmuch as someone must prevail, however, we find that while it is a close call, the record simply does not contain sufficient evidence to support a change from the status quo. Thus, we find that the boy should remain with his father.

Appellant-petitioner H.S. (Father) appeals the trial court’s order denying his request to relocate to California with X.A.S., Father’s child with S.K. (Mother), and granting Mother’s petition to modify the parties’ custody arrangement. Finding that a number of findings are not supported by the evidence, that a number of inferences drawn from the facts are unreasonable, and that the judgment is not supported by the remaining findings, we reverse and remand with instructions.

NFP civil opinions today (4):

In Susan Jiosa and David Jiosa v. Huntington County Board of Commissioners (NFP), a 7-page opinion, Judge Crone writes:

The dispositive issue is whether the trial court abused its discretion in entering a sua sponte summary dismissal of the Jiosas’ case based on their counsel’s failure to appear for an initial case management conference. We reverse and remand. * * *

This is a classic case of penalizing the plaintiffs for the acts of their attorney, and summary dismissal is a penalty that due process cannot endure. * * *

In sum, the trial court abused its discretion in summarily dismissing the Jiosas’ case as a sanction for counsel’s failure to personally attend the case management conference. As such, the trial court abused its discretion in denying the Jiosas’ motion to correct error, which was based on the dismissal. Accordingly, we reverse and remand for further proceedings.

Celadon Trucking Services of Indiana v. Kenneth Sharon (NFP)

Gary A. Zarkowski v. Darren T. Sroufe, et al. (NFP) - "Even if Parker assigned her shareholder claims to Zarkowski, we conclude that Zarkowski could not file this direct action. We affirm the trial court’s dismissal of Zarkowski’s complaint and amended complaint against Defendants."

State of Indiana v. Willie M. Brown (NFP) - "The objective circumstances presented lead us to agree with the trial court that a reasonable person in Brown's position would not feel free to leave or resist Officer Troyer's directives. Accordingly, Brown was “in custody” at the time his consent to search was given and was entitled to an advisement of his right to consult with counsel prior to giving such consent. Because he was not so advised, the search of Brown's person was unlawful, and evidence obtained as a result was the fruit of the unlawful search. The trial court properly granted Brown's motion to suppress."

NFP criminal opinions today (9):

Juan Ontiveros v. State of Indiana (NFP)

Victoria Graham v. State of Indiana (NFP)

Amanda L. Redman v. State of Indiana (NFP)

Ricky E. Ulshafer v. State of Indiana (NFP)

Kennedy E. Butler v. State of Indiana (NFP)

Breond Yarbrough v. State of Indiana (NFP)

Michael Mobley v. State of Indiana (NFP)

Jose Cruz, Jr. v. State of Indiana (NFP)

Kerry Snow v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from May 28th, which published, with permission, Indiana Legislative Insight's list of potentials for the Supreme Court vacancy, and this entry from May 29th, with the biographical summaries Indiana Legislative Insight prepared to accompany each "potential's" name --- In its June 6, 2010 issue the newsletter reports, under the heading "One name we overlooked: Add Judge Moberly to our high court list." Some quotes from the story:

While no one had quibbled with the names we advanced, some suggest that we perhaps inadvertently overlooked one potential appointee, and they are correct.

Add the name of Marion County Superior Court Judge Robyn L. Moberly to the list. Judge Moberly, a Republican, was first elected as judge in 1996, and re-elected in 2002 and 2008. When she last sought re-election, 86.2% of Indianapolis Bar Association members approved of her re-election, second among the Republicans, and fifth among all 16 then- incumbent judges. She is a member of the Judicial Education Committee and is vice president of the Board of Managers of the Indiana Judges Association.

Judge Moberly was also one of three finalists for the first Court of Appeals vacancy during the Daniels Administration, the appointment that went to her Marion County colleague, Judge Cale Bradford. That she has found her way onto the final list once suggests that the Indiana Judicial Nominating Commission (albeit not the exact group now serving) is favorably disposed toward her, and it has not been unusual for judges (in particular) to be appointed on subsequent applications.

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

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Vacancy on Supreme Ct

Environment - Problems at Michigan City sanitary district? [Updated]


This story today by Matt Field of the Michigan City News Dispatch, headed "State AG will take over Meer complaint." It begins:

MICHIGAN CITY — The Indiana attorney general’s office will now decide what to do with Ron Meer’s whistle-blower complaint against his former employer, the Sanitary District.

After a lengthy investigation, the Indiana Department of Labor has referred the case to the attorney general’s office. Deputy Commissioner of Labor Jeff Carter said Thursday the attorney general’s office now has fewer than 30 days to decide whether to bring a lawsuit against the Sanitary District.

“We concluded the case had merit,” Carter said. “I’ll let the attorney general decide how strong the case is.”

Carter said he could have closed the case instead of referring it to the attorney general’s office. “If it keeps moving forward then it’s probably a valid claim,” he said. The attorney general’s office could attempt to compel the Sanitary District to rehire Ron Meer.

The lawyer representing the district against Meer’s complaint was not immediately available for comment.

The news that the attorney general’s office was taking up the matter came on the same day the U.S. Environmental Protection Agency executed a search warrant at the Sanitary District as part of a criminal investigation into possible environmental crimes.

It also falls during the same week the City Council voted to subpoena documents from the Sanitary District’s main lawyer, Bill Nelson, and the attorney the district hired to investigate Meer before he was terminated.

Meer lost his job April 1 after a district investigation revealed that he had told state regulators about safety issues at the district and not his bosses. He passed on a chance to keep his job by refusing to sign a statement acknowledging that he violated work rules.

Carter reiterated his position that Meer’s complaint should be handled outside of a lawsuit.

“This should never see a courtroom,” he said. “That would be, in my opinion, a monumental waste of taxpayer dollars.”

See also this long story today by Gitte Laasby of the Gary Post Tribune, headed "Feds seize rcords in hunt for enviro crimes." Some quotes:
MICHIGAN CITY -- Agents from state and federal agencies raided the Michigan City Sanitary District Thursday looking for evidence of environmental crimes.

Sources told the Post-Tribune the investigation involves several years of unreported sewer overflows -- including some into Trail Creek -- and the firing of the whistleblower who tipped off the government. * * *

A memorandum from the Michigan City Clerk in May 2009 states there were "alleged sewer overflows in Washington Park" and that the city's utilities committee met to review what had been done to address the problem and whether IDEM was properly notified.

"I can't tell you if it's related but that's probably good information," EPA's Ashe said.

Former Michigan City Sanitary District employee and current City Councilman Ron Meer first contacted the city council, IDEM and EPA about safety problems and unreported overflows in early May 2009.

"He didn't know at the time if they were reporting overflows and clearly they were not," said Councilman Phil Jankowski, who chairs the city's utility committee. "They won these national and state awards and they weren't reporting stuff."

[Updated 6/6/10] Gitte Laasby reports:
The Indiana Attorney General's office is deciding whether to argue the case of a former Michigan City Sanitary District worker, who was fired for being a whistleblower about unreported sewer overflows. * * *

If the Attorney General's Office agrees the case has merit, the office would argue the case on behalf of the Department of Labor.

"As the lawyer for state government agencies, the Attorney General's Office will review this matter and determine by the deadline of June 29, 2010, whether to file a lawsuit," said Bryan Corbin, spokesman for the office. "No decision has been made yet whether to file or not to file."
[Deputy Commissioner of Labor Jeff Carter] has indicated he thinks the case is so strong it should be settled out of court.

