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Saturday, July 31, 2010

Ind. Decisions - More on: Same opinion twice, or a subtle difference? [Updated Twice]

If you were interested in yesterday's (Friday's) discussion of what happened with Gosha v. State, check Friday's entry again -- it has been substantially updated.

Posted by Marcia Oddi on Saturday, July 31, 2010
Posted to Ind. App.Ct. Decisions

Friday, July 30, 2010

Ind. Courts - Some closing thoughts from Professor Schumm

Some closing thoughts this evening, from IU-Indy Law Prof. Joel Schumm:

I have a few closing thoughts about the selection process and the finalists. Warning: this might border at times on sappy, and I know some of you prefer sassy. (You can read earlier posts for the latter.)

First, as to the process, I wish more lawyers and members of the public would have seen the process firsthand; they would have been very impressed. The commission members—lawyers and lay members alike—obviously put a great deal of time and thought into reviewing the applications and preparing for the interviews. They treated all applicants with respect while sometimes pressing them (quite appropriately) on difficult issues. I have always been a big fan of merit selection, and the last few weeks has only solidified my view that this is the best way to select judges.

Congratulations to the three finalists, who all have different but very distinguished records. All share a lengthy amount of public service—Judge David and Judge Moberly as trial judges for a decade and a half, and Mr. Mulvaney in the Supreme Court Administrator’s office for just as long. Any of the three would be a very collegial and hard-working addition to the Court. Just a few words about each.

Judge David is obviously well-liked and respected by trial judges throughout the state, and every lawyer I know who has appeared before him has had very positive things to say. His work overseeing the delivery of pro bono services to detainees at Guantanamo Bay speaks volumes about a commitment to justice for all.

I’ve known Judge Moberly for several years through my work directing the law school’s Court Externship program, and she has been a wonderful mentor to law students and exceedingly gracious with her time when I’ve taken students to the City-County Building to see the courts and when she came to the law school to hold an oral argument. The breadth and depth of her experience on the bench (and in practice before that) will serve us very well if she is appointed.

Finally, I’ve known Karl for several years through the Appellate Practice section of the state bar. He knows as much about the Court and appellate process as anyone, yet he could not be more humble and gracious. Although his practice has involved a lot of complex civil cases, the answers during his interview demonstrate knowledge about and a commitment to a wide range of other issues--and concern for a fair process for all.

The Governor could not go wrong with any of these three remarkable finalists.

Without taking anything away from the first-rate male finalists, I am disappointed that only one woman advanced. Ms. Boshkoff and Ms. Drew in particular were impressive candidates who gave very strong interviews. There were other impressive candidates in the first round, and I certainly learned a great deal about law, the many different things courts do, and even some broader life lessons through their interviews.

Tonight is not the time to speculate about the Governor’s selection. Rather, the finalists deserve our sincere congratulations, and the other applicants deserve our thanks for taking the many hours necessary to compile their applications and for all the wonderful things they do as lawyers and judges.

And, finally, Marcia Oddi deserves a gold medal, at the very least, for the tireless effort and countless hours spent in bringing such up-to-the-minute and comprehensive coverage of this process—and so many other developments of Indiana law, through this remarkable blog.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on "7th Circuit Removes Chief District Judge Mid-Trial After Evidence Dispute with US Attorney"

Updating this ILB entry from yesterday, a new ABA Journal blog entry is headed "7th Circuit Cites ‘Unreasonable Fury’ of Chief District Judge as Reason for His Mid-Trial Removal." A quote:

Putting an end to speculation about why a chief federal district judge was suddenly removed from an ongoing criminal trial in Chicago, the federal appeals court that axed him earlier this week explained today in a written opinion that it acted because of the jurist's "unreasonable fury" against prosecutors.

Responding to a petition for a writ of mandamus by U.S. Attorney Patrick Fitzgerald, a three-judge appeals panel not only agreed with the government that excluded fingerprint evidence should have been admitted in the drug prosecution but took Chief U.S. District Judge James Holderman off the case in a Tuesday order posted by Main Justice.

“The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record,” the panel states in today's explanatory opinion authored by Circuit Judge Richard Posner.

I'm looking for the opinion - the ABA link is bad. Here it is: U.S. v. James Holderman.

Here is the Chicago Tribune story. A quote:

Holderman repeatedly accused the government’s lawyers of lying. “He said, for example: ‘I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.'" according to the opinion.

The 7th Circuit also denied the defendant’s petition for a rehearing of its Tuesday order.

The Herrera case has been reassigned to U.S. District Judge Rebecca Pallmeyer. The trial is set to resume Monday, according to a spokesman for the U.S. attorney’s office.

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

Ind. Courts - "3 recommended for Indiana Supreme Court"

Niki Kelly has this report this evening in the Fort Wayne Journal Gazette. A quote:

Daniels now has 60 days to make the appointment, during which time he will meet personally with each candidate.

He has declined to speak about the process or what factors and characteristics he will consider in his decision.

Court observers – and retiring Supreme Court Justice Theodore Boehm – have encouraged Daniels to focus on adding gender diversity to the court. Indiana and Iowa are the only two states in which there is not sitting female justice.

Of the original 34 applicants, 19 were women and 15 were men. Of the nine finalists, five were men and four were women. One woman made the top three.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "3 finalists named. Appointment now in governor's hands"

Jon Murray has posted on his Indy Star Justice Watch blog:

The nominees for the vacancy on the Indiana Supreme Court are: Boone Circuit Court Judge Steven H. David, Marion Superior Court Judge Robyn L. Moberly and Indianapolis attorney Karl L. Mulvaney.

The Judicial Nominating Commission met in private session for just under two hours this afternoon before voting publicly on a motion to nominate those three at 5 p.m. "These three people represent an intriguing variety of life's experiences," Chief Justice Randall Shepard told me after the meeting's end. The seven-member commission, led by Shepard, will send a report containing the commission's evaluation of each nominee to Gov. Mitch Daniels, probably by mid-next week. That will start the 60-day clock for the governor to make the appointment.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - A reaction . . .

A reader writes: "Out of 19 women, only one was a finalist?"

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More

I'm expecting a wrap-up from Prof. Schumm.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - The Supreme Court press release

It begins:

The Judicial Nominating Commission selected Hon. Steven H. David, Hon. Robyn L. Moberly and Mr. Karl L. Mulvaney as finalists for the upcoming vacancy on the Indiana Supreme Court. The Governor will choose from the three candidates to select Indiana’s 106th Justice.
Here is the full press release, with photos.

Supreme Court Public Information Officer Kathryn Dolan has done a great job over the course of the interviews.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

The three finalists:

David, Moberly, Mulvaney.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - And the three finalists are . . .

This just in:

The Judicial Nominating Commission will announce 3 finalists for the Indiana Supreme Court shortly. The Commission will meet in a public session in the Indiana State House, room 319 at 5 p.m.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - While we're waiting . . .

Here is a photo of our tireless reporter/analyst, Indiana University-Indianapolis Law Professor Joel Schumm, who I believe has done an outstanding job!

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Law - "New Study: Forget the Rankings, Just Bring Home Straight A’s"

The WSJ Law Blog as this interesting post today that begins:

It’s advice that’s been passed down through the ages, from generation to generation. Law is a profession that trades, the thinking goes, on prestige. Clients like prestigious names like Wachtell and Cravath; the wealthiest firms like names like Harvard, Yale and Chicago. Get into one of those schools, and up go your chances of going to a big firm, kicking tail, making partner and grabbing that brass ring.

Or so the conventional wisdom has for decades dictated.

But is it true? In a new paper, UCLA law professor Richard Sander and Brooklyn law professor Jane Yakowitz argue no. “Eliteness” of the school you attended matters much less, they found, than your GPA.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to General Law Related

Ind. Decisions - Same opinion twice, or a subtle difference? [Updated twice]

Today's opinion in Gosha v. State appears to be identical to this May 28, 2010 opinion of the same name. See ILB entries here and here.

Ironically, this was the opinion singled out by Judge William Menges Jr. in his interview on July 7th for the Supreme Court vacancy.

Thanks to Prof. Schumm for the heads up.

[Updated at 4:17 PM] Apparently, a subtle difference. This sentence was added at the end of footnote 2:

However, to the extent that Gosha’s participation in the Drug Court program was a condition of his probation, any violation of probation and sanctions hearing shall be conducted by the trial court.
[Updated 7/31/10] I received further clarification yesterday, but hadn't gotten to it until now:
In response to your post on the ILB about the Gosha v. State opinions, the whole footnote 2 is different and not just the last sentence.

The new version appears to address the State's argument made in its petition for rehearing (oddly enough denied on July 27) that the drug court statute vests jurisdiction in the drug court, and not the trial court, to terminate participants in a program. See attached.

I don't remember the Indiana Court of Appeals substituting a new opinion for a prior one after denying rehearing like what happened here. It's a not an unheard of practice among the federal circuits (including the 7th), though. It's an interesting development.

ILB - And confusing, IMHO, particularly since there is no indication.on the opinion(s) of what has occurred.

There is explanation in the docket -- I don't know that this was available yesterday morning, but it is now:

DATE TEXT
5/28/10 ISSUED THE ENCLOSED OPINION:
5/28/10 2010 TERM
REVERSED AND REMANDED WITH INSTRUCTIONS---------NAJAM, J.
VAIDIK, J., AND BROWN, J., CONCUR.
6 PAGES KJ 5/28/10
5/28/10 ****** ABOVE ENTRY MAILED ******
6/28/10 APPELLEE'S PETITION FOR REHEARING (9) CERTIFICATE OF
SERVICE (9) BY MAIL 6-28-10 LH 6-29-10
7/13/10 APPELLANT'S BRIEF IN RESPONSE TO REHEARING (9) CERTIFICATE
OF SERVICE (9) BY MAIL 07/13/10 ENTERED ON 07/16/10 AS
7/26/10 ISSUED THE ENCLOSED ORDER:
7/26/10 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS THAT
APPELLEE'S PETITION FOR REHEARING IS DENIED.
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
NAJAM, VAIDIK, BROWN, JJ., CONCUR.
(ORDER REC'D 07/27/10 AT 10:15 A.M.) ENTERED ON 07/27/10 KJ
7/27/10 ****** ABOVE ENTRY MAILED ******
7/30/10 0024248-53; EMAIL ADDRESS PREVIOUSLY CONFIRMED FOR
ATTORNEY JOBY DEE JERRELLS
7/30/10 0001958-98; EMAIL ADDRESS PREVIOUSLY CONFIRMED FOR
ATTORNEY GREGORY FRANCIS ZOELLER
7/30/10 ISSUED THE ENCLOSED ORDER:
7/30/10 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. ON ITS OWN MOTION, THIS COURT HAS DETERMINED THAT THE
MAY 28, 2010 OPINION MARKED OPINION-FOR PUBLICATION IS VACATED,
WITHDRAWN, AND HELD FOR NAUGHT.
2. IN CONJUNCTION WITH THIS ORDER, THIS COURT IS REISSUING
AN OPINION IN THIS APPEAL ON JULY 30, 2010. THUS, THE TIME
PERIODS FOR FILING REHEARING OR TRANSFER SHALL COMMENCE AS OF
THE DATE OF ISSUANCE OF THE NEW DECISION/OPINION ON APPEAL AND
IN ACCORDANCE WITH THE INDIANA APPELLATE RULES.
3. THE CLERK OF THIS COURT IS DIRECTED TO SEND A COPY OF
THIS ORDER TO ALL PARTIES AND COUNSEL OF RECORD, THE TRIAL
COURT, WEST/THOMSON/REUTERS, LEXIS, ALL OTHER SOURCES TO WHICH
DECISIONS/OPINIONS OF THIS COURT ARE SENT, AND THE MADISON
CIRCUIT AND SUPERIOR COURTS CLERK.
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
NAJAM, VAIDIK, BROWN, JJ., CONCUR.
(ORDER REC'D. 7/30/10 AT 9:30 A.M.) ENTERED 7/30/10 KM
7/30/10 ****** ABOVE ENTRY MAILED ******
7/30/10 ISSUED THE ENCLOSED OPINION:
7/30/10 2010 TERM
REVERSED AND REMANDED WITH INSTRUCTIONS ---- NAJAM, J.
VAIDIK, J. AND BROWN, J. CONCUR.
6 PAGES
ENTERED 7/30/10 KM
7/30/10 ****** ABOVE ENTRY MAILED ******

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

Ind. Courts - Report on the final 3 interviews of Supreme Court semi-finalists

This is IU-Indy Law Prof. Joel Schumm's report on the final three of the nine interviews for the Supreme Court - check here for the photos and links for group 3.

Moberly, Robyn L. - Judge, Marion Superior Court, Civil Division 5

In explaining her biggest accomplishment, Judge Moberly noted that she has had a privilege (and is proud of) her work as a trial judge. She focused on her “energy, initiative, and creativity” in the family court project. This allows a trial judge to “pull together as many cases as possible” involving a family into one court. It has expanded to include service referral staff that can help provide support to the family on issues like substance abuse. Mediation is also provided with a subsidy from the court. The program now has three staff and costs the taxpayers only $31,000. The project brings “compassionate justice” to the community.

Judge Moberly mentioned two “intractable challenges.” First, she focused on the concerns with self-represented litigants, the number of which has skyrocketed in recent years. She complimented the Court’s pro bono efforts and suggested the Supreme Court train public librarians to provide additional help. She cited the Court’s “teacher education” program, which trains teachers about the judicial branch, as a model that could be emulated. Second, Judge Moberly mentioned the change that is coming to the court system, citing the “New Way Forward” report prepared last year. She noted Marion County has been through some of the issues (like unification of courts), which are now arising on the state level. Centralizing efforts like human resources and purchasing have saved money and resulted in greater efficiency.

In response to Mr. Feighner’s question about the work Judge Moberly has done for the Court, she noted she had been a hearing officer in disciplinary cases and served on the domestic relations committee, which revamped the child support guidelines.

Mr. Trimble asked how (Justice) Moberly would resolve a conflict in Court of Appeals’ decisions. As a starting point she would look at the underlying doctrinal basis of each opinion and see if anything has changed. She would consider whether one approach has proven more or less workable, and consider such things as how one approach might affect commerce.

Mr. McCashland asked why Judge Moberly would want to leave all the wonderful work she has been doing with families by joining the Supreme Court. She noted there is “another chapter” in her life, which she hoped would be as part of the Court. She reiterated her concern for “compassionate justice” and noted it could continue to be fulfilled on the Court.

Judge Moberly provided clear and thoughtful responses to the questions. This was another strong interview for her.

Nation, Steven R. - Judge, Hamilton Superior Court 1

Judge Nation’s biggest accomplishment or “what he would want to be remembered for” is how he treated people who came into his court. He lets lawyers and litigants tell their story and noted his court sometimes runs late (one time 11:00 p.m. in a divorce case). In criminal cases, he always begins by asking the defendant their name and then refers to them as “sir” or “ma’am,” which is a “small thing” but shows respect.

Judge Nation said he renders decisions with a goal of being consistent. He noted one lawyer told him the lawyer didn’t care if the judge was right or wrong but wanted him to be consistent. Attorneys need to be able to advise clients, and consistency is essential to that—consistency within each case and consistency among the same type of cases heard in that court.

Judge Nation mentioned his work as the special judge in Norman Timberlake v. State, a death penalty case in which the defendant had killed a police officer. In response to a request from the defendant’s mother, Judge Nation allowed the mother to talk with the defendant.

Judge Nation spent 15 minutes (half of his time) on the first question, then he turned to the second (possible improvements to the judiciary). Judge Nation emphasized his work in the youth program in Hamilton County, which brings together a wide range of people and services to meet the needs of children. The major components are the “mentoring” and “tutoring” program to reach at-risk children before they get into trouble. The community has volunteered services, and the program costs no taxpayer money.

As to possible improvements, Judge Nation suggested the Supreme Court could ask trial judges for their interest in doing complex cases, and provide senior judges to handle some the remaining docket in those courts. He also suggested an expansion of interlocutory appeals. He noted a complex case where he certified an issue for interlocutory appeal but the Court of Appeals refused to hear the case. A two and a half week trial was then required. Judge Nation also recounted the days of indeterminate sentences and suggested inmates might be offered an opportunity to opt into

At 2:17 Judge Nation was still talking—without an opportunity for the commission to pose even ONE (yes that is intentionally in CAPS) question. When he stopped, Chief Justice Shepard remarked it was a “very impressive set of answers.” Mr. Feighner asked a softball question about whether the judge was up to serving on the Supreme Court. Time was then up. Mr. Gavin did not ask, as he had asked Judge Emkes, about the high reversal rate.

The interview was something of a flashback to Judge Brown’s “monologue,” although hers was much shorter and more focused. And Judge Nation was not reading.

Drew, Kiply S. - Associate General Counsel, Indiana University

Ms. Drew remarked her biggest accomplishment is not a single case but the opportunity to provide high quality legal advice to Indiana University for sixteen years. She is glad she has not had to be a specialist but has been, among other things, a real estate lawyer, a constitutional lawyer, and employment lawyer—and Chief Justice chimed in, referencing her first interview—a “mattress lawyer.” She has to “get the answers right” day after day for a wide range of people.

On the issue of improvements, Ms. Drew noted she had reviewed the “New Way Forward” (white paper) report. She supports its call for more (and more specialized) judicial education. She also emphasized the importance of “outreach opportunities” for the Court, such as the “Courts in the Classroom” and “Summer in the City” programs. She also expressed her support for the family court initiative.

In response to Mr. Trimble’s question about confronting issues of first impression, Ms. Drew said judges should look to other states who have addressed the issue and older cases of the Court for guidance.

Ms. Keck asked to what extent a judge should consider “political/PR” considerations in making a decision. She responded that politics cannot control a decision but the court should consider the possible ripple effects of a decision. She noted judges will sometimes need to “take heat” for some decisions but it is the “right thing” to do.

Mr. McCashland asked Ms. Drew to explain the comment on her application that the Court should be somewhat “cloistered.” She noted, from her days as a clerk, that it is important with whom someone goes to lunch and what is said. Justices may have to change the way they “think about their social life” to be sure they avoid any appearance of impropriety.

In response to a question from Mr. McDonald, Ms. Drew said she did not see a conflict if she were served as a Supreme Court justice while her husband is a clerk at the Court of Appeals. (Note: Bob Drew is a long-time senior clerk to Chief Judge Baker.) She explained, “Work is work; home is home.” Ms. Drew and her husband do not discuss those issues at home. When Mr. McDonald followed up that she could be asked to overrule something her husband wrote, she responded (to laughter), “I do that at home all the time.”

Ms. Drew described her approach to free speech as the same inside and outside her home (with her children): “everybody gets to say what they want” as long as “nobody touches anyone else.”

I did not know anything about Ms. Drew before this process. I was impressed with her application and first interview and continued to be impressed today. She gave clear, thoughtful, and sometimes amusing responses. I wish she had been asked how she would approach oral argument, but I bet she would bring those same refreshing qualities.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisoins - Floyd County Judge orders mistrial in child molesting case

Matt Thacker's story in the New Albany News & Tribune begins:

A rare mistrial was declared Wednesday morning in the case of a Clarksville man accused of molesting a young girl at her home in New Albany.

Floyd County Superior Court No. 1 Judge Susan Orth granted a mistrial after the alleged victim’s mother, testifying before the jury on the second day of trial, made a statement the judge previously ruled was not admissible.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Photos of this morning's semi-finalists, being questioned

First row: Judge Steven David; Mr. Thomas Fisher; Judge Cynthia Emkes
Second row: Ms. Ellen Boshkoff; Mr. Karl Mulvaney; Sen. Brent Steele

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Supreme candidates talk ideas, accomplishments in interviews"

Jon Murray has posted this entry on the morning's interviews at his Indy Star Justice Watch blog.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Report on the second 3 interviews of Supreme Court semi-finalists

This is IU-Indy Law Prof. Joel Schumm's report on the 2nd three of the nine interviews for the Supreme Court - check here for the photos and links for group 2.

Boshkoff, Ellen E. - Attorney, Baker & Daniels

Ms. Boshkoff began with the second question, noting the “intimidating” nature of suggesting improvements to the judiciary. She noted she had reviewed the annual report and state of judiciary speeches, and as a lawyer “has opinions.” First, she noted that “access to justice” should continue to be a priority: IOLTA, court interpreters, committee on self-representation, and more recent efforts to help people facing foreclosure. She also thinks lawyers (and law schools) need to do more to help in these areas.

Second, expense and delay in civil litigation should be a priority. Judges have heavy caseloads. Some jurisdictions have a “rocket docket,” which requires cases to be resolved in a short period of time. The Court could look at the trial rules regarding discovery to help speed litigation. Alternative Dispute Resolution could also be used more and more effectively. Uniformity in court rules (among counties) could bring more efficiency. She noted a saying in her firm about not working harder but working smarter.

As to the question about her biggest accomplishment, Ms. Boshkoff noted she was instrumental in creating and implementing a policy for part-time work at her firm. She began her job at Baker & Daniels when she was five months pregnant. Although there was no policy at the firm allowing for part-time work at the time, she approached the management committee and a policy was adopted. The policy sets clear rules and allows for partnership credit.

In response to Chief Justice Shepard’s question about how discovery rules could be improved, Ms. Boshkoff mentioned “better case scheduling.” Although she is “the biggest procrastinator in the world,” deadlines are important to moving cases. She also suggested a better handle and limits on electronic discovery.

Mr. Feighner pressed Ms. Boshkoff on the difficulties of early mediation, when parties are set in their ways and unlikely to budge. She acknowledged lawyer and litigants are often “entrenched” early on, but even a 20% success rate would be a significant improvement.

In response to Mr. Gavin’s question about background and judicial philosophy, Ms. Boshkoff noted her work has involved “meaty” issues of complex civil litigation. She could add value to the Court by “digging in” on those and other cases.

In response to Ms. Keck question about “three pressing constitutional matters,” Ms. Boshkoff noted a relatively small number of cases of constitutional dimension coming before the Court and then recited some specific examples of cases that had been resolved, like voter ID, and issues concerning search and seizure that are fairly common.

When asked about statutory interpretation, she noted the use of the word “briefly” in a recent case. [The case is Griffin v. State.] She explained the Court started with the text of the statute and gave meaning to the intent in a pragmatic way.

Mr. McDonald asked Ms. Boshkoff to square her concern with access to justice with more limited discovery, especially in cases involving relatively small amount of money. Ms. Boshkoff clarified that any cost/benefit concern must allow access to litigants, but cited an example of a case where a party would need to review 30,000 documents to respond as a possible excess.

In closing, Ms. Boshkoff noted she had become “a big fan of the Indiana Law Blog” and “checks it every 20 minutes.” She reviewed questions asked the last round and noted she was not asked the characteristics of an ideal justice. She responded that she agreed with the answers of those in the first round: open mindedness, intellectual curiosity, ability to write clearly, and a passion for the law. She explained the most important characteristic as “absolute integrity” and faithfulness to the law.

As in her first interview, Ms. Boshkoff had obviously done her homework and brought a great deal of thought and energy to her responses.

Mulvaney, Karl L. - Attorney, Bingham McHale

Mr. Mulvaney explained his biggest accomplishment in the area of ethics, where he has spoken at CLEs, served on the professional responsibility committee at his firm since the 1990s, and fielded many calls from lawyers regarding specific cases. He mentioned his work in Outback Steakhouse, where a lawyer withheld critical information and the Court made clear that ethics counts.

Responding to possible improvements to the judiciary, Mr. Mulvaney expressed support for statewide funding of courts; he has been involved in mandate of funds’ cases and thinks statewide funding could help solve those issues. Second, he mentioned transcript preparation time in appeals. The 90-day period slows the process, and it can be a particularly problematic in child cases, which are supposed to be expedited. The rule could be amended to reduce the time to 45 (and maybe 30) days. (As an appellate practitioner, I think this is an excellent suggestion—but why not in all cases, not just child cases?)

Mr. Feighner observed that Mr. Mulvaney, unlike most candidates, practices frequently before the Court. Although Mr. Mulvaney has had a diverse client base, the commission knows little of his own views and likely approach to judging. Mr. Mulvaney recited Chief Justice Roberts’ analogy of calling balls and strikes and specifically mentioned deference to the legislature. His experience as court administrator would provide a “good base” of understanding the work of the Court.

In response to Mr. Trimble’s question about apporaching issues of first impression, Mr. Mulvaney cited with approval the approach taken by Chief Justice Shepard in Bolin v. Wingert. Courts should (1) survey other states and (2) apply the statute based on the words of the statute. Although Mr. Mulvaney did not say whether he agreed with the result, he did agree with the approach.

Ms. Keck asked Mr. Mulvaney to cite an ethical dilemma and how it was resolved. Mr. Mulvaney recounted a case where he was asked by Myra Selby to represent her minister. He ran a conflict check, which initially disclosed no problem, and entered an appearance days before the notice of appeal was due. After receiving the appearance, the opposing lawyer called and pointed out a conflict. Although Mr. Mulvaney could not withdraw immediately (because of the harm to the client), he did as soon as possible.

Mr. Trimble asked Mr. Mulvaney about his view of oral argument. Mr. Mulvaney explained he prepares by anticipating questions and would do the same as a justice, asking “those questions that help make the law work the way it should.” This was a topic of a series of ILB postings.

Steele, Brent E. - Attorney, Steele & Steele; State Senator

Sen. Steele noted his biggest professional accomplishment has been becoming a lawyer because it has allowed him to do many other things. More so than some other applicants, Sen. Steele pretty directly addressed two areas for the improvement of the judiciary. First, he expressed continued support for the courts efforts in the technology arena, noting law is not practiced on paper. Documents need to all be online. “The current generation does not check a wristwatch; they look at their iPods.” Second, he noted few legislators are lawyers and could benefit from a mini-law school (“indoctrination”) program to provide them some important legal background, concepts, and principles. For example, many legislators have never heard of “proportionality of sentences” or other terminology.

In response to questions about sentencing, Sen. Steele noted everyone wants to be “tough on crime,” but that cost is now beginning (and needs to be) weighed.

When responding to Mr. Trimble’s question about approaching issues of first impression, Sen. Steele said courts should look to other states to see how they have addressed the issue. The focus should be: “what can I do for a majority of the citizens that makes sense and works.” In responding to issues of statutory interpretation, Sen. Steele noted that “not everything we [legislators] do is right,” and legislators know and understand some of the cases are going to be reviewed by the courts.

Mr. Feighner followed up with a question about the Bolin decision (discussed in Mr. Mulvaney’s interview), observing the legislature had amended the statute in response to the Supreme Court’s decision. Sen. Steele acknowledged the court properly fulfilled its role in addressing the statute as it was written at the time.

In response to Mr. McCashland’s concern about putting a legislator on the bench, Sen. Steele noted that he has always been a “conservative” and does not feel justices should “legislate from the bench.”

In response to Ms. Keck’s questions about immigration, Sen. Steele cited the Tenth Amendment and noted states can act when the federal government does not. He specifically noted that Arizona had a right to pass the laws it did, which are less restrictive than federal legislation.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Two today from 7th Circuit re Indiana

In Parish v. City of Elkhart (ND Ind., Lozano), a 15-page opinion, Judge Flaum writes:

In this case, we are confronted with the question of when claims of police misconduct resulting in false arrest, false imprisonment, and intentional infliction of emotional distress (“IIED”), accrue for the purpose of the general two-year statute of limitation in Indiana. After serving eight years of a thirtyyear prison sentence for attempted murder, plaintiffappellant, Christopher Parish, was released from prison and the charges were dropped. After his release, Parish filed a complaint against the City of Elkhart and several officers who worked the case. Parish brought two claims under § 1983 for violations of his constitutional rights and three claims for violations of his rights under state law. The district court dismissed all of Parish’s state law claims on the ground that they were barred by Indiana’s statute of limitations. Inherent in that decision was the ruling that the claims accrued at the time of arrest and at the time Parish was held over for trial rather than at the time Parish was exonerated. Parish appeals. We affirm the district court’s dismissal of the false arrest and false imprisonment claims. We reverse the district court’s dismissal of Parish’s claim for IIED.
From USA v. Anthony Vaughn (SD Ind., McKinney), a 6-page per curiam opinion:
PER CURIAM. While incarcerated at the federal penitentiary in Terre Haute, Indiana, Anthony Vaughn repeatedly stabbed a prison guard with an eight-inch shank. He pleaded guilty to committing aggravated assault on a federal officer, see 18 U.S.C. § 111(a), (b), and the district court sentenced him to 180 months’ imprisonment, 45 months above the top of the guidelines range. Vaughn’s sole argument on appeal is that the sentence is substantively unreasonable. We disagree and affirm the judgment.

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

Ind. Courts - Audience watching the first Supreme Court interview this mornng

Thanks to INCourt Twitter account

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

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Robert L. Gosha v. State of Indiana, a 6-page opinion, Judge Najam writes:

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

On July 2, Gosha was admitted to the Drug Court Program. After Gosha was allegedly found with cocaine residue and drug paraphernalia in his home, the Drug Court held a hearing, without notice and without any evidence presented, terminated Gosha’s participation in the Drug Court Program, and referred the case to the trial court of original conviction. Gosha requested an evidentiary hearing on the termination of his participation in the Program, which the trial court denied. And Gosha filed a motion to correct error, which the trial court also denied. This appeal ensued.

NFP civil opinions today (1):

Lisa (Hembree) Stevens v. James Hembree (NFP)

NFP criminal opinions today (3):

William Foster v. State of Indiana (NFP)

Christopher Hovis v. State of Indiana (NFP)

Geronimo Montalvo v. State of Indiana (NFP)

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

Ind. Courts - Report on the first 3 interviews of Supreme Court semi-finalists

This is IU-Indy Law Prof. Joel Schumm's report on the first three of the nine interviews for the Supreme Court - check here for the photos and links for group 1.

David, Steven H. - Judge, Boone Circuit Court

Consistent with the tradition at oral argument at the Court, Judge David asked at the beginning of the interview if he could reserve five minutes. The Chief Justice said, to laughter, “no.”

Judge David described his finest professional accomplishment initially as passing the bar. He was the first person in his family to attend college and participated in ROTC. Later, though, he was elected to the bench and cited his work there as his biggest accomplishment. He noted the “awesome responsibility” that comes with being a trial judge, and cited Martin Luther King words, “What are you doing for others?,” as a guiding goal.

He was a bit reluctant in citing improvements to the judiciary. He said we have a “good thing” in the judiciary and other branches of government; Indiana is a “good place to be.” He then noted two ways to improve the judiciary: (1) make it easier for those people entering the courthouse, and (2) make the judiciary better for those who work in the courthouse (lawyers, judges, staff). Specifically he cited, bringing JTAC to “successful completion,” becoming involved in pro bono, and promoting additional CLE. He stressed professional and civility (framed in plaques) as top priorities in his courtroom, which he would want to continue as a justice. He suggested Indiana could experiment more with cameras in the courtroom and spoke approvingly of the appellate court’s webcast of oral arguments and roadshows. Courts should be “open” and “transparent” to enhance the public’s perception of the work of the Court.

Also provoking laughter, Judge David described the nine semi-finalists as being like nine birds in a nest, and the commission members were flying over them with one worm that all of the birds really want.

When asked what different perspective he would bring to the Court, Jude David cited his military experience (ability to work with people from all levels, knowledge of the federal rules of evidence) and his work as corporation counsel for six years. He can work well with others but also compete, be a leader, and stand his ground when necessary.

Ms. Keck asks to what extent “political, social, and economic” concerns should factor into a decision. Judge David thought the three should be separated. He noted the social considerations may be a factor in some cases but not others. When considering to appoint pauper counsel, Judge David noted the “community is served better” sometimes with deviating a bit from hard and fast rules. As to political considerations, Judge David does not “blog” or “Facebook”; his role as a judge is to make decisions without regard to political considerations.

Mr. McCashland asked Judge David’s role of parenting. Specifically, he asked (to laughter) at what age a child should get a cellphone, and Judge David responded when a parent says the child can have a phone. His “Judge David’s Rule for Parents” spark discussion and grew out of his role as a parent. Parenting is tough and trying to be a child’s best friend can be a big mistake.

In closing, Judge David said he respected the process but asked (with laughter) that the decision not be published if he is “number nine.”