In a whistleblower case, a wrongfully terminated employee would typically be reinstated in his job. He could also be compensated for back pay, overtime, insurance, and any disciplinary actions may be removed from his record.

Posted by Marcia Oddi on Friday, June 04, 2010
Posted to Environment

Thursday, June 03, 2010

Ind. Decisions - Supreme Court issues two this afternoon

In Christian Hollinsworth v. State of Indiana [Marion Superior Court, Criminal Division 13, Judge William Young ], a 3-page, 4-1 per curiam opinion, the Court writes:

Christian Hollinsworth appeals her conviction for driving while suspended as a class A misdemeanor. See Ind. Code § 9-24-19-2. She was sentenced to 365 days, executed, and her driving privileges were suspended for an additional 365 days. The sentence was subsequently modified on her motion, and the remaining executed portion of the sentence was suspended.

After the Court of Appeals affirmed the conviction and sentence, Hollinsworth petitioned to transfer jurisdiction to this Court. See Appellate Rule 56(B).

Hollinsworth argues that comments by the trial court during the bench trial showed the court was not impartial. For example, at the beginning of the trial, the court granted a recess so the parties could discuss a plea agreement, but no agreement resulted, and the trial began. After the State called its first witness, Hollinsworth informed the Court that she did not want a trial and now wanted to accept the State’s proffered plea agreement. The Court exhibited impatience and stated that if Hollinsworth were found guilty, “she’s going to jail for a year.” (Tr. p. 8.) The trial court further stated, “I don’t know if I want to take your plea. I’d rather just go to trial, I think. I don’t like being jerked around at all, all right?” (Tr. p. 9.) Also, while reviewing Hollinsworth's criminal history at sentencing, the trial court noted that Hollinsworth had been charged with theft and battery while the instant suspended license case had been pending. When her attorney stated, “Those are only alleged charges,” the trial court responded, “Sure they are.”

Indiana Judicial Conduct Canon 2 requires a judge to “perform the duties of judicial office impartially, competently, and diligently.” Judges must be “objective and open-minded.” Rule 2.2, comment 1. “A judge shall perform the duties of judicial office . . . without bias or prejudice.” Rule 2.3(A). “A judge shall be patient, dignified, and courteous to litigants.” Rule 2.8(B). A judge shall disqualify himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned” including in circumstances when “the judge has a personal bias or prejudicial concerning a party.” Rule 2.11(A).

The trial court’s behavior in this case did not meet these standards.

Accordingly, we grant transfer, vacate the Court of Appeals opinion reported at Hollinsworth v. State, 920 N.E.2d 679 (Ind. Ct. App. 2009), reverse the conviction, and remand for a new trial.

Shepard, C.J., and Dickson, Sullivan and Rucker, JJ., concur.
Boehm, J., agrees with the majority on the merits of this case but would deny transfer because the executed sentence in this case has already expired.

In State of Indiana v. Robert Richardson, an 8-page, 5-0 opinion, Justice Sullivan writes:
Defendant Robert Richardson was stopped for driving his pickup truck without wearing a seatbelt. The police officer's subsequent inquiry regarding a “large, unusual bulge” in his pocket led to the discovery of cocaine. The trial court concluded that this inquiry went beyond that authorized by Indiana's Seatbelt Enforcement Act. We agree with the trial court's determination. * * *

Indiana Code section 9-19-10-3.1, also known as the Seatbelt Enforcement Act (“Act”), provides that “a vehicle may be stopped to determine compliance with this chapter. However, a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter.” * * *

Did Officer Eastwood's inquiry, during a traffic stop for a seat belt violation, regarding a “large, unusual bulge” in the defendant's pocket, cross the line? The State relies on our decision in State v. Washington, 898 N.E.2d 1200, 1207-08 (Ind. 2008), to contend that Officer Eastwood's inquiry was entirely proper because under Section 11, an officer may ask a motorist whether he or she has weapon on his person. However, Washington did not involve a seat belt stop; the defendant was stopped for, inter alia, repeatedly driving a moped left of center. Id. The language of the Act and subsequent case law clearly dictate that in adopting the Act, the Legisla-ture intended the statute to limit, rather than expand, police authority with respect to seat belt en-forcement stops and sought to circumscribe the power of police to use a seat belt stop as an opportunity to inspect, search, or detain on other grounds, even if constitutional law would permit such police behavior. See Baldwin, 715 N.E.2d 332. Given the language of the Act itself, the Attorney General's own position in Baldwin interpreting that language, and the case law, the Act simply does not permit investigatory behavior based solely on a seat belt violation unless cir-cumstances arise after the stop that independently provide the officer with reasonable suspicion of other crimes. * * *

There will, of course, be circumstances where something more than an “unusual bulge” will be visible, or other conditions that provide a police officer with the requisite reasonable sus-picion to conduct further inquiry. This is not one of them. And even if the facts were such that Officer Eastwood's questioning about the bulge was proper, the fact remains that Richardson's production of a valid gun permit should have resulted in the termination of any further question-ing. * * *

The State contends in the alternative that even if the initial arrest of Richardson was not based upon sufficient probable cause, Richardson's own conduct created separate probable cause to arrest him for forcibly resisting arrest and battery on a law enforcement officer. Specifically, the State maintains that the legality of the initial arrest was an issue that was rendered moot once Richardson elected to fight and kick the officers while they tried to peacefully place him under arrest.

At common law, a person was privileged to resist an unlawful arrest. See Gross v. State, 186 Ind. 581, 583, 117 N.E. 562, 564 (1917). Our courts, however, have uniformly accepted that this common law rule is outmoded in today's modern society. * * * In 1976, the Legislature, recognizing this modern trend, enacted the resisting law enforcement statute, Indiana Code section 35-44-3-3, which makes it a crime to “(1) forcibly resist[], obstruct[], or interfere[] with a law enforcement officer or a person assist-ing the officer while the officer is lawfully engaged in the execution of the officer's duties[.]” * * *

Here, the record is insufficient to permit us to give the issue presented by the State the meaningful appellate review deserved, and we will not reweigh the evidence in the absence of a detailed and complete record. Upon remand, the trial court should consider whether there is sufficient evidence supporting the State's theory that Richardson's actions of forcibly resisting arrest and battery upon a law enforcement officer were severable of-fenses independent of the seat belt search that warrant prosecution.

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Nathan Brittain v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit Judge Hamilton to relocate to IU Law-Bloomington

A press release today from IU News:

BLOOMINGTON, Ind. -- The Honorable David F. Hamilton, judge of the United States Court of Appeals for the Seventh Circuit, today announced plans to relocate his chambers to the Indiana University Maurer School of Law in Bloomington. This arrangement, one of only a few of its kind in the United States, will give students at the law school first-hand exposure to the workings of the judicial system.

"I am looking forward to the opportunity to participate in the life of the law school," Hamilton said. "I am sure that there will be many learning opportunities in both directions."

"We are delighted that Judge Hamilton is becoming even more integrated into the law school community," said Lauren Robel, dean and Val Nolan Professor of Law. "His presence in the school will enable him to carry out his judicial responsibilities while exposing our students to the widest possible array of professional opportunities."

Robel added that she and Hamilton are exploring numerous ways to benefit from the judge's experience and insights. The judge's chambers are expected to be relocated by the end of 2010.