Fisher, Thomas M. - Solicitor General, Indiana Attorney General's Office

Mr. Fisher cited his three U.S. Supreme Court arguments as his biggest professional accomplishments, briefly mentioning (1) Hammon (Confrontation Clause) and (2) voter ID, which he litigated from beginning to end. His biggest accomplishment, though, was Edwards v. State, which involved mental competency to stand trial and the right to represent oneself. The Court of Appeals and Supreme Court ruled in Mr. Edwards’ favor (under existing law on the absolute right to represent oneself), and Mr. Fisher noted the difficulty of getting the U.S. Supreme Court to take a case and “scoured” the country for cases to demonstrate there was a conflict. He not only persuaded the Court to hear the case but ultimately prevailed to the surprise of many. Mr. Gavin asked what the vote was, and Mr. Fisher said he thought 7-2 (“we didn’t get Scalia”). He noted Justice Scalia’s expression changed from one of aggression to “resignation” during the argument, which was a good sign.

As to improvements to the judiciary, Mr. Fisher cited electronic filing similar to federal courts. He also noted financing of state court operations and the operation of clerk’s offices, observing some of the issues had been considered in the Kernan-Shepard report.

He then returned to somewhat unfocused discussion of Edwards and some other cases in largely lawyering/technical language that may have confused not only lay members but also lawyer members who may not know the ins and outs of Melendez-Diaz.

Returning to the question, Mr. Fisher suggested the Court might consider the way it deals with transfer petitions. Specifically, unlike the U.S. Supreme Court, merits briefs are generally not allowed. Not all cases warrant further briefing, but some do and amicus briefing could be particularly helpful in the merits stage. (As a frequent appellate practitioner, I agree this is a very good suggestion.)

Mr. Feighner asked about the “core values” of the jury system, but Mr. Fisher’s answer was not particularly clear (yes, juries determine the facts). When asked about how we summon jurors, Mr. Fisher explained he was very pleased when the system was broadened beyond voter lists to include more people.

Ms. Keck asked about an ethical dilemma from practice and how it was resolved. “Oh boy” began the answer, and Mr. Fisher paused while noting a concern with disclosing client confidences and not providing a specific example.

Mr. Trimble asked about Mr. Fisher’s approach to statutory interpretation. Mr. Fisher is a primarily a “textualist,” although the text sometimes does not answer always everything. Statutes must be taken as written at the time. In response to Mr. Gavin’s follow up, Mr. Fisher noted that Court are to “follow the law” and not make it up. When Mr. McDonald asked about “absurd results,” Mr. Fisher noted a danger of relying on that as a basis for a decision.

Although Mr. Fisher is widely regarded as an excellent oral advocate, his answers today were somewhat less direct than one might expect.

Emkes, Cynthia S. - Judge, Johnson Superior Court 2

Judge Emkes’ finest contribution has been her work on death penalty cases, which has been “very satisfying.” She has participated in conferences to help judges who have their first death penalty case.

Judge Emkes noted the norm when she took the bench has changed in light of the tough economy. Programs must be more cost effective and long-term. She thinks problem-solving courts (drug court and re-entry courts) are cost-effective but limited to the criminal realm. She noted 20 states have problem-solving courts in the civil realm, such as “business courts,” which Indiana should consider. She noted the importance of considering recidivism in sentencing, and the judiciary needs to embrace “best evidence practices.” She thinks some judges do not always consider alternatives to prison for low-risk offenders. This is a bit surprising in light of Judge Emkes’ very lengthy sentences for some first-time white-collar offenders.

Mr. Gavin asked Judge Emkes about her 42 cases that were reviewed by a higher court, noting 1/3 were reversed and many involved inappropriately long sentences. In response to what can be done to reduce sentencing disparities, Judge Emkes noted the difficulty in uniformity. She said she “does not know how to tackle it.” The aggravating and mitigating factors in the statute are good ones. She wished she could make a suggestion but could not.

Mr. Trimble asked how to address a conflict in Court of Appeals’ decisions, and Judge Emkes responded to “make the best decision based on the law and facts” and explain the rationale thoroughly.

In response to the Chief Justice’s question about judicial ethics, Judge Emkes noted the difficulty surrounding raising money for campaigns.

Posted by Marcia Oddi on Friday, July 30, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Family fight seeps into Simon Property Group boardroom: Simon feud could play pivotal role in control of mall giant"

Updating earlier ILB entries on the Mel Simon estate dispute, Jeff Swiatek reports today in a very long Indianapolis Star front-page story that begins:

In a court deposition filled with examples of divisions in her family, Bren Simon, the widow of billionaire real estate investor Melvin Simon, admits that she has referred to stepson David Simon as a "terrorist."

She also called her stepdaughter Deborah Simon "Debbie bin Laden."

And she said Melvin's brother Herb Simon "speaks from both sides of his mouth depending on the day."

Court documents in the dispute over Melvin Simon's will offer a rare glimpse into the emotional dynamics of a powerful Central Indiana family. But the implications go beyond mere soap opera. They reach into the Indianapolis boardroom of Simon Property Group, the nation's largest mall developer.

That's because the publicly traded real estate investment trust's charter allows its founding family to control four of the 12 seats on the board of directors. "Those four board seats are pretty valuable," said Mark Foster, chief investment officer of Kirr Marbach & Co., a Columbus investment adviser. "I think they would do whatever they need to maintain those four board seats."

The catch is that in order to hold those four seats, the family must keep more than half of its 1996 holdings in the company.

And Bren Simon appears poised to sell.

She already has tried to sell about a third of her late husband's company holdings, valued at about $500 million. If she goes through with a deal, it would be the first major dilution of family stock in the company's history. That could loosen the family's grip -- however slightly -- at a time when Simon Property Group is flush with cash and seeking other companies to acquire.

More important, it appears to be the beginning of a process that befalls many large publicly traded companies.

A founding family's control of a public company tends to weaken over time, as the stock becomes spread among new generations whose members aren't as active or interested in the company. That has happened at once family-led Indiana corporate giants such as Eli Lilly and Co., Cummins and Hillenbrand Industries. And as Herb Simon, 75, puts his own estate in order, the fate of even more family shares could be up in the air for Simon Property Group.

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

Courts - "Judge Refuses to Vacate Verdicts in Astor Trial"

Following on a long line of stories about the Brooke Astor estate dispute, James Barron of the NY Times reported yesterday in a story that begins:

The judge in the trial of Brooke Astor’s son denied a defense motion to vacate convictions against him and a lawyer who had done estate planning for Mrs. Astor, the philanthropist and doyenne of Manhattan society until her death in 2007.

Mrs. Astor’s son, Anthony D. Marshall, and the lawyer, Francis X. Morrissey Jr., had asked Justice A. Kirke Bartley Jr. of State Supreme Court in Manhattan to throw out their convictions because of an incident involving a holdout juror, Judi DeMarco.

On Oct. 5, the ninth day of deliberations in the six-month trial, the jury sent Justice Bartley a note said a juror felt “personally threatened by comments made by another juror.” The former juror was later identified as Ms. DeMarco, the latter as Yvonne Fernandez. Mr. Marshall and Mr. Morrissey were on trial for fraud, accused of tricking Mrs. Astor — by then more than 100 years old and suffering from Alzheimer’s disease — into altering her will to funnel millions of dollars to him.

Per the story:
Justice Bartley said that Ms. Fernandez’s behavior in the jury room “simply did not rise to the level of juror misconduct,” even, the judge wrote, when viewed “in the light most favorable to the defense.”

“The entire incident was by all accounts over in less than two minutes, and that Ms. Fernandez’s conduct consisted merely of her banging on the table in frustration and yelling at DeMarco,” he wrote. Justice Bartley said Ms. Fernandez directed an epithet at Ms. DeMarco after Ms. DeMarco remarked that she found the judge’s instructions about a crucial piece of evidence, a power of attorney, was unsatisfactory.

“Verbal aggression, the shouting of obscenities, slamming of fists and even the throwing of a chair do not rise to the level of substantial misconduct,” the judge wrote.

Justice Bartley said that Ms. DeMarco had cried after the jurors sent him a note. The judge said that her crying only “confirms that tensions were running high.”

“It is not unprecedented to observe jurors crying during the stress of deliberations, and sometimes while the verdict is being rendered,” he wrote. “This does not, as the defense contends, indicate she was unable to deliberate fairly, nor that she failed to follow the court’s instructions not to give up her firmly held beliefs.”

Daniel Wise of the New York Law Journal reports on the story toda..

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

Ind. Decisions COA tosses "evidence in two cases in which Fort Wayne police officers used a battering ram to execute a 'no-knock' search warrant"

The July 27th COA decisions in Cornelius Tyrone Lacey, Sr. v. State and Damion Wilkins v. State of Indiana (see brief ILB summaries here, 4th and 6th cases) are the focus of Niki Kelly's story today in the Fort Wayne Journal Gazette, headed "‘No-knock’ entry costly for city police: Court tosses drug-case evidence." From today's story:

The cases of Cornelius Lacey Sr. and Damion Wilkins are separate but involve one search of Lacey’s home, where Wilkins was present.

In 2008, Fort Wayne police received tips that Lacey was selling marijuana and cocaine, according to the ruling. Surveillance was conducted on Lacey’s business and home, including police examining Lacey’s trash. In the trash they found mail to Wilkins.

A search warrant for illegal drugs and weapons was obtained for the home, and on Dec. 5 the Fort Wayne Emergency Services Team chose not to knock and announce its presence because of the criminal backgrounds of Lacey and Wilkins.

As a result of the warrant, Lacey was charged with unlawful possession of a firearm by a serious violent felon, possession of marijuana and maintaining a common nuisance. Wilkins was charged with unlawful possession of a firearm by a serious violent felon and possession of marijuana.

The defense filed a motion to suppress the evidence, which Allen Superior Court Judge John Surbeck denied. The case was then appealed directly to the Indiana Court of Appeals.

The appellate judges found the search warrant itself was proper but ruled against the manner in which the warrant was served because police ignored a general “knock and announce” rule.

“We are concerned with an emergency response team policy that authorizes a unilateral decision to enter into a home without knocking when there has been no independent determination regarding the circumstances,” the court decision said. “As such, we find that suppression is the appropriate remedy for dealing with this Indiana constitutional violation.” * * *

“None of us wants in any way or at any time to jeopardize the safety of a police officer,” Judge Michael Barnes said in a concurring opinion.

“However … there was no reason here why the officers could not have applied for a ‘no-knock’ warrant before a neutral magistrate. All of the reasons given for the ‘no-knock’ at the scene were known in advance, and the police encountered no other problems that would have hindered their entry.”

Defense attorney Stanley Campbell, who represented Wilkins in the case, said anecdotal evidence shows Fort Wayne police regularly use no-knock entry to serve warrants. He said video of this entry included the full SWAT team using a battering ram and smoke grenade to enter the home.

He said that during a hearing, it became clear the police have no written guidelines or policies for no-knock entries. Instead, it is left up to the team leader the day a warrant is served.

[Fort Wayne Police Chief Rusty York] said the situation has already been addressed because the law on search warrants was clarified to require judicial approval of no-knock warrants if there are safety concerns. He said the department is following the new guidelines.

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

Thursday, July 29, 2010

Ind. Courts - 3rd of 3 panels of semi-finalists for the Supreme Court vacancy to be interviewed Friday, July 30th, 2010

moberly


Moberly, Robyn L,

Interview #7 - 1:15 p.m. to 1:45 a.m., Friday, July 30, 2010
Judge, Marion Superior Court, Civil Division 5
Indianapolis, Marion County
Education: JD, Indiana University-Indianapolis 1978    Age: 56

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Rulings of Judge Moberly


nation


Nation, Steven R.

Interview #8 - 1:45 p.m. to 2:15 p.m., Friday, July 30, 2010
Judge, Hamilton Superior Court 1
Noblesville, Hamilton County
Education: JD, Indiana University-Indianapolis 1975    Age: 60

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Rulings of Judge Nation


drew


Drew, Kiply S.

Interview #9 - 2:15 p.m. to 2:45 p.m., Friday, July 30, 2010
Associate General Counsel, Indiana University
Bloomington, Monroe County
Education: JD, Indiana University-Maurer 1989    Age: 48

Candidate's Application
Biographical Link
First Interview Link

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

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - A Preview of the Final Round of Interviews

Here is IU-Indianapolis Law Professor Joel Schumm's preview of the final set of interveiws before the Commission:

In this post written the day before the first round of interviews, I mentioned several factors as possible considerations in winnowing the thirty-four applicants to nine semifinalists: academic record and writing ability, gender, age, geography, practice area, judging experience, and collegiality/temperament. Many of the same considerations will likely weigh on the minds of the commission members as they interview each semi-finalists for thirty minutes tomorrow before deciding which three names to send to the Governor. I’ve re-ordered the list a bit and made a few changes. I dropped geography, which seems unlikely to be an issue; the next Supreme Court justice will very likely be from central Indiana. I have added jury trial experience, which generated considerable questioning in the first round. I begin, though, with the standard question(s) sent to each semi-finalist earlier this week.

The Question

Each of the nine semifinalists were sent the following questions on Tuesday, which they will answer during Friday’s interview: "What do you consider your finest professional accomplishment or contribution? And, name two things that need improving in the Indiana court system that a Justice might help solve." Although there would seem to be no “right” answer to either question, some potential “wrong” answers or less-than-ideal ways to answer the question come to mind. As to the first, applicants should not take credit for something they had a minor or negligible role in—and should certainly not reach around and pat themselves on the back while answering the question. This type of question involves the ability to effectively walk the line of selling oneself with some humility. As to the second question, candidates should have a good grasp of what Supreme Court justices can and cannot do—and some recognition that many, if not most, changes would require a consensus of the Court.

Gender

I am beginning with gender for a reason; I think (and, to be perfectly candid, hope) it will weigh heavily in Friday’s decisionmaking. As noted repeatedly on this blog, Indiana is one of only two states with no female supreme court justices. Many states have a female majority and/or a female chief justice. Although women have been admitted to the bar for well over a century, just one of the 105 justices in Indiana has been a woman. When half of the population and half of recent law school graduates are women, an all-male state supreme court does not project an image of equal opportunity. Although being unique among states is sometimes a source of pride, that is certainly not the case here. Just as Governor Daniels ended Indiana’s dubious distinction as one of two or three states to reject daylight savings time, it seems very likely he will put Indiana closer to the mainstream with the appointment of a female justice.

The commission could ensure the Governor appoints a woman to the Court by sending three female finalists. That seems unusually bold, though, and I would instead look for two of the three to be women. If there is only one female finalist, the Governor does not really have a choice if he wants to appoint a woman.

Judging Experience

The Chief Justice was a trial judge before his appointment to the Court. Every list of finalists for the Supreme Court and Court of Appeals vacancies in recent memory has included at least one trial judge. Some of the questions from the commission members in the first round suggested the high regard in which they hold trial judges and the significance (to other trial judges, among others) of appointing one to the Supreme Court.

At least one of the three finalists will be a trial judge; I would not be surprised if there were two judges on the list. As noted in this post, Judge David has considerable (and recent) support for a wide range of judges. His decisions have also fared particularly well before the appellate courts. Of the two female trial judges, Judge Emkes has been on the bench much longer than any other applicant, but some of her rulings would put her at odds with the current Supreme Court (and Chief Justice Shepard) in the area of sentence review. I would not be surprised to see Judge Moberly advance as a finalist based on her solid record in often complex cases, extensive experience before her appointment to the bench, and a justice-like presence and demeanor.

Practice Area

A common theme and source of questions during the first round was the extent to which applicants were “generalists” or had been involved in complex civil cases. As explained in the earlier post: “Justices hear arguments in a wide range of cases. Although each justice also writes opinions on a wide variety of issues, Justice Boehm was frequently tasked with authoring opinions in especially complex civil cases, an area well-suited to him based on his significant practice experience at Baker & Daniels and as in-house counsel for GE and Lilly. To the extent there is a legal expertise void to be filled, the void is in the complex corporate civil arena, which could work against applicants whose practice or judging experience has been exclusively or primarily criminal.”

The heavily criminal law-focused applicants did not advance to the second round, and the remaining nine applicants have varying backgrounds. In this category the advantage among practitioners goes to Ms. Boshkoff and Mr. Mulvaney, who have represented large corporations through decades of work at big Indianapolis law firms. Among trial judges, Judge Moberly and Judge Nation appear to have had a somewhat more complex civil docket, although it is difficult to know how their resolution of those cases might be viewed by various members of the commission.

Age (and Likely Length of Service)

This will probably be Governor Daniels’ only appointment to the Court, and he will likely want it to be someone who will serve with distinction for many years. Recent justices have been an average age of 45 at appointment, and the group of semi-finalists ranges from 41 to 62 with an average age of 53.

Appointing a young justice does not ensure a long tenure, though. Although Chief Justice Shepard and Justice Dickson have each served for nearly 25 years, two of Governor Bayh’s appointees left within a few years of their appointment (Krahulik at around age 48 and Selby at approximately age 43). Most would view lengthy service as a good thing for the Court. The current justices have been together for nearly eleven years, which brings stability and to some extent predictability. The advantage here would seem to go to the younger candidates, although there might be some concern (which could be voiced) about whether a particularly young candidate would plan to serve on the Court for decades.

Jury Trial Experience

The statutory criteria include “experience and reputation as a trial lawyer or trial judge,” and question V.C. on the application form specifically asked candidates to describe their “jury experience, if any.” The advantage in this category goes to the trial judges, who have presided over numerous jury trial, and Ms. Boshkoff, who has been lead counsel in several jury trials. Senator Steele’s application notes that he tried jury trials early in his career as a public defender. Ms. Drew, Mr. Fisher, and Mr. Mulvaney have not tried cases before a jury, and at least two of them were specifically asked about this by lawyer members of the commission. (Mr. Fisher noted on his application that he was part of the voir dire process as a prospective juror but not selected to serve.)

Academic Background and Writing Ability

I wondered in the previous post: “Will commission members ask questions about (and hold against candidates) less-than-stellar law school grades? How thoroughly will they have considered the hundreds of pages of writing samples submitted?” Sorting through grades and writing samples of 34 applicants in the few days between the application deadline and first round of interviews would have been difficult to do in a particularly deep and meaningful way. The commission has now had more than three weeks to focus on the remaining nine applicants, and we might see some questions about writing samples. I would be surprised to see an applicant asked about their C’s, D’s, or F’s in law school, though. As noted in this post, law grades school grades varied widely from virtually all As (Ms. Boshkoff) to many Cs (Sen. Steele and Judge Nation). Even if questions about grades are not asked, I suspect grades near the bottom of the class will weigh against a candidate, just as stellar grades will help a candidate. Ms. Boshkoff did an effective job in her first interview emphasizing her passion and energy for the law and learning, while candidly admitting she was unfamiliar with some areas of the law but eager to learn. I share the view of many who expect to see her name on the list of finalists.

Collegiality and Personality

Finally, the commission saw a fairly wide range of demeanor and personalities during the twenty-minute interviews in the first round. Some candidates were laidback and others exuded passion and energy. Some were exceedingly modest, while others were not lacking in self esteem. Since those interviews, commission members have had an opportunity to check references, and that information will be important in narrowing the list. The second and more lengthy thirty-minute interview on Friday may help propel a candidate to the final list or could eliminate someone from contention if answers are seen as arrogant or condescending—or, as noted above, reflect a confused or incorrect understanding of the role and functions of the Court.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

S.T. v. Community Hospital In-Patient Psyciatric Unit - "S.T. appeals her temporary involuntary commitment. Finding the evidence sufficient to support the trial court's finding that she was dangerous to herself, we affirm. * * *

"There was sufficient evidence to involuntarily commit S.T. for a period of no more than ninety days. Therefore, we affirm."

Eric C. Danner v. State of Indiana - "The record reflects that Corporal Culp was told by the Arby's employees that they first encountered Danner and the woman as the two sat in the car in the drive-through. The employees told the officer that Danner had parked the car in the parking lot, and the two came inside the restaurant with the child. Danner then disavowed ownership of the car, told another officer that they needed to call for a ride upon leaving the restaurant, and attempted to leave via an exit farthest from the car. Corporal Culp walked out to the parking lot and, while looking into the car, observed the bag containing a small amount of what appeared to be marijuana. We conclude that under the totality of the circumstances the police conduct in the search of Danner's car was reasonable and does not run afoul of Article 1, Section 11.

"The trial court did not err by admitting the evidence seized during the search of Danner's car. The police officers followed written departmental policy and did not violate the protections afforded to Danner under the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. Affirmed."

In Elizabeth Bernel v. Jeffrey A. Bernel, a 17-page opinion, Judge Najam writes:

Elizabeth Bernel (“Wife”) appeals the dissolution court’s denial of her motion to enforce settlement agreement and request for injunctive relief in this post-dissolution action against her former husband, Jeffrey Bernel (“Husband”). Wife presents a single dispositive issue for our review, which we restate as whether the dissolution court erred when it denied her motion to enforce the parties’ settlement agreement. We hold that Husband breached the settlement agreement and that, while the dissolution court did not abuse its discretion when it denied Wife injunctive relief, Wife is entitled to a money judgment, including pre-judgment interest, for her damages. We affirm in part, reverse in part, and remand with instructions.
NFP civil opinions today (3):

Eastern Livestock, Inc. and Thomas P. Gibson v. Bill Day (NFP)

Donna Demko v. Jeffrey P. Demko (NFP)

Scott S. Nowatzke v. Lorine L. Nowatzke (NFP)

NFP criminal opinions today (10):

State of Indiana v. Carla F. Wells (NFP) - "[W]e conclude that the trial court properly granted the motion to suppress. The warrantless entry of the police into Wells’ home violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Affirmed".

Jeffrey B. Flora v. State of Indiana (NFP)

Debra L. Collins v. State of Indiana (NFP)

Harvey L. Lancaster v. State of Indiana (NFP)

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

Robert F. Dougan v. State of Indiana (NFP)

Ryan E. Whitley v. State of Indiana (NFP)

Raymond Johnson v. State of Indiana (NFP)

Joe L. Knuckles v. State of Indiana (NFP)

Adam N. Bock v. State of Indiana (NFP)

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

Courts - "Rick Pitino becomes emotional describing embarrassment from Karen Sypher case"

See the Louisville Courier Journal story here.

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

Ind. Courts - 2nd of 3 panels of semi-finalists for the Supreme Court vacancy to be interviewed Friday, July 30th, 2010

boshkoff


Boshkoff, Ellen E.

Interview #4 - 10:30 a.m. to 11:00 a.m.,
Friday, July 30, 2010
Attorney, Baker & Daniels
Indianapolis, Marion County
Education: JD, Indiana University-Maurer 1990    Age: 49

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Oral Advocacy of Ms. Boshkoff


mulvaney


Mulvaney, Karl L.

Interview #5 - 11:00 a.m. to 11:30 a.m.,
Friday, July 30, 2010
Attorney, Bingham McHale
Indianapolis, Marion County
Education: JD, Indiana University-Indianapolis 1977    Age: 60

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Oral Advocacy of Mr. Mulvaney


steele


Steele, Brent E.

Interview #6 - 11:30 a.m. to 12:00 p.m.,
Friday, July 30, 2010
Attorney, Steele & Steele; State Senator
Bedford, Lawrence County
Education: JD, Indiana University-Indianapolis 1972     Age: 62

Candidate's Application
Biographical Link
First Interview Link
ILB entry re Senator Steele on the court selection process

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

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "7th Circuit Removes Chief District Judge Mid-Trial After Evidence Dispute with US Attorney"

Martha Neil of ABA Journal blog writes today on this Chicago Tribune story. Read the Tribune story by Ameet Sachdev and Ray Gibson, which includes a photo with this heading: "U.S. District Judge James Holderman, who was removed from a drug trial by the U.S. Circuit Court of Appeals." Some quotes:

Fitzgerald did not ask the appellate court to remove the judge from the case, only to find that Holderman erred in excluding the evidence.

A three-judge appellate panel ruled in Fitzgerald's favor and allowed the evidence and testimony related to the fingerprints.

However, the additional sanction of Holderman by U.S. Circuit Judges Richard Posner, Diane Sykes and Ilana Rovner stunned court watchers. The appellate court overturns rulings of Chicago federal judges all the time, but few could remember the last time a judge was removed in the middle of a trial. * * *

Holderman, 64, is the chief judge of the federal court in Chicago. He was appointed to the bench in 1985 after working in private practice and as a federal prosecutor. While he is praised by lawyers for his legal ability and decisiveness, he has been criticized for poor temperament.

Fitzgerald has had issues with Holderman's temperament. In 2005, the judge ordered a misconduct investigation of the U.S. attorney's office by the U.S. Department of Justice's Office of Professional Responsibility. In response, Fitzgerald countered that Holderman had been openly hostile to prosecutors.

At that time, the federal appeals court ordered a halt to the judge's inquiry and noted respectful relations between the bench and prosecutor were vital.

The pending drug case against Clacy Watson Herrera shows that tensions remain. A spokesman for the U.S. attorney's office declined to comment. Herrera's attorney also declined to comment.

[More] Here is the Order, via Main Justice.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Ind. (7th Cir.) Decisions

ind. Courts - Two opinions on Indiana cases today from 7th Circuit; also a comment on a "fast track" districts defense

In US v. Diaz-Gaudarama (SD Ind., Hamilton), a 9-page opinion, Judge Flaum writes:

Defendant-appellant David Diaz- Gaudarama appeals from the sentence he received after pleading guilty to conspiring to distribute methamphetamine, cocaine, and marijuana. After about a year of delay due to what the district court ultimately concluded to be malingering, Diaz-Gaudarama went to trial. Diaz- Gaudarama attempted to plead guilty on the morning of trial but the district court rejected the plea because of concern about Diaz-Gaudarama’s remarks that he sought to plead guilty in order to receive medical care. After the government rested its case, Diaz-Gaudarama again expressed a desire to plead guilty, this time stating that he was aware of what he had done. The district court accepted the plea. At sentencing, the district court refused to credit Diaz-Gaudarama with the two-point reduction for acceptance of responsibility. Diaz-Gaudarama appeals, and we affirm.

In Louis and Karen Metro Family, LLC v. Lawrenceburg Conservancy District (SD Ind., Mag. Judge Husssman), a 16-page opinion, Judge Wood writes:

Louis and Karen Metro would like very much to acquire some land that they believe the City of Lawrenceburg, Indiana, and the Lawrenceburg Conservancy District promised to convey to them. The option contract their company held, however, was premised on the construction of a flood control project that the City and the District had planned. When that project was abandoned, the District told the Metros that their option could no longer be exercised. This lawsuit, brought under the diversity jurisdiction, asserts that the City and the District breached their contract with the Metros’ business. The district court found for the plaintiffs and ordered reformation of the option contract to extend the date by which the option could be exercised, but it rejected the Metros’ request for money damages on the ground that their proof of injury was too speculative. We agree with the district court that the contract was breached. The remedy that the court ordered, however, needs some additional attention, and so we remand for that limited purpose. * * *

The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion. Costs are to be assessed against the District and the City.

In US v. Olmeda-Garcia, a 9-page decision in a case out of Wisconsin, Judge Flaum writes:

Defendant-appellant argues that the district court committed a procedural error by disregarding his comment that a comparison of his case to those in so-called “fast track” districts might reveal an unwarranted sentencing disparity. The argument was not adequately developed and thus falls below the threshold of relevance. We find no error in the district court’s decision not to address the point directly and affirm the judgment below. * * *

We note here that even if Olmeda-Garcia adequately substantiated his position that the existence of fasttrack programs in other districts generates a sentencing disparity, he would run into precedent that forbids district courts in this Circuit from deeming any such sentencing disparity “unwarranted” because it is a product of express legislative choice. See United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006); United States v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006). Olmeda-Garcia argues that the Supreme Court’s holding in Kimbrough v. United States, 552 U.S. 85, 110 (2007), which clarified that district court judges may consider the disparity created by the crack cocaine guidelines during sentencing even in routine cases, requires us to revisit the aforementioned precedent. Given the narrow posture of this appeal, however, we need not reach this contention today.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - 1st of 3 panels of semi-finalists for the Supreme Court vacancy to be interviewed Friday, July 30th, 2010

david


David, Steven H.

Interview #1 - 8:45 a.m. to 9:15 a.m., Friday, July 30, 2010
Judge, Boone Circuit Court
Lebanon, Boone County
Education: JD, Indiana University-Indianapolis 1982    Age: 53

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Rulings of Judge David


fisher


Fisher, Thomas M.

Interview #2 - 9:15 a.m. to 9:45 a.m., Friday, July 30, 2010
Solicitor General, Indiana Attorney General's Office
Indianapolis, Marion County
Education: JD, Indiana University-Maurer 1994    Age: 41

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Oral Advocacy of Mr. Fisher


emkes


Emkes, Cynthia S.

Interview #3 - 9:45 a.m. to 10:15 a.m., Friday, July 30, 2010
Judge, Johnson Superior Court 2
Franklin, Johnson County
Education: JD, Indiana University-Indianapolis 1985    Age: 51

Candidate's Application
Biographical Link
First Interview Link
ILB entry on Rulings of Judge Emkes

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

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Nine semi-finalists to be interviewed tomorrow

The final round of interviews before the judicial nominating commission begins tomorrow at 8:45 am Here is the schedule.

As with the initial 34 interviews earlier this month, IU-Indianapolis Law Professor Joel Schumm will be covering the interviews and sending reports back to the ILB.

Because we think it will be useful to you to have the names and faces readily at hand, we have prepared a new set of three printable reference sheets and will be posting them over the course of today.

In addition, Prof. Schumm is preparing a preview of tomorrow's events.

And don't forget, the link in the upper right-hand corner of the ILB (for now) leads to a table of all the ILB's significant entries on the vacancy.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Vacancy on Supreme Ct

Ind. Gov't. - "Budget Chief Tried to Tilt Power to Executive Branch"

This story yesterday by Matt Bai of the NY Times, about current budget chief Peter Orszag, mirrors in some ways the current budget disputes between the Daniels administration and the General Assembly. And probably no need to remind -- Mitch Daniels once held Orszag's position. The Times story begins:

WASHINGTON — There probably won’t be a lot of gift baskets or teary farewells from House Democrats when Peter Orszag officially steps down as White House budget director on Friday. This partly reflects the friction that always exists between a budget director, who seeks to impose the president’s priorities, and Congress, which tends to have a few of its own.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Indiana Government

Environment - "10-foot chain-link fence OK'd for Asian carp at Eagle Marsh"

Read this brief AP story from July 27th alongside this story - "DNR plans to install mesh fencing in Eagle Marsh to ensure that Asian carp, an invasive species, can’t get to the Great Lakes - Fort Wayne Journal Gazette" from last weeked.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Environment

Environment - "Scientists expected Obama administration to be friendlier: Many of the frustrations scientists had with the last administration continue currently"

A long story from the July 10, 2010 LA Times I've been intending to highlight, by Tom Hamburger and Kim Geiger.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Environment

Law - "Northwestern is just more market-savvy than most"

Law school geeks are talking about this story headed "Is Northwestern Law School Clever or What? reported by Vivia Chen at The Careerist, a law jobs blog. The gist:

Jones Day will be conducting interviews at Northwestern in mid September--a stark departure from standard practice, in which early interviews are usually held in mid-August.

Hardly earth-shattering news, but both Jones Day and Northwestern are crowing about it--and getting lots of attention

Speulation?
Another view might be that Northwestern is just more market-savvy than most, because it's willing to give firms what they want--not a small consideration in this tight job market. It's probably no accident that this eleventh-ranked school gets the top prize for big firm job placements, according to The National Law Journal.

Any way you look at it, it's great PR for both Jones Day and Northwestern. Jones Day gets to casts itself as the iconoclast, while Northwestern gets points for being attuned to market demands.

Maybe it's time for other law schools to find ways to butter up employers--especially if it doesn't cost them anything.

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

Ind. Courts - "Judge dismisses lawsuit against South Bend Tribune: Newspaper awarded legal fees in case"

Alicia Gallegos reports today in the South Bend Tribune:

A St. Joseph County judge has dismissed a libel lawsuit against The Tribune and ordered the plaintiff to pay more than $47,000 in legal costs to the newspaper.

St. Joseph County resident Michael Sheneman filed suit against The Tribune in January 2009, alleging that a story written by reporter Jeff Parrott included false statements and libelous claims.

The January 2007 story chronicled accusations by several African immigrants that Sheneman took advantage of their naiveté and defrauded them through real estate investment schemes. No criminal charges have been filed against Sheneman related to the real estate cases.

But the 57-year-old real estate investor was charged in November 2006 with Class B felony sexual misconduct with a minor for reportedly having sex with a 15-year-old girl on several occasions and paying her cash in return.

In June 2008, Sheneman pleaded guilty to Class D felony fondling. He was sentenced to a one-year suspended sentence and three years of probation.

St. Joseph Circuit Court Judge Michael G. Gotsch dismissed Sheneman's lawsuit against The Tribune in December 2009, citing "no genuine issues of material fact."