Hamilton has a longstanding relationship with the Maurer School of Law. He is an emeritus member of the school's Board of Visitors and has taught a clinic on the federal courts. He also serves on the board of directors of the school's Center for Constitutional Democracy, which supports the work of foreign reformers to bring constitutionalism and the rule of law to new and struggling democracies. The judge's wife, Inge Van der Cruysse, is a graduate and former development officer of the IU Maurer School of Law.

Hamilton was nominated to the Seventh Circuit by President Barack Obama and confirmed by the Senate in November 2009. From 1994 until 2009, he was a judge in the U.S. District Court for the Southern District of Indiana, serving as chief judge from 2008 to 2009. Previously he was in private practice in Indianapolis and was counsel to Indiana Gov. Evan Bayh from 1989 to 1991. He was a clerk for Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.

Hamilton is a graduate of Yale Law School and Haverford College and was a Fulbright Scholar at the University of Tübingen, Germany.

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Divorce attorneys catching cheaters on Facebook"

Stephanie Chen of CNN Tech reported June 1, 2010 in a long story - some quotes:

Posting hugging and kissing photos online can show a happily married relationship, or it can expose a secretive affair. At least 80 percent of attorneys surveyed by the American Academy of Matrimonial Lawyers cited a growth in the number of cases that used social media over the last five years. The study was released earlier this year.

Divorce attorneys say social media sites have opened windows for infidelity because it's become easier to rekindle romance with an old flame or flirt with a stranger. And the posted, shared, and tagged evidence of infidelity is precisely the type of evidence attorneys look for online.

"You need to familiarize yourself with privacy settings to ensure there is no way personal information can be accessed," said Adam Ostrow, editor in chief of Mashable.com, a social media guide.

Facebook -- where attorneys find most of the evidence and leads -- has gradually relaxed privacy settings over the last year. Attorneys say that enabled some members' personal details to be leaked without the user realizing it, attorneys say. On May 26th, Facebook founder Mark Zuckerberg acknowledged the problem and, in a blog, announced new tools making it easier for users to tighten privacy settings and block outside parties from seeing personal information.

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to General Law Related

Courts - "Study Finds Blacks Blocked From Southern Juries"

Shaila Dewan reported in the June 1, 2010 NY Times in a long story that began:

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst.

The analyst, he said, “did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts.”

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

Tony Mauro of the National Law Journal wrote about the study on June 3rd, under the heading "Racial Bias Common in Jury Selection: Jury selection in eight Southern states was examined." Some quotes:
Nearly 25 years after Batson v. Kentucky, racial exclusion in jury selection is still common, according to a study of practices in southern states released Wednesday.

"In courtrooms across the United States, people of color are dramatically underrepresented on juries as a result of racially biased use of peremptory strikes," the report by the Alabama-based Equal Justice Initiative stated. "This phenomenon is especially prevalent in capital cases and other serious felony cases. Many communities have failed to make juries inclusive and representative of all who have a right to serve." * * *

The study examined jury selection in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee.

Here is the 60-page report, "Illegal Racial Discrimination in Jury Selection: A Continuing Legacy."

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Courts in general

Ind. Decisions - Still more on Carr v. United States

A good opinion recap of Carr v. United States by Anna Christensen of SCOTUSblog yesterday. This in particular caught my attention:

Because the Court’s decision rested on an analysis of the statutory text, it thus declined to reach Carr’s alternative argument that the government’s interpretation of Section 2250 violated the Ex Post Facto Clause. And it also acknowledged, but declined to address, two related issues – both of which have perplexed the lower courts – concerning the validity and interpretation of regulations issued by the Attorney General to apply Section 2250 to pre-SORNA convictions. * * *

Justice Alito filed a dissenting opinion that was joined by Justices Ginsburg and Thomas. In it, he argued that the majority’s analysis overlooked an important question: “At what point in time does Section 2250 speak?” Citing federal and state legislative drafting manuals, Justice Alito rejected the majority’s unstated premise that the statute speaks as of the point of enactment. Instead, he contended, the legislative convention is to draft laws in the present tense so that they speak “as of the time when the first act necessary for conviction is committed.” Furthermore, Congress’s decision to leave the issue of whether pre-SORNA convictions qualify under Section 2250 to the Attorney General provides an alternative explanation for why Congress would avoid using past-tense verbs that might influence the Attorney General’s decision.

Moreover, the dissent argued, the majority’s textual arguments “lead[] to a result that makes no sense.” Congress would have no reason to treat two sex offenders who failed to register differently based on whether the date on which they happened to move in interstate commerce preceded or followed the enactment of SORNA; both scenarios, he observes, “ frustrate[] enforcement of SORNA’s registration requirements.” Describing SORNA as a “response to a dangerous gap” in sex offender registration laws, Alito warned that the Court’s interpretation would put “beyond reach” the very sex offenders whose interstate movements prior to SORNA motivated the passage of the law.

Justice Alito's dissent begins at p. 24 of the opinion. Particularly interesting to be was Alito's argument beginning on pp. 28-30 where he references the United States Senate Legislative Drafting Manual and to a large number of state bill drafting manuals, many of which are available online.

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - More on "Eight Judges Out: Mass Recusal Cripples 5th Circuit"

It is not only the circuit judges, the district judges are also recusing themselves. Tresa Baldas of The National Law Journal reported yesterday in a story that began:

On Tuesday, another federal judge in New Orleans stepped aside from handling oil spill cases, joining six other colleagues who have recused themselves in recent weeks. That means only five of the 12 available judges in the Eastern District of Louisiana can hear litigation over the Gulf of Mexico disaster.

Judge Eldon Fallon removed himself from oil spill cases on Tuesday because his son-in-law, Camilo Salas III, is an attorney of record in several oil spill cases. Salas of New Orleans-based Salas LC has three such lawsuits pending in the Eastern District of Louisiana. He also has a case in the Middle District of Louisiana and another in the Southern District of Florida.

Salas said he saw no current conflict of interest because none of his cases are in front of his father-in-law. However, he said, if and when the cases are consolidated in a multidistrict litigation down the road, then a conflict could have occurred.

"Chances are that, as long as I'm on the case, he will not be the MDL judge," Salas said.

Plaintiffs lawyers are also speculating whether Chief Judge Susan Vance will recuse herself because her husband, Patrick Vance, is the head of litigation at New Orleans' Jones, Walker, Waechter, Poitevent, Carrere & Denegre, which is representing one of the oil spill defendants.

Patrick Vance would not disclose which defendant his firm is representing, saying only that the cases are not before his wife. Vance's office would not comment on whether she will step down.

"There are rumors that all of the judges [in the Eastern District] may have to recuse themselves," said Robin Greenwald of the New York office of Weitz & Luxenberg, which has asked the U.S. Judicial Panel on Multidistrict Litigation to name a federal judge from New York to handle the MDL.

Greenwald said Fallon's departure bolsters her firm's argument that an outside judge with no ties to the oil industry and with MDL experience should step in -- specifically, U.S. District Judge Shira Scheindlin, who has handled an MDL involving drinking water contaminated by a gasoline additive. Oil spill defendant BP PLC was a defendant in the gasoline case too. "We know that she doesn't have a conflict," Greenwald said.

Not so in New Orleans, where the following judges in addition to Fallon have recused themselves.

Ashby Jones of the WSJ Law Blog had this entry yesterday, headed "Hello? Can Anyone Down There Handle The Oil-Spill Litigation?"

Posted by Marcia Oddi on Thursday, June 03, 2010
Posted to Courts in general

Wednesday, June 02, 2010

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

Updating this ILB entry from May 23rd, which reported that "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," the ILB has now obtained a copy of the order, which was filed May 7, 2010 - access it here. Judge John Hanley most likely recused himself because another Marion County Judge, Judge William E. Young, is the subject of the suit.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Courts

Ind. Courts - More on the members of the Judicial Nominating Commission

Details on the members of the Judicial Nominating Commission:

Chief Justice Randall T. Shepard, Chair
Indiana Supreme Court
Indianapolis
Christine H. Keck
First District
Evansville
Term expires: 12/31/10
James O. McDonald, Esq.
First District
Terre Haute
Term expires: 12/31/12
 
Fred McCashland
Second District
Indianapolis
Term expires: 12/31/12
John C. Trimble, Esq.
Second District
Indianapolis
Term expires: 12/31/10
John O. Feighner, Esq.
Third District
Fort Wayne
Term expires: 12/31/11
 
Mike Gavin
Third District
Warsaw
Term expires: 12/31/11
   

Unfortunately, little biographical information has been located at this time by the ILB for two of the Governor's appointees: Mr. McCashland, other than the statement in the Governor;s appointment, "retired government teacher from Brebeuf Jesuit Preparatory School." For Mr. Gavin, "past Kosciusko County Republican chairman." [Update - but see this ILB entry from 6/4/2010]

The three attorney members of the Commission are elected by members of the state bar. Art. 7, Sec. 9 of the Indiana Constitution provides in part:

Those admitted to the practice of law shall elect three of their number to serve as members of said commission.

All elections shall be in such manner as the General Assembly may provide.

The Governor shall appoint to the commission three citizens, not admitted to the practice of law.

The terms of office and compensation for members of a judicial nominating commission shall be fixed by the General Assembly.

Under IC 33-27-2:
The state is divided into three districts corresponding to the First District, the Second District, and the Third District of the court of appeals. The three attorney members are nominated by petitions of electors (attorneys in good standing admitted to practice law in Indiana) from each district. The election is conducted via ballots prepared and mailed by the clerk of the court.

The term of each elected attorney member is presently three years, beginning on January 1st following the election. In the case of a vacancy, except when there are less than ninety days left in the term, a special election is to be held and the newly elected commissioner is to take office immediately.

Commissioners are not eligible for successive reelection or reappointment. However, an attorney commissioner or a citizen commissioner who has been elected or appointed to fill a vacancy on the commission for less than one year is eligible upon the expiration of that term, if otherwise qualified, for a succeeding term.

For more on the Commission and efforts to change it, see a paper I wrote: "Analysis of another effort to alter the Indiana judicial selection and retention process," 49 Res Gestae 7 (Mar. 2006), pp. 32-38.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Vacancy on Supreme Ct

Courts - "Eight Judges Out: Mass Recusal Cripples 5th Circuit"

Ashby Jones reports in a worth reading in full entry in the WSJ Law Blog:

[A] full eight judges on the Fifth Circuit have recused themselves from hearing an en banc appeal of a provocative global-warming lawsuit. As a result, there’s no quorum and the court is unable to hear the case. Not surprisingly, the development has thrown the closely-followed litigation into a state of disarray.
Apparently, many of them owned energy and chemical company stock. More:
In any event, now what happens? In the short term, the case is dismissed, though the plaintiffs are apparently free to appeal to the U.S. Supreme Court.

But there may be problems there, as well, writes Frankel, citing McGuireWoods’s Trent Taylor, who penned a piece on the situation.

Taylor suggests that the same recusal problems may be an issue for the Supreme Court also, the members of which have in the past recused themselves in cases involving energy companies, due to stock-ownership conflicts. Writes Taylor: “Indeed, it may not even be possible for the U.S. Supreme Court to hear any appeal in Comer.”

Or perhaps other large, upcoming actions involving energy conpanies?

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 16 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

Auto-Owners Insurance Co., et al. v. Cara Stansifer (NFP) - "Appellant-plaintiff Auto-Owners Insurance Co., as Subrogee of Bonnie Robbins (Auto-Owners), appeals the trial court’s orders granting appellee-defendant Cara Stansifer’s motion to enforce settlement agreement and dismissing the complaint with prejudice. Auto-Owners argues that there was no meeting of the minds regarding certain terms of the settlement agreement and that, consequently, the trial court erred by enforcing the agreement. Finding no error, we affirm."

Stuart Reed, et al. v. Indianapolis Welding Supply, Inc. (NFP) - "Consistent with this language, every court that has addressed the question has concluded that the UCC-imposed obligation of good faith does not give rise to an independent cause of action. See, e.g., Brooklyn Bagel Boys, Inc. v. Earthgrains Refrigerated Dough Prods., Inc., 212 F.3d 373, 381 (7th Cir. 2000) (concluding that, under Illinois law, “Brooklyn Bagel cannot bring a separate cause of action on th[e] basis [that Earthgrains breached its duty of good faith]”); Tidmore Oil Co. v. BP Oil Co./Gulf Prods. Div., a Div. of BP Oil Co., 932 F.2d 1384, 1391 (11th Cir. 1991) (“In Alabama, the good faith provision of the Uniform Commercial Code … does not create a cause of action either in contract or in tort.”). To the extent that Appellants asserted independent causes of action under Indiana Code section 26-1-1-203, we affirm the trial court’s dismissal of those claims."

C.S. Alleged to be C.H.I.N.S.; C.J. v. IDCS (NFP)

Alvino Pizano v. Edwin Buss (NFP)

NFP criminal opinions today (12):

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

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

Allen M. Parker v. State of Indiana (NFP)

George Blair v. State of Indiana (NFP)

Dale Whybrew v. State of Indiana (NFP)

David M. Harris v. State of Indiana (NFP)

Aundrea Bell v. State of Indiana (NFP)

Jessica Randolph v. State of Indiana (NFP)

Michael Chester v. State of Indiana (NFP)

Chris Gordon v. State of Indiana (NFP)

Joshua Brown v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - And how did that work out for you?

The award-winning environmental reporter for the Gary Post-Tribune, Gitte Laasby, who has broken many stories (including the BP permits issues in NW Indiana, and the existence of the so-called "Easterly's pile" on the Lake Mihigan beach), is reportedly not much beloved by IDEM.

So her Porter County editor got the bright idea to do a public records request of IDEM for its internal correspondence regarding Laasby's records requests to the agency. Here is part of what Rich Jackson, the editor, writes today:

In March, I asked reporter Gitte Laasby to request records from the Indiana Department of Environmental Management that referenced her. My direction to her was based on my own theory that the agency was intentionally withholding and otherwise seeking to squelch information to Laasby because she'd become a thorn in its side for her investigations into the agency.

Of course, I understood if my thesis were accurate, the very documents we sought would be hidden or mitigated in some way.

In other words, bring out the big-ass Sharpie.

What you see here is a proposed IDEM response to Laasby about the Grand Calumet River and future cleanup efforts.

And this is only one of many examples we received.

Note that, other than the note at the top, every single word is redacted because the words are of ultimate import to the secrets of the state Indiana that all words cannot be released. Every article, noun, verb, dependent clause, all fall under the heading of being so much of a sensitive nature that no one should know about it. And even Laasby's name, which was part of the open records request -- if it exists in the blackness somewhere -- is too dangerous to release to the public.