Late last week, the judge ordered Sheneman to pay The Tribune $47,318 in attorney fees and court costs.

The attorney for The Tribune, John P. Twohy, said Tuesday, "We're pleased. The judge awarded most of what we asked for." * * *

Twohy said the judgment serves as a "disincentive," discouraging people from filing frivolous lawsuits against entities such as newspapers that practice free speech.

The judgment was awarded to The Tribune under the Indiana anti-Strategic Lawsuits Against Public Participation, or anti-SLAPP law. The statute refers to meritless lawsuits "aimed at silencing a plaintiff's opponents or at least at diverting their resources."

Twohy said the law is meant to prevent baseless complaints, "as Mr. Sheneman's was," from costing companies thousands of dollars in defense expenses.

"It shifts the cost back to the plaintiff," he said.

Twohy said this case is one of a handful in which a media defendant has been awarded attorneys fees pursuant to the anti-SLAPP statute.

Posted by Marcia Oddi on Thursday, July 29, 2010
Posted to Ind. Trial Ct. Decisions

Wednesday, July 28, 2010

Ind. Courts - Do Law School Grades Matter in Selecting a Supreme Court Justice?

Here is IU-Indianapolis Law Professor Joel Schumm's report on the law school grades of the semi-finalists:

First on the list of statutory “considerations” for each member of the judicial nominating commission to weigh in evaluating Supreme Court applicants is “Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.” IC 33-27-3-2(a)(1)

Question IV.B. on the application form directed candidates:“List below all law schools and post-J.D. programs attended. Attach a certified transcript from each to the original application and attach copies of each transcript to each application copy.”

In addition, the form asked for "Degree and Class Rank."

The next question asked applicants to “[d]escribe any academic honors, awards, and scholarships you received and when.”

Most applicants disclosed GPA and class rank on their applications; a few did not. The completed applications are posted online, but the transcripts were not included.

After reviewing the transcripts during Monday’s application open house, I was able to fill in a few of the gaps.

This list is sorted by GPA and offered with the caveat that grading practices at law schools may have changed over the years.

Semi-Finalist Law School Graduation Year GPA Rank (if provided)
Ms. Ellen Boshkoff IU (Maurer) 1990 3.83 Top 1%
Mr. Thomas Fisher IU (Maurer) 1994 3.55 Top 10%
Ms. Kiply Drew IU (Maurer) 1989 3.21 Top 15%
Judge Cynthia Emkes IU (Indy) 1985 3.13 48/225 (Top 22%)
Judge Steve David IU (Indy) 1982 3.00 71/210 (Top 34%)
Judge Robyn Moberly IU (Indy) 1978 2.93 cum laude
Mr. Karl Mulvaney IU (Indy) 1977 2.89 81/207 (Top 40%)
Judge Steven Nation IU (Indy) 1975 2.45* [left blank]
Sen. Brent Steele IU (Indy) 1972 2.33** [left blank]
*This is a weighted average. Judge Nation attended University of Puget Sound for his first two years of law school (57 credits with a cumulative GPA of 2.3) and Indiana University for the final year (24 graded credits with a GPA of 2.79).
**The transcript lists a cumulative GPA of 2.40 based on 196 (combined undergrad and law) GPA hours. The law school portion of the transcript includes 200 points for 86 graded hours, which yields an average of 2.33.

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Marshall County video arraignment gets high marks

Randy Nixon reports today in the Plymouth Pilot News:

After just a little more than three months, the initial reviews are in on the county’s new video arraignment procedure — and those reviews are rave ones.

“I really thought we might have some sort of speed bump but this program hit the ground running and it’s been incredibly smooth ever since,” said Judge Dean Colvin of Marshall Superior Court II, the court that acted as the “guinea pig” for the program. “I’m hard-pressed to think of something that I don’t like about it. We’ve already had courts and judges from other jurisdictions inquiring about how we set up our program because they’d like to set up their own.”

The program uses state of the art technology in video conferencing to hold simple proceedings such as initial hearings, public defender hearings and arraignments. Such court procedures generally take five to 10 minutes. Previously prisoners would have to be taken from their cells, shackled, placed in a vehicle, driven to the court house, walked to the court for the hearing and then taken back to the jail.

Marshall County Sheriff Jon VanVactor is very happy to be part of the program. “The safety issue for the public alone is worth it,” he said. “We don’t have to take the prisoners out of the facility. There are any number of things that can happen from a safety standpoint when you have to take prisoners out of the facility. There’s a lot of time involved and now my people can be more efficient in getting things done here that would normally have had to be pushed off to another shift or may not get done.

“The court can be more efficient too. They can do initial hearings whenever they have the time to do it. If they give us 10 to 15 minutes notice we can walk the prisoner down the hall to the video arraignment room and we have the hearing.”

Since the program began on April 23, Colvin’s court has conducted 153 video conferences. With the initial success, video conferencing is now being used in Judge Bowen’s Superior Court I and will soon also be used in the Marshall Circuit court. The total number of hearings for the system in Marshall County Courts since it began is 172 and climbing daily.

“I liked the idea when it was first brought up to us but I wanted to be sure that we did it right,” said Colvin. “We wanted to get state-of-the-art technology because we only wanted to do this once. Technology changes so rapidly that we felt we wanted to be sure we got something in place it wasn’t going to be obsolete almost immediately.”

It also was imperative to meet all legal guidelines. “Cameras and things are very limited by the Indiana Supreme Court. It’s still illegal to have a camera in the courtroom in the state of Indiana,” said Colvin. “We had to be sure to meet all the guidelines to insure people’s privacy and identity of jurors. Control of that technology in the courtroom is important.”

While neither VanVactor nor Colvin foresees a day when video conferencing would be used at trial, they can see other applications that would have a great practical value. Both would like to see the program for initial hearings and the like expanded to include prisoners in the Indiana Department of Corrections facilities around the state.

“There are times when we have to go nearly down to the Ohio River to transport prisoners back for an initial hearing,” said VanVactor. “That’s eight hours on the road to pick somebody up and bring them back the day before for about a 15 minute hearing and then back again. Defendants have a right to a hearing but the taxpayers shouldn’t necessarily have to pick up the whole bill. This way they have their hearing. They’re involved with the proceedings. Their rights have not been violated in any way and the savings are pretty obvious.”

Colvin feels that someday civil cases might employ the technology more, especially to hear expert witnesses. He also feels the volume the courts deal with may force the technology to be used more often.

“The sheer number of cases may make this kind of technology a more efficient way of dealing with the number of cases,” he said. “I can’t see it making its way into criminal trials. The defendant has a right to confront and cross examine those giving testimony against him and a court and jury want to see that person in that situation. There is really something about speaking one on one — in person — that this technology doesn’t bridge.”

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Indiana Courts

Environment - Indiana CAFOs in the news; cows, chickens, pigs

"Indiana agency revokes permit for 3,500-cow dairy" - a brief AP story July 27th:

LAKEVILLE, Ind. —
Developers haven't given up their plans for a large dairy near South Bend, even though Indiana environmental officials have revoked its permit.

The Indiana Department of Environmental Management says it revoked the permit for the 3,500-cow Walnut Grove Dairy LLC in Lakeville, about 10 miles south of South Bend, because developers didn't start construction by April 2010 as required by the permit.

Property owner Peter van der Vegt of Fremont says he's appealing and Vreba-Hoff Dairy Development LLC still plans on building the dairy.

Marc Nelson of the St. Joseph County Health Department says the proposed concentrated animal is too close to nearby homes and poses a public health threat, and may violate a new county CAFO ordinance.

But see this long weekend story, dated July 25, reported by Alicia Gallegos of the South Bend Tribune, and headed "Proposed Lakeville dairy misses deadline Controversial CAFO on shaky ground."

"Two millions hens planned for Jay Co. operation" is the heading of a brief report in the Indy Star business section:

The Indiana Department of Environmental Management says a Coldwater, Ohio, operator wants to build a confined feeding operation housing more than 2 million laying hens in Jay County.

The notice sent by IDEM is for Hoosier Pride Farms near Ind. 67. It would include six hen houses holding up to 2,013,984 birds, a manure storage building and eggwash discharge lagoon, reports the Commercial Review County Reporter.

Portland, the county seat, is about 95 miles northeast of Indianapolis.

In addition, Angela Mapes Turner had a long weekend story in the Fort Wayne Journal Gazette, dated July 25, 2010, and headed "Pork Industry starts recovery: Environmental concerns still to be addressed."

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

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Adoption of H.W. and IDCS v. L.D. and D.D., a 20-page opinion, Chief Judge Baker concludes:

We conclude that the trial court had the ability to consider simultaneously both the CHINS action and the Foster Parents' petition to adopt Child. However, we conclude that the trial court erred when it determined that DCS's withholding of consent to the adoption was not in Child's best interest. Because we reverse based upon DCS's lack of consent to the adoption, we need not determine whether the trial court erred when it found that Father's consent to the adoption was unnecessary. We reverse the trial court's grant of Foster Parents' petition to adopt Child.
In Nelson Rios v. State of Indiana , 10-page opinion, Judge Darden writes:
Nelson Rios appeals the trial court’s order that he serve consecutive sentences for his conviction, after a jury trial, on two counts of dealing in a look-alike substance, class C felonies. We reverse and remand.

Issue. Whether the trial court’s order that Rios serve consecutive sentences on the two counts of dealing in a look-alike substance is inappropriate. * * *

We find, as we did in Hopkins, that “the imposition of consecutive sentences in this instance contravenes” the long-standing “Indiana Supreme Court directive in Beno and Gregrory.” 668 N.E.2d at 689. Accordingly, the order sentencing Rios to serve consecutive sentences is reversed.

When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence. Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004). We elect to remand to the trial court for a new sentencing determination. We express no opinion as to the sentence to be imposed, but we note that in resentencing Rios to serve concurrent terms on the dealing a look-alike convictions, the trial court retains its right to enhance the advisory term based on any factors it finds applicable.

In Putnam County Sheriff v. Pamela Rice , an 8-page opinion, Judge Kirsch writes:
The Putnam County Sheriff (“the Sheriff”) appeals from the trial court's order denying the Sheriff's motion to dismiss filed in a civil action brought by Pamela Price (“Price”) for damages resulting from an automobile accident. The following issues are presented in this appeal: I. Whether the Sheriff had a duty to warn the public of a known hazardous condition; and II. Whether the Sheriff is immune from suit. We affirm. * * *

The Sheriff and the Highway Department filed their motion to dismiss and memorandum of law in which they alleged they owed no duty to alleviate or warn motorists of the condition of the county road, arguing that the duty fell to the Board, and that they were immune from suit under both the Indiana Tort Claims Act (“ITCA”) and common law. The trial court held a hearing on the motion to dismiss and later denied the motion after taking the matter under advisement. The Sheriff now appeals. * * *

“In Indiana, it is well settled that a governmental entity has a common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel.” Catt, 779 N.E.2d at 3. In addition to the duty to maintain property in a reasonably safe condition, there is also a duty to warn where there is a known hazardous condition. See Benton, 721 N.E.2d at 234 (city had common law duty to warn where diving at city-owned beach is known to be dangerous). Deputy Wallace, who arrived at the scene of the first accident, notified the Highway Department of the icy condition of the road, but did not remain at the location to warn other motorists about the condition of the road until someone from the Highway Department arrived. He had a duty to do so as did the Sheriff under the theory of respondeat superior.

In Paul Komyatti, Jr. v. State of Indiana, a 17-page opinion involving a pro se appellant, Judge Barnes concludes:
We conclude that there are no genuine questions of fact with respect to Komyatti's PCR petition and that the State was entitled to judgment as a matter of law. The trial court correctly granted the State's motion for summary disposition.
NFP civil opinions today (3):

In The Guardianship of John Joseph Bortka, II (NFP)

Bruce Hatfield, et al. v. Area Plan Commission of Evansville (NFP)

Term. of Parent-Child Rel. of T.C.; T.C. & C.P. v. I.D.C.S. (NFP)

NFP criminal opinions today (5):

James Townsend v. State of Indiana (NFP)

Gerardo Bensez v. State of Indiana (NFP)

Marlinda Nunley v. State of Indiana (NFP)

Thomas Eugene Ferrell v. State of Indiana (NFP)

Jeremy Culp v. State of Indiana (NFP)

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

Ind. Decisions - One Indiana appeal decided today by 7th Circuit

In US v. Gorman (SD Ind., Barker), a 20-page opinion, Judge Kanne writes:

Jamarkus Gorman was convicted of perjury after testifying falsely before a grand jury. He now challenges both the basis for his perjury conviction and the admission of evidence at his trial. We affirm. * * *

Because there was ample evidence to support the finding that Jamarkus perjured himself with regard to his possession of the Bentley, his appeal in that regard is without merit. Additionally, the admission of the evidence relating to Jamarkus’s theft of the car was direct evidence of his charged perjury conduct and its probative value was not substantially outweighed by any risk of unfair prejudice. For these reasons, Jamarkus’s conviction is AFFIRMED.

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Freedom of photography: Police, security often clamp down despite public right"

An interesting story today by Annys Shin of the Washington Post - I thought I'd done a similar post a few years back, but can't locate it. From today' story:

Courts have long ruled that the First Amendment protects the right of citizens to take photographs in public places. Even after the terrorist attacks of Sept. 11, 2001, law enforcement agencies have reiterated that right in official policies.

But in practice, those rules don't always filter down to police officers and security guards who continue to restrict photographers, often citing authority they don't have. Almost nine years after the terrorist attacks, which ratcheted up security at government properties and transportation hubs, anyone photographing federal buildings, bridges, trains or airports runs the risk of being seen as a potential terrorist.

Reliable statistics on detentions and arrests of photographers are hard to come by, but photographers, their advocates and even police agree that confrontations still occur frequently. Photographers had run-ins with police before the 2001 attacks, but constitutional lawyers say the combination of heightened security concerns and the spread of digital cameras has made such incidents more common.

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

Ind. Courts - Senator Steele on legislation impacting the court selection process

During the course of this month, the ILB has reviewed the records on appeal of the four trial judge semi-finalists to fill the upcoming vacancy on the Supreme Court, and the oral advocacy of the three semi-finalists who have argued cases before the Court. Brent E. Steele, one of the nine semi-finalists, has been a member of the Indiana Senate since 2005. In Senator Steele's case, we will look at his position on legislation impacting the court selection process and expansion of the Court of Appeals..

SJR 1-2005. During the period from 2005 to 2010, few bills to alter the appellate court system have been introduced in the General Assembly and, of those, only a handful have moved out of the first house committee. Perhaps the most significant effort occurred in 2005, during Senator Steele's first session.

Senator Michael Young authored SJR 1, a proposed constitutional amendment. To quote from an article published in October, 2005 -- "Voting to Retain or Reject Indiana Judges and Justices," 49 Res Gestae 3 (Oct. 2005), pp. 21-23:

During the 2005 session, the Indiana Senate considered a proposal to amend Article 7 of the Indiana Constitution to require that the Governor’s nominee to an appellate court be subject to confirmation by a majority of the Senate. After ten years, under this proposal, the justice or judge again would come before the Senate for retention. A favorable vote of 40% of the members of the Senate would assure retention.

The measure passed the Senate by a roll call vote of 33 to 16, but died in House committee.

How did Senator Steele vote on this bill?

The measure was considered by the Senate Judiciary Committee on Feb. 23. 2005, and was approved by a vote of 10-1. Senator Steele voted "Yes". (RC 5261)

The measure was adopted on third reading in the Senate on March 1, 2005 by a vote of 33-16. Senator Steele voted "Yea". (RC 230)

Other Related Legislation. The other significant effort to alter the appellate selection and retention process during this period took place in the House in 2006. According to a press report at the time:

House Bill 1419 was a vehicle bill with no content until the Republican-dominated House Rules Committee amended it to include controversial language about selecting and retaining Indiana Supreme Court and Indiana Court of Appeals judges.
However, the committee's report mysteriously never made it to the floor of the House, as recounted in detail in this article: "Analysis of another effort to alter the Indiana judicial selection and retention process," 49 Res Gestae 7 (Mar. 2006)," pp. 32-38.

Expanding the Court of Appeals. In 2007 and 2009 Senate bills were introduced to add a new Sixth District to the Indiana Court of Appeals. Both times the bills (SB 147-2007, SB 35-2009), supported by Senator Steele, passed the Senate but died in the House. Also, in November of 2007, Senator Steele was one of seven semi-finalists for the Court of Appeals vacancy to which Elaine Brown ultimately was appointed.

HEA 1491-2009. In 2009 the House passed a bill, HB 1491, that would have required that St. Joseph County Superior Court judges be elected, rather than appointed. St. Joe is one of two counties where judges currently are appointed, via a merit selection system similar to that of the state appellate courts, and subsequently subject to retention elections.

On April 8, 2009, the Senate Judiciary Committee acted on the House measure, voting 6-5 to send HB 1491, as amended in the Senate committee to include language adding a sixth Court of Appeals panel, to the full Senate. Senator Steele voted "Yes." (RC 6703)

The measure was passed on third reading in the Senate by a vote of 35-15 on April 15, 2009. Senator Steele voted "Yea". (RC 381) See this April 9th ILB entry, where Senator Steele is quoted: "[E]lecting judges makes them more accountable to the people they serve."

On April 28 the conferees agreed on the bill as amended in the Senate. On April 29 both houses approved the conference committee report. Senator Steele voted "Yea". (RC 461)

On May 13, 2009 the Governor vetoed HEA 1491, writing in part that "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." See the complete veto message here.

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - "Conviction overturned for man lured online by cop posing as girl"

US v. Ciesiolka, issued July 26th by the 7th Circuit (ILB summary here) is the subject of a story in the July 27th NWI Times, reported by Sarah Tompkins, who writes:

A Columbus, Ind., man will get a new trial after the 7th Circuit U.S. Court of Appeals reversed his 2008 conviction of trying to engage in sexual behavior with a minor.

Mark Ciesiolka was prosecuted as part of a Purdue University police sting targeting Internet pedophiles. As part of the investigation, an officer claiming to be 13-year-old "Ashley" chatted for more than two weeks with Ciesiolka on Yahoo.

During the chats, Ciesiolka allegedly masturbated while being recorded on a webcam and tried to get "Ashley" to send explicit photos of herself, according to court documents.

"The sting, however, was marred by numerous oddities," Judge Richard Cudahy wrote in his ruling Monday.

While the officer told Ciesiolka she was 13, her Yahoo profile showed a photo of a woman in her late 20s with interests ranging from beer to Purdue University, according to court documents. When Ciesiolka asked her for a photo, she sent an image of herself, to which he responded that she looked like she was 21.

According to court records, the officer set up a meeting with Ciesiolka, but he did not follow through despite "repeated encouragement from Ashley." She later wrote to him, "I lie about my age."

"The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that "Ashley" was under 18," Cudahy wrote.

He ruled the district court in Hammond erred in giving jurors "the ostrich instruction" -- jurors were told that if a person (Ciesiolka) had a strong suspicion something was not as it seemed, they could determine the person was negligent in not discovering the truth.

Other issues in the trial stemmed from the district court admitting a day's worth of evidence that was "perhaps being excessively prejudicial," according to the appellate ruling. The evidence included more than 100 images of child pornography found on Ciesiolka's computer and testimony from a woman who claimed he had sex with her several times while she was 15.

According to the appellate ruling, the district court did not explain how a test was met for introducing evidence of a person's prior acts before admitting the information.

In July 2009, Ciesiolka was sentenced to 25 years in prison, $15,000 in fines and supervised release for life. He now awaits a new trial.

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Lawyer Says He Helped Client Show That $45 Garage-Sale Buy is Worth Some $200M" [Updated]

A great story put together by the ABA Journal blog. It begins:

After paying $45 for a box of old negatives a decade ago, a Fresno, Calif., painter noticed that some looked like the published work of famed black-and-white nature photographer Ansel Adams.

Although the family of Adams pooh-poohed the possibility, Rick Norsigian finally hired a lawyer to help him assemble a team of experts to determine whether there might be a link. The result was an announcement today by his Los Angeles attorney, Arnold Peter, that 65 negatives are from the early work of Ansel Adams in the 1920s and 1930s, although they had been thought destroyed by a fire in 1937, reports the Fresno Bee.

[Updated at 11:00 AM]. The WSJ has gone all-out on this story, with an article by Lauren A.E. Schuker headed "Ansel Adams Trove, or a Pile of Glass? " and links too a video and a slideshow of photos.

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

Ind. Courts - Judge Mangus-Stinson "said that after being sworn in, she was immediately given 373 cases"

"Mount Prospect native appointed federal judge in Indiana" is the headline to this story in the Mount Prospect Daily Herald.

Posted by Marcia Oddi on Wednesday, July 28, 2010
Posted to Indiana Courts

Sports. Law - More on "'Emotional abuse' at IUPUI? 28 have left women's basketball program"

Updating yesterday's ILB entry, there is another story today by Indy Star reporters Mark Alesia, Heather Gillers and Tim Evans. It is headed "IUPUI launches investigation into women's basketball program: Coaches accused of aiming emotional abuse at players." Some quotes:

A three-member panel will investigate allegations of "emotional abuse" and NCAA rules violations in IUPUI's women's basketball program.

Indiana University-Purdue University Indianapolis Chancellor Charles Bantz said Tuesday that he has appointed Sue Shields, retired magistrate judge for the U.S. District Court for Southern Indiana, to lead the panel. The other members are Gary Roberts, dean of the Indiana University School of Law-Indianapolis, and Angie Torain, associate athletic director.

The panel will report its findings to IU President Michael McRobbie, the IU board of trustees and other IUPUI leaders. No time was mentioned for when the panel is expected to complete its work.

Judge Sheilds and Dean Roberts are great appointments. One wonders, however, about having the IUPUI associate athletics director investigating her own program at this point.

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

Tuesday, July 27, 2010

Ind. Courts - Overview of ILB Entries on Filling the Supreme Court Vacancy

The ILB's coverage of the process to fill the vacancy on the Supreme Court created by Justice Boehm's upcoming retirement has expanded far beyond what either I or, I'm sure, Joel Schumm, had initially envisioned. But I believe it is all to the good.

Except for the fact that it is hard, even for me, to quickly locate an entry I know is there! This new chart (or you could call it a judicial vacancy "home page") should solve that. I've put a link for now at the top of the ILB's right column.

I plan to keep it up to date through Thursday.

Over the coming weekend, I'll add in the Friday, July 30th action.

Posted by Marcia Oddi on Tuesday, July 27, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Two Indiana decisions today from 7th Circuit, and a FDCPA case out of Illinois

In Prime Eage v. Steel Dynamics (ND Ind., Moody), an 8-page opinion, Chief Judge Easterbrook concludes:

Prime Eagle suggests that, when the reorganization began, and a new set of investors took over (the old bondholders’ claims were converted to equity, and new debt capital was raised), Nakornthai effectively “forgot” what the board had been told in 1998. The board members to whom Schultes passed the information were no longer there; Schultes himself was gone. The common law of agency does not provide for corporate forgetfulness, however; information is a corporate asset that does not vanish when investors elect a new board. A corporation is a continuing entity as the board changes, just as the United States of America is a continuing entity governed by legal texts adopted in 1788 and 1791, even though George Washington is no longer the President and James Madison no longer sits in the House of Representatives. More: if Schultes’ report drops out of the picture, then Steel Dynamics’ statements do too; it is not possible to adopt a rule that turnover on the board causes selective corporate amnesia.

Prime Eagle argued in the district court that Steel Dynamics is equitably estopped to plead the statute of limitations, but it has not contested on appeal the judge’s adverse decision. It does argue for equitable tolling during its insolvency, but it misunderstands the doctrine. Equitable tolling does not restart the period of limitations, as Steel Dynamics supposes. Instead it permits deferral of suit until the tolling event ceases and requires diligent action thereafter. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418–19 (2005); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990); Jay E. Hayden Foundation, slip op. 10–11. Nakornthai was out of bankruptcy, and had its mill running, with at least eight months left in the period of limitations, even on the earliest possible accrual date. (Steel Dynamics contends that the first injury occurred in August 1998.) Nakornthai waited more than four years after the success of its mill put the lie to Steel Dynamics’ analysis, and 5½ years after the consultant reported that the mill would run just fine as is. Prime Eagle has been anything but diligent and cannot use equitable tolling to justify the untimely filing. AFFIRMED

In Marion County Coroner's Office v. EEOC and Lineham (EEOC), a 16-page opinion, Judge Evans writes:
The chief deputy coroner of Marion County, Indiana, John Linehan, a white male, was stripped of certain duties and ultimately fired by the coroner, Dr. Kenneth Ackles, an African-American male. After hearing testimony from fourteen witnesses, an Equal Employment Opportunity Commission (EEOC) administrative law judge (ALJ) found that the coroner’s office took action against Linehan based on his race and in retaliation for an internal complaint that Linehan filed against Ackles. Linehan was awarded front and back pay, attorney’s fees, and $200,000 in compensatory damages. The EEOC affirmed in all material respects. The coroner’s office now petitions for review, arguing that the findings of discrimination and retaliation were erroneous and that, even if they were not, the compensatory damages award was excessive under the circumstances. * * *

For the foregoing reasons, the petition for review is DENIED IN PART and GRANTED IN PART. The compensatory damages award is VACATED, and the matter is REMANDED to the EEOC for proceedings consistent with this opinion.

In Gburek, et al v. Litton Loan Servicing (ND Ill.), a 14-page opinion, Judge Sykes writes:
Litton Loan Servicing (“Litton”) serviced a mortgage on a home owned by Camille Gburek. When Gburek fell behind on her mortgage payments, Litton sent her a letter offering to discuss ways she could avoid losing her home in foreclosure and asking for her current financial information. A few days later, Gburek received a letter from Titanium Solutions (“Titanium”) on behalf of Litton; this letter reiterated Litton’s offer to work with Gburek on foreclosure alternatives and asked again for Gburek’s financial information.

Gburek responded with this lawsuit, claiming that Litton had engaged in illegal debt-collection practices in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. The district court granted Litton’s motion to dismiss, concluding that Litton’s conduct did not fall within the scope of the FDCPA because the letters Gburek received did not contain a demand for payment.

We reverse. Generally speaking, a communication from a debt collector to a debtor is not covered by the FDCPA unless it is made “in connection with the collection of any debt.” Id. §§ 1692c, 1692e. The district court thought Litton’s offer to participate in loan-workout negotiations was not made “in connection with” any debtcollection efforts because it did not contain an explicit demand for payment. This reads the statutory language too narrowly and ignores salient facts alleged in the complaint: Gburek’s mortgage was in default, and the text of the letters indicate they were sent to induce her to settle her mortgage-loan debt in order to avoid foreclosure. The complaint thus sufficiently alleges communications that were “sent in connection with an attempt to collect a debt,” Ruth v. Triumph P’ships, 577 F.3d 790, 798 (7th Cir. 2009), and in violation of the FDCPA.

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

Ind. Decisions - Court of Appeals issues 6 today (and 8 NFP)

For publication opinions today (6):

In Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health & Child Bearing Center, et al. , a 24-page opinion, Judge Brown writes:

Steven Spangler and Heidi Brown (collectively, “Parents”) appeal the trial court's grant of motions for summary judgment in favor of St. Vincent Randolph Hospital (“Hospital”) and Barbara Bechtel, nurse-midwife, and Expectations Women's Health and Childbearing Center (Bechtel and Expectations collectively, “Midwife”). Parents raise four issues, which we consolidate, revise, and restate as whether the trial court erred in granting Hospital's and Midwife's motions for summary judgment. * * *

For the foregoing reasons, we reverse the trial court's orders granting summary judgment motions in favor of St. Vincent Randolph Hospital and Barbara Bechtel, nurse-midwife, and Expectations Women's Health and Childbearing Center, and remand for further proceedings.

In David A. Calvert v. State of Indiana, a 21-page, 2-1 opinion, Judge Robb writes:
Following a jury trial, David Calvert was convicted of attempted robbery with a deadly weapon and possession of a firearm as a serious violent felon, both Class B felonies, and possession of a sawed-off shotgun, a Class D felony. The trial court entered judgment and imposed sentence on all three convictions, with concurrent sentences of fifteen years with three years suspended on the Class B felony convictions. Calvert now appeals, raising the following restated issues: 1) whether sufficient evidence supports his convictions; 2) whether Calvert's dual convictions of possessing a firearm as a serious violent felon and possessing a sawed-off shotgun violate double jeopardy; and 3) whether Calvert's sentence is inappropriate in light of the nature of the offenses and his character. We conclude the evidence is insufficient to support Calvert's conviction of attempted robbery because the State failed to prove a substantial step; sufficient evidence supports Calvert's conviction of possessing a firearm as a serious violent felon; Calvert's conviction of possessing a sawed-off shotgun violates double jeopardy; and Calvert's sentence is not inappropriate. We therefore affirm in part, reverse in part, and remand with instructions. * * *

FRIEDLANDER, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion.

In E.W. Revocable Trust, 12-page opinion, Chief Judge Baker writes:
We find that the Trustee breached duties owed to the Objecting Beneficiaries and that the trial court properly ordered the Trustee to pay the Objecting Beneficiaries’attorney fees, reduced the Trustee’s requested fiduciary fees, and ordered that the Trust only be responsible for a portion of the Trustee’s attorney fees. We also find, however, that it was error to order that the Trustee bear the remaining portion of his attorney fees personally. Therefore, we affirm in part and reverse in part.
In Cornelius Tyrone Lacey, Sr. v. State of Indiana, a 12-page opinion on an interlocutory appeal, Cornelius Tyrone Lacey, Sr. (“Lacey”) challenges the denial of his motion to suppress evidence obtained during the execution of a search warrant. Judge Bailey concludes:
There was probable cause to support the issuance of the search warrant. Nonetheless, the “no-knock” execution of the search warrant was unreasonable under the Indiana Constitution. We find suppression of the evidence to be the most appropriate remedy in the particular circumstances of this case. Reversed.
In Cedric Lewis v. State of Indiana, a 16-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Cedric Lewis (Lewis), appeals his conviction for possession of a firearm by a serious violent felon, a Class B felony, Ind. Code § 35-47-4-5.1.

Lewis raises two issues on appeal, one of which we find dispositive and which we restate as: Whether the trial court properly admitted the handgun found during a warrantless search of Lewis’ vehicle. * * *

Based on the foregoing, we conclude that the search of Lewis’ vehicle violated the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Therefore, the trial court abused its discretion when it admitted the gun which was discovered as a result of this illegal search. Reversed.

KIRSCH, J., concurring in result with separate opinion.
MATHIAS, J., dissenting with separate opinion.

In Damion Wilkins v. State of Indiana , a 17-page opinion, Judge Bailey concludes:
The search warrant at issue was supported by probable cause. Indiana Code Section 35-33-5-7 does not constitute a blanket prohibition upon no-knock warrants in this State. The “no-knock” execution of the search warrant was supported by reasonable suspicion and thus no Fourth Amendment violation is established. However, under the totality of the circumstances, the “no-knock” execution was unreasonable under the Indiana Constitution. We find suppression of the evidence to be an appropriate remedy in the particular circumstances of this case. Reversed.
NFP civil opinions today (3):

Term. of Parent-Child Rel. vo M.D.; M.C. v. I.D.C.S. (NFP)

James Eiteljorg, et al. v. Ralph E. Lean (NFP)

Associated Builders & Contractors Indiana Chapter, Inc., et al. v. Lori A. Torres (NFP)

NFP criminal opinions today (5):

Bradford Drake v. State of Indiana (NFP)

Dionte-Daymone Jones v. State of Indiana (NFP)

Daniel Brownlee v. State of Indiana (NFP)

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

Robert Emerson v. State of Indiana (NFP)

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

Ind. Courts - How Have the Judges Fared? Judge Steven Nation

As explained in the post headed "How Have the Judges Fared?" the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Steven Nation's record, from IU Law-Indy Prof. Joel Schumm, is the fourth and final of those entries.

[Note: This entry has been updated to include today's (7/27/10) COA ruling in Wilson Revocable Trust.]


Judge Steven Nation has presided over the Hamilton County Superior Court 1 since January 1995. His application notes that he has resolved nearly 30,000 cases and has about 3,000 pending; “[i]n addition to the growing number of cases, such cases have increased in their complexity and pleading volume.” (p. 8)

Of the 91 appealed cases reviewed, Judge Nation was reversed in 32 (or 35%).

Supreme Court

Civil/Probate cases

In re Estate of Inlow (2009) - “We reverse the court's September 5, 2007, order to the extent that such order approves the claim of the Successor Personal Representative for the distribution of the full amount of funeral and burial expenses from the wrongful death settlement proceeds. This case is remanded to the court for a determination of the portion of said expenses to be distributed to the Estate from the wrongful death settlement in a manner consistent with this opinion.”