One way the agency can do this is including an attorney in on the creation of a response, thus rendering it the work product of a lawyer and -- this is the cool part -- exempt from state open records laws.

Yet another exemption is if the nature of the record is deliberative, as in, "What if we said this ... "

I compare this to the records we requested late last year from the Indiana Department of Transportation about the closing of Cline Avenue. We chastised the agency in an editorial because it took so long. Once we received the records, we understood why. All we would have needed was the top page, a letter quickly outlining why the bridge had been closed. But INDOT, in its thoroughness, had included hundreds of pages of inspection reports, which our too-expansive request failed to cull out.

Two state agencies, both under direction of Gov. Mitch Daniels, and two exactly opposite reactions.

That leads me to understand that the problem lies as much with IDEM leadership as it does with the state's antiquated open records law.

What makes the hubris more remarkable, though, is that open records aren't about Laasby or me or the Post-Tribune. It's about the residents of Northwest Indiana and the fundamental right to know about the health -- or lack -- of our environment.

The taxpayer-supported upper management of IDEM thumbs its collective nose at the region's residents every time it hides a record or redacts minutiae.

We'll continue to attempt exposing what's happening at IDEM. But until Gov. Daniels steps in as the state's top officer, I suggest you cut out the accompanying document, make copies and paste it in public places so that everyone knows that this is your state's environmental management agency at work.

Here is a sample of e-mail with redacted information from IDEM.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Environment | Indiana Government

Ind. Courts - Website created for appellate judges up for retention vote at November election

In this November's general election, no Supreme Court justices are up for "yes / no" retention (three of the five were up 2 years ago).

But five of the fifteen Court of Appeals judges are up, including both of the judges appointed by Gov. Daniels. That is because, once appointed, after serving two years, a judge must stand for retention in the first general election. Thereafter, the terms are ten years.

How many of the judges you vote for will depend on where you live, those up for retention are: L. Mark Bailey of the First District which includes southern Indiana, Elaine B. Brown of the Fifth District which includes the entire state, Cale J. Bradford of the Second District which includes central Indiana, Melissa S. May of the Fourth District which includes the entire state and Margret G. Robb of the Fifth District which includes the entire state. ALL voters will see Judges Brown, May, and Robb on their ballots. Those in central Indiana will also be able to vote on Judge Bradford; those in the southern district, Judge Bailey.

The retention website unveiled today is, in the ILB's opinion, excellent. It includes a full biography of each judge, videos of the judge during oral arguments, and an outstanding table that includes the following, using Judge Robb's as an example:

The table below lists cases, with links to opinions, in which Judge Robb sat on the panel. The table also includes the result of the appeal, Judge Robb's vote on the result (e.g., Affirm, Concur, Dissent, Reverse and Remand, etc.), whether or not she authored an opinion (majority, concurring, or dissenting), and information about the case such as the county of origin, the case number, etc.
It also identifies NFP and For Publciation opinion. The information goes back to June 2005.

Two additional things I would have liked to see: (1) The age of each judge. By law, an appellate judge must retire at age 75. Thus, whether a judge will be able to finish his/her term is a fact voters should be able to take into consideration. (2) Re the table, more difficult to display, but of significance, is whether or not an opinion a judge authored was transferred to the Supreme Court, and the action there.

Finally, it is the hope of the ILB that in the future these biennial judicial retention sites will be preserved so that they may be accessed by the public in the future. They are documents of historical significance.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Courts

Ind. Courts - Applications available for Supreme Court vacancy; schedule set

Here is the information, just released:

Applications for an upcoming vacancy on the state’s highest court are due June 30, 2010, Chief Justice Randall T. Shepard announced today.

On May 25th, Justice Theodore Boehm announced he would step down from the Court on September 30, 2010 thus creating an opening on the five-member Court. Chief Justice Shepard explained, “While we are disappointed to see Justice Boehm step down, we are confident a number of well-qualified candidates will come forward to serve the Judicial Branch.”

The seven-member Indiana Judicial Nominating Commission will search for Justice Boehm’s successor. Chaired by Chief Justice Shepard, the Commission includes three lawyers elected by their peers and three citizen members appointed by the Governor. The Commission will interview candidates and send the three most qualified names to Governor Mitch Daniels. The Governor will select Indiana's next justice. Those interested in applying may contact Counsel for the Indiana Judicial Nominating Commission, Adrienne Meiring, at 317-232-4706. The application is online.

The Commission will conduct initial public interviews of qualified candidates on July 6th and 7th in Indianapolis, followed by second interviews on July 30th in Indianapolis. A candidate must be an Indiana resident and must have been a member of the Indiana bar for ten years or an Indiana judge for five years. The annual salary and allowances for a Supreme Court Justice is $154,328. The state’s highest court operates year-round. It is asked to consider about 1200 cases each year. The Court issues opinions on about 100 cases and holds nearly 70 oral arguments a year.

Notable from the introduction to the application:
7. Upon the Commission’s receipt of ten complete applications from a candidate, the candidate’s name will be made public. I.C. § 33-27-3-2(d). After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records. I.C. § 33-27-3-2(d)(1).

8. The Commission will conduct public interviews in Indianapolis on Tuesday, July 6 and Wednesday, July 7, 2010 after which the Commission will select a number of candidates as semi-finalists for second interviews scheduled for Friday, July 30, 2010. Upon the conclusion of the second round of interviews, the Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2. Candidates must be available on the interview dates, including evening hours.

9. The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation. Letters of recommendation may be sent to the Commission’s office, and will be forwarded immediately to each Commission member. (Judges and other judicial officers are not prohibited under the Code of Judicial Conduct from writing on behalf of candidates on the basis of personal knowledge of the candidates’ qualifications.) Letters sent to individual Commission members will be distributed to all other members. Most Commission members prefer to not meet with candidates except during the interviews.

Here is the membership of the Judicial Nominating Commission.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Environment - After 5 years of study, proposal to regulate outdoor wood-fired boilers moves to a preliminary hearing before the APBC

Here is the ILB's long list of entries on the regulation of outdoor wood-fired boilers. See in particular this entry from April 24, 2010, headed "Environment - Potential regulation of emissions from wood-fired outdoor boilers continues to "shock and surprise" some legislators."

Today the Air Pollution Control Board (APCB) wil hold its regular monthly meeting in Columbus (board meetings are held outside Indianapolis several times a year). Here is the June meeting agenda. Up for its initial formal public hearing before the board is:

Outdoor Hydronic Heater Rule. Preliminary Adoption of New Rule 326 IAC 4-3, Outdoor Hydronic Heaters. LSA#05-332
As with other draft rules, there will be an IDEM presentation of the poroposal, then a public hearing before the board, followed by board consideration of preliminary adoption of draft rule. But in this case, because of the interest in the proposal, a specific time has been set aside for this part of the meeting - 6 p.m.

The best source for details about the proposal is the Fact Sheet. Access it here. In addition, here is the text of the draft. And here is the 58-page document setting out IDEM responses to the most recent request for written public comments on the proposal.

Finally, here is a AP story today:

COLUMBUS, IN (AP) - Indiana's first proposed rules calling for limits on outdoor, woodburning furnaces found mainly in rural areas are getting a public airing.

The Indiana Air Pollution Control Board will hear from supporters and opponents of the proposed rules Wednesday evening at Columbus East High School.

The 12-member board won't be voting on the proposed rules drafted to address concerns that smoke and soot wafting from the furnaces can give nearby residents breathing problems. [ILB - this may be incorrect; the agenda indicated the board will be voting on preliminary adoption]

Jodi Perras of Indianapolis-based Improving Kids' Environment says her group is concerned that the draft rules have been weakened from an earlier version. Those changes include allowing wood furnace owners to use them later in the spring and earlier in the fall.

The rules won't go into effect until January 2011 at the earliest.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Environment

Ind. Courts - "How will yesterday's SCOTUS Miranda ruling affect Indiana?

Adam Liptak of the NY Times wrote yesterday under the headline "Mere Silence Doesn’t Invoke Miranda, Justices Rule," in a story that began:

Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Monday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.

Justice Anthony M. Kennedy, writing for the majority in a 5-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said that courts need not suppress statements made by defendants who receive such warnings, do not expressly waive their rights and speak only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Indianapolis Star reporter Jon Murray posted this entry yesterday in his blog, Justice Watch. Some quotes:
The impact of a ruling today by the U.S. Supreme Court on Miranda rights isn't yet clear -- especially in Indiana, where there is disagreement among legal experts on whether the state courts already afford defendants more protections in interrogations. The upshot: If a suspect doesn't explicitly say he wants to remain silent or ask for an attorney, police can question away.

Based on past rulings, Indiana's top court might come to a different conclusion if handed the same case, according to Joel Schumm, a professor at the Indiana University School of Law-Indianapolis. The Indiana Supreme Court has ruled that when a defendant challenges whether his confession can be used as evidence, prosecutors must prove the statement was given voluntarily beyond a reasonable doubt -- a stricter burden than is required by many other states and the federal courts. To Schumm, that means a suspect's waiver of his or her right to remain silent must be more explicit before an interrogation can continue in Indiana.

But Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, told me that Indiana's stricter standard wouldn't necessarily apply when suspects don't make their desires clear to police. "It's always been understood that if you want to assert a right to silence," Johnson said, "you need to make that clear."

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Courts

Ind. Courts - "Marion attorney arrested on forgery, theft charges"

From the Muncie Star-Press today, this story:

A Marion attorney was arrested Tuesday on allegations he stole money from clients who had received settlements in civil cases.

Stephen P. Wolfe, 54, who lives in Cicero, was arrested on six preliminary charges -- three counts of forgery, a Class C felony carrying a standard four-year prison term, and three counts of theft, a Class D felony with a standard 18-month sentence.

According to an Indiana State Police press release, Wolfe represented three separate clients in civil cases and failed to properly disperse settlement monies received on behalf of those clients.

In two of those cases, Wolfe allegedly misrepresented to his clients that their cases had not yet settled and, instead forged their names, and used their money for personal purposes.

Rod Ricks, an ISP sergeant/detective, conducted the investigation at the request of the Grant County prosecutor's office.

While Wolfe's primary legal practice has been in Grant County, he has represented several clients in Delaware County courts in recent decades.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Courts

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

Updating this ILB entry from May 26, 2010, there are a number of stories today of demands for details of cuts.

Dan Carden reported June 1 via the NWI Times:

INDIANAPOLIS | The leaders of 66 state agencies will each receive a letter Wednesday asking for details of any cuts made to programs they oversee and to explain their process for making budget cuts.

Senate Democratic Leader Vi Simpson, D-Ellettsville, said Tuesday Gov. Mitch Daniels and his budget staff claim they're not keeping a master list of state budget cuts by program. So Simpson said she's going to assemble the data herself.

"If there's no list, how can you make any decisions? If you don't know what cuts are being made, how can you make any decisions about future cuts?" Simpson said.

A spokeswoman for the governor said there's no list of program cuts, because the governor has left decisions about agency budget cuts to the men and women who head those state agencies.

"The governor gave guidance that the agencies were to reduce their expenditures by 'X' amount, and he has let them make the reductions that they determine are best," Jane Jankowski said. "Budget cuts are never easy and what taxpayers expect is that we will be good stewards of their dollars."

But Simpson said she's been requesting information on the governor's budget cuts from the State Budget Agency since January and said she suspects something more sinister might be afoot.

"My thinking on it is that the office is totally incompetent, or they're keeping secrets that they don't want us to know," Simpson said.

House Speaker Patrick Bauer, D-South Bend, said last week he'd like to strip the governor of the power to unilaterally adjust state spending while the legislature is not in session.

Simpson said she doesn't want to go that far but said she plans to introduce legislation in January limiting the governor's power to adjust state spending on his own, requiring the governor to keep track of specific program cuts and to disclose those cuts to the General Assembly.

Deanna Martin of the AP has a similar story, including:
Simpson said she's frustrated with the "culture of secrecy" of the Daniels administration and will introduce legislation next year that will make the state budget more accessible and to the public. Her proposals could include plans to put budget information online, which is done in several states, and require the governor to inform lawmakers about budget cuts or other actions taken to balance the state's books. * * *

"It is disturbing that budget cutting information has not been made available to members of the General Assembly," she said. "I have been involved in state budget matters for many years, and I can assure you there has never been poorer communication between the state budget agency and the General Assembly."

Today Mary Beth Schneider of the Indianapolis Star reports:
Simpson said that the state, and the public, cannot make informed decisions about the cuts without this information.

Although Daniels has ordered across-the-board cuts in agencies as the bad economy has drained state tax revenues, those cuts do not affect programs equally, Simpson said.

Too often, she said, she learns of program cuts -- such as those to programs that help people adopt special-needs children and that help developmentally disabled adults get jobs -- only from upset constituents.

In addition to sending letters to each agency seeking the information, Simpson said Senate Democrats will seek legislation in the session that begins in January to force more transparency in state government. For one thing, she wants Indiana to follow the lead of 32 other states that post information online about state budgets and expenditures.

She cited a study by the U.S. Public Interest Research Group, released in April, that gave Indiana and 17 other states "F" grades for online access to government spending data. Kentucky was the only state to get an A, and Illinois, Ohio and four other states received B's.

The ILB posted this entry on Feb. 9, 2008 headed "Ind. Gov't. - See every governmental expenditure of over $100 online?" It commended the fact that Gov. Daniels has placed state contracts online, but expressed concern that other data, including budgeting and spending data, was not readily available. This entry from April 16, 2010, is the one citing a report giving Indiana an "F" re access to government spending data. This April 21, 2010 entry reports that:
"Indiana currently has no statewide, official spending database online. Although Indiana House Bill 1280 would have placed spending information online, the bill died during the 2009 regular session."
Take a look at HB 1280-2009, which was voted "due pass" out of the second house committee. Here is the digest of the Engrossed Bill:
Synopsis: State budget and spending information on Internet. Provides that the state auditor shall begin work to post state expenditures and account balances on the Internet not later than July 1, 2009. Requires state agencies to provide information to the auditor of state and to develop links on agency Internet web sites to the auditor's expenditure Internet web site. Requires the auditor of state and the office of technology to initially complete the design of the Internet web site and establish and post the required information for all state agencies other than state educational institutions. Requires the auditor of state and the office of technology to provide to each state educational institution a description of the data fields and data transfer standards and protocols developed during the initial phase. Requires the auditor of state to submit a report to the legislative council that specifies the cost that would be required for each state educational institution to comply with the requirements of the bill. Provides that the legislative council may determine whether a state educational institution can provide the required information without expending resources. Provides that the auditor shall report the progress of posting state expenditures and account balances on the Internet to the state board of finance and the legislative council.