City of Carmel v. Steele (2007) - “The legal description in annexation Ordinance C-265 describing territory the City of Carmel sought to annex demonstrates that the territory is contiguous to the City's corporate boundaries. The trial court thus erred in failing to deny the Steeles' appeal and dismiss the proceeding.”

ISP.com LLC v. Theising (2004) - “The order of the trial court denying the motion to compel arbitration is reversed. This case is remanded with instructions to order the plaintiff, ISP.com, LLC and ISP.net, LLC to arbitrate their dispute under section 9.16 of the Asset Purchase Agreement.”

In re Adoption of Infant Child Baxter (2003) - “After signing consents to the adoption of their baby, the biological parents attempted to withdraw their consents on grounds that they had not been properly notarized in accordance with the provisions of the Indiana adoption statute. We hold that if the written consent is not properly notarized, the validity of the consent may nevertheless be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption.”

Wal-Mart Stores, Inc. v. Wright (2002) - “The second paragraph of the instruction told the jurors that because Wal-Mart has established certain rules and policies, those rules and policies are evidence of the degree of care recognized by Wal-Mart as ordinary care. But Wal-Mart is correct that its rules and policies may exceed its view of what is required by ordinary care in a given situation. . . . There is a second problem with the instruction. Even if the Manual reflected Wal-Mart's subjective view of ordinary care, the second paragraph of the instruction incorrectly states the law because it invites jurors to apply Wal-Mart's subjective view-as evidenced by the Manual-rather than an objective standard of ordinary care.”

Original action

State ex rel. Johnson v. Hamilton Superior Court No. 1 (2009) - “Relator has filed a verified petition for writ of mandamus and accompanying application papers under the rules governing original actions. Relator alleges the trial court failed to rule on motions for summary judgment within the time limit in Trial Rule 53.1(A).”

Criminal cases

Neff v. State (2006) - “This appeal raises familiar questions regarding the permissibility of aggravators used in sentencing a criminal defendant. It also raises the novel question of whether the appropriate remedy when aggravators are found improper is always remand with opportunity for the State to prove to a jury those aggravators found improper under Blakely. We conclude the Court of Appeals was correct simply to revise Neff's sentence.”

Court of Appeals

Civil/Probate cases

In re Wilson Revocable Trust (2010) - "We find that the Trustee breached duties owed to the Objecting Beneficiaries and that the trial court properly ordered the Trustee to pay the Objecting Beneficiaries’ attorney fees, reduced the Trustee’s requested fiduciary fees, and ordered that the Trust only be responsible for a portion of the Trustee’s attorney fees. We also find, however, that it was error to order that the Trustee bear the remaining portion of his attorney fees personally. Therefore, we affirm in part and reverse in part."

Hammack v. Hammack (2009) - “We reverse in part and remand with instructions to (1) either clarify why the trailer should be awarded to Susan or award it to Rodger as a part of his Hammack construction business and (2) either clarify why half of the life insurance policy's cash surrender value should not be awarded to Rodger or award Rodger an additional $1250. In all other respects, we affirm the judgment of the trial court.”

McClure & O’Farrell, P.C. v. Grigsby (2009) - “Inasmuch as none of the four primary arguments raised by the Law Firm in opposition to Patricia's petition were unreasonable, the trial court erred by ordering the Law Firm to pay Patricia's attorney fees, and the judgment of the trial court is reversed.”

Gunnell v. State (2009) - “Because the summons and forfeiture complaint were not delivered or mailed to the official in charge of the Hamilton County Jail and then immediately delivered to Gunnell, service on Gunnell at the Indianapolis address was defective. The default judgment is void based on the improper service. The trial court therefore erred in denying Gunnell's motion to set aside the default judgment.”

Smyth v. Hester (2009) - “We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees. However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard.”

Bank One v. Surber (2009) - “By denying Bank One a set-off for its September 29, 2005 payment to Jeannene, the trial court has given Jeannene a windfall and has placed her in a better position than she would have been in had Bank One not acted negligently and not breached its contract with Jeannene. Therefore, we conclude that the trial court's refusal to award Bank One a set-off for the September 29, 2005 payment constituted an abuse of discretion.” & “Before the trial court could award Jeannene attorney fees for the estate litigation, it was incumbent upon it to find that Jeannene personally incurred attorney fees in that litigation and the total amount of fees incurred.”

Lauth Indiana Resort & Casino v. Lost River Dev. (2008) - “In conclusion, we hold that if a joint venture is formed for the purpose of submitting a proposal or similar bid, and the joint venture agreement is silent as to when or under what circumstances the joint venture will end, then the joint venture ends, as a matter of law, when the proposal or bid is rejected. Therefore, the Lost River joint venture ended as a matter of law when the IGC chose the proposal of Trump Indiana. Lauth therefore did not breach the joint venture agreement or any duties it had to the other parties to the joint venture when it partnered with the Cook Group, and the trial court erred in denying Lauth's motion for summary judgment.”

Sanders v. Sanders (2008) - “The denial of the motion to compel was based entirely on credibility assessments by the trial court; on its face, McNamar's motion to compel was not unreasonable. We conclude McNamar was ‘substantially justified’ in filing that motion. Thus, we reverse the imposition of $750.00 in sanctions against McNamar in connection with that filing.”

Mueller v. Karns (2008) - “Finding that Karns's offer was never accepted, that even if there was a contract its enforcement is barred by the Statute of Frauds, and that Karns is entitled to quantum meruit compensation but failed to provide evidence supporting the valuation of his services apart from evidence that he has received between $2500 and $10,000 on past projects, we reverse the judgment of the trial court and remand with instructions to hold a hearing on the amount of compensation to which Karns is entitled, with a minimum of $2500 and a maximum of $25,000.”

In re Guardianship of Atkins (2007) - “We find, among other things, that although the trial court did not abuse its discretion by naming the Atkinses to be Patrick's co-guardians, there is overwhelming evidence in the record establishing that it is in Patrick's best interest to continue to have contact with Brett, his life partner of twenty-five years. We also find that the trial court erroneously refused Brett's request to have a portion of his attorney fees and costs paid by the guardianship estate. Thus, we affirm in part, reverse in part, and remand with instructions to grant Brett the visitation and contact with Patrick that he requested and to calculate the amount of Brett's attorney fees and costs to be paid by the guardianship estate.”

Drees Co., Inc. v. Thompson (2007) - “[T]he trial court erred in granting the permanent injunction against Drees, because Thompson/Estridge were not able to succeed on the merits of their claim of unreasonable interference of their ingress/egress rights. The permanent injunction was granted pursuant to a summary judgment motion and was based on the same materials and application of law as used to support the issuance of the preliminary injunction. Therefore, we come to the same conclusion that the preliminary injunction was not warranted, because when the law is applied to the facts, Thompson/Estridge was not able to demonstrate unreasonable interference with their easement rights.”

Adams ex rel. Adams v. Sand Creek, Inc. (2007) - “Kahn P.C. raises one issue, which we restate as whether the trial court abused its discretion by ordering Kahn P.C. to post bond to the Hamilton County Clerk to provide security for RBPBB's attorney fee lien on the proceeds of a confidential settlement agreement between plaintiffs and several defendants in the above-captioned lawsuit.”

Daimler-Chrysler Corp. v. White (2006) - “DaimlerChrysler argues that the trial court erred in denying its Motion to Dismiss and Compel Arbitration. Specifically, it contends that binding arbitration agreements are enforceable under the MMWA. The parties' arguments on appeal are the same as those we address today in the companion case of Walker v. DaimlerChrysler Corp., No. 27A02-0507-CV-596, ---N.E.2d ---- (Ind. Ct. App. Nov. 2, 2006). For the reasons we set forth in that opinion, we agree with DaimlerChrysler that the MMWA permits binding arbitration. Therefore, we reverse the decision of the trial court and remand this cause with instructions to the trial court to grant DaimlerChrysler's Motion to Dismiss and Compel Arbitration.”

CWE Concrete Const., Inc. v. First Nat. Bank (2004) - “CWE Concrete Construction, Inc. d/b/a Elbrecht Concrete and Christopher Elbrecht (collectively, ‘Elbrecht’) appeal the trial court's grant of summary judgment in favor of First National Bank (‘FNB’), raising several issues, one of which we find dispositive: whether Elbrecht's revolving line of credit had a borrowing base. Because we find that the revolving line of credit did not have a borrowing base, we conclude that Elbrecht was not in default at the time that FNB froze its bank account, accelerated its other loans, and filed its complaint. Consequently, we find that the trial court erred by granting summary judgment in favor of FNB and reverse and remand for further proceedings.”

Bobrow v. Bobrow (2004) - “The Public Records Act permits the trial court to seal public records that fall within a mandatory exception to the Act either before or after they are admitted into evidence. Accordingly, the trial court erred by denying E & Y and Cap Gemini's Motion to Seal the eighteen exhibits. Although interested third persons may request that records be sealed after they are admitted into evidence, this is a right that can be waived. Richard has waived his right to seal the various records because he stood silently by as the records were admitted into evidence and as the trial transcript was being made.”

In re Adoption of Infant Female Fitz (2002) - “Because we have concluded that if the facts as alleged by Rudd are true, he has established fraud on the court and made a prima facie showing of a meritorious defense, we reverse and remand with instructions for the trial court to hold a hearing on Rudd's motion for relief from judgment.”

Ind. Family & Soc. Svcs. Admin. v. Legacy Healthcare (2001) - “Because there was no irreparable harm and the trial court's order disrupted the administrative process, the trial court lacked subject matter jurisdiction to address the merits of New Horizon's petition. When there is a lack of subject matter jurisdiction, the court is without jurisdiction to do anything in the case except to enter an order of dismissal. The trial court was without jurisdiction to grant the stay. Therefore, the stay is void and we vacate the trial court's order and dismiss.”

In re Guardianship of C.M.W. (2001) - “None of these due process considerations were afforded Grandfather before the trial court found him in contempt. Therefore, we must reverse that portion of the trial court's order finding Grandfather in contempt.”

Ind. State Dep’t Health v. Legacy Healthcare (2001) - “The trial court erred in reversing the appeals panel's final order in this case, in which the panel determined that the Department has the authority to terminate the certification of Medicaid facilities, and in granting summary judgment in favor of New Horizon.”


Wallace v. Wallace, 714 N.E.2d 774 (Ind. Ct. App. 1999)
- “In summary, the record demonstrates that the trial court systematically excluded from the marital estate those assets that were attributable to gifts or inheritance from Chris's family. Thus, the presumption that the trial court complied with the applicable law in dividing the assets has been rebutted and we conclude that the trial court abused its discretion and the division of the marital estate must be reversed.”

Brownsburg Conservation Club v. Hendricks County Bd. of Zoning Appeals (1998) - “We conclude the BZA erred in failing to give the Club notice and an opportunity to be heard on the question of whether the conditions for approval have been met. We also conclude the BZA erred in failing to enter findings of fact to support its decision. Therefore we reverse the judgment of the trial court, and remand to the court with instructions that it remand this action to the BZA for further proceedings consistent with this opinion.”

DRW Builders, Inc. v. Richardson (1997) - “Although Richardson is entitled to reimbursement for attorneys' fees on his derivative claim, those fees must be assessed against DRW and not the Witskens. Therefore we reverse that portion of the trial court's judgment which entitles Richardson to recover attorneys' fees from the Witskens and remand to the trial court for an entry of judgment entitling Richardson to recover such fees from DRW. On remand, the trial court is also directed to compute that portion of attorneys' fees attributable only to Richardson's derivative claim and to amend the amount of the attorney fee award accordingly.”

Whyde v. Czarkowski (1995) - “However, in Czarkowski's deposition, he testified he did not perform any passive motion on Whyde during the examination. He stated several times that he did not assist in any motion of her arm. Specifically, Czarkowski stated ‘I do not recall moving her shoulder. I do recall the visit and the only thing I observed was her active range of motion [self-induced motion] and the patient underwent palpation to determine where she was tender.’ As a result, there are facts in dispute which would dispose of this litigation and, therefore, summary judgment was improper.”

Criminal cases

Mateyko v. State (2009) - “[W]e are dealing with ‘triple-hearsay,’ i.e. hearsay within hearsay within hearsay. The witness, Fishburn, testified regarding what Mateyko's probation officer, Nunn, told her regarding what Mateyko's therapist told Nunn regarding what Mateyko said to her. Importantly, there is no indication in the record that the trial court explained why hearsay within hearsay within hearsay was reliable or why any reliability was substantial enough to support good cause for not producing a live witness.”

Sigler v. State (2000) - “Based upon the foregoing, we conclude that the trial court improperly limited Sigler's cross-examination of the State's witnesses, and the error was not harmless.”

Posted by Marcia Oddi on Tuesday, July 27, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - La Porte County Judge Kathleen Lang talks criminal justice

Matt Field reports today in the Michigan City News Dispatch:

La Porte County Superior Court 1 Judge Kathleen Lang stepped down from the bench and into the crowd Monday to take questions at an NAACP meeting.

The forum was largely an opportunity for members of the audience to vent their frustrations about the criminal justice system. Some felt that police and prosecutors targeted the black community in deciding which areas to make arrests and which cases to take. Others criticized the stiff sentences they perceived were being ordered.

While Lang told the crowd that the decisions about which cases to take were largely up to the prosecutors, she used the time to push for the creation of drug courts, in which people who ordinarily would go to prison would be ordered to complete drug programs instead.

“What I want to see in the next few years is La Porte County with a drug court, a re-entry court and an OWI court,” she said. “That’s my dream.”

Wesley Scully, president of the La Porte County NAACP, agreed. He said the courts would reduce the number of people getting convicted of drug crimes. The innovative program will work, he said.

“I have all the confidence in the world if we can get it,” he said.

Several people in the audience decried the statistics that show that blacks represent a higher percentage of the prison population than they do the state population. Lang tried to address that point while still defending the role of prosecutors, police and public defenders.

“Are there problems with our justice system? Yes,” she said. “Are there inequalities? Absolutely.”

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

Law - Cloud computing for governmental entities

To alleviate concerns over the risks of cloud computing by governmental entities, Google announced yesterday:

Today we’re excited to announce a new edition of Google Apps. Designed with guidance from customers like the federal government, the City of Los Angeles and the City of Orlando, Google Apps for Government includes the same great Google applications that people know and love, with specific measures to address the policy and security needs of the public sector.

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

Law - "IRS extends deadline for small charities "

Updating this ILB entry from May 14, 2010, headed "Thousands of non-profits could unwittingly lose tax status," the AP is now reporting:

The Internal Revenue Service is offering a reprieve to hundreds of thousands of small charities in danger of losing their tax exempt status because they missed a tax filing deadline.

A 2006 law required non-profit organizations with receipts of less than $25,000 to file tax returns for the first time in 2007. If charities failed to file for three years, they were going to lose their tax-exempt status. The law excludes churches.

The deadline for filing a return was in May. IRS Commissioner Doug Shulman said the agency is extending the deadline to Oct. 15.

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

Sports. Law - "'Emotional abuse' at IUPUI? 28 have left women's basketball program"

Mark Alesia, Heather Gillers and Tim Evans wrote this very long investigative story that appeared as the lead story in the Sunday, July 25 Indianapolis Star, but has not been made available online until today.

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

Ind. Courts - Reviewing the Nine Remaining Applications: One Semi-Finalist Gets a Wave of New Support

IU-Indianapolis Law Professor Joel Schumm wrote this report yesterday afternoon, July 27, 2010, for the ILB:

A few weeks ago all 34 applications were laid out for the press and public to review. This afternoon the remaining nine applications were on the same table, and I stopped by to take a look.

Although the basic applications are posted online, those scanned documents do not include transcripts, writing samples, and letters of recommendation. I’m working on a separate post about law school grades. Some candidates were more forthcoming than others in their applications, and we will be filling in some gaps.

The other development of note is letters of recommendation. Since the field of 34 was narrowed to 9, the commission has received several additional letters of recommendation. Almost all of these have come from trial judges and were written in support of Judge David. I counted ten letters from judges in all parts of the state, including Judge Bonaventura and Judge Orr Henderson, both of whom interviewed days earlier for the position.

The media attention that comes when a candidate advances to the second round, though, did not provoke a uniformly positive reaction. Two litigants wrote in opposition to two different trial judge semi-finalists. One litigant accused a judge of gender bias (against fathers in custody proceedings), and the other accused a judge of, among other things, entering an award against him “because [the judge] was frustrated with my pro se representation.”

Posted by Marcia Oddi on Tuesday, July 27, 2010
Posted to Vacancy on Supreme Ct

Courts - "Karen Sypher conviction no 'slam dunk' in Rick Pitino extortion case"

That is the headline to a lengthy story last evening by Andrew Wolfson of the Louisville Courier Journal that begins:

On the eve of her trial in a sordid sex scandal, Karen Sypher faces an uphill fight in avoiding a conviction on charges of trying to extort cash, cars and gifts from University of Louisville basketball coach Rick Pitino, criminal-defense specialists say.

But the attorneys, who include several former prosecutors, say Sypher could avoid guilty verdicts on at least some of the six counts against her if she can show she was victimized by Pitino and relied on her lawyer's advice in seeking compensation for it.

“Federal prosecutors may think they have a slam dunk, but slam dunks have been known to rim out,” Louisville lawyer Aubrey Williams said.

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

Law - "Should the American Bar Association require law schools to maintain a tenure system?"

That is the lede to this story today by Karen Sloan of the National Law Journal. More from the story:

The committee reviewing the ABA's accreditation standards doesn't think so. It has floated a proposal that would eliminate the term "tenure" from the ABA standards covering job security and academic freedom. The committee also wants to kill a requirement that law schools provide clinical faculty members with job protections similar to those enjoyed by full-time professors.

Organizations that represent law professors and clinical faculty have lined up in opposition to the changes. They argue that tenure is key to protecting academic freedom and maintaining high quality legal education.

"The security that comes with tenure is the only way to ensure that faculty will remain free to teach, research, participate in governance decisions, and speak on matters of public concern without fear of reprisal," reads a letter that the Society of American Law Teachers has submitted to the Standards Review Committee. "Changing the accreditation standards to weaken the requirements regarding tenure would have enormous and unfortunate implications for the quality of legal education."

The ABA subcommittee examining job security and academic freedom has concluded that the existing standards don't require law schools to maintain a tenure system in the first place, despite interpretations to the contrary. The standards say that "a law school shall have a comprehensive system for evaluating candidates for promotion and tenure or other forms of security of position. ..."

The proposed standards would clarify that law schools are not obligated to offer tenure but make clear that schools must protect academic freedom, according to a note from the subcommittee that drafted the new rules.

Standards Review Committee Donald Polden, dean of Santa Clara University School of Law, said that critics have rushed to judgment and that the committee still has months of work before it will produce a final draft.

"There have been a few people who have argued that what we are doing is an attack on tenure," said Polden. "The reality is that the current standards do not require law schools to have tenure." He noted that the authorities that accredit medical schools and pharmacy schools do not require tenure. * * *

Clinical faculty are abuzz over the proposed changes, said Claudia Angelos, a clinical law professor at New York University School of Law and a member of the board of directors of the Clinical Legal Education Association.

"It's a subject of great concern," she said. "The concern, at the heart of it, is about the future of legal education, and the importance of what we do and the quality of legal education. We worry about the stature of the work we do and the ability of our peers at law schools to participate in the discussion."

The fight over law school tenure has been bubbling under the surface for years. The American Law Deans Association in 2006 submitted a letter to the U.S. Department of Education calling for the removal of the ABA's authority to control which positions should be tenured, arguing that its requirements have become overly burdensome and restrictive, not to mention costly.

For more, see this story from Inside Higher Ed headlined "Law School Tenure in Danger?" A few quotes from fasr into the article:
While publicly the ABA leaders pushing for change say that they are not against tenure or law professors, supporters of tenure have noted a steady stream of criticism of law professors that emerges whenever the issue heats up. * * *

Another key issue in the changes concerns the rights of faculty who may not be on the tenure track -- in law schools, clinical and legal writing faculty members are most commonly in this category. Clinical law professors run programs in which students are supervised as they take on legal cases -- frequently on controversial issues -- and law schools are regularly attacked over the choice of such cases.

Some lawmakers in Louisiana and Maryland pushed legislation this year to crack down on these legal clinics. A clinic at the University of Maryland offended the poultry industry by representing environmental groups. In Louisiana, the target was a law clinic at Tulane University that has done environmental work that angered business interests there.

The language that the ABA panel wants to remove from the requirements says that law schools "shall afford to full time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full time faculty members."

Gorman, the Penn professor, said in his letter that removing protections for clinical law professors was a move in the wrong direction.

"Nor should it be necessary to explain that of all faculty categories, it has been the clinicians whose teaching -- most especially, in the form of live-client litigation clinics -- has placed them in the position that is most vulnerable to criticism and pressure (often of the most coarse and intolerable nature) from persons, corporations and legislators who are discomforted by the work of the clinic," he wrote. "It is precisely the clinical faculty member for whom academic freedom is a vital concern and not merely an abstract slogan, and for whom tenure provides a crucial guarantee that instruction can be carried out in the best interests of our students, and of the public."

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

Monday, July 26, 2010

Courts - More on "Arrest has put one of the hottest controversies in American law enforcement to its first major test"

Updating this ILB entry from July 9, 2010, the July 24, 2010 has a story in the business section, reported by Natasha Singer, and headed "In Fighting Crime, How Wide Should a Genetic Net Reach?" Some quotes:

Recently, forensic scientists in California used a genetic analysis procedure called “familial searching” or “kinship searching” to help the police identify a suspect in the “Grim Sleeper” serial murder case — and they did so by using a DNA sample collected for another purpose from the suspect’s own son. The Los Angeles police later arrested the father, Lonnie David Franklin Jr., who has since been charged with 10 counts of murder.

Forensic scientists routinely use a standard search method to try to identify a suspect who has left bits of DNA at a crime scene. They use a computer analysis to compare DNA from the scene to DNA profiles of known convicted offenders stored in a state database. When the profiles match exactly, genetic analysts call it a “cold hit.”

But the Grim Sleeper case (so named because of an apparent hiatus in a killing spree that dates back to 1985) is unusual because, after regular searches came up empty, officials at California’s Bureau of Forensic Services decided to use familial searching, a more controversial technique.

The procedure involved widening the genetic net to include convicted felons whom they knew had not committed the murders but whose DNA profiles were partial matches to the suspect — similar enough to the suspect’s that they might be related to him.

Lo and behold, Mr. Franklin’s son had recently been convicted on a felony weapons charge, and his DNA offered a partial match to crime-scene DNA. And for the first time in California, that kind of one-degree-of-separation search ultimately led to an arrest.

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

Ind. Courts - More about the Commissioners and their responsibilities

The Supreme Court Nominating Commission met July 6th and 7th and pared down to nine their 34 applications for the seat being vacated by Justice Boehm..

This coming Friday, July 30, they will meet again to interview each of the 9 semi-finalists for one-half hour and then, in the late afternoon, decide on the names of three finalists to send on to Governor Daniels.

This ILB entry from June 2nd (as updated), gave all the information I could pull together at the time on the members of the Judicial Nominating Commission.

Membership. To recap, the Commission is chaired by the Chief Justice. Three "non-attorney citizen" members are appointed by the governor for three-year terms. (See IC 33-27-2-1) These terms are staggered and each of the appointees represents a different judicial district. Here are the current appointees:

Three attorney members are elected by the attorneys of the state, per IC 33-27-2-2 and 3. Here are the current attorney members:

Neither the citizen nor attorney commissioner is eligible for successive reappointment or reelection.

It is interesting to look at the practices of the three current attorney members:

From Mr. Trimble's online resume:

For many years, John has distinguished himself as a bar leader. He has been president of the state defense bar, and was named Defense Lawyer of the Year in 1991. He has also served on the Board of Directors of DRI, the largest national association of defense lawyers. In 2000, DRI named John its outstanding defense bar leader of the year. More recently, John has chaired DRI's national Judicial Task Force to explore and offer recommendations on how DRI can assist in maintaining a fair and impartial judiciary.
From Mr. Feighner's online resume:
Mr. Feighner represents clients in personal injury, wrongful death, automobile liability, product liability, and commercial litigation in state and federal courts. * * * Since 2000, Mr. Feighner has been a Fellow in the American College of Trial Lawyers, and his peers named him one of the Best Lawyers in America.
From Mr. McDonald's online resume:
Jim is a member of the Association of Trial Lawyers of America and the Indiana Trial Lawyers Association, serving on its Board of Directors and Executive Committee. He is certified in civil trial advocacy by the National Board of Trial Advocacy, a member of the American Board of Trial Advocates and has been continually listed in The Best Lawyers of America since 2001. In 2005, he was named Trial Lawyer of the Year by the Indiana Trial Lawyers Association.
Responsibilities. IC 33-27-3-2 provides in part:
Sec. 2. (a) The judicial nominating commission shall submit to the governor, from those names the commission considers for a vacancy, the names of only the three (3) most highly qualified candidates. In determining which candidates are most highly qualified each commission member shall evaluate each candidate, in writing, on the following considerations:
(1) Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.
(2) Legal writings, including legislative draftings, legal briefs, and contributions to legal journals and publications.
(3) Reputation in the practice of law, as evaluated by attorneys and judges with whom the candidate has had professional contact, and the type of legal practice, including experience and reputation as a trial lawyer or trial judge.
(4) Physical condition, including general health, stamina, vigor, and age.
(5) Financial interests, including any interest that might conflict with the performance of judicial responsibilities.
(6) Activities in public service, including writings and speeches concerning public affairs and contemporary problems, and efforts and achievements in improving the administration of justice.
(7) Any other pertinent information that the commission feels is important in selecting the most highly qualified individuals for judicial office. * * *
(f) The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.
Here are some photos from the interviews of the 6th and 7th of July:

This photo shows applicant Monica Foster (yellow jacket) with, continuing clockwise from Ms. Foster, Commissioners Feighner, Gavin, McDonald, CJ (back), Trimble, McCashland, and Keck.

In this photo, moving around the table from the left, Commissioners Feigner, Gavin, McDonald, Trimble, McCashland, and Keck

Finally, this photo shows several of the men hard at work, with piles of application materials - shown here are Commissioners Gavin, McDonald, the CJ, Trimble, McCashland.

What kinds of questions were asked during the 20-minute interviews?

To answer this, I have compiled into one document the interview summaries prepared by Prof. Schumm of all 34 applicants. Converting that to PDF, I was able to search for each commissioner's name and compile their questions. My impression is that two of the citizen members and two of the attorney members were especially strong and thoughtful questioners. (Disclaimers: Prof. Schumm of course was not able to capture all the questions. The page numbers refer to the working PDF version, which has not been uploaded):

Commissioner Trimble

p.2 - asked Judge Nation the wide range of cases heard as a judge
p.3 - asked Ms. Foster how her criminal law background would translate in civil cases
p.4 - asked Sen. Steele how his background as a legislator would prepare him for work on the court
p.4 - asked Judge Craney about opportunities to improve the judiciary
p.5 - asked Judge Carmichael about her experience with civil cases.
p.6 - asked Judge Gull about the ideal qualities of a justice
p.8 - asked Mr. Mulvaney about the characteristics of an ideal justice
p.11 - Mr. Trimble was impressed with Judge Bonaventura’s “energy” and wondered how it would transfer to the Supreme Court
p.12 - asked Judge Willis about characteristics of a good justice

Commissioner Feighner

p.2 - observed that Judge Nation had letters from law enforcement and defense lawyers
p.2 - asked Ms. Woods about the impact of Cinn. v. Willis
p.3 - asked Sen. Steele's view of merit selection
p.6 - asked Mr. Slaughter's view of merit selection
p.6 - asked Judge Henderson what it would mean to trial judges if one was appointed
p.8 - asked Judge Moberly about the transition from trial judge to multi-member court
p.9 - asked Judge Emkes what it would mean to trial judges if one was appointed
p.10 - asked Mr. Fisher how his judicial philosophy would differ from Justice Boehm's
p.10 - asked Judge David about his work in the Zolo Azania death penalty case
p.11 - asked how Judge Bonaventura could reach out to small, rural counties
p.12 - asked Judge Hughes about the transition from trial judge to multi-member court

Commissioner McDonald

p 4 - asked Sen. Steele's view of increasing the size of the Court of Appeals
p.6 - asked Judge Henderson about geographic diversity, and
p.6 - commented to Judge H that much of the population lives in rural counties
p.8 - concern about Mr. Mulvaney's lack of jury trial experience
p.11 - asked if Judge David could be called back to active duty

Commissioner Keck

p.1 - Ms. Keck asked Mr. Clapp to identify a specific recent opinion
p.2 - asked Ms. Wood abouts smoking ordinances
p.3 - asked Ms. Stump about her role in acquiring land for I-69
p.5 - asked Judge Carmichael about her work as a public defender
p.6 - had "dog-eared" the pages of Mr. Slaughter's application listing his five most significant cases
p.6 - asked Judge Henderson, the only judge in rural Fountain County, about what geography (a small rural county) would bring to the Court
p.8 - asked Mr. Mulvaney about the greatest challenges facing the judiciary
p.8 - asked Judge Emkes about the significant population growth in Johnson County and how it has impacted the administration of justice.
p.9 - asked Judge Menges about his experiecne as public defender
p.10 - asked about ordinances restricting smoking ordinances, but Mr. Fisher was reluctant to discuss an issue that could come before the Court
p.11 - asked Judge Bonaventura her view of televising proceedings
p.12 - asked about Ms. Nuechterlein’s experience in the U.S. Attorney’s office
p.13 - asked Mr. Hardman about involvement in significant constitutional matters
p.14 - in light of Ms. Kuzma’s work for the U.S. Senate Judiciary Committee, Ms. Keck asked what questions should have been asked of nominees and were not

Commissioner Gavin

p.2 - quoted Justice Marshall, “Do what you think is right and then let the law catch up,” and asked if Mr. Clapp could defend that.
p.2 - asked Ms. Foster what she tells high school students about the death penalty
p.3 - asked Ms. Stemp about her work on eminent domain cases and her view of Kelo
p.4 - asked Judge Craney about her comments regarding State v. Martin Murray
p.5 - asked Judge Gull about the possible transition from the role of a trial judge, where her word is final, to the role of an appellate judge.
p.5 - asked Judge Gull about disparate treatment in sentencing
p.6 - asked Ms. Marcuccilli about her work for the city of Fort Wayne in a case involving a smoking
ordinance
p.6 - expressed concern if cities can ban smoking, can they ban trans fats?
p.6 - asked Judge Henderson a long question, which I believe was taken verbatim from this George Will
column about questions to ask Elena Kagan:
p.8 - asked Judge Moberly about the “goal of criminal justice system”
p.9 - asked Judge Emkes about her work as a young judge in a death penalty case
p.9 - questioned Mr. Fisher about his lack of trial experience
p.11 - questioned Judge David about using international law in considering constitutional issues
p.11 - asked Judge Bonaventura about the goal of criminal justice system
p.12 - asked Judge Hughes about his work in the Chad Cottrell death penalty case

Commissioner McCashland

p.2 - asked Ms. Woods if, as a result of that work, she had a judicial philosophy
p.2 - asked Ms. Woods asked about the importance of collegiality
p.2 - asked if Ms. Foster talks to high school students, which she does and very much enjoys
p.7 - asked by Mr. Owens a question about his judicial philosophy
p.7 - asked Mr. Tribbett about collegiality
p.8 - asked Judge Moberly about collegiality
p.9 - asked Judge Emkes about the legal profession being viewed as a business and not a profession
p.9 - asked Judge Menges about collegiality
p.9 - observed that Mr. Fisher has a very good job now and he has “not heard a negative comment about” him. Why would he want to go to the Supreme Court
p.12 - asked Judge Hughes about three essential characteristics for judges
p.13 - asked Ms. Nuechterlein about collegiality
p.13 - asked if Judge Wheat had noticed about any changes in the past twenty years in the ability of new lawyers
p.14 - asked how much time it took Ms. Kuzma to assemble her application

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Vacancy on Supreme Ct

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

For publication opinions today (1):

In Green Tree Servicing, LLC v. Brian D. Brough , an 8-page opinion, Sr. Judge Sharpnack writes:

Appellant Green Tree Servicing, LLC (“Green Tree”), seeks review of the trial court’s Order Granting Request to Vacate Order for Arbitration (“the Order”). We reverse and remand with instructions.

Green Tree raises one issue, which we restate as whether the trial court erred by vacating its prior order directing the parties to arbitrate their dispute. * * *

Brough contends that the Contract as a whole is no longer valid because it was terminated by his bankruptcy discharge. We disagree. The parties have not directed us to any Indiana authorities on this issue, but we find In re Wells Fargo Bank, N.A., 300 S.W.3d 818 (Tex. Ct. App. 2009) persuasive. * * * The Texas Court of Appeals [concluded] that the arbitration agreement survived the bankruptcy. * * *

Similarly, in Siegel v. Federal Home Loan Mortgage Corp., 143 F.3d 525, 527-528 (9th Cir. 1998), a borrower, Siegel, executed two notes, each secured by mortgages on different parcels of real property, but defaulted on the notes and filed for bankruptcy. * * * On appeal, Siegel contended that the attorney’s fees provisions in the parties’ agreements were invalidated by the bankruptcy proceedings. The Ninth Circuit disagreed, stating that Siegel’s “bankruptcy discharge did not eliminate the provision." * * *

In this case, as in In re Wells and Siegel, Brough’s bankruptcy proceeding has ended, so arbitration of his FCRA claim will not jeopardize the bankruptcy case or affect Brough’s bankruptcy discharge. The Contract’s arbitration clause, like the attorney’s fees provision in Siegel, was not terminated by Brough’s bankruptcy discharge. For these reasons, we conclude that Brough’s contractual obligation to arbitrate his FCRA claim against Green Tree was not invalidated by his bankruptcy discharge.

NFP civil opinions today (1):

A.B., Alleged to be C.H.I.N.S.; K.J. v. I.D.C.S. (NFP)

NFP criminal opinions today (4):

Leonard Townsend Jr. v. State of Indiana (NFP)

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

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

Frank W. Jackson III v. State of Indiana (NFP)

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

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

There is no transfer list for the week ending July 23, 2010.

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

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

In US v. Ciesiolka (ND Ind., Lozano), a 29-page, 2-1 opinion with Judge Ripple dissenting (p. 24), Judge Cudahy writes for the majority:

Mark Ciesiolka was convicted in 2008 of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). His prosecution emanated from a police sting operation, in which an officer, purporting to be a 13-year-old girl named “Ashley,” engaged in series of sexually explicit, instant-messaging (“IM”) conversations on an online Yahoo forum with the defendant. The sting, however, was marred by numerous oddities. The profile created by the officer displayed a photo of a woman in her late 20s and indicated that the user’s interests included “beer” and “Purdue University.” When asked by the defendant to send pictures during their IM conversations, the officer inexplicably sent a photo of a woman in her late 20s. Ciesiolka remarked that she looked 21. Ashley nevertheless maintained that she was just 13. Although Ciesiolka and the officer agreed to meet at a Pizza King, the defendant evidently got cold feet and, despite repeated encouragement from Ashley, declined to meet. The officer admitted: “I lie about my age.”

The crime with which Ciesiolka was charged required the government to prove beyond a reasonable doubt that the defendant believed that “Ashley” was under 18. We find that the district court improperly relieved the government of that burden by providing the jury with an ostrich instruction. Moreover, given the somewhat bizarre nature of the sting operation itself, replete as it was with suggestions that Ashley may have been an adult, it is perhaps unsurprising that the government sought to bolster its case. It did so by introducing voluminous evidence under Fed. R. Evid. 404(b) of the defendant’s other IM conversations with unknown third parties, over 100 images of child pornography and/or erotica discovered on his computer and testimony from a woman, “SC,” who claimed that Ciesiolka had had sex with her several times when she was 15. This evidence took up an entire day of a three-day trial and yet, at the time of its introduction, was subject only to a single, pro forma limiting instruction. Because the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied, and since the evidence introduced in unconstrained fashion strikes us as perhaps being excessively prejudicial in light of its probative value, we reverse and remand for a new trial.

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

Ind. Courts - How have the judges fared? Judge Robyn Moberly

As explained in the post headed "How Have the Judges Fared?" the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Robyn Moberly's record, from IU Law-Indy Prof. Joel Schumm, is the third of those entries.


Judge Robyn Moberly has served on the Marion County Superior Court since January 1997. She spent the first two years in domestic violence court and then served for two years in Criminal Court 2, which hears major felony cases. Since January 2001 she has presided in a court that hears a wide range of civil cases.

Judge Moberly's application notes she receives about 2,400 new cases each year, including "litigation over non-compete clauses, high conflict and high asset dissolutions of marriage, shareholder disputes and contract disputes." (p. 5) This is borne out by a review of the cases appealed, which are more numerous and often more complex than those from Boone and Johnson counties, as discussed in the entries on Judge David and Judge Emkes.

Of the 71 cases reviewed on appeal, Judge Moberly was reversed in 20 (or 28%).

One high profile case excluded from the analysis is Donovan v. Grand Victoria Casino & Resort, where the Court of Appeals reversed, holding “Donovan is entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards.” Transfer was granted on March 1, 2010, and the case was argued before the Indiana Supreme Court on April 7. A decision has not yet been issued, and Governor Daniels recently told the graduating class at Franklin College that he hopes the card-counting Mr. Donovan prevails. If Judge Moberly becomes Justice Moberly, she would surely recuse if the case is still pending.

Supreme Court

Civil cases

Ind. Dep’t of Environmental Mgmt. v. Raybestos Products Co. (2008) - “Because the Agreed Order does not support a claim for damages and was not violated by IDEM's actions, the trial court's orders denying IDEM’s motions to dismiss and for summary judgment are reversed. This case is remanded with instructions to vacate the judgments in favor of Raybestos and dismiss the complaint for lack of subject matter jurisdiction.”

David A. Ryker Painting Co., Inc. v. Nunamaker (2006) - “In this labor wage dispute asserting application of the Indiana Wage Payment Statute, the defendant, David A. Ryker Painting Company, Inc., appeals the trial court's judgment in favor of an employee, the plaintiff, George E. Nunamaker. We reverse.” (3-2 opinion with Justice Sullivan and Justice Rucker dissenting).

Associated Medical Networks, Ltd. v. Lewis (2005) - “This appeal challenges the trial court's determination that the predominance and superiority requirements of Indiana Trial Rule 23(B)(3) were satisfied for purposes of maintaining a class action. Concluding that predominance was not established, we reverse the class certification.”

Criminal cases

Hopkins v. State, 759 N.E.2d 633 (Ind. 2001) - “Here, we find that the trial court clearly erred by failing to instruct the jury on the specific intent necessary to establish accomplice liability for attempted murder. Final instructions 10 and 11 informed the jury of the state of mind that generally is required to convict a defendant of a crime based on accomplice liability. But these instructions did not inform the jury that in order to convict, it was required to find that Defendant intended to kill Martinez when he took the steps that helped Edward to kill him.”

Court of Appeals

Civil cases

Ashby v. Davidson (2010) - In a legal practice case, the Court of Appeals concluded: “It seems to us that the purpose behind the notice provision at issue here has more to do with the ability of the carrier to investigate and defend against claims in a timely manner than with the ability of a carrier to deny coverage because actual notice was supplied by the wrong individual, i.e., ‘gotcha.’ We decide as a matter of law that the actual notice Bar Plan received from the Clients was proper.”

White-Rodgers v. Kindle (2010) - “Consequently, because White-Rodgers had already produced all non-privileged materials pursuant to the underlying discovery orders, the trial court abused its discretion when it imposed sanctions, and we reverse and remand for the continuation of the underlying litigation.”

In re Marriage of Tamika (B.) H. (2010) - “The record supports a finding Mother was in contempt of the May 2007 parenting time order, and therefore, the trial court's judgment is affirmed in that regard. However, the trial court abused its discretion in awarding Father attorney fees. Therefore, we reverse the award of attorney fees and direct the trial court to clarify how the parties are to determine Father's weekend for parenting time.”

Cook v. Ford Motor Co. (2009) - “Although a jury may very well find for Ford with regard to the breach of its duty to warn or the proximate cause of Lindsey's injury, we cannot say that the designated evidence leads to but a single inference so as to render the issues questions of law, not fact. Ford failed to negate an element of the Cooks' failure to warn claim as a matter of law, and summary judgment was therefore inappropriate. Accordingly, the trial court's grant of summary judgment to Ford on the Cooks' failure to warn claim is reversed and this case is remanded for further proceedings.”

Reilly v. City of Indianapolis (2009) - “While Grady argues that it is undisputed that it did not own the truck or place the pile of rocks and debris in the roadway, both of which Mitch claimed obstructed his vision, the designated materials do not establish this fact. Mitch's deposition testimony establishes that he did not know if the pile of rocks was placed there by Grady or if the truck obstructing his view was owned by Grady. Grady bore the burden under Jarboe to demonstrate that Mitch, the party bearing the burden of proof at trial, cannot prevail as to a determinative issue. This Grady has failed to do. The trial court erred in granting Grady's motion for summary judgment.”

Gibson v. Ind. Dep’t of Corrections (2008) - “Therefore, we conclude that the court's preliminary injunction should apply only to members of the subclass represented by Wade. Such members are violent offenders who are or will be more than ten years removed from the later of the date they were released from prison, placed on parole or probation, or placed in a community corrections, and who are not sexually violent predators, were not convicted of an offense while over the age of eighteen against a victim less than twelve, and have not been convicted of two or more unrelated offenses under Indiana Code Section 11-8-8-5 (a). To the extent that the trial court's order would grant a preliminary injunction against lifetime registration for all violent offenders, we reverse and remand with instructions to clarify the preliminary injunction consistent with this opinion. In all other respects, we affirm the trial court.”

Curtis v. Roob (2008) - “In light of the purpose behind the Medicaid fair hearing regulations-to ensure that applicants have an opportunity to present evidence supporting their claims for benefits-and the authority to the effect the ‘de novo hearing’ required by the regulations is one where additional evidence may be received, we cannot say the facts alleged in the complaint are ‘incapable of supporting relief under any set of circumstances.’ The complaint therefore should not have been dismissed and we must accordingly reverse.”

Commissioner of Labor ex rel. Murphy v. Shree Ji Bava, LLC (2008) - “The Commissioner has made a showing of prima facie showing that he is entitled to $1,774.50 in attorney fees and appellate attorney fees. We reverse and remand.”

McDonough v. McDonough (2007) - “The trial court properly entered judgment in favor of the Estate. However, although the trial court's decision to award prejudgment interest to the Estate was proper, we reverse and remand with instructions to recalculate the judgment in a manner consistent with this opinion because the trial court also should have awarded prejudgment interest to Nancy on her claims against the Estate.”

Lane-El v. Spears (2007) - “Overall, we find that Lane-El substantially complied with the requirements of service in Indiana Trial Rule 4.6. Lane-El delivered all necessary documents to the clerk of the court for proper summons to be delivered. As an incarcerated prisoner, he was forced to rely on the clerk to ensure the return receipts were delivered. Whether these receipts were ever returned may not be clear from the record, but the summons was apparently effective because counsel for the Police appeared before the trial court.”

Hecht v. State (2006) - “Thus, until Hecht files a claim for refund with the Department of Revenue, ‘the judiciary of this state lacks subject matter jurisdiction over the cause of action.’ Accordingly, we hereby reverse and remand with instructions to the trial court to dismiss Hecht's case.”

Metropolitan Emergency Communications Agency v. Cleek (2005) - “James Cleek (“Cleek”) and Molly Cleek filed a complaint in Marion Superior Court against the Metropolitan Emergency Communications Agency (“MECA”) and its employee, Eric Wright (“Wright”), alleging that Wright's negligent conduct caused injuries to Cleek. MECA and Wright moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to the exclusivity provision of the Worker's Compensation Act. In response, Cleek, a Marion County Sheriff's Deputy, asserted that MECA is an agency of the City of Indianapolis, and not Marion County. The trial court denied MECA's and Wright's motion to dismiss. Concluding that MECA is an agency of Marion County, we reverse and remand.”

Price v. Freeland (2005) - “In sum, we hold that no genuine issue of material fact exists regarding two elements of Freeland's legal malpractice claim against Price, namely, proximate cause and damages. As such, the trial court erred when it denied Price's summary judgment motion. We reverse and remand with instructions to enter summary judgment in favor of Price.”

Criminal cases

Craun v. State, 762 N.E.2nd 230 (Ind. Ct. App. 2002) - “Even if the challenged testimony was relevant to a matter other than propensity, its negligible probative value was substantially outweighed by the danger of unfair prejudice under Evidence Rule 403. The testimony of E.W. and D.D. served only to demonstrate Craun's criminal propensity and did nothing to assist the jury in deciding a matter at issue vis-à-vis his alleged molestation of H.D.”

Hopkins v. State, 747 N.E.2d 598 (Ind. Ct. App. 2001) - “We find that Hopkins' convictions of robbery as Class A felonies should be reduced, pursuant to double jeopardy grounds, to Class B felonies. We remand to the trial court for reduction of those convictions, and for resentencing consistent with this opinion.”

Taylor v. State, 735 N.E.2d 308 (Ind. Ct. App. 2000)
- “Taylor argues that the trial court's finding of T.'s unavailability was improper because it lacked the statutory requirement of “testimony from a physician, psychiatrist or psychologist stating that [T.] ... would suffer serious emotional distress of being unable to communicate if made to testify in the Defendant's presence.” Taylor contends the erroneous admission of T.'s statement requires the reversal of his conviction for criminal deviate conduct as to T. We agree.”

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Vacancy on Supreme Ct

Courts - "Court Under Roberts Is Most Conservative in Decades"

Adam Liptak reports in a lengthy, front-page NY Times story today on the Roberts Court. A sample:

Chief Justice Roberts, 55, is settling in for what is likely to be a very long tenure at the head of a court that seems to be entering a period of stability.

If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.

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

Ind. Courts - Evansville church, diocese sued for alleged rape cover-up

The Washington Indiana Times-Herald has a very long story with that headline, dated July 24, 2010, and reported by Nate Smith. It begins:

A recently-filed civil lawsuit alleges that the Evansville Catholic Diocese, the Catholic Community of Washington and other Catholic officials tried to cover up a 2007 rape at the former St. Mary’s School and advised the victim take a “morning after” drug.

The suit, filed last year but only made known recently to the Times-Herald, alleges church officials tried to convince a 23-year-old and her mother there was not a rape, but consensual sex.

The church, in its response to the suit, has denied the allegations and said the sex at St. Mary’s was consensual and no one suggested the emergency contraceptive. The Catholic Church doctrine says the drug, among other forms of contraception, is against its beliefs.

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Indiana Courts

Ind. Gov't. - "Lawmakers warned to prepare now for major health-care changes"

Deborah Yetter of the Louisville Courier Journal reports from the meeting of the National Conference of State Legislatures. The lengthy story begins:

The new federal health-care reform law means dramatic changes for states that lawmakers need to prepare for now — even though the major provisions don't take effect until 2014.

That was the message to lawmakers from around the country who were in Louisville Sunday during the opening day of the National Conference of State Legislatures.

“You are already behind the eight-ball,” Utah House Speaker David Clark told fellow lawmakers at a health summit, part of the four-day conference. “There is no time to waste.”

Cindy Mann, a top official with the U.S. Department of Health and Human Services, said the federal law will reshape Medicaid, and lawmakers need to be ready for changes that will add millions of additional people to the program within four years.

“2014 is today,” she said. “There are so many critical decisions to be made.”

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Indiana Government

Courts - "Piloting E-Discovery Rules in the 7th Circuit"

Jason Krause reports at Law.com today in an article that begins:

Magistrate Judge Nan Nolan of the U.S. District Court for the Northern District of Illinois had a long background as a criminal defense attorney before becoming a judge. She says that her background left her unprepared for the battles over discovery of electronic evidence she has encountered in the world of civil litigation. "I was not able to get my arms around all of the fighting over discovery," she says. "I know that some people have snickered about this idea that you can get lawyers to make nice and cooperate on discovery. But I believe it is possible."

Under the leadership of Chief Judge James F. Holderman, Nolan has helped launch a pilot program to address electronic discovery issues: 7th Circuit E-Discovery Pilot Program. Taking their cues from, among other sources, the Sedona Conference Cooperation Proclamation, the 7th Circuit E-Discovery Committee is attempting to fix some of the most intractable discovery problems in litigation.

Amendments to the Federal Rules of Civil Procedure put in place at the end of 2006 were supposed to force lawyers to meet and hash out discovery issues early. However, Nolan, Holderman and other judges are frustrated that despite the rule changes, electronic discovery continues to be an expensive and inefficient process in need of reform. "The central premise of the 2006 amendments is to meet and confer with the other side and settle issues early," says Magistrate Judge John Facciola of the U.S. District Court for District of Columbia. "The fact that this project exists suggests that the hopes have not been fully realized."

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Indiana Courts

Ind. Law - "Jeff Modisett: Public Profile"

Speaking of "catch-up," the Los Angeles Business Journal today has a feature on former Indiana attorney Jeff Modisett, reported by Alfred Lee. A quote from the long Q&A:

[H]e was elected prosecutor of Marion County in his native Indiana in 1991 and was soon in charge of the prosecution of Mike Tyson for the rape of 18-year-old Desiree Washington. Modisett was elected Indiana’s attorney general in 1996. These days, he’s a partner in the Santa Monica offices of Bryan Cave LLP, where he advises large corporations on how to work with state attorneys general when they’re facing legal issues.

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to Indiana Law

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

As noted in this entry July 16th, headed "Sadly, no more ILB on weekends or holidays," the ILB will no longer be updated on weekends or holidays because of financial issues.

Sustaining the Indiana Law Blog requires a far higher level of support than the ILB has been able to achieve to date. This is a serious matter that the blog is now facing.

I hate having to post these entreaties, but the situation is what it is.

If you follow the ILB to keep up with developments in Indiana law, or use its archives when researching a question, think about life without the ILB.

If that concerns you, then please -- you individually, your practice group, your firm, your company or your assiciation -- sign on as an annual ILB supporter yet this month.

Review the Supporter Application for more information.

BTW, in case you are wondering, so far this plea has had little effect . . .

Although there were no weekend entries, I did, as with last week, keep track of the weekend's stories of interest. For now.

Here, in no particular order, are some stories published over the weekend that I normally would have written about:

Posted by Marcia Oddi on Monday, July 26, 2010
Posted to About the Indiana Law Blog | Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/26/10):

Thursday, July 29th

Next week's oral arguments before the Supreme Court (week of 8/2/10):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/26/10):

Tuesday, July 27th

Wednesday, July 28th

Next week's oral arguments before the Court of Appeals (week of 8/2/10):

Next Wednesday, August 4th

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, July 26, 2010
Posted to Upcoming Oral Arguments

Friday, July 23, 2010

Law - "Holder: New Rules For Disabled Access Coming"

Channing Turner reported yesterday in Main Justice in a story that begins:

The Justice Department will soon be seeking comment on four proposed rules to establish accessibility requirements for websites, movies, equipment and furniture, and 911 call-taking technologies, Attorney General Eric Holder said Wednesday at an event commemorating the 15th anniversary of the American Association of People with Disabilities.

Holder spoke as part of the Justice Department’s week honoring the 20th anniversary of the Americans with Disabilities Act, known as the ADA. He pledged “aggressive and appropriate” enforcement of the landmark disabilities law — both in communities and the department itself.

Posted by Marcia Oddi on Friday, July 23, 2010
Posted to General Law Related

Ind. Courts - "Crack analysis on Ind. Supreme Court race"

Jon Murray, at his Indy Star blog, Justice Watch, this afternoon recommends Prof. Schumm's coverage on the ILB. Nice.

Posted by Marcia Oddi on Friday, July 23, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Still more on: "IHSAA faces Title IX lawsuit over scheduling: Former coach claims inequity in nights girls and boys basketball games are played"

Updating this ILB entry from 7/21/2009, Nat Newell reports today in the Indianapolis Star, in a story that begins:

Tammy Hurley filed a Title IX lawsuit in federal district court in Indianapolis on Monday on behalf of her daughter against Franklin High School, its girls basketball opponents and the Indiana High School Athletic Association, Hurley's lawyer, William R. Groth said.

Title IX is the 1972 federal statute that prohibits discrimination on the basis of gender by institutions that receive federal money. The suit challenges the scheduling differences between boys and girls basketball teams, with boys playing more games Friday and Saturday nights and girls more weekday evening games.

Former Franklin coach Amber Parker previously had filed a similar suit, but her husband, Jason Parker, is being transferred to Massachusetts, which likely will end her Title IX case.

"(This) would prevent the Title IX claims from becoming moot when Amber and her family moves to Massachusetts as there would continue to be a live controversy involving the Hurley daughter over the gender-based discriminatory scheduling as she will be a junior this year and plans, again, to play girls varsity basketball," Groth said in an e-mail.

Hurley's case has been assigned to Judge Jane Magnus-Stinson, but Groth requested it be consolidated with the Parker suit, which is being presided over by Judge William Lawrence. A summary judgment decision is expected within the next four months.

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

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In David K. Murphy v. State of Indiana , a 6-page opinion, Judge Crone writes:

David K. Murphy appeals the trial court’s decision denying him educational credit time. Murphy contends that the trial court is the proper authority to determine whether to grant educational credit time for receiving his general educational development (“GED”) diploma prior to sentencing. We agree with Murphy and therefore reverse and remand for further proceedings consistent with this opinion. * * *

The statute does not specify the authority that makes the initial decision with respect to a request for educational credit time. Murphy relies on Tumbleson v. State, 706 N.E.2d 217 (Ind. Ct. App. 1999), in which the court assumed that the trial court was the proper authority for determining whether the defendant was entitled to a six-month reduction in his sentence for earning his GED while in custody pending trial. * * *

Murphy further argues that the trial court should have granted him educational credit time because there was no evidence presented that he had not demonstrated a pattern of behavior consistent with rehabilitation. See Tumbleson, 706 N.E.2d at 219. The State responds that Murphy did not demonstrate a pattern consistent with rehabilitation because there were six allegations of misconduct during his confinement.

Because the trial court denied Murphy’s request for educational credit time based on its belief that it did not have the authority to consider that request, the issue of whether Murphy demonstrated a pattern consistent with rehabilitation was never addressed. Therefore, we reverse and remand for further proceedings consistent with this opinion.

NFP civil opinions today (2):

Kyla Phillips v. Hook-SuperX, Inc. (NFP)

Thomas Christman v. Matthew Christman (NFP)

NFP criminal opinions today (10):

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

Willie L. Jackson v. State of Indiana (NFP)

Jimmy Yarbrough v. State of Indiana (NFP)

Frank Guajardo v. State of Indiana (NFP)

Shawn M. Swartout v. State of Indiana (NFP)

James E. Jennings v. State of Indiana (NFP)

Anthony Franklin v. State of Indiana (NFP)

James Ingersoll v. State of Indiana (NFP)

Wesley Smith v. State of Indiana (NFP)

Khalid M. Jackson-Bey v. State of Indiana (NFP)

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

Ind. Decisions - Decision from yesterday now posted by Tax Court

In Indiana Dept. of State Revenue, Inheritance Tax Division v. Estate of Katherine S. Boehle, Deceased, an 11-page opinion, Judge Fisher writes re a special needs/disability trust:

The Indiana Department of State Revenue, Inheritance Tax Division (Department) appeals the Marion Superior Court Probate Division's (probate court) denial of its motion to correct error. The issue for review, as restated by the Court, is whether the probate court erred in determining the Estate's inheritance tax liability. * * *

The Trust in this case is similar to other special needs/disability trusts in that it was designed to ensure that Dale's income interest (i.e., the income he may receive) would not prohibit his access to either private or public assistance benefits. See, e.g., State v. Hammans, 870 N.E.2d 1071, 1080 (Ind. Ct. App. 2007) (explaining that disability trusts are created to serve two purposes: 1) to benefit certain Medicaid recipients; and 2) to provide such recipients with supplemental care increasing the quality of their lives “after assistance from governmental and private agencies has been exhausted, and not to replace such assistance”). This does not mean, however, that Dale's interest in the Trust was perpetually set at zero; rather, it means that his interest in the Trust fluctuated and would be zero (i.e., he would not receive a disbursement) when income received would render him ineligible for federal/state aid. [cite omitted] Accordingly, on the date of Katherine's death, the precise value of each of the beneficiary's interests in the Trust was not readily ascertainable because their interests were contingent on the occurrence of other events and factors. Therefore, this Court cannot say that the probate court erred when it determined the Estate's inheritance tax liability under Indiana Code § 6-4.1-6-4.

For the above stated reasons, the Court AFFIRMS the probate court's denial of the Department's motion to correct error.

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

Ind. Courts - How have the judges fared? Judge Cynthia Emkes

As explained in the post headed "How Have the Judges Fared?" over the next few days the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Cynthia Emkes's record, from IU Law-Indy Prof. Joel Schumm, is the second of those entries.


Judge Cynthia Emkes has presided over Johnson County Superior Court 2 since July 1987.

A total of 42 cases have been reviewed by a higher court. Judge Emkes was reversed in 14 (or 33%) of those cases. Several reversals involved sentencing claims, including cases where lengthy sentences were reversed as inappropriately long. The Commission asked some trial court judges about reducing sentencing disparities during the first day of interviews, but Judge Emkes, who was interviewed on the second day, was not asked these questions.

Supreme Court

Trusley v. State (2005) - “Of the five aggravators found by the trial court, three were improperly considered. . . . In this case, examining the two properly found aggravators against the three substantial mitigating circumstances found by the trial court leaves us unable to say with confidence that the enhanced sentence should be affirmed on appeal.”

Court of Appeals

Excessive sentences

Kemp v. State (2008) - The Defendant convicted of forgery and other offenses against a church where he worked was sentenced to 32 years (20 in prison; 6 on work release; 6 on probation). Court of Appeals reduced to 16 years “with instructions to decide how Kemp should serve those sixteen years, keeping the goal of monetary restitution to the Church in mind.”

Gibson v. State (2007) - The Defendant pleaded guilty to dealing meth was sentenced to 30 years (15 in prison; 5 on work release; 10 on probation). Court of Appeals reduced to “an aggregate sentence of twenty-two years with eleven years executed, five years on work release, and the remainder suspended to probation.”

Eckstein v. State (2007) - Defendant who worked as a commercial loan officer was sentenced to 28 years (20 in prison; 8 on probation) for stealing nearly $200,000 from a bank to support his compulsive gambling. The Court of Appeals reduced the sentence reduced to 21 years (15 in prison; 6 on probation).

Other Sentencing Claims

Roderick v. State (2009) - “[W]e remand to the trial court with instructions to amend the sentencing order to show that Roderick's habitual offender finding is attached to his underlying possession-of-marijuana conviction and enhances the sentence for that conviction.”

Jett v. State (2008) - Though Jett's total sentence is not inappropriate, we must address, sua sponte, two technical issues concerning the sentence arising from his habitual offender finding. First, “[a] habitual offender finding does not constitute a separate crime nor result in a separate sentence, but rather results in a sentence enhancement imposed upon the conviction of a subsequent felony.” . . . Second, no part of a habitual offender enhancement can be suspended.”

Other Criminal

Muncy v. State (1999) - “Because Muncy did not have an opportunity to cross-examine Wooldridge about whether he made the statement, we hold that the trial court erred in allowing the admission of Cox's testimony about Wooldridge's alleged identification statement.”

Civil Cases

Dewbrew v. Dewbrew (2006) - “Based on the foregoing, we find that the trial court erred in its refusal to set aside the property settlement and custody agreement.”

Hardin v. Hardin (2003) - Concluding with “what the trial court found was that there was a contract between Annette, Mike and David for Annette and Mike to purchase the land from David at a specified price. The trial court did not expressly find that Mike had made a judicial admission abandoning his interest in that regard. Therefore, the property should be conveyed, consistent with the contract, to both Mike and Annette for $4,000 an acre upon the payment to David of the purchase price in full. Accordingly, we affirm the trial court's order that David sell the property but reverse the order that the sale be to Annette alone.”

Johnson County Plan Comm’n v. Tinkle (2001) - “The citizens of Johnson County, through their elected officials enacted an ordinance to prevent land ‘from being completely taken over by small lots and encroached upon by urban sprawl.’ Although the Tinkles suggest that the “public interest” is threatened by allowing the Commission ‘to arbitrarily change its practice and procedure without prior notice to the public,’ it is clear that the only interest threatened here belongs to the Tinkles. Applying equitable estoppel against the Commission would give no benefit to the public but rather would cause a direct harm by allowing the creation of yet another subdivision.”

Frazier v. Frazier (2000) - “In light of the foregoing, we reverse the portion of the trial court's order characterizing the judgment payable to Sandra as non-dischargeable maintenance or support. We affirm the trial court's determination that an education support order is appropriate. However, we remand this matter to the trial court with instructions to determine what amount, if any, of the value of Oak Outlet, Inc. must be excluded from the marital estate as the personal goodwill of Mark. We further instruct the trial court to delineate appropriate limitations upon the education support order.”

4-D Buildings, Inc. v. Palmore (1997) - “Accordingly, Kennel's payment into court did not constitute a proper tender which served to cut off the further accumulation of prejudgment interest. Therefore, we reverse and remand with instructions that the trial court award Builder an appropriate amount of additional prejudgment interest.”

Gaskin v. Beier (1993) - “An injunction is an extreme remedy which should be granted with caution. Gaskin's simultaneous service as trustee and deputy marshal does not violate the Indiana Constitution nor is it prohibited by statute.”

Hudgins v. McAtee (1992) - “Because McAtee was engaged in the activity of administrating detainees, including Hudgins, in the county jail, he is not immune from liability under the Tort Claims Act. Therefore, we reverse and remand this case with instructions to reinstate Hudgins' complaint.”

Posted by Marcia Oddi on Friday, July 23, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Indiana jury instructions recast in plain English"

To the ILB, this is a good story and a bad story. Here is yesterday's press release from the Indiana Courts. Here is the beginning and end of the release:

The Indiana Model Civil Jury Instructions, written in plain English, are now available through LexisNexis. The new instructions were prepared by the Civil Instructions Committee of the Indiana Judges Association (IJA). The IJA is a voluntary association of judges and magistrates created to put forth a coordinated effort toward better and simpler administration of justice and clearer, more uniform procedures in all courts. IJA President, Floyd Circuit Court Judge J. Terrence Cody explained, “The Judges Association is proud to complete this project for Indiana judges and attorneys. It benefits citizens who serve on juries and ultimately our judicial system as a whole because the new instructions are easier to understand.”

With encouragement from Chief Justice Randall T. Shepard and support from LexisNexis, the Civil Instructions Committee hired Elizabeth Francis, PhD who is a Professor of English and Judicial Studies at the University of Nevada at Reno. Dr. Francis is an expert in teaching plain English principles. Plain English involves using the simplest, most straightforward way to express an idea to increase comprehension, compliance, and satisfaction with the jury process. The Committee acknowledges that the new instructions are part of an ongoing process toward increased clarity, while still maintaining the legal meanings of the words used in the instructions.

An example of how the new instructions are clearer can be seen in the instruction on direct and circumstantial evidence. The old instruction used complex terms like “inference,” and “deduction,” and stated, “Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts.”

The new instruction uses plainer terms, stating in part, “Circumstantial evidence is indirect proof of a fact.” The new instruction then gives an illustration: “For example, direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow. On the other hand, circumstantial evidence that an animal ran in the snow might be the testimony of someone who only saw the animal’s tracks in the snow.”

To ease the transition between the old and new editions of the instructions, the Committee also created a disposition table to inform users of the new location of material from the old edition (and a derivation table to detail the origin of the material in each new instruction). Those tables can be found under "Publication Information" in the new online edition. * * *

The Indiana Judges Association publishes the instructions only through LexisNexis, making them available to those with a Lexis.com subscription. In late August or early September the instructions will also be available in book format to Lexis subscribers and at law libraries that carry the book, such as the Indiana Supreme Court library. The Indiana Judicial Center will present two educational sessions for judges and judicial officers in Indianapolis in September, and the Indiana Judges Association will present seven continuing legal education sessions for attorneys around Indiana in October.

Available only "to those with a Lexis.com subscription." That excludes many of us. A reader wrote:
We want the language to be accessible to all--but not the actual instructions apparently. What next: having the Indiana Code exclusively on Lexis?
Surely not. But,as the ILB has reported before, Indiana appellate briefs are available online, but only to Westlaw subscribers -- see this lengthy ILB entry from Nov. 3, 2009, discussing Indiana's arrangement to provide appellate briefs to Westlaw so that it may then sell them to subscribers.

And there is the longtime arrangement, which I believe began with the abolition of the office of Reports of the Courts several decades ago, whereby "Official copies of opinions are available from West (Thomson/Reuters)." Those posted online are not official (although at least they are available).

I had hoped that we were moving away from such arrangements that put the control of public documents exclusively in private hands.