Posted by Marcia Oddi on Wednesday, June 02, 2010
Posted to Indiana Government

Tuesday, June 01, 2010

Ind. Decisions - Supreme Court issues two unemployment compensation decisions late this afternoon

In John D. Giovanoni, II v. Review Board of the Indiana Dept. of Workforce Development, a 9-page, 2-opinion decision, Justice Sullivan writes:

Indiana‟s Unemployment Compensation Act provides “benefits to persons unemployed through no fault of their own. . . .” Ind. Code § 22-4-1-1. In this case, an employer‟s attendance policy subjected an employee to discharge for exceeding the permitted number of absences, whether excused or unexcused. Under the Act as written at the time of the employee‟s dis-charge, violation of the attendance policy did not disqualify the employee from unemployment compensation because the employee had been discharged through no fault of his own. * * *

The effect of denying Giovanoni benefits for violating Clarian‟s no-fault attendance policy, where all of his absences were beyond his control, is to deny benefits to an employee who became unemployed through no fault of his own. It is permissible for an employer to utilize a “no-fault” attendance policy and such policy may form an appropriate basis for discharge from employment. But when determining eligibility for unemployment benefits, the existence of such a policy does not obviate the statutory mandate to analyze whether, under the totality of the circumstances, an employee‟s absenteeism is the result of circumstances beyond that employee‟s control. Such an analysis effectuates the mandate of the Act “to provide for payment of benefits to persons unemployed through no fault of their own.”

Conclusion. The decision of the Unemployment Review Board is reversed.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs with a separate opinion in which Shepard, C.J., joins. [it begins] I agree that, under the statutory provisions existing at the time of Giovanoni's termination, he was not discharged for good cause and thus was entitled to unemployment benefits. I am concerned, however, that some readers may mistakenly apply the reasoning employed today to invalidate recent changes to the applicable statute. Today's analysis works for the prior statute, but not necessarily for the current revised statute.

In Lisa M. Beckingham v. Review Board of the Indiana Dept. of Workforce Development, a 5-page, 4-1 opinion, Justice Sullivan writes:
The Review Board of the Department of Workforce Development denied Lisa M. Beck-ingham unemployment benefits for violating her employer’s no-fault attendance rule. In accordance with another case we decide today, Giovanoni v. Rev. Bd. of Ind. Dep’t of Workforce Dev., – N.E.2d –, No. 93S02-0907-EX-311, slip op. (Ind. June 01, 2010), we hold that such a rule does not obviate the statutory mandate to analyze whether, under the totality of the circumstances, the employee’s absenteeism is the result of circumstances beyond that employee’s control. * * *

We decide the same here.

However, whether Beckingham’s occurrences were the result of circumstances beyond her control seems less clear than the situation presented in Giovanoni. Because the Board specifically addressed the reasons for some, but not all, of Beckingham’s occurrences, we reverse and remand the decision of the Board for additional fact-finding.

Conclusion. Accordingly, the judgment of the Unemployment Review Board is reversed, and this case is remanded for further proceedings consistent with the views expressed in this opinion.

Shepard, C.J., and Boehm, J., and Rucker, J., concur.
Dickson, J., dissents with separate opinion. [which reads in full] On the facts of this case, I believe that the Court of Appeals was correct to affirm the Review Board's determination that Beckingham was discharged for just cause and therefore not entitled to unemployment benefits. Beckingham v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 903 N.E.2d 477 (Ind. Ct. App. 2009).

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Thomas A. Neu, Elizabeth A. Neu, Wells Fargo Bank, N.A. v. Brett Gibson, a 13-page, 5-0 opinion, Chief Justice Shepard writes:

Brett Gibson sold his business to John Nowak. Nowak financed his purchase in part with a note secured by a second mortgage on Nowak's residence. Nowak subsequently sold his residence to Thomas and Elizabeth Neu, who did not know of Gibson's mortgage. When Nowak defaulted, Gibson foreclosed. During an earlier appeal, the Court of Appeals determined that the Neus and their lender were entitled to priority ahead of Gibson, the same position held by Nowak's first mortgagee.

Now, the Neus claim this entitles them to interest, attorney fees, and costs. They also assert that they may foreclose on their own home under terms of the Nowak mortgage or, in the alternative, that they have a right to force a sheriff's sale of the property based on Gibson's foreclosure. The trial court found they were not entitled to any of these. Because we conclude that the trial court reached the equitable resolution of the case and that the applicable statute does not require the court to grant the Neus a sale, we affirm.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 28, 2010

Here is the Clerk's transfer list for the week ending May 28, 2010. It is one page long.

No transfers were granted last week. However, one previously granted transfer, in the case of Roger Brown v. State, was rescinded. See this ILB entry from May 28, 20010, headed "Transfer in certified phlebotomist 'loophole' case ruled "improvidently granted."

__________

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 Tuesday, June 01, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Yet more on "Physician ordinance adopted by Allen County"

Updating this May 29th ILB entry re the suit filed where, to quote the FWJG:

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.
The ILB has now obtained a copy of the 12-page complaint. Access it here.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Indiana Courts

Ind. Decisions - More on Carr v. United States [Updated]

The ILB has quite a number of entries mentioning a case decided today by SCOTUS, Carr. v. United States, which came out of the ND Ind. See particularly this entry from Dec. 22, 2008 re the 7th Circuit opinion.

Courthouse News Service has posted this coverage, headed "Sex Offender Law Can't Be Applied Retroactively."

Carr and several other of today's decisions are summarized by The Village Voice in this don't miss story by Foster Kamer headed "Happy SCOTUSTime: A Users Guide to the U.S. Supreme Court Rulings Handed Down Today!." The Carr summary:

Carr involved a guy who didn't register for SORNA, or the Sex Offender Registration and Notification Act, after he moved from Alabama to Indiana. This guy, Thomas Carr, had already registered as a sex offender in Alabama in 2004, but when he moved to Indiana, failed to register as one there, which law enforcement officials found out when he was busted for an unrelated crime in July 2007. Earlier that year, in February 2007, the Attorney General ruled that SORNA applied to all sex offenders, even those who were convicted before SORNA went into effect. Carr argued a defense of the constitution's ex post facto clause, wherin, he's protected because you can't be retroactively punished by new laws. And the court ruled in his favor!
[Updated at 3:00 PM] Warren Richey of the Christian Science Monitor has now filed a long story on Carr, with this headline: "Registry law doesn't apply to all sex offenders, Supreme Court rules: A sex offender who moved from Alabama to Indiana in 2004 does not have to register with authorities because his move predates the registry law Congress enacted in 2006, the Supreme Court ruled on Tuesday." Some quotes:
In a 6-to-3 decision, the high court rejected the Obama administration’s expansive reading of the Sex Offender Registration and Notification Act (SORNA). Instead, the majority justices embraced a narrower view of the law, while overturning a convicted sex offender’s 30-month prison sentence for traveling to another state and failing to register.

The decision triggered a heated dissent by three justices who warned that the ruling will impair the ability of law enforcement officials to locate and register some 100,000 convicted sex offenders who have eluded authorities.