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

Ind. Gov't. - "State budget makers avoid analyzing cuts"

Here is part of a long letter state Rep. Ed DeLaney (D-Indianapolis) wrote for the Fort Wayne Journal Gazette:

I’m a new member of the state budget committee. I have begun to look carefully at several agencies and organizations to determine the impact of the cuts that they have endured.

It is difficult to obtain this information. It appears as though the administration simply chose to cut every agency across the board with but a few exceptions. Thus, no reported or visible effort was made to determine which services are the most critical or which can best handle what we hope will be a temporary reduction. The administration has expressed anger where an agency chose to cut something that the administration likes, as if it had no responsibility.

I have never worked for any organization that could simply cut across the board in times of financial difficulty. It has been my uniform experience that effective leaders will choose to cut the least important services and/or those that can suffer a temporary cut well.

Indiana appears to have cut only a few groups more than 15 percent. Public television is one example. It appears to be out of favor.

The poverty of our political discourse and the failure to discuss the third group of questions (how to make the best of a bad situation) has been highlighted in two recent discussions. These dealt with the critical questions of Indiana’s adaptation to the new federal health care law and whether we can find savings in the cost of health insurance purchased for school district employees.

The administration has basically taken the view that the federal health care law is unacceptable across the board and apparently wishes it would simply go away. Yet the same law provides incentives to states that find creative solutions to the cost of health care and gives us opportunities to set up our own insurance exchange to help Hoosiers who might not be able to get insurance through their employers.

I recently was stunned to learn that we are not making the effort to apply for all the grants available to Indiana under the new health care law. We can hardly benefit from opportunities if all we do is to choose to complain.

We’ve also recently been exposed to the fact that having some 270 school districts negotiate their own health insurance contracts is proving costly. That shouldn’t be a shock to anyone.

Unfortunately, the first group, the conservatives, talks only of how much we must cut while the more traditional liberals talk only of feared reductions in benefits. Only passing mention is made of the difficult choices we face: Do we want to lay off teachers to preserve the current benefit structure with all of its attendant costs? If we are to put teachers on the state health insurance plan, is that plan adequate as designed? Can we continue to complain about the new federal health care law and not plan to implement it and perhaps even benefit from it?

These latter questions are the difficult questions. They resemble the choices parents, those planning retirement and our employers are facing every day. I’m tired of avoiding these questions at the Statehouse.

The people I see at their front doors want me to face these questions. They want to know where we can save and where we must spend and how to get the best balance under the current circumstances. I suggest that we all get down to work.

Here is a long list of earlier ILB entries on the budget cuts issue.

Posted by Marcia Oddi on Friday, July 23, 2010
Posted to Indiana Government

Environment - Lt. Gov. Skillman: believes it is possible to "develop wind power opportunities while preserving industry and the natural beauty of Lake Michigan."

Dan Carden of the NWI Times reported yesterday:

Lt. Gov. Becky Skillman said Wednesday that the Indiana Office of Energy Development and state environment and natural resources officials are working to figure out how to site wind turbines in Indiana's portion of Lake Michigan.

"We have the potential to develop several thousand megawatts of on-shore or off-shore wind, and that's thanks to our unique position as a land-locked state bordering a Great Lake," Skillman told more than 500 participants at the third annual WIndiana wind power conference in Indianapolis.

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

Courts - "But it's getting hard to find politicians willing to set partisanship aside. So when there's an example of one who does, and who has for decades, it's worth pointing out."

So writes Matthew Tully of the Indianapolis Star today in a column that begins:

Sen. Richard Lugar's statement about the latest U.S. Supreme Court nominee landed in my inbox midafternoon Wednesday. Lugar being Lugar, the statement not only was filled with common sense but also lacked the partisan silliness that has overtaken politics of late.

He wrote that Elena Kagan was "clearly qualified to serve on the Supreme Court" and "is well regarded by the legal community and her peers." He said he'd studied her testimony, her background and the response to her nomination from Indiana voters.

And then he became just the second Republican senator to announce his support for Kagan's nomination.

These days, even two senators crossing over on any big vote in D.C. counts as an example of bipartisanship. Of course, it's no surprise that Lugar is one of the few willing to put politics aside and not obsess over how each vote might affect the next election. A record of doing just that explains why even many people who don't agree with his positions hold him in the type of lofty regard that eludes most politicians.

Posted by Marcia Oddi on Friday, July 23, 2010
Posted to Courts in general

Thursday, July 22, 2010

Ind. Decisions - "May Child’s Grandfather Adopt the Child, While the Child’s Mother Retains Her Parental Rights?"

Prof. Eugene Volokh picks up on In re Adoption of A.M.; M.M. v. M.M. & A.C., a 2-1 decision yesterday by the Indiana Court of Appeals - ILB summary here.

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

Ind. Courts - How have the judges fared? Judge Steve David

As explained in the post earlier today headed "How Have the Judges Fared?" over the next few days the ILB is examining the records on appeal of the four trial judge semi-finalists for the Supreme Court vacancy. This feature on Judge Steve David's record, from IU Law-Indy Prof. Joel Schumm, is the first of those entries.


Judge Steve David has presided over the Boone County Circuit Court since January 1995.

Of the 33 cases reviewed by a higher court, Judge David was reversed in 6 (or 18%). The only reversal in a criminal case was Azania, a death penalty case in which he was appointed as special judge. The remaining reversals were all in civil cases.

Supreme Court

State v. Azania (2007) - “In prior proceedings, this Court affirmed Zolo Agona Azania's conviction for the 1981 murder of a Gary police officer but set aside the recommendations of two juries that he should receive the death penalty. The trial court has now ruled that, given circumstances caused by the long delay in this case, Azania's constitutional rights to a speedy trial and due process would be violated if the State continues to seek a death sentence. We find that neither the delay nor any prejudice that Azania may suffer from it violates his constitutional rights. The State may continue to seek the death penalty.” (3-2 opinion with Justices Boehm & Rucker dissenting)

Court of Appeals

Phillips v. Delks (2008) - “Because Wife did not submit any evidence in support of her request [for damage Husband allegedly caused to her credit], the trial court abused its discretion in awarding her $25,000.00. We therefore reverse the damages award.”

Paulsen v. Malone (2008) - “We conclude that the trial court lost its power to rule on the motion to correct error on July 18, 2007. As a result, the amended final judgment entered on August 3, 2007 is void. The original judgment entered on October 16, 2006 controls.”

Ind. Dep’t of Env. Mgmt v. Boone County Resource Recovery Systems (2004) - “In sum, IDEM did not abuse its broad discretion when it found that the Bankerts had knowingly and repeatedly committed environmental violations based on the evidence of violations committed by NSLI, BFI, and BCRRS. And the OEA did not err when it granted summary judgment in favor of IDEM. We hold that the trial court erred when it reversed the OEA's grant of summary judgment.”

Hudson v. Davis (2003) - “We recognize that the Hudsons face a considerable burden at trial, at which they will be required to present clear and convincing evidence rebutting the presumption of undue influence. Summary judgment, nevertheless, should not be used as an abbreviated trial, even where the proof is difficult or where the court may believe that the non-moving party will not succeed at trial.”

In re Witham Memorial Hospital (1999) - The communications between counsel for the Hospital and an investigator hired by counsel to investigate allegations against the Hospital were protected from disclosure by the attorney-client privilege and the privilege was not waived by the release of statements summarizing the results of the investigation. The trial court abused its discretion in ordering production of the report, and its order is reversed.

Posted by Marcia Oddi on Thursday, July 22, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: Nominations open for "Excellence in Public Information and Education" awards

Re this ILB entry yesterday, where I wrote:

I wrote to Kathryn Dolan, Indiana Supreme Court, Public Information Officer, as soon as I saw the notice early this morning, asking if blogs are eligible, as they are not mentioned.
Ms. Dolan has responded that they would be very pleased to have blog nominations:
The language should probably be rewritten to include blogs, bloggers and other new/multimedia venues. Thank you for noticing the language is exclusionary rather than inclusive.

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

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

For publication opinions today (2):

In Daniel A. Donald v. State of Indiana , an 8-page opinion, Judge Crone writes:

Daniel A. Donald appeals the trial court's denial of his request for a competency evaluation prior to his probation revocation hearing. Donald contends that he was entitled to a competency evaluation pursuant to Indiana statute and the Due Process Clause of the United States Constitution. We disagree with Donald's statutory argument, but we agree that the Due Process Clause may warrant a competency evaluation prior to a probation revocation hearing. Therefore, we reverse and remand for further proceedings consistent with this opinion. * * *

Here, the trial court's denial of Donald's request for a competency evaluation was based on the assumption that Donald did not have standing under Indiana Code Section 35-36-3-1 to request a competency evaluation. Although Donald did not have a right to a competency evaluation under Indiana Code Section 35-36-3-1, he did have a due process right to a competency evaluation prior to his probation revocation hearing if it was warranted. In the trial context, it is within the sound discretion of the trial court whether reasonable grounds exist to order a competency evaluation, and that decision will be reviewed only for an abuse of discretion. Cotton v. State, 753 N.E.2d 589, 591 (Ind. 2001). Here, the trial court did not reach the issue of whether there were reasonable grounds for a competency hearing. Regardless, the trial court was put on notice, given Donald's attorney's oral request for the competency evaluation based on the thirty-minute consultation and Donald's previous medical history, that further inquiry may have been warranted. Moreover, the State acknowledged that Donald was suffering from some kind of condition but was unaware of the details. Since the trial court denied Donald's request for a competency hearing based on its belief that he did not have standing, the issue of whether or not reasonable grounds existed to order a competency evaluation was never addressed. Donald should be allowed to address that issue. Therefore, we reverse and remand for further proceedings consistent with this opinion.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, a 4-oage opinion on a petition for rehearing, Judge Robb writes:
J. John Marshall and Marjorie Marshall have petitioned for rehearing of this court’s decision in Marshall v. Erie Ins. Exch., 923 N.E.2d 18, 25 (Ind. Ct. App. 2010), in which we held, inter alia, the Marshalls had a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the condition of trees on their property and further held they had breached that duty. We grant the petition for rehearing for the sole purpose of addressing certain claims raised by the Marshalls, but affirm our opinion in all respects.
NFP civil opinions today (2):

Term. of Parent-Child Rel. of S.H.; A.W. v. I.D.C.S. (NFP)

Bruce Gunstra v. Salin Bank and Trust Company (NFP)

NFP criminal opinions today (2):

Trevor Brieger v. State of Indiana (NFP)

Anthony Phillips v. State of Indiana (NFP)

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

Ind. Decisions - Interesting 7th Circuit opinion out of Illinois

The 12-page opinion by CJ Easterbook, in the case of FM Industries v. Citcorp begins:

FM Industries sued Citicorp Credit Services for copyright infringement. The copyrighted work is computer software—“The Ultimate Collection and Network Software” or TUCANS—designed to help lawyers to collect debts and lenders to monitor how its lawyers are doing. The suit also named the Law Offices of Ross Gelfand, LLC, contending that it continued using the software after Citicorp dropped its license and told outside lawyers to stop using TUCANS. (There were still more defendants, whose dismissal, see 2007 U.S. Dist. LEXIS 90129 (N.D. Ill. Dec. 5, 2007), is no longer contested.) The “copying” in question is the transfer of software from a computer’s hard disk to its random access memory, without the permission of the copyright proprietor. Citicorp licensed the TUCANS program, but FM Industries contends that Citicorp did not pay the agreed price and induced its outside debt-collection lawyers to go on using the program (thus making extra copies in computers’ memory) after the license expired.

The district court dismissed FM Industries’ request for damages because it failed to register the copyright until 2007. “Statutory damages” are available only for infringement after registration, and then only if the registration occurred within three months of the work’s publication (2004 for this version of TUCANS). 17 U.S.C. §412; see also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010). FM Industries never tried to show actual damages. See 2008 U.S. Dist. LEXIS 3575 (N.D. Ill. Jan. 14, 2008). That left questions about prospective relief. Defendants contended that Michael Friedman (FM Industries’ president and principal shareholder) owns the copyright as the recipient of assets from FM. Ware Industries, Inc., when it dissolved in 2004. This would imply that the suit must be dismissed under Fed. R. Civ. P. 17(a), because not filed in the name of the real party in interest. Defendants also maintained that no infringement was ongoing or in prospect. The district judge concluded that material disputes prevented summary judgment on those questions and set the case for trial. 2008 U.S. Dist. LEXIS 20670 (N.D. Ill. Mar. 17, 2008). * * *

Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local Rule 16.1 Appendix (“Standing Order Establishing Pretrial Procedure”) Instruction 6. The plaintiff’s lawyer is supposed to produce a draft, which serves as the basis of discussion and modification. Wayne D. Rhine, the principal counsel for FM Industries, did not complete this task on time. When he finally produced a draft, it was egregiously non-compliant. (The problem here, and in much else that went wrong with the case, is that Rhine allowed Friedman, a non-lawyer, to draft many of the papers that were filed over Rhine’s name. Rhine insists that he did not simply rent out his law license but instead reviewed and edited the documents before filing them. We accept that representation, but it also means that Rhine, who resumed legal practice in 2006 after 24 years as a judge of the Circuit Court of Cook County, Illinois, bears the responsibility for amateurish and absurd filings.)

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

Environment - More on "Indiana lawmakers were the only ones in the country to take campaign donations from BP last month"

Updating this ILB entry from yesterday, which focused on NW Indiana legislators, Mary Beth Schneider of the Indianapolis Star has a lengthy story today headed "BP's PAC sent its June checks to Indiana lawmakers." Some quotes:

When petroleum giant BP's employee political action committee decided to hand out $23,700 in campaign contributions in June, the checks all had one destination: Indiana.

Seventy-nine state legislators and one state Senate candidate -- 43 Democrats and 37 Republicans -- have either received the money from the BP Corporation North American Political Action Committee or their check is in the mail.
Advertisement

BP's business focus in this state is on Northern Indiana, including Whiting, where it is working on a $3.8 billion expansion of its refinery, and Fowler, where BP operates the largest wind farm east of the Mississippi.

But the PAC's focus is all over the state map. The money went not only to lawmakers in Northwest Indiana, but also to lawmakers in Central Indiana and as far south as Vincennes and as far east as Fort Wayne.

With the taint of the Gulf of Mexico oil spill tarring more than just coastal beaches, however, some politicians don't want the money. Many of the lawmakers contacted said they will not accept it -- even though many have received and kept campaign contributions from BP in past years.

Posted by Marcia Oddi on Thursday, July 22, 2010
Posted to Environment | Indiana Government

Ind. Gov't - Tippecanoe County Area Plan Commission. tweaks wind turbine rules

Justin Mark reports today in a long story in the Lafayette Journal Courier in a long story that begins:

After a modification and nearly two hours of heated discussion, a controversial amendment to the county's wind energy ordinance was recommended for approval Thursday by the Tippecanoe County Area Plan Commission.

The commission voted 9-1 in favor of the changes after hearing several residents and wind farm developers step out of the crowd of more than 100 to have their say.

Even after the vote, public opinion on the pros and cons of possible future wind farms in Tippecanoe remained intense.

"It divides the community," said Jim Pairitz, who lives near West Point. "I don't like being looked at funny by my neighbors, and I don't like looking at my neighbors funny. I think everyone deserves to be considered fairly."

Wednesday's approved amendment dealt with the issue of setback requirements for proposed wind turbines and the regulation of meteorological towers used for testing atmospheric conditions.

The amendment was altered to state that wind turbines must be placed at least 750 feet away from the property line, and 1,200 feet from a dwelling owned by someone who has not agreed to allow a company's turbines to be built on his or her property.

The setback requirement was eliminated for landowners who have allowed construction of turbines on their properties.

The original setback requirements being considered would have put the turbines at least 1,000 feet away from the property line of non-participating landowners, and 1,000 feet from the dwelling of a participating landowner.

"I believe that (participating landowners) have a contract with developers and we shouldn't be regulating that," said Dave Byers, the commission member who proposed the changes to the amendment.

Prior to Wednesday's vote, tensions were high among residents both for and against bringing turbines to Tippecanoe County.

See also this photo of the crowd listening to speakers at the meeting.

Posted by Marcia Oddi on Thursday, July 22, 2010
Posted to Environment | Indiana Government | Indiana Law

Ind. Courts - How have the judges fared?

Last week the ILB looked at the appellate advocacy of the three semi-finalists for the vacancy on our Supreme Court who have argued one or more cases before the Court. Today IU Law-Indy Prof. Joel Schumm has prepared this introduction for some upcoming entries on the four trial judge semi-finalists.

The four trial judge semi-finalists have served an average of seventeen years during which many of their cases have been appealed to the Indiana Court of Appeals and occasionally to the Indiana Supreme Court. The appellate response to their rulings provides interesting and useful information about adherence to precedent and the extent to which a semi-finalist’s views may differ from the present appellate judiciary. Each of the four upcoming entries will include a reversal percentage and summaries of those cases in which the judge was reversed.

As a general point of reference, over the past five years approximately 22% of cases have been reversed or remanded on appeal. Indigent criminal defendants have an automatic right to appeal at no cost, and the reversal rate is typically around 15%. Civil litigants, who must generally pay the expense of an appeal, pursue appeals less frequently and are more successful with a 37% reversal rate.*

Methodology: I searched the Indiana Cases database of Westlaw for any case associated with the name of the judge. To account for variations in middle initials and shortened names, the following search terms were used: “Steve! /2 David,” “Cynthia /2 Emkes,” “Robyn /2 Moberly,” and Steve! /2 Nation.” Cases in which the judge’s name appears but he or she did not preside were eliminated from the analysis. A case was considered only once; therefore, if transfer was granted, only the Supreme Court opinion was considered.

Entries today and tomorrow will addresses the appellate review of cases from Judge David and Judge Emkes. Entries early next week will discuss Judge Moberly and Judge Nation.
_______
*For more on the overall Court of Appeals reversal numbers, check the annual reports of the Court of Appeals, available here.

Posted by Marcia Oddi on Thursday, July 22, 2010
Posted to Vacancy on Supreme Ct

Courts - "More Strapped Litigants Skip Lawyers in Court "

That is the headline to this story by Nathan Koppel in today's WSt Journal. A few quotes:

A growing number of people have found themselves in court facing costly financial proceedings such as declaring bankruptcy, fighting foreclosure and litigating employment fights. Adding to the challenge, for many: The high cost of legal representation often prompts them to go it alone. * * *

Legal experts say many people are likely losing claims and paying penalties they could have avoided with a lawyer at their side. Litigants often don't understand the sort of evidence they need to present in legal proceedings, said Florida state Judge Claudia Isom.

She said she has seen a jump in people defending against mortgage-foreclosure proceedings without the aid of counsel, for instance, and they are "definitely at a disadvantage."

"People will gather legal information from the Internet, from friends, or leaflets at a courthouse and think, 'I can play checkers, I'm ready,' " said Raymond Brescia, a professor at Albany Law School, who has written about tenants' struggles to afford legal representation. "But when they get to court they realize it's a game of three-level chess, and they don't have the first idea of what's happening."

Ashby Jones of the WSJ Law Blog picks up on the story here.

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

Ind. Decisions - "Legal win to boost DeKalb Eastern’s capital fund income"

Dekalb Co. Eastern Community School District v. Dept. of Local Government Finance, a Tax Court case decided July 20th (ILB entry here), is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

The Indiana Tax Court ruled that the Indiana Department of Local Government Finance wrongly interpreted a formula legislators set to determine a maximum amount that can be raised in property taxes from the capital projects fund levy.

The law sets a base tax rate and then allows it to be adjusted based on assessed value changes. The formula specifically refers to “actual percentage increase” in two places.

But the collective assessed values in the DeKalb Eastern district dropped. Therefore, the district argued a zero value should be used in the formula because there was no increase. The state, though, put a negative number in the formula to represent the decrease in assessed property value.

The court ruling said the best evidence of the legislature’s intent is the wording chosen and noted lawmakers specifically did not use “actual percentage decrease” or “actual percentage of change” in the formula.

The tax court at one point called the Department of Local Government Finance’s reasoning “non-sensical.” * * *

Department of Local Government Finance officials are assessing whether other districts in the state will be affected by the ruling, which can still be appealed to the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, July 22, 2010
Posted to Ind. Tax Ct. Decisions

Wednesday, July 21, 2010

Courts - "With another woman, the SCOTUS can't help but change"

Check out David S. Broder's column for tomorrow's Washington Post.

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

Ind. Courts - More on "Ind. accused of cutting aid to food stamp users" [Now with copy of complaint]

"Indiana changes food stamp policy that drew fire" is the headline to a story posted late this afternoon by Charles Wilson of the AP, following up on earlier stories - see yesterday's ILB entry here. Some quotes:

Indiana will no longer reduce a state grocery benefit paid to hundreds of developmentally disabled people simply because they receive food stamps, the state government announced Wednesday.

Indiana Family and Social Services Administration spokesman Marcus Barlow said state officials decided to change the policy after discussions with the U.S. Food and Nutrition Service.

Advocates and legal experts said the 10-year-old policy was a clear violation of federal law that says food stamps can't be counted against other benefits, and it was the target of a lawsuit filed this month on behalf of a 26-year-old autistic Indianapolis man.

The policy also has been the subject of an investigation and two stories by The Associated Press.

Barlow said the lawsuit and media attention "brought it to our attention, definitely." * * *

Ken Falk, legal director of the American Civil Liberties Union of Indiana, which filed the suit on behalf of Michael Dick, said Dick's lawyers needed to talk with state attorneys before deciding on their next legal step.

"If we're able to resolve it without going any further that would be a good thing," Falk said.

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

Courts - "Pick for Calif. Chief Justice Could Create Court's First Female Majority "

The Recorder is reporting today that:

Calif. Gov. Arnold Schwarzenegger appointed Third District Court of Appeal Justice Tani Cantil-Sakauye to be the state's next chief justice. * * *

She'd give the court a female majority for the first time.

If apporved, she would join three other states with a majority of women on their supreme courts:
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.
That quote is from a story in the ABA Journal quoted in this June 30, 2010 ILB entry.

See also this ILB entry from May 13, 22010 that quotes a National Law Journal story, including:

And state Supreme Courts long have passed the landmark that will occur if Kagan is confirmed: three female justices -- one-third of the nation's high court for the first time.

The center reports that nearly half of state courts of last resort -- 25 of 53 -- already have that level of gender balance, or greater. Women currently constitute 31 percent of all sitting justices on state courts of last resort.

The court of last resort with the highest percentage of women is the District of Columbia Court of Appeals, where six of the nine members, or 67 percent, are women. As of April 1, three states have a female majority on their highest courts: Tennessee at 60 percent, and Wisconsin and Michigan, both at 57 percent. All three of these states have a female chief justice. Nationwide, women head 20 of the 53 courts of last resort.

Posted by Marcia Oddi on Wednesday, July 21, 2010
Posted to Courts in general | Indiana Courts | Vacancy on Supreme Ct

Ind. Gov't. - "Indiana contends IBM welfare work was flawed from the start"

Ken Kusmer of the AP reports this afternoon in a story on the on-going lawsuit in Marion County Superior Court between the State of Indiana and IBM (the "dueling lawsuits") over the "$1.37 billion contract to automate intake for Medicaid, food stamps and other benefits received by more than a million Indiana children, seniors, elderly and disabled residents." Check this - just one quote from the long story:

In its July 14 response to IBM's lawsuit, the state says the social services agency began to observe problems with IBM's performance soon after the project's initial rollout to 10 northern Indiana counties on Oct. 29, 2007, and an expansion to the project's second region was delayed and eventually split into smaller segments.

“FSSA suggested delaying further rollouts until the performance outages could be cured; however, IBM assured FSSA that if the Region 2 rollout was implemented, IBM would recognize some efficiencies and economies of scale that would improve performance. Accordingly, FSSA agreed to the rollout of Region 2,” the state's lawyers wrote.

The filing appears to contradict statements public officials made at the time, in which they expressed satisfaction with the project.

Here are earlier ILB entries on the IBM contract.

Posted by Marcia Oddi on Wednesday, July 21, 2010
Posted to Indiana Courts | Indiana Government

Ind. Decisions - More on: NCAA Class Action Reinstated

Updating this ILB case summary from July 16th, Jon Hood of ConsumerAffairs.com has this story today headed "NCAA Class Action Reinstated: Suit alleges that ticket sales system constitutes an illegal lottery."

A federal appeals court has reinstated a class action brought by angry basketball fans, which claims that the NCAA's system of distributing Final Four tickets constitutes an illegal lottery.

Under the NCAA's system, which has been in place since at least 1994, consumers enter for a chance to win tickets through one of several NCAA-owned websites. To enter, fans have to pay the full face value of the ticket, plus a $6 service fee. Each contestant is allowed up to 10 entries; obviously, more entries means a higher chance of winning a ticket.

While losing consumers are refunded the amount they paid to cover the ticket, they are forced to give up the service fee. Thus, a consumer who entered ten times over to win a $150 ticket would get back $3,060 (the total value of all ten tickets), but she would lose $60 (the $6 service fee, multiplied by ten). If the consumer won, of course, she would also forfeit the cost of the ticket.

The suit claims that “the number of applicants greatly exceeds the number of tickets on virtually every occasion,” and that the games are held at venues that “are much too small to meet ticket demand.” The complaint also alleges that the $60 service fee, which “grossly exceeds any costs associated with the lottery,” generates massive profits for the NCAA -- $100 million in 2008 alone.

The suit, brought in the NCAA's home state of Indiana, was dismissed by a U.S. District Court last September. In ruling for the Association, Judge William Lawrence wrote that a plaintiff could not prevail when, “knowing the facts of a transaction, he nonetheless became a participant in the very action of which he complains.” * * *

But the appeals court overturned the dismissal, ruling that the plaintiffs had met all three elements of an illegal lottery in Indiana: a prize, an element of chance, and payment or other consideration by the contestants.

The court disagreed with the NCAA's assertion that the system grants only an opportunity to purchase tickets at full price, noting that the plaintiffs were required to pay the “service fee” just to enter the lottery, and that, “[w]in or lose, the … fee was forfeited by all entrants and retained by the NCAA.” The court also noted that the plaintiffs allege that “the fair-market value of the tickets exceeded their face value such that those tickets constitute something of more value than the amount invested,” turning them into a “prize” of a sort that is illegal under Indiana law.

Judge Richard Cudahy penned a dissent essentially agreeing with the District Court that the plaintiffs' willing participation barred them from making a claim. He also said that the existence of a service fee is “without significance” to the issue at hand.

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

Ind. Courts - Nominations open for "Excellence in Public Information and Education" awards

This information appears today on the Indiana Courts homepage:

Indiana Judges Association Commendation for Excellence
in Public Information and Education

The Indiana Judges Association (IJA) wishes to recognize those members of the judiciary who have made special contributions to the judicial profession by their efforts in community relations.

The IJA would also like to recognize those members of the media (newspaper, television, radio) who have made special contributions to the judicial profession by their efforts in responsible reporting of the Indiana Judiciary.

The annual award will be presented at the Indiana Judges Association luncheon in Indianapolis on September 22, 2010.  Please fill out the simple forms below to enter or nominate an individual for the awards.

Nomination Form for Judge's Award

Nomination Form for Newspaper, Radio or Television Journalist Award

I wrote to Kathryn Dolan, Indiana Supreme Court, Public Information Officer, as soon as I saw the notice early this morning, asking if blogs are eligible, as they are not mentioned. I have not received a response yet.

[More] Blogs are eligible, see this July 22nd update.

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

Environment - "Indiana lawmakers were the only ones in the country to take campaign donations from BP last month"

So reports Gitte Laasby today in the Gary Post Tribune - some quotes:

Since BP's oil spill three months ago, the oil giant hasn't donated any money to federal political candidates.

But 80 Indiana legislators -- including 15 from Northwest Indiana -- were the only ones who took campaign donations from BP in June, according to federal election records released Tuesday.

Northwest Indiana legislators received a combined $4,750 from BP's political action committee -- 17 percent of BP's total. The top two recipients in the region were Rep. Chet Dobis, D-Merrillville, and Sen. Karen Tallian, D-Portage, who each got $500. Both are up for re-election this fall. * * *

Indiana state politicians were the only ones to receive campaign contributions from BP in June. Ten Democratic and two Republican representatives took the money. So did two Democratic and one Republican senator.

Posted by Marcia Oddi on Wednesday, July 21, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 6 today (and 4 NFP)

For publication opinions today (6):

In Adoption of A.M.; M.M. v. M.M. & A.C., an 18-page, 2-1 opinion, Judge Brown writes:

M.M. (“Grandfather”) appeals the denial of his uncontested petition to adopt A.M., Grandfather's biological granddaughter. Grandfather raises one issue, which we revise and restate as whether the trial court erred in denying Grandfather's uncontested petition to adopt A.M. We reverse and remand. * * *

Based upon the reasoning in K.S.P., the idea that the best interests of the child is the primary concern in an adoption proceeding, the purposes of the adoption statutes as stated by the legislature, and the trial court's initial determination that adoption was in the best interests of A.M., we conclude that preventing the adoption in this specific case on the basis of Ind. Code § 31-19-15-1 and Ind. Code § 31-19-15-2 would cause an absurd result not intended by the legislature. Accordingly, we conclude that the trial court erred in denying Grandfather's uncontested petition to adopt A.M. and reverse the trial court's denial of Grandfather's petition to adopt A.M. and remand for further proceedings consistent with this opinion. On remand, we instruct the trial court to insure that all statutory requirements for adoption are met.

For the foregoing reasons, we reverse the trial court's denial of Grandfather's uncontested petition to adopt A.M. Reversed and remanded.

VAIDIK, J. concurs.
NAJAM, J., dissents with separate opinion. [which begins, at p. 16] I respectfully dissent. Modification of the Indiana adoption statutes requires legislative action. There is no statutory authority for a biological parent to maintain her parental rights after the adoption by a grandparent. It is beyond the authority of the trial court or this court to grant such relief. The trial court should be affirmed.

[and concludes, at p. 18] The record clearly supports the conclusion that Grandfather's adoption would be in the best interest of the child and that Grandfather is ready, willing and able to assume the responsibilities of a parent. But that is not the question presented. The proposed adoption is simply not authorized by statute and should, therefore, be disapproved.

In Anne Walterman Murphy, et al. v. William Curtis, et al. , a 19-page, 2-1 opinion, Judge Mathias writes:
Anne Waltermann Murphy, in her official capacity as Secretary of the Indiana Family and Social Services Administration (“FSSA”), and Patricia Casanova, in her official capacity as Director of the FSSA's Office of Medicaid Policy and Planning (collectively “the State”), appeal the Marion Superior Court's grant of summary judgment in favor of William Curtis (“Curtis”), Gary Stewart (“Stewart”), and Walter Raines (“Raines”), on behalf of themselves and those similarly situated (collectively “the Class”). On appeal, the FSSA claims that the trial court erred in granting summary judgment to the Class. The Class cross-appeals and claims that the trial court erred in modifying its original summary judgment order upon the State's motion to correct error. We reverse and remand. * * *

The State claims that the trial court erred in concluding that the Class was entitled to summary judgment, arguing that the FSSA's policy of refusing to consider evidence unrelated to the conditions presented in the applications does not constitute a denial of due process of law as claimed by the Class. The Class counters that the State's current argument is precluded by both waiver and the law of the case doctrine. * * *

Under the facts and circumstances before us, we cannot say that the FSSA's interpretation of the applicable statutes and regulations is unreasonable, violative of any of the cited statutes or regulations, or otherwise constitutes a denial of due process. We therefore reverse the trial court's entry of summary judgment in favor of the Class and remand with instructions to enter judgment in favor of the State. Reversed and remanded.

BRADFORD, J., concur.
RILEY, J., dissents with opinion. [which begins, on p. 16 of 19] I respectfully dissent from the majority's opinion reversing the trial court's grant of summary judgment in favor of the Class. While I join the majority with respect to the Class' waiver and law of the case argument, I part ways with the majority's conclusion that an ALJ's refusal to consider evidence of conditions not disclosed on a Medicaid disability application does not violate federal Medicaid law and the Due Process Clause of the Fourteenth Amendment.

In Indiana Dept. of Insurance v. Robin Everhart, a 13-page opinion, Sr. Judge Sullivan writes:
Appellant Indiana Department of Insurance, Indiana Patient’s Compensation Fund (the Fund) appeals the trial court’s Findings of Fact, Conclusions of Law, and Judgment in favor of Appellee Robin Everhart, as Personal Representative of the Estate of James K. Everhart, Jr. (Everhart). We reverse and remand. * * *

We reverse and remand with instructions to the trial court to recalculate its damages award and award damages to Everhart in proportion to the increase in risk of harm that was caused by Dr. Clarke’s malpractice. The trial court has previously found that James had “better than an eighty percent (80%) chance of surviving his injuries,” Appellant’s App. at 19-20, and that the damages as a result of James’ death “far exceed[ ] Three Million One Hundred Fifty Thousand Dollars ($3,150,000),” id. at 30. A precise calculation is required. The trial court must determine the actual percentage chance of survival and the actual amount of damages on remand. It is the trial court’s prerogative to make this calculation, but we note that given the trial court’s earlier findings, and the precise calculations, the maximum statutory award of $1,000,000 may nevertheless be justified. * * *

We decline to address issues upon which the trial court did not rule. The trial court must address these issues upon remand.

Conclusion. For these reasons, we reverse the trial court’s judgment and remand for a recalculation of damages consistent with this opinion.

Centerfield Bar Incorporated v. Michael Gee, et al. - "Here, Centerfield as the party moving for summary judgment has the burden of demonstrating that the altercation between Michael Gee and Speece was not foreseeable. * * *

"Based upon the facts set forth in the materials designated as evidence, we cannot conclude that Centerfield has demonstrated that the assault by Speece against Michael Gee occurring on its business premises was not foreseeable as a matter of law. We emphasize that the fact that there were previous “fights” as described by Howard in her deposition or the fact that there was a “barred list” of persons not permitted into the bar do not necessarily support the view that the altercation between Speece and Michael on Centerfield's premises was foreseeable. However, we reiterate that Centerfield as the moving party, and not the Gees, had the burden of demonstrating that the altercation or assault could not have been anticipated. * * *

"While the assault in this case may have occurred relatively quickly, after reviewing the designated evidence we conclude that whether Centerfield should have done more to protect its business invitees from foreseeable criminal activity, including providing adequate security personnel during the night hours, is a matter for the finder of fact to determine. * * * Accordingly, Centerfield was not entitled to judgment as a matter of law."

In Brandon Vest v. State of Indiana , a 12-page opinion, Judge Vaidik writes:

Brandon Vest appeals his conviction for Class A misdemeanor resisting law enforcement. Vest was accused of fleeing from three police officers all within a single episode of pursuit and arrest. The State's charging information alleged that Vest knowingly fled from Officers “Geoffrey Barbieri and/or Josh Taylor and/or Joel Anderson.” The trial court did not instruct jurors that, in order to return a guilty verdict, they would have to agree unanimously as to which officer Vest fled. Vest argues the trial court erred by failing to do so.

Indiana courts have long held that resisting law enforcement is an offense against public administration rather than a crime against the person. In a single, continuous episode of resisting arrest by flight, only one offense is committed regardless of the number of officers involved. Accordingly, we conclude that the State prosecuted Vest for only one indivisible instance of resisting law enforcement, and jurors were not required to agree on which particular officer Vest fled. The trial court therefore did not err by declining to issue a specific unanimity instruction. We affirm.

T.J. v. State of Indiana - "T.J. presents one issue for our review, which we restate as: Whether the State presented sufficient evidence proving beyond a reasonable doubt that T.J. knowingly or intentionally promoted or staged an animal in a fighting contest. * * *

"Based on the foregoing, we conclude that the State presented sufficient evidence to support the juvenile court's finding that T.J. knowingly or intentionally promoted or staged an animal fighting contest.
Affirmed."

NFP civil opinions today (0):

NFP criminal opinions today (4):

Eric Pilipow v. State of Indiana (NFP)

Raymond E. Robinson v. State of Indiana (NFP)

Joshua Orman v. State of Indiana (NFP)

Jonathan Perkins v. State of Indiana (NFP)

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

Law - "Georgia softens once lauded strict sex offender law"

Greg Bluestein reported this AP story on Monday, July 19. Both Sentencing Law Blog and WSJ Law Blog have picked it up. Some quotes from the lengthy story:

Georgia was lauded four years ago by conservatives for passing one of the nation's toughest sex offender laws. But the state has had to significantly — and without fanfare — scale back its once-intense restrictions.

Georgia's old law was challenged by civil liberties groups even before it took effect. After losing court battle after court battle, state legislators were forced to make a change or a federal judge was going to throw out the entire law. Now that the restrictions have been eased, about 13,000 registered sex offenders — more than 70 percent of all Georgia sex offenders — can live and work wherever they want.

Previously, all registered sex offenders were banned from living within 1,000 feet of schools, parks and other places where children gather, essentially driving them either to desolate areas or out of state. At one point, a tent city of homeless sex offenders was discovered in the woods behind a suburban office park. * * *

Across the country, states are trying to figure out how far they can legally go to keep convicted sex offenders away from children. High-profile cases of registered sex offenders being accused of re-committing crimes only increases the legislative pressure.

Georgia's strict law ran into trouble because it cast too wide a net, targeting sex offenders that committed their crimes years before the tough law was passed in 2006.

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

Ind. Courts - Still more on "Magistrates failing to keep up with case loads"

Updating his earlier stories, Bob Kasarda reports today in the NWI Times:

VALPARAISO | The county's judges agreed Tuesday evening to seek assistance for Magistrate James Johnson so he can focus exclusively over the next couple of months on catching up with a large backlog of pending cases.

Porter Circuit Court Judge Mary Harper said she intends to host a public hearing at 11:30 a.m. Friday in her courtroom on the proposal to hire a part-time probate commissioner to hear new cases scheduled before Johnson.

The probate commissioner could be hired as soon as Friday if nothing of concern surfaces during the required hearing, she said.

Johnson, in the meantime, will be provided with a weekly schedule designed to guide him through the backlog of cases by Oct. 1, Harper said. The county's six judges constantly will monitor his progress, she said.

"We think that's the fairest way to get these cases done," Harper said.

The action was taken in response to news that Johnson had 97 cases he had not yet ruled on by the end of June, as compared to just three cases pending before his fellow adult magistrate, Katherine Forbes.

Harper said Johnson's backlog since has been reduced to a number somewhere in the 80s.

The backlog reportedly has triggered a state investigation, though officials there will not comment.

This is not the first time the county has hired a probate commissioner to help ease a caseload, Harper said. But it is the first time the approach has been used to help a magistrate catch up on cases under advisement.

While Johnson's poor health has contributed to the backlog of cases, Harper said she believes he now is doing well enough to resolve the problem.

Also today, James D. Wolf Jr. of the Gary Post Tribune has this story:
VALPARAISO -- The cases that Porter County Magistrate James Johnson has under advisement -- that are backlogged and waiting for decisions -- will be ruled on by Oct. 1.

That's according to a schedule set by the Porter County judges at a closed meeting Tuesday.

"We have established a plan and a schedule for having the magistrate rule on the under-advisements," said Judge Mary Harper of the Porter County Circuit Court. "He will address those cases on a steady, scheduled basis."

Porter County magistrates handle divorce, estate and other family cases. The six judges want Johnson to devote himself full-time to eliminating the backlog, so they are also looking to appoint a probate commissioner to assist with current cases.

"We agreed that we need to keep the business of the court current while the magistrate works on the backlog," Harper said.

As the county's Circuit Court Judge, Harper will preside over a public hearing Friday at 11:30 a.m. to determine if there's a need to appoint a probate commissioner. It was a matter all the judges agreed to.

"The probate commissioner status has been used before when there was a case overload," Harper said. "It's not in regard to Magistrate Johnson. It's in regard to getting the people's work done." * * *

The extent of Johnson's backlog became known in the second quarter judicial report.

Judge Roger Bradford, who supervises Johnson, noted on the report that "the dramatic increase in the magistrate's cases under advisement is due to the fact that the magistrate previously reported only cases taken under advisement during the quarter reported. The number now includes all cases the magistrate has under advisement."

Harper acknowledged that Johnson's health problems contributed to the cases under advisement. "He had serious heart problems for the last several years," she said.

Johnson also was recently ill over the winter because of those problems.

Although Johnson had 97 cases under advisement at the end of the second quarter in June, that backlog has been reduced to somewhere in the 80s, Harper said.

She also expressed respect for his work. "The man is good on the law. His decisions are generally upheld if appealed," she said.

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

Law - More on "Finding Accurate Law Text Online Nearly Impossible" [Updated]

Updating this ILB entry from July 31, 2009, Eugene Volokh in his blog yesterday (7/20/2010) wrote in part, after finding an online error (presumably in an online doc):

I therefore e-mailed Westlaw, so that others wouldn’t be tripped up by the same problem. But much to my surprise and disappointment, the Westlaw reference attorney informed me that Westlaw will not correct the error. In the original e-mail, I was told that “this case is too old for us to investigate further,” so I responded with a PDF with the front page of the case copied from the reporter, just to save Westlaw the work of investigating. But the reference attorney still refused, writing that “our Cases department will not change a case that old.”
This was a follow-up to this brief entry (and comments) from June 9th, 2010, where Volokh had urged other lawyers:
If you run across an error in a Westlaw or Lexis version of a document, help your fellow users by e-mailing the correction to west.referenceattorneys@thomson.com or source.acquisition@lexisnexis.com. This is especially so if it’s an error that confused you or risked leading you into an error of your own — once you’ve figured out the problem, take a minute to help keep others from being tripped up by it.
Also on June 9th, 2010, I sent a link to the Volokh entry to one of the great law librarians here in Indy, and received this response:
Interesting blog topic. I always report errors and case omissions to LX and WL whenever I find one. In my experience, the vendors do follow up and make the correction. There can be a selfish reason to report which is to prevent oneself from having to personally deal with the error again years in the future. It is also helpful to the profession as a whole to exert the small effort it takes to prevent another researcher from wasting hours on the same error. Thank you for sharing.
But apparently, some errors are "too old" to correct.

[Updated 7/23/2010] Be sure to read this update from the Law Librarian Blog.

[Updated 7/27/10] "Westlaw Makes Clear That Its Policy Is to Correct Transcription Errors, Even for Old Cases" reads the heading to this Eugene Volokh entry dated 7/23/10.

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

Tuesday, July 20, 2010

Ind. Courts - David Schanker, former Deputy Clerk of the Ind. Courts, dies in Wisconsin

Inside Track, a publication of the State Bar of Wisconsin, reports in a story dated July 21st:

On July 5, clerk of the Wisconsin Supreme Court and the Court of Appeals, David Schanker, passed away from complications that arose following a heart transplant.

“David played a critical role and provided valuable insight to the supreme court in analyzing pending rules petitions,” said Justice David T. Prosser. “His feedback was particularly constructive during our work on citing unpublished opinions.”

Prosser endorsed Schanker’s nomination to the prestigious 2009 Toll Fellowship Program, which recognizes emerging state leaders from across the nation. Prosser said, “We have lost his leadership with his passing. He is an incredible loss to the court system.”

Lauding Schanker’s performance as chief clerk and his valuable contributions to the court particularly his rulemaking process, Prosser said, “David was very bright and competent in running the clerk’s office. He was on top of technology, and he took charge to bring the court to forward.”

“David Schanker was instrumental in implementing the court’s e-filing system and tirelessly traveled the state teaching people about it,” said Wisconsin Supreme Court Commissioner Nancy Kopp. “His enthusiasm for providing enhanced public access to court filings through technology and his patience in explaining the nuts and bolts of e-filing will be greatly missed.” * * *

Schanker joined the Wisconsin court system in 2007 after seven years as deputy clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court. He earned his J.D. at Indiana University and worked in private practice for four years in Indiana.

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

Ind. Courts - Nine seeking to fill Judge Pratt's Marion Superior Court vacancy

Jon Murray of the Indianapolis Star has posted this entry on Justice Watch, including the names of the nine applicants:

By state law, he must choose a Democrat in order to retain party balance. * * * The applicants:
  • Mark D. Batties III, master commissioner at Marion Superior Court;
  • Greg Bowes, Marion County assessor and former Democratic candidate for county prosecutor this year;
  • John J. Boyce, commissioner at Marion Superior Court;
  • Barbara Cook Crawford, chief of screening at the Marion County prosecutor's office;
  • Shatrese M. Flowers, commissioner at Marion Superior Court;
  • Bruce A. Hugon, partner at Stuart & Branigin;
  • Jeffrey L. Marchal, commissioner at Marion Superior Court;
  • Victoria M. Ransberger, magistrate at Marion Superior Court; and
  • William K. Teeguarden, retired administrative law judge working for the state.

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

Ind. Courts - "Ind. accused of cutting aid to food stamp users" [Now with copy of complaint]

Charles Wilson of the AP has a very good story this afternoon on the State's food stamp program and the ACLU lawsuit, following up on his earlier story from July 10th. Some quotes from the beginning of the lengthy story:

INDIANAPOLIS — For at least a decade, potentially thousands of Indiana's neediest adults have seen some of their state aid payments slashed simply because they receive food stamps — a practice that advocates and legal experts say is a clear violation of federal law.

The policy has affected people with developmental disabilities who need financial help to live independently and who receive additional assistance to buy groceries. The issue apparently went unnoticed for years until this month, when the father of a severely autistic Indianapolis man challenged it in court.

"I've never heard of a state being confused about this before. The law is unambiguous," said Stacy Dean, director of food stamp policy for the Center on Budget and Policy Priorities in Washington.

Under the current system, when the federal government raises food stamp amounts, Indiana officials reduce grocery allowances so a person's total food benefits do not exceed $200 a month.

But since 1964, federal law has barred states from counting food stamps as income or using them to reduce any other public benefits.

"It's clear as could be," said Dennis Frick, an attorney with Indiana Legal Services' Senior Law Project. "I think they got caught."

Both the Department of Agriculture, which administers food stamps, and federal Medicaid officials say they are reviewing the issue. Gov. Mitch Daniels said "it's worth having a look" at the practice in light of the lawsuit filed by the autistic man and his father.

Marcus Barlow, a spokesman for the Indiana Family and Social Services Administration, said agency attorneys do not believe federal law was broken when officials balanced food stamp payments against a state-run supplemental aid program.

Barlow said Indiana has counted food stamps as a "benefit," not as income, as opponents contend, since at least 2000.

"Receiving a benefit reduces their need," Barlow said. "If your need has been reduced, then you should reduce the supplemental program."

The state's philosophy is to use federal dollars first so that the state can stretch its own money, Barlow said.

"We stand behind our practice because we have a finite set of resources, and we have to make sure those resources are going to the most needy," he said.

But legal experts say courts have consistently upheld the law that says other assistance cannot be reduced because someone is receiving food stamps.

Welfare officials in other states said they were surprised Indiana would even try to count food stamps against other benefits.

"Frankly, we're shocked that anyone does," said Brad Deen, a spokesman for the North Carolina Department of Health and Human Services.

Here is a copy of the complaint, filed July 9, 2010 in Marion Superior Court. (It's is upside down, but shouldn't be a problem.)

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

Environment - More on: Five states file Asian Carp suit

As reported in this ILB entry yesterday, suit was filed yesterday in USDC, ND Illinois by Great Lakes five states: Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania.. Here is a copy of the 38-page complaint.

The Gary Post-Tribune has a story by John Flesher of the AP that concludes:

The most recent suit was filed in U.S. District Court in northern Illinois. It accuses the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago of creating a public nuisance by operating locks, gates and other infrastructure through which the carp could enter the lakes.

That argument didn't convince the nation's highest court to order the locks closed earlier this year despite two requests from Michigan and other states. But the justices' rulings were procedural and did not deal with the merits of the case, Cox's spokeswoman Joy Yearout said.

The discovery of a 20-pound carp in Lake Calumet on Chicago's South Side might make a federal judge more inclined to rule favorably, said Nick Schroeck, executive director of the Great Lakes Environmental Law Center at Wayne State University. Previously, Michigan and the other states based their request largely on DNA evidence that critics dismissed as unreliable.

"It's easier to make the case that there's a public nuisance when you have this actual, live fish,"
Schroeck said.

Posted by Marcia Oddi on Tuesday, July 20, 2010
Posted to Environment

Ind. Decisions - Tax Court decides one today

In Dekalb Co. Eastern Community School District v. Dept. of Local Government Finance, a 7-page opinion, Judge Fisher writes:

The DeKalb County Eastern Community School District (the District) appeals the Department of Local Government Finance’s (DLGF) final determination reducing its capital projects fund levy tax rate for the 2009 budget year. DeKalb’s appeal presents one issue for this Court’s review: whether, in reducing that tax rate, the DLGF properly applied the formula contained in Indiana Code § 6-1.1-18-12. * * *

Given the actual language used in Indiana Code § 6-1.1-18-12, the phrase “actual percentage increase” means increase only. If there is no increase, however, a zero value should be used in STEPS TWO and FOUR of Indiana Code § 6-1.1-18-12(e). (See Pet’r Br., App. at G.) The DLGF’s final determination is therefore REVERSED. The matter is remanded to the DLGF to take action consistent with this opinion.

Posted by Marcia Oddi on Tuesday, July 20, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In John Thomas Pontius v. State of Indiana , a 15-page opinion, Judge Bradford writes:

Following a bench trial, Appellant-Defendant John Thomas Pontius appeals his convictions for five counts of Possession of Child Pornography, a Class D felony, for which he received an aggregate sentence of three years in the Department of Correction, with 545 days executed and 550 days suspended to probation. Upon appeal Pontius claims that two of his convictions violate double jeopardy and that he received ineffective assistance of trial counsel. We affirm. * * *

On July 27, 2007, the State charged Pontius with six counts of possession of child pornography. Counts 1-4 corresponded to Videos 1-4 on the Maxtor 300. Counts 5 and 6 corresponded to Videos 5 and 6 on the Maxtor 80. There is no dispute that Videos 1 and 6, which have the same name, are identical in content. * * *

Upon appeal, Pontius points to the identical content of Videos 1 and 6 and contends that his convictions for Counts 1 and 6 violate double jeopardy under both the federal and Indiana constitutions. * * *

Like in Ravell, Indiana Code section 35-42-4-4(c) uses broad language, including the catchall “any pictorial representation” in proscribing the possession of child pornography. In addition, this court has similarly determined that our General Assembly's purpose underlying that statute is to prevent both child exploitation and the growth of the child pornography industry. We agree with the Ravell court that limiting convictions for “double” possession of duplicate copies of child pornography on different computers or hard drives dilutes these purposes. Whether “original” or in duplicate, the more images circulated of a particular child, the more that child is exploited. Similarly,.the greater the sheer volume of images available, the larger and more profitable the child pornography industry becomes.

Were Videos 1 and 6 in the instant case the product of data back-up protocols or procedures, perhaps the broad language of section 35-42-4-4(c) would not apply. See Ravell, 922 A.2d at 688 (observing that automatic computer back-up may well present a distinguishable case). But here, while two of Pontius's convictions were based upon possession of a single digital video file, he downloaded that file at two separate times, onto two separate computers and hard drives located at two separate residences, as Videos 1 and 6. Through two different, volitional transactions, Pontius possessed the same child pornography in two separate places, and he therefore committed two separate crimes. See U.S. v. Planck, 493 F.3d 501, 504 (5th Cir. 2007) (“[W]here a defendant has images stored in separate materials, … the Government may charge multiple counts … as long as the prohibited images were obtained through the result of different transactions.”). The fact that the crimes happened to involve the same images does not alter that fact. We find no federal double jeopardy violation.

In Steven M. Rosenbaum v. State of Indiana , an 8-page opinion involving a pro se defendant, Judge Vaidik writes:
A person who knowingly operates a motor vehicle on a public highway in Indiana commits a Class A infraction unless financial responsibility is in effect with respect to the motor vehicle under Indiana Code section 9-25-4-4. Because we find that there is strict liability for the financial responsibility element, it does not matter that Steven Rosenbaum did not know that the insurance had lapsed on the borrowed vehicle he was driving. Finding no merit to his other arguments, we affirm Rosenbaum's infraction.
In Jeffery McCabe v. Commissioner, Ind. Dept. of Insurance, a 19-page, 2-1 opinion, Judge Mathias writes:
Appellant-Petitioner, Jeffery H. McCabe, as Representative of the Estate of Jean Francis McCabe, decedent (“McCabe”), appeals the trial court's grant of partial summary judgment in favor of Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund (“the Fund”), in which the trial court found that attorney fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under Indiana's Adult Wrongful Death Statute (“AWDS”). We affirm. * * *

BRADFORD, J., concurs.
RILEY, J., dissents with opinion [that begins, as p. 14 of 19] I respectfully dissent from the majority's decision affirming the trial court's grant of partial summary judgment in favor of the Fund. Although, as noted by the majority, the specific issue raised today has not been previously decided, we are not completely without guidance in interpreting the open-ended phrase “but are not limited to” included in the AWDS. * * *

Thus, based on the Estate of Kuba and Butler, our supreme court deems the AWDS to allow damages which are not expressly enumerated in the statute, provided the damages compensate those who have sustained pecuniary loss by the decedent's death.

NFP civil opinions today (6):

Kayla F. Johnson v. Timothy J. Reinhardt (NFP)

Daniel Brewington v. Melissa Brewington (NFP)

Andrew Hirsty v. Kathy Hirsty (NFP)

Term. of Parent-Child Rel. of K.S; B.S. v. I.D.C.S. (NFP)

Term. of Parent-Child Rel. of D.W. and T.W.; N.W. v. IDCS (NFP)

Term. of Parent-Child Rel. of J.C.; M.C. v. I.D.C.S. (NFP)

NFP criminal opinions today (6):

Michael Shepherd v. State of Indiana (NFP)

S.P. V. State of Indiana (NFP)

Zachary McCloud v. State of Indiana (NFP)

Kevin Early v. State of Indiana (NFP)

Christopher W. Turner v. State of Indiana (NFP)

William Michael Lacy v. State of Indiana (NFP)

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

Ind. Decisions - Two Indiana cases today from 7th Circuit

In Chaney v. Plainfield Healthcare Center (SD Ind., Barker), a 17-page opinion, Judge Williams writes:

This case pits a health-care worker’s right to a non-discriminatory workplace against a patient’s demand for white-only health-care providers. Plainfield Healthcare Center is a nursing home that housed a resident who did not want assistance from black certified nursing assistants. Plainfield complied with this racial preference by telling Brenda Chaney, a black nursing assistant, in writing everyday that “no black” assistants should enter this resident’s room or provide her with care.

Chaney brought this action under Title VII of the 1964 Civil Rights Act. She claims that Plainfield’s practice of acceding to the racial biases of its residents is illegal and created a hostile work environment. She also asserts that Plainfield fired her because she was black. The Equal Employment Opportunity Commission, as amicus, agrees, and together they urge reversal of the district court’s grant of summary judgment to Plainfield. Because the racial preference policy violates Title VII by creating a hostile work environment and because issues of fact remain over whether race motivated the discharge, we reverse the district court’s order. * * *

More fundamentally, Plainfield never corrected the principle source of the racial hostility in the workplace—its willingness to accede to a patient’s racial preferences. The hostility that Chaney described came from daily reminders that Plainfield was employing her on materially different terms than her white co-workers. Fueling this pattern was the racial preference policy, both a source of humiliation for Chaney and fodder for her co-workers, who invoked it regularly. It was, in short, a racially hostile environment, and the evidence presented at summary judgment allows a jury to conclude that Plainfield took insufficient measures to address it.

In USA v. Enedeo Rodriguez, Jr (ND Ind. Springmann), a 22-pge opinion, Judge Kanne writes:
Appellants were conspirators in a drug distribution ring. After their scheme was infiltrated by an undercover officer and they were arrested, Appellants decided to take their chances at trial by jury. Following a five-day trial, each was convicted of conspiracy to possess with intent to distribute more than 100 kilograms of marijuana. The district court held sentencing hearings during which it overruled each defendant’s sentencing objections and imposed a sentence on each defendant. Appellants now appeal their sentences, claiming that enhancements were improperly applied and reductions were erroneously ignored. We affirm.
Another opinion today, in an Illinois case, Brandt v. Village of Winnetka, looks very interesting, but I haven't had the change to read it. It involves a village "ordinance requiring people whose events occasion the need for * * * all “special services,” such as extra police, closing streets, and rerouting traffic" to pay for them. The court discuses standing, the evaluation of an as-applied challenge, etc.

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

Law - "FinReg: A Full Employment Act for the Nation’s Lawyers?"

Ashby Jones asked that question Friday in the WSJ Law Blog. He cites a story in the Toronto Globe & Mail, headed "U.S. financial reform will keep lawyers busy, and billing, for years: Massive 2,300 page bill is set to unleash a tsunami of new regulations."

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

Ind. Courts - More on "Magistrates failing to keep up with case loads"

Updating this ILB entry from July 11th, Bob Kasarda reports today in the NWI Times that begins:

VALPARAISO | Porter County Magistrate Judge James Johnson had 97 cases he had not yet ruled on by the end of June, as compared to just three cases pending before his fellow adult magistrate, Katherine Forbes.

This backlog of cases reportedly has triggered both an investigation by the state and concern among county judges, who will meet behind closed doors tonight to discuss potential solutions.

The county's two adult magistrates handle divorce, estate and guardianship cases.

Superior Court Judge Roger Bradford, who supervises Johnson, explained in writing on the county's second quarter judicial report that the dramatic increase in cases under advisement resulted because Johnson had been reporting just those cases taken under advisement during that quarter alone.

The figure now represents the cumulative total of cases pending at the end of the quarter, he said.

It recently was revealed that the Indiana Judicial Qualifications Commission is investigating a complaint that Johnson is taking too long to decide cases.

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

Monday, July 19, 2010

Environment - Five states file Asian Carp suit [Updated]

"Michigan, Wisconsin, Ohio, Minnesota and Pennsylvania filed the lawsuit Monday in U.S. District Court in northern Illinois," reports John Flesher of the AP.

[Updated] "Eight Senators Request Army Corps Authorization to Implement Emergency Measures to Stop Asian Carp: Authorization Would Allow Army Corps Action in Indiana," is the headline to this press release stating:

Eight U.S. senators led by Sens. Carl Levin, D-Mich. and George Voinovich, R-Ohio, have requested a legislative provision that would authorize the U.S. Army Corps of Engineers to take emergency action to stop Asian carp from entering the Great Lakes via any connections with the Mississippi River Basin. This authority would extend to the possible flood zone between the Wabash River and the Maumee River in Indiana. The Army Corps currently has such emergency authority, but it is limited to the Chicago waterway system.
None of the eight senators signing the letter are from Indiana.

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Environment

Environment - "State plans to regulate phosphorus in lakes: But it will take many initiatives to slow down nutrient pollution of Indiana's lakes"

Seth Slabaugh of the Muncie Star-Press reports today that the regulation will be aimed at wastewater treatment plants, not agriculture, which "is an even larger source of phosphorus pollution than urban wastewater treatment plants." From the last part of the story:

One of the easier steps to slow down nutrient pollution would appear to be to ban or cut back on phosphorus in lawn fertilizer. The lawn care industry already is moving in that direction. * * *

Lawmakers attending the symposium didn't think there was enough support yet in the state Legislature to ban phosphorus in lawn fertilizer.

Yet a survey conducted by the Upper White River Watershed Alliance found that many homeowners are willing to use fertilizer without phosphorus, though few are actually doing so.

Thus, the alliance is starting a "P-free fertilizer" educational campaign.

The consensus at the symposium was that there is no single solution to nutrient pollution.

"This problem was created over a long period of time by a thousand sources," Tedesco said. "And it requires a thousand solutions, drop by drop."

For background, start with this ILB entry from May 25, 2010, headed "Indiana county's fertilizer ban rejected."

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Environment

Ind. Decisions - One NFP today from Tax Court

In Country Acres Limited Partnership v. Pleasant Township Assessor, and LaPorte County Assessor (NFP), an 11-page opinion, Judge Fisher writes:

In its appeal to this Court, Country Acres claims that the Indiana Board abused its discretion for two main reasons when it concluded that the C&W appraisal best reflected the market value-in-use of its complex. Country Acres first asserts that the Indiana Board’s “unrelenting” focus on Porter’s [Mr. Robert Porter (an Indiana certified Level II assessor-appraiser)] contingent fee arrangement was inappropriate and, as a result, it failed to recognize that Porter’s analysis prima facie established the market value-in-use of its complex. In the alternative, Country Acres asserts that the Indiana Board simply erred in assigning a final value to the complex. The Court will address each of these claims in turn.

I. Country Acres maintains that the Indiana Board overstepped its authority by linking the probative value of Porter’s entire analysis to his contingent fee arrangement. Country Acres complains that in so doing, the Indiana Board simply ignored the facts underlying Porter’s analysis, failed to give those facts the proper weight, and just assumed his analysis was incorrect. Country Acres’ complaints, however, are misplaced. * * *

Here, the Indiana Board found the C&W appraisal to be more probative despite the fact that it used a lower capitalization rate and was prepared for the purposes of refinancing. (See Cert. Admin. R. at 41 ¶ 61 (explaining that the C&W appraisal was “more through” and “consistent” than Porter’s analysis).) Based on its review of record evidence, the Court does not disagree. Consequently, the Indiana Board did not err in rejecting Porter’s use of an 11.35% capitalization rate.

II. Lastly, Country Acres maintains that the Indiana Board erred in reducing its assessment to $2,135,900 for the 2004 tax year. More specifically, Country Acres explains that because the Indiana Board determined that the application of a 7% trending factor to the C&W appraisal was proper, its final valuation should actually reflect the application of that trending factor. * * * Country Acres is correct.

When a 7% trending factor is applied to the C&W appraisal, a final market value-in-use of $2,056,075 is established. Consequently, the Indiana Board erred when it determined that the market value-in-use of Country Acres’ complex was $2,135,900 for the 2004 tax year.

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (2):

In Isaac Florian, et al. v. GATX Rail Corporation , a 21-page opinion, Judge Mathias writes:

Isaac Florian and Jeffrey Florian, as the limited guardian of Isaac Florian, (“Florian”) appeal the White Circuit Court‟s entry of summary judgment in favor of defendant GATX Rail Corporation (“GATX”) in an action resulting from an accident involving a motor vehicle operated by Florian. * * *

The trial court did not err when it concluded that GATX was in compliance with the applicable federal safety regulations regarding retro-reflective sheeting, nor did the trial court err when it concluded that Florian‟s common-law negligence complaint was preempted by the federal safety regulations regarding retro-reflective sheeting. Finally, the trial court did not err when it concluded that Florian‟s product liability claim was precluded by the applicable statute of repose. Therefore, the trial court properly granted summary judgment in favor of GATX.

In A.H. v. State of Indiana , a 7-page opinion, Judge Brown concludes:
[W]e simply do not find the evidence sufficient to meet the burden of proof required by the statute.

For the foregoing reasons, we reverse the juvenile court’s adjudication of A.H. as a delinquent.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of E.L., et al.; M.B. v. I.D.C.S. (NFP)

Andy C. Pitcher d/b/a Liberty Bell v. Berkley Risk Administrators Company, LLC., et al. (NFP)

NFP criminal opinions today (8):

Remon D. Phillips v. State of Indiana (NFP)

Larry H. Snyder v. State of Indiana (NFP)

Joseph Trammell v. State of Indiana (NFP)

James Edward Price v. State of Indiana (NFP)

Richard West v. State of Indiana (NFP)

Jeffery Rowe v. State of Indiana (NFP)

Olivia Vanbuskirk v. State of Indiana (NFP)

Shawn Christopher McWhorter v. State of Indiana (NFP)

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

Ind. Courts - "Indiana Trial Court Administration Manual"

According to the notice:

This 2010 manual—divided into 37 chapters of summary information on each topic—provides an introduction to issues that judges and clerks most often confront. Each chapter contains links to the full text of Indiana Supreme Court and Court of Appeals opinions, Indiana Code text and Indiana Supreme Court rules, forms, and other publications and resources.

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Indiana Courts

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

Here is the Clerk's transfer list for the week ending July 16, 2010. It is two pages (and 22 cases) long.

No transfers were granted last week.

__________

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

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

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

Ind. Courts - New judge nominated for 7th Circuit, to replace Judge Evans

John Diedrich of the Milwaukee Journal Sentinel reported July 15th:

President Barack Obama on Thursday nominated Victoria F. Nourse to serve on the U.S. Court of Appeals for the 7th Circuit in Chicago, replacing Milwaukee native Terrence Evans.

Nourse, 51, is the Burrus-Bascom Professor of Law at the vfnourse@wisc.edu ">University of Wisconsin Law School .

She is a graduate of Stanford University with a law degree from the University of California, and she served as an assistant counsel to the Senate Committee to Investigate the Iran-Contra Affair in 1987. She later joined the Civil Appellate Staff of the U.S. Department of Justice, where she represented federal agencies in the U.S. Courts of Appeal.