“Under the court’s interpretation, the many sex offenders who had managed to avoid pre-existing registration regimes, mainly by moving from one state to another before SORNA’s enactment, are placed beyond the reach of the federal criminal laws,” Justice Samuel Alito wrote.

Lawyers for convicted sex offender Thomas Carr had claimed the government’s retroactive enforcement of SORNA violated the Constitution’s ban on ex post facto laws. But the high court did not reach that constitutional question.

Instead, the majority justices found that the statute, as written by Congress, did not authorize retroactive enforcement.

“Taking account of SORNA’s overall structure, we have little reason to doubt that Congress intended [the statute] to do exactly what it says: to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in interstate commerce,” wrote Justice Sonia Sotomayor in the majority opinion.

Justice Sotomayor said Congress chose to use the present-tense word “travels” in the statute, rather than the past-tense word “traveled.” If Congress wanted the law to apply to travel undertaken before the law’s passage, it would have used the past tense, she said.

Mr. Carr, a convicted sex offender, had argued that the law was unconstitutional because it sought to punish earlier actions committed prior to passage of the statute. Under SORNA, a defendant may face up to 10 years in prison if he or she is a convicted sex offender who travels from one state to another and who knowingly fails to register with authorities.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Law - "Lights out for red-light cameras?"

Updating this long list of ILB entries on "red-light cameras", Dan Carden reports today in the NWI Times in a story that begins:

INDIANAPOLIS | The nation's leading red-light camera enforcement company is giving up on expanding to Indiana.

Redflex Traffic Systems Inc., an Arizona-based corporation that operates in 21 states, including Illinois, has canceled its registration to lobby the Indiana General Assembly.

"There's really not much action going on in Indiana right now. That's pretty much the bottom line," said Timothy Johnson, Redflex's legislative affairs administrator.

Between February 2009 and April, Redflex spent $54,241.42 on contracts to lobby state lawmakers, but the company never came close to winning the required legislative approval to permit Indiana cities and towns to use red-light cameras.

In August 2008, Indiana Attorney General Steve Carter said in an official opinion that red-light violations are infractions of state law, not local ordinances. The General Assembly would need to explicitly give local governments authorization to regulate moving violations for red-light cameras to be legal, Carter said.

That ruling struck down a Hammond ordinance allowing red-light cameras to be used to issue red-light tickets, similar to parking tickets, rather than moving violations. The fine was set at $100.

Following Carter's opinion, officials in Hammond, Gary, Lafayette and West Lafayette urged state legislators to change the law to allow red-light camera enforcement. State Rep. Shelli VanDenburgh, D-Crown Point, and state Sen. Earline Rogers, D-Gary, each separately sponsored similar authorizing legislation in the House and Senate.

Redflex, which stood to benefit if Indiana cities were allowed to contract out their red-light camera programs, registered to lobby the General Assembly on Jan. 23, 2009, days after the start of the legislative session.

While Rogers was able to win narrow approval of her red-light camera legislation in the Republican-controlled Senate, 28-22, VanDenburgh's proposal never made it out of committee in the Democratic-controlled House. Rogers' measure also stalled in committee once it reached the House.

Supporters of the proposals said red-light cameras enhance road safety. But critics claimed cities would use the cameras as a tool to boost revenue.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Alan Kelly v. Julie Kelly (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Judge Barker rules in Greenwood school prayer case

Updating this ILB entry from May 1, 2010, Ashby Jones of the WSJ Law Blog has this item today, headed "Conn. Federal Judge: Religion and Graduation Don’t Mix." Some quotes:

On Monday, Bridgeport-based federal judge Janet Hall ruled that a Connecticut school system’s practice of holding high school graduation ceremonies in a Christian church is unconstitutional and that a different venue must be found. Click here and here for stories from the Hartford Courant and the Washington Post, respectively. Click here for the opinion.

The decision was made in a suit against the Enfield Public School district, which had scheduled to hold the commencement of two schools at First Cathedral Church in Bloomfield, Conn., later this month.

Hall ruled that use of the church for graduation violates the First Amendment’s Establishment Clause, even though some of the symbols were to be covered.

Earlier this year, members of the Enfield Board of Education had agreed not to use the church. But lobbying from a religious organization, the Family Institute of Connecticut, persuaded them to change their minds.

The American Civil Liberties Union, the ACLU of Connecticut and Americans United for Separation of Church and State filed a suit on behalf of two Enfield High seniors and three of their parents, arguing that the graduation plan violated the First Amendment.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Ind Fed D.Ct. Decisions

Courts - SCOTUS decisions today

Carr v. U.S. - SCOTUS rules 6-3 that "that a 2007 law (SORNA) that requires sex offenders to register does not apply to sex offenders whose interstate travel occurred before the Act went into effect." Background here on SCOTUSBlog WiKi page.

Sentencing Law blog has this preliminary entry on Carr. It also posts on another significant ruling today, in Berghuis v. Thompkins, which deals with Miranda and ineffective assistance of counsel issues.

"Mere Silence Doesn’t Invoke Miranda, Justices Rule," per the AP:

The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants' rights ''upside down.''
"High Court: To Remain Silent, You Must Speak," from WSJ Law Blog.

Analysis from Lyle Denniston of SCOTUSBlog.

"Some intriguing who and how dynamics in the Carr ruling reversing sex offender's SORNA conviction"
from Sentencing Law & Policy Blog.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Courts in general

Ind. Courts - Magnus-Stinson set for Senate vote; no word on Tanya Walton Pratt

As indicated in this May 13, 2010 Gary Post-Tribune story that the former U.S. Attorney and Lake County Prosecutor Jon DeGuilio had been confirmed as a federal judge for the Northern District Court:

The nominations of Marion Superior Court Judge Tanya Walton Pratt and federal Magistrate Judge Jane Magnus-Stinson as judges for the Southern District of Indiana remain pending.

If confirmed by the Senate Judiciary Committee, Pratt would be the first black federal judge in the history of the state. Pratt and Magnus-Stinson would double the number of female judges in the state's federal courts.

This Executive Calendar has now been posted via Thomas.loc.gov -- at p. 2:
Nominations--Agreement: A unanimous-consent agreement was reached providing that at 4:30 p.m., on Monday, June 7, 2010, Senate begin consideration of the following nominations on the executive calendar; that they be debated concurrently until 5:30 p.m., with the time equally divided and controlled between Senators Leahy and Sessions, or their designees:
Audrey Goldstein Fleissig, of Missouri, to be United States District Judge for the Eastern District of Missouri,
Lucy Haeran Koh, of California, to be United States District Judge for the Northern District of California, and
Jane E. Magnus-Stinson, of Indiana, to be United States District Judge for the Southern District of Indiana;
provided that at 5:30 p.m., Senate vote on confirmation of the nominations in the order listed; that after the first vote, there be 2 minutes of debate, equally divided as described above, and after the first vote, the succeeding votes be limited to 10 minutes each; that upon disposition of the nominations, Senate resume Legislative Session.
Note that Magnus-Stinson is also mentioned on p. 11 of the report, and Pratt on p. 10.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Indiana Courts

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

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

From Monday, May 31, 2010:

From Sunday, May 30, 2010:

From Saturday, May 29, 2010:

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 6/7/10):


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

Tuesday, June 1st

Wednesday, June 2nd

Thursday, June 3rd

Next week's oral arguments before the Court of Appeals (week of 6/7/10):

Next Monday, June 7th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Tuesday, June 01, 2010
Posted to Upcoming Oral Arguments