In 1990, she became special counsel to the U.S. Senate Judiciary Committee, which then-Sen. Joseph Biden chaired. Biden is now vice president.

In 1993, Nourse was hired as an assistant professor at the UW Law School in Madison. In 2008, she became the LQC Lamar Professor of Law at Emory University Law School, a position she held concurrently with her Wisconsin position until earlier this year, according to the White House. * * *

Nourse was one of four finalists submitted to the White House by Wisconsin's senators. The others were U.S. District Judge Lynn Adelman, Milwaukee County Circuit Judge Richard Sankovitz and attorney Dean Strang.

The vacancy was created when Evans announced he was going into semi-retirement, known as senior status. The federal appeals court, which sits in Chicago, traditionally has had two judges from Wisconsin. Eleven people applied for the position.

The nomination is subject to approval by the U.S. Senate. The 7th Circuit reviews case from federal courts in Wisconsin, Illinois and Indiana.

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

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

As noted in this entry last Friday, headed "Sadly, no more ILB on weekends or holidays,", the ILB will no longer be updated on weekends or holidays because of financial issues discussed here.

I did, however, keep track of the weekend's stories of interest. Here, in no particular order, are some stories published over the weekend that I normally would have written about:

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Catch-up

Ind. Gov't. - "Couple working to preserve Indiana county's records"

While the Valparaiso Clerk-Treasurer struggles to find $20,000 to preserve her city's historical records dating back to 1857 (see ILB entry here), missionaries are working to preserve Knox County's records, according to this story today in the Lafayette Journal Courier:

VINCENNES - A southern Indiana county's old birth and death records, wills and other documents are being digitized to save them for future generations.

A Washington state couple began working last year to photograph Knox County's masses of leather-bound volumes and crumbling files that in some cases date back to the 1700s.

Joseph and Betty Clark's monumental task is a missionary project for FamilySearch International, which is affiliated with the Church of Jesus Christ of Latter-day Saints.

Knox County is the first stop for the Clarks in an effort to create a genealogical lineage database for anyone interested in tracing their ancestry.

The Clarks picked Knox County because of its prime position in Indiana history. The county seat, Vincennes, was Indiana's territorial capital before it achieved statehood.

Posted by Marcia Oddi on Monday, July 19, 2010
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/19/10):

Next week's oral arguments before the Supreme Court (week of 7/26/10):

Next Thursday, July 29th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/19/10):

Next week's oral arguments before the Court of Appeals (week of 7/26/10):

Tuesday, July 27th

Wednesday, July 28th

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, July 19, 2010
Posted to Upcoming Oral Arguments

Friday, July 16, 2010

Courts - "Posner Rips Easterbrook on Juror Anonymity Question"

That is the heading of this WSJ Law Blog entry by Ashby Jones, referencing the 18-page dissent by Judge Posner filed July 14th and linked in this ILB entry from that date.

The WSJ blog also points to this story today in the Chicago Tribune, by Ameet Sachdev. Well worth reading! A quote:

Zagel told media organizations in May that he would withhold juror names until after a verdict. The Tribune, The New York Times and other media outlets made a formal request for the names before the start of the trial last month. They argued that Zagel's decision went against the U.S. tradition of open trials and that the First Amendment entitled them to the names.

Zagel disagreed, saying in court that he worried about jury tampering and harassment in an age of Facebook and Google because of the high-profile nature of the case. In essence, he ruled that the integrity of the jury trumped the public's right to know who would be deciding the fate of the former governor.

The media organizations took their objections to the appellate court. On July 2, a three-judge panel ruled that Zagel acted too hastily in deciding to defer disclosure of jurors' names and ordered the judge to a hold a hearing on the media's request.

While Easterbrook's opinion will require Zagel to reconsider his position, the panel didn't rule that the jurors' names should necessarily be made public. Still, throughout the opinion, Easterbrook said that under previous case law, there is a presumption of access to the names of jurors as soon as they are seated and that any effort to keep those names secret must be backed by actual evidence. He was joined by Judges Diane Wood and John Daniel Tinder.

Posner, who was not involved in the appeal, nevertheless found a way to air his misgivings through a rarely used procedural move. He explained himself in his opinion, filed Thursday.

One unnamed judge on Monday asked for a vote over whether the full 16-member appellate court should rehear the media case, known as "en banc" review. Typically en banc hearings are requested by losing parties in appellate decisions.

When a majority of the judges voted against the en banc hearing, Posner explained why he thought the issue merited the attention of the full court.

In his opinion, Posner quickly came to Zagel's defense. In the first sentence, he wrote: "An experienced trial judge made a reasonable determination that the release of jurors' names before the end of the trial would expose the jurors to the widespread mischief that is a daily if not hourly occurrence on the Internet."

Posner then began a scathing review of Easterbrook's decision, calling it "unsound and confusing."

He attacked the presumption of media access. "Jurors are entitled to be treated with respectful regard for their privacy and dignity, rather than as media prey."

He said the panel ignored the consequences of Zagel having to possibly renege on a promise made to jurors and argued that there's no need for a further hearing. "The jurors may well be upset, concerned for their privacy, fearful of the prospect of harassment and angry at having been induced by false pretenses to agree to take months out of their life to perform jury service."

Posner even went so far as to say that Zagel might have to declare a mistrial.

It's highly unusual for a judge to speak so harshly of a previous opinion, Monico said. Putting aside issues of civility, the controversy raises more questions. Is there a real concern of jury tampering if names are released before the end of the trial? What influence will Posner's opinion have on the hearing?

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "When Do a Criminal Defendant’s Compulsory Process/Due Process/Confrontation Rights Trump Evidentiary Privileges?"

Crisis Connection, Inc. v. Ronald K. Fromme, decided July 15, 2010 by the Court of Appeals (ILB summary here). The Court said:

Crisis Connection appeals, requiring us, as a matter of first impression, to interpret Indiana‘s victim-advocate privilege and to determine whether it must be limited by a criminal defendant‘s constitutional rights. Concluding that an in camera review properly balances Fromme‘s constitutional rights and the victims‘ interest in privacy, we affirm.
Prof. Eugene Volokh looks at the opinion today in his blog, writing in part:
This is a difficult and recurring question, and arises with regard to a wide range of privileges — lawyer-client, psychotherapist-patient, clergy-penitent, and more. It is particularly difficult when the conflict is with the constitutionally secured privilege against self-incrimination: A defendant argues that to properly defend himself he needs to have someone’s testimony (often a coconspirator’s), but that potential witness refuses to testify for fear of self-incrimination. And similar issues also arise with regard to so-called “rape shield” laws, which preclude the introduction of some kinds of evidence of the victim’s past sexual conduct.

For the most recent example of this, involving the relatively new “victim-advocate” privilege (which is intended as a variant of the psychotherapist-patient privilege for crime victims who go to specialized “victim advocate’ services rather than to traditional psychotherapists), see In re Subpoena to Crisis Connection, Inc. (Ind. Ct. App. July 15). The Indiana court canvasses the precedents from other states (which point in different directions), and holds that the Indiana victim-advocate privilege may have to yield to the defendant’s rights.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Pair released from prison 13 years after stabbing"

This April 9, 2010 ILB entry was headed "Girls convicted in 1997 Jeffersonville stabbing seek reduced sentence: Prosecutor wants judge Fleece removed after comments at hearing." The entry quoted from the Jeffersonville News & Tribune story of that date. Here is part of the quote:

Former Clark County Superior Court No. 1 Judge Jerry Jacobi sentenced them to 60 years in prison — 30 for attempted murder and 30 for robbery. After exhausting their appeals, a petition for post-conviction relief was filed in February 2009.

In the petition, Chicago-based attorneys for the girls argued the consecutive 30-year sentences violated Indiana’s common law double-jeopardy principles since both were enhanced by the same act of the stabbing.

The attorneys also argue that the judge failed to consider any mitigating factors, such as the defendants’ youth, remorsefulness and lack of prior criminal history.

“The original trial court only paid lip service to the fact that these girls were among the youngest girls in the country to receive such harsh sentences,” said Steven Drizin, a professor at Northwestern University School of Law in Chicago, who is part of a team representing Shackleford and McDonald pro bono.

Presiding Judge Vicki Carmichael recused herself from the case because she had represented McDonald on appeal. She appointed Senior Judge Steven Fleece to preside over the post-conviction relief proceedings.

During a status conference in judge’s chambers in May, Fleece reportedly made comments about the case that prosecutors believed showed bias. Prosecutors filed a motion to change judges, asserting that Fleece described the trial is “divisive” and said the girls had to be released from prison in order to accomplish “healing” in the community. He also was accused of saying the girls had spent enough time in prison and that “everybody” believed the sentences were too harsh.

Fleece denied the motion, responding that the prosecutors had mischaracterized his statements and took them out of context.

“The state has correctly inferred that the judge now views sentence-modification as desirable,” Fleece stated in his ruling. “This is a preliminary conclusion not based on any bias or prejudice or outside influence, but upon analysis of the pleadings and undisputed facts of the case.”

The ILB entry from May 19, 2010 references another story from the same paper and notes:
The story reports "There was confusion from the outset of the hearing Tuesday." That confusion is reflected in the story itself.
That story is still available online for those who wish to read it.

Here is the July 13, 2010 report by Ben Zion Hershberg of the Louisville Courier Journal headlined "Women who attacked pizza delivery man with a knife in 1997 released from prison." Some quotes:

Two women who attacked a pizza delivery man with a knife in 1997 were released from prison on Tuesday, a day after their 60-year sentences for the crime were sharply reduced by a Clark County judge.

Shayla Shackleford, who was 14 at the time of the attack, and Devonna McDonald, who was 15, served 13 years.

Sha Hua, a member of the Chicago defense team who argued for the women's release at a hearing last month in Clark County, confirmed they were released on Tuesday from the Indiana Women's Prison in Indianapolis. * * *

She said she has told them not to discuss their situations publicly while the state attorney general is deciding whether to appeal the reduction in their sentences. * * *

According to statements at their trial, Shackleford and McDonald stabbed Yeager with a plan of taking his car to visit a friend in Alabama .

They were tried as adults, and each was found guilty of attempted murder and robbery with serious injuries to the victim, each charge a Class A felony with a recommended sentence of 30 years.

Clark Superior Court Judge Jerry Jacobi sentenced each to 60 years in prison by requiring them to serve their sentences for each charge consecutively.

But on Monday, Special Judge Steven Fleece reduced their sentences to 30 years, agreeing with their lawyers' arguments at a post-conviction relief hearing last month that they should not have been given consecutive sentences because the same acts and same injuries to Yeager were the basis for both charges.

Fleece ruled the sentences were an example of double jeopardy -- two convictions for the same crime.

As Indiana allows a day off a sentence for each day served with good behavior, Shackleford and McDonald only were required to serve 15 years. And since they had earned four years of education credit for getting their GEDs and college degrees while in prison, their sentences were complete.

Jerald Muhammad, a cousin of Devonna McDonald, said he hopes the community will welcome back the two, now 27 and 28 years old.

"What they did is inexcusable," Muhammad said, "but they have served their time."

He said he is "not the same person I was when I was 14." * * *

Fleece said his ruling was based only on the law, but he believes the women's chances for a successful adaption to life outside prison are "excellent" because of what they accomplished while incarcerated.

He noted that an assistant warden was so impressed by them that she sought help for them from defense lawyers.

"It's a rare situation when a Department of Correction official goes to bat" for prisoners in that way, Fleece said.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Two non-Indiana Booker-related rulings today

Sentencing Law & Policy writes about them here, under the heading "Seventh Circuit reinforces importance of adequate sentencing explanations."

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "NCAA Must Face Ticket Lottery Suit"

Updaitng this entry from earlier today, Bloomberg has this report this afternoon.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. (7th Cir.) Decisions

About this Blog - Sadly, no more ILB on weekends or holidays

For the reasons outlined in this ILB entry yesterday, headed "Think about life without the ILB", effective immediately the ILB will no longer be updated on weekends or holidays. I'm sorry to have to institute this new schedule, after 7 years of daily updates.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to About the Indiana Law Blog

Ind. Courts - Oral Advocacy of Karl Mulvaney

As explained in this post Tuesday, headed "A New Voice at Oral Argument," this week the ILB is featuring the oral advocacy of the three semi-finalists for the current Supreme Court vacancy who have argued cases before the Court. This feature on Karl Mulvaney's oral advocacy, from IU Law-Indy Prof. Joel Schumm, is the third and final of those entries.


Mr. Mulvaney served as the Indiana Supreme Court Administrator from 1984 to 1991 and has since had a very active appellate practice at Bingham McHale. He has argued at least a dozen cases before the Indiana Supreme Court in the past decade.

Outback Steakhouse v. Markley

Mr. Mulvaney represented Outback in an appeal of jury verdict and $39 million verdict against it in a dram shop case. The argument focused on the misconduct of Markley’s counsel in failing to identify a critical witness in responses to defense interrogatories. The April 13, 2006, argument may be accessed here. In this excerpt, Mr. Mulvaney begins his argument and answers initial questions from Justice Dickson and Justice Boehm.




The Supreme Court unanimously agreed with Mr. Mulvaney’s position and remanded the case for a new trial in a November 8, 2006, in an opinion by Justice Boehm.

Raess v. Doescher

In Raess v. Doescher, Mr. Mulvaney represented a cardiovascular surgeon found liable for assault against another hospital employee and ordered to pay $325,000. The oral argument focused on the sufficiency of the evidence to support the verdict and whether the trial court erred in allowing the plaintiff to call an expert witness to testify about workplace bullying. The October 10, 2007, oral argument may be accessed here.

In this excerpt Mr. Mulvaney responds to the Chief Justice’s suggestion that the jury would not be confused about the concept of workplace bullying.




The Court ruled against Mr. Mulvaney’s client in an April 8, 2008 opinion by Justice Dickson; Justice Boehm dissented.

Other Cases Mr. Mulvaney has argued before the Supreme Court

Kovach v. Caligor Midwest

April 9, 2009 Oral Argument
September 8, 2009 Opinion

In a case involving alleged defects in a medical cup used to administer medication, the court affirmed summary judgment in favor of these defendants because the “claimed defects did not cause the death. The undisputed facts establish that if an overdose caused the death it was due to a quantity of drug essentially double the prescribed amount. None of the claimed defects in the cup would have caused an overdose of that magnitude.” Mr. Mulvaney represented the manufacturer of the medical cup.

Allstate Insurance Co. v. Fields

January 15, 2009 Oral Argument

Web summary: “Following a jury trial, the Lake Superior Court entered a judgment against Allstate and awarded Fields $2 million in compensatory damages and $6 million in punitive damages on his claim that Allstate engaged in bad faith when handling his claim. The Court of Appeals reversed after concluding the trial court erred by not granting Allstate’s pretrial motion for summary judgment.”

The Court denied transfer after hearing oral argument. Mr. Mulvaney represented Allstate.

Bush v. State Farm

December 18, 2008 Oral Argument
May 13, 2009 Opinion

“We hold that an uninsured motorist policy restricting coverage to bodily injury or death sustained by an insured does not violate Indiana’s uninsured motorist statute.” Mr. Mulvaney represented State Farm.

State Farm Mutual Auto Ins. v. Jakupko

May 18, 2007 Oral Argument
February 28, 2008 Opinion

Web summary: “The Supreme Court held that the term ‘bodily injury’ in the insurance policy includes emotional distress and that limiting recovery of a woman and her children for emotional distress to the one per person liability cap under their uninsured motorists policy ‘would violate the requirements of Indiana’s underinsured motorist statute and be void.’ The court found that the woman and children are each entitled to a separate per person limitation under the policy, but subject to the per accident limitation and affirmed the trial court’s ruling.” Mr. Mulvaney represented State Farm.

Clark County Council v. Donahue

December 14, 2006 Oral Argument
September 26, 2007 Opinion

Web Summary: “The Supreme Court held that ‘it was contrary to law for the County Council to appropriate money in the county supplemental adult probation services fund for court expenses unrelated to probation and for expenses previously paid from the county general fund.’ The court remanded the case with directions that the County Council return the funds used for this purpose to the adult probations services fund.” Mr. Mulvaney represented Donahue and the other Clark County judges.

State Farm v. Estep

May 26, 2005 Oral Argument
September 25, 2007 Court Opinion

“We reverse the order issued during proceedings supplemental forcing [the insured’s] assignment of any potential chose in action against State Farm and hold invalid any assignment by [the insured] against his attorneys.” Mr. Mulvaney represented State Farm.

Allgood v. Meridian Sec. Ins. Co.

February 17, 2005 Oral Argument
October 27, 2005 Court Opinion

Web summary: “The Supreme Court holds that an insurance policy requiring the insurer to pay for a loss based on the lesser of either the property's actual cash value or the cost of repairs does not require the insurer to compensate the insured for dimunition in value if payment is based on the cost of repairs.” Mr. Mulvaney represented Meridian Insurance.

Infiniti Products v. Quandt

May 29, 2003 Oral Argument
June 29, 2004 Opinion

Web Summary: “The Supreme Court affirms the trial court's judgment that Quandt is liable to Infinity for misappropriating trade secrets, but that Fabri-Tech is not vicariously liable, holding that the Indiana Trade Secrets Act displaces the common law doctrine of respondeat superior.” Mr. Mulvaney represented Quandt.

Ritter v. Stanton

November 14, 2001 Oral Argument

Web Summary: “Jerry Stanton was injured after being pinned between two semi-tractor trailers, one of which was driven by Ira Ritter, an employee of Kroger. Stanton was employed by Gateway Freightline Corporation, a wholly-owned subsidiary of Kroger. Stanton filed a personal injury action against Ritter and Kroger in the Marion Superior Court. The courts below decided that worker's compensation was not Stanton's exclusive remedy. In addition, the courts below decided that the net $55 million verdict in favor of Stanton was not excessive and that courts do not compare one verdict to another in deciding whether one is excessive.” [Note: At the time this was the largest jury verdict in Indiana “by a very wide margin.”]

No Court Opinion: Transfer was denied 3-2 on January 31, 2002; Chief Justice Shepard and Justice Sullivan voted to grant transfer. Mr. Mulvaney represented Ritter and Kroger.

Time Warner v. Whiteman

October 17, 2001 Oral Argument
February 3, 2004 Opinion

Web summary: “The Supreme Court reverses the Court of Appeals and holds that the ‘voluntary payment doctrine’ does not apply where cable tv companies charged subscribers late fees that were allegedly too high.” Mr. Mulvaney represented Whiteman.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - One NFP today from Tax Court

AWHR America's Water Heater Rentals, LLC v. Indiana Dept. of State Revenue (NFP) - AWHR rented water heaters to its customers. The question is whether it should have collected sales tax from its Indiana customers. Judge Fisher writes:

On appeal, AWHR argues that the Department's assessment of sales tax against it is erroneous for two reasons. First, AWHR asserts that because it never transferred possession and control of the water heaters to its customers, it did not “lease” them. In the alternative, AWHR claims that the water heaters were real property, not tangible personal property. * * *

Accordingly, the Court finds that AWHR's customers had the requisite possession of, and control over, AWHR's water heaters to characterize the transactions as lease transactions.

In the alternative, AWHR argues that its transactions were not subject to sales tax because “[t]o the extent [it was] . . . 'renting' [the] installed water heaters, it was renting an interest in realty[,]” not tangible personal property. * * *

Assuming AWHR was leasing real property and therefore not required to collect sales tax from its customers on the transactions, it owes sales tax to the Department for a different, although somewhat related, reason. Indeed, as the Department‟s aforementioned informational bulletins explain, water heaters, prior to their installation, are tangible personal property. * * * Accordingly, AWHR should have paid sales tax on its purchase of the water heaters from AEP.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (1):

In Nathaniel L. Williams v. State of Indiana, a 21-page opinion, Judge Najam concludes:

In sum, we hold that the admission of the C.I.'s statements, recorded in the course of two controlled drug buys, did not violate Williams's federal or Indiana rights to confront witnesses. We also hold that Williams did not preserve for appellate review his claim that the trial court failed to properly admonish the jury. Finally, we hold that the trial court improperly entered two judgments of conviction against Williams for the same offense. Hence, we vacate one of Williams's Class C felony convictions and remand for the trial court to correct its records, without a hearing, to reflect the vacation of one Class C felony conviction in accordance with this opinion. In all other respects, we affirm Williams's convictions. * * *

[Judge Vaidik's 3-page concurring opinion concludes:] I have written separately only to point out that, if there exists a stronger explanation as to why statements do not constitute hearsay, we should identify that reason in lieu of resorting to the “context” justification. Overuse of the context crutch may ultimately disserve Crawford and the Sixth Amendment confrontation right.

NFP civil opinions today (8):

Wendy G. Thomas, et al. v. Carol Sparks Drake, et al. (NFP)

J.M.O. v. J.C.D. and D.H.M. (NFP)

Estate of Mary L. Riley and Marjorie R. Potts v. James Riley (NFP)

Ruth M. Brown v. Alliance Environmental, Inc. v. R. Bruce Wallace (NFP)

Term. of Parent-Child Rel. of N.S.; G.M. v. I.D.C.S. (NFP)

In Re the Matter of the Guardianship of D.W. (NFP)

Joseph Matthews v. City of Indianapolis (NFP) - "In sum, we hold that the trial court erred when it granted summary judgment to the City. Genuine issues of material fact exist on the questions of the City’s constructive notice of the missing stop sign, whether the missing stop sign proximately caused Matthews’s injuries, and whether Matthews was contributorily negligent. Hence, we reverse and remand for further proceedings."

In Raymond Baird and George M. Cox v. State of Indiana (NFP), a 5-page opinion, Judge Najam writes:

Raymond Baird and George M. Cox bring this consolidated appeal from the trial court's denial of their motion for review of numerous claims of error relating to the trial court's bond schedule and conditions of bond, set out in local rules, which Baird and Cox raised in the course of their respective criminal proceedings. Baird and Cox raise those numerous claims on appeal, but we address only the following issue: whether the trial court properly denied Baird and Cox's motion. We affirm. * * *

Finally, we note that Baird and Cox are not necessarily without remedy to pursue their allegations. If they believe the trial court should be enjoined from implementing or enforcing its local rules, and if they have standing to do so, they may seek a writ of mandate or prohibition from our Supreme Court. See, e.g., App. R. 4(B)(3). And if they believe the State, through its officers, has violated their civil rights, they may pursue those claims in a properly raised civil action. See, e.g., 42 U.S.C. § 1983.

NFP criminal opinions today (6):

Aaron Spears v. State of Indiana (NFP)

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

Michael Shelton Scott v. State of Indiana (NFP)

Aaron R. Ross v. State of Indiana (NFP)

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

Charles Orr v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. App.Ct. Decisions

Environment - Scottsburg biomass project may be out

The ILB has had a number of earlier entries on the proposed biomass wood-burning power plants in southern Indiana. For background start with this one from May 13, 2010.

Today the AP has this brief item:

SCOTTSBURG - Plans for a $100 million wood-burning power plant in southern Indiana have been rejected by a county zoning board.

Scottsburg Mayor Bill Graham has supported the project, but says the Scott County plan commission's 4-2 vote against it likely spells its end.

Developer Liberty Green Renewables last year proposed the plant near Scottsburg and another near Milltown in Crawford County that would burn wood waste, corn waste and other material to generate power.

But those living near the Scottsburg site along U.S. 31 raised concerns about air and water pollution, traffic from trucks delivering wood fuel and how close it is to an elementary school.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Environment

Ind. Courts - Mel Simon heirs' dispute gets more contentious

Updating earlier ILB entries in the Melvin Simon estate dispute, Jeff Swiatek has the report today in the Indianapolis Star that begins:

Trying to show that Bren Simon lacks family support to stay on as executor of Melvin Simon's more than $1 billion estate, a stepdaughter presented evidence that relied mostly on one source:

Bren Simon herself.

Excerpts of a videotaped deposition of Bren Simon commenting on family strife were shown Thursday in Hamilton Superior Court.

Dozens of memos and other pieces of evidence also were filed to try to show that Melvin Simon's widow should be replaced with a banker or other neutral party to oversee the expansive estate while Melvin Simon's will is being challenged by her stepdaughter Deborah Simon.

Deborah Simon's attorneys have argued that the ill will between her and her siblings and Bren Simon will delay the administration of the estate, lead to unnecessary expenses and interfere with the orderly administration of the estate.

Attorneys for Deborah Simon showed the videotaped excerpts to Superior Court Judge William J. Hughes, who'll rule on the proposal to replace Bren Simon.

See also this story yesterday from the IBJ, headed "Sparks fly at Simon estate hearing."

And remember the Inlow heirs? J.K. Wall's story yesterday in the IBJ is headed "Inlow heirs accuse Fifth Third, Hall Render of fraud."

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Indiana Courts

Ind. Decisions - Two Indiana cases today from 7th Circuit

In Tom George et al v. NCAA (SD Ind., Lawrence), a 14-page, 2-1 opinion, Judge Darrah (sitting by designation) writes:

Plaintiffs brought this proposed nationwide class action against the National Collegiate Athletic Association (“NCAA”) and Ticketmaster, alleging that both defendants operated illegal lotteries to sell and distribute tickets for certain Division I championship tournaments. The NCAA moved to dismiss Plaintiffs’ Second Amended Complaint. The district court dismissed all claims with prejudice, and this appeal followed. * * *

[ILB - this well worth reading-in-full opinion turns on Indiana lottery law]

All of Plaintiffs’ claims, however, incorporate—and, to some extent, rely on—all of the preceding allegations, including the lottery claim. As discussed above, Plaintiffs have sufficiently alleged that the NCAA operated an unlawful lottery. Accordingly, the district court’s order of dismissal must be reversed as to all counts remaining in Plaintiffs’ Second Amended Complaint.

CONCLUSION. For the reasons stated above, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.

CUDAHY, Circuit Judge, dissenting. I respectfully dissent from the conclusion of the majority that the mode of distribution of certain sought-after tickets for sports events, as pleaded, is technically an illegal “lottery.”

In Tamika Jones v. Res-Care (SD Ind., Lawrence), a 12-page opinion, Judge Darrah (sitting by designation) writes:
Tamika Jones filed suit against her employer, Res-Care, Inc., and another Res-Care employee, Shane McFall, in the United States District Court for the Southern District of Indiana. Jones alleged discrimination because of race and retaliation under Title VII of the Civil Rights Act of 1964. Jones also brought claims under state law for slander per se, negligent supervision and vicarious liability under the doctrine of respondeat superior. On July 21, 2009, the district court granted Defendants’ motion for summary judgment on all claims. * * *

For the foregoing reasons, the district court properly held that all of Jones’s Title VII claims, with the exception of her retaliation claim, were barred and that Jones could not meet her burden to avoid summary judgment on her retaliation claim. * * *

[Re the state law claims] Under Indiana law, alleged defamatory statements are protected by a qualified privilege if they are “made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” Kelley v. Tanoos, 865 N.E.2d 593, 598 (Ind. 2007). “Intracompany communications regarding the fitness of an employee are protected by the qualified privilege, in order to accommodate the important role of free and open intracompany communications and legitimate human resource management needs.” Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 262 (Ind. 1994). However, a communication that would otherwise be covered by the privilege loses that protection if the plaintiff shows that the privilege has been abused. Id. Abuse occurs where (1) the statement was primarily motivated by ill will, (2) there is excessive publication, or (3) the statement was made without belief or grounds for belief in its truth. Id.

Here, Defendants have shown that the privilege applies, and Jones has not shown that there was abuse of the privilege. Both statements related to Jones’s trustworthiness and were made only to an individual within the company. Jones argues that McFall’s use of animal terms is evidence of malice and, therefore, implicitly argues that McFall was primarily motivated by ill will. But Jones has offered no other evidence of ill will towards her by McFall. Here, considered in context, the use of a somewhat offensive term, alone, does not show that the statement, even if otherwise defamatory, was motivated primarily by ill will and was an abuse of the privilege. Therefore, summary judgment was properly granted as to the defamation claim.

Summary judgment was also properly granted on Jones’s claim against Res-Care for vicarious liability. That claim is depended on the defamation claim and so must also fail.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. courts - Disciplinary chages filed against Judge William E. Young

Here is the press release. The detailed release includes links to the Disciplinary Commission's “Notice of the Institution of Formal Proceedings and Statement of Charges," and to the Supreme Court opinion in Christian Hollinsworth v. State of Indiana (for background, start with this ILB entry from 6/4/2010), where the Supreme Court said that Judge Young's conduct did not meet the standards set out in the Judicial Canons.

Judge Young is the Marion County traffic court judge.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Indiana Courts

Law - "Is a Big Tax Break for Plaintiffs’ Lawyers on the Way?"

Dionne Searcey's entry yesterday in the WSJ Law Blog began:

Will a recent Ninth Circuit ruling mean that plaintiffs’ attorneys get a huge tax break?

The U.S. Chamber of Commerce’s Legal Newsline reported on Wednesday that the U.S. Department of Treasury may be about to grant plaintiffs’ attorneys long-sought tax write-offs for the costs associated with fronting contingency-fee lawsuits.

Legal Newsline cited a speech at the American Association for Justice, the trade association for the trial bar, in Vancouver where one of the group’s leaders told members he’s expecting a Treasury ruling on the write-offs soon.

So are the rumors true? For now, Treasury isn’t commenting.

Apparently at the heart of the matter is an April letter Sens. Max Baucus (D., Mont.) and Richard Durbin (D., Ill.) sent to Michael Mundaca, assistant secretary for tax policy seeking clarity on the 9th Circuit ruling in the 1995 case of Boccardo v. Commissioner.

In the Boccardo case, the IRS asserted that out-of-pocket expenses incurred by attorneys on behalf of clients while prosecuting contingency cases are not deductible because the law firm expects reimbursement upon getting a settlement or judgment. The Tax Court agreed.

The 9th Circuit took up the matter. The letter sums up the ruling like this:

The court “held that attorneys who represent clients in contingency fee cases may treat litigation costs that are paid by the attorneys, such as filing fees and witness expenses as deductible ordinary and necessary business expenses . . . when the attorney and client agree to a specific fee arrangement known as a gross fee contract.”

The IRS issued a memo saying that the ruling applied only to attorneys in the 9th Circuit. But the Tax Court has since recognized the validity of the decision in at least one other case, according to the letter.

Read the WSJ Law Blog for more, including a pro and con.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to General Law Related

Ind. Decisions - "Sex Offenders' Names Expunged From Registry"

This story that left me with a number of questions appeared last evening on 6 News, Indianapolis. For starters, what court was this in? The story relates:

The defendants petitioned the court, saying that having their names on the registry has hurt their chances of getting jobs and finding housing.

"Before, it was never considered punishment. It was a civil sanction, like a parking fine," said Kathleen Sweeney, the attorney for Fred Gaither, 39, who received an eight-year sentence for rape in July of 1992. "Now they are saying this is so significant and invasive and you can never get rehabilitation, and so now they are saying that it's punishment."

The challenges follow a recent ruling by the U.S. Supreme Court that the 2006 Sex Offender Registration and Notification Act, which requires sex offenders to register, did not authorize retroactive enforcement.

The Indiana Attorney General's Office said it will be vigilant in overseeing similar cases.

"Our interest is ensuring that the registry has integrity and people are on the registry that are required to register," said Attorney General Chief Deputy Gary Secrest.

The Derrik Thomas report is here.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Greenwood-Bargersville battle for road continues"

Diana Penner reports today in the Indianapolis Star on yesterday's Court of Appeals decision in City of Greenwood, et al. v. Town of Bargersville, Indiana (ILB summary here, 2nd opinion). Some quotes:

Greenwood has won a legal round in its battle with Bargersville over annexation of a section of State Road 135.

A ruling issued today by the Indiana Court of Appeals overturned a Johnson Superior Court judge's decision in the case, handed down in November 2009.
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The appeals court decided to "reverse and remand" the case, which involves about 1,847 acres along the commercial stretch.

Bargersville could try to take the case to the Indiana Supreme Court. If they pass, it was not immediately clear what could happen if the case returns to the trial court. * * *

Part of the dispute involves the legal requirement for getting actual consent for annexation. State law says at least 51 percent of landowners must agree.

Some property owners waived their right to object to annexation, and Bargersville argued that this translated into consent and meant it could annex the area.

However, the appeals court said the law doesn't work that way.

"Doing nothing cannot be interpreted as 'consent'" in this context, the Court of Appeals wrote in a 22-page decision. * * *

Karl Mulvaney, whose Indianapolis law firm handled the appeal for Greenwood, said he could not comment on a pending legal matter.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tranfer denied in State Senator's case

This coming week's issue of Indiana Legislative Insight has this item (posted with permission) that the ILB missed catching on the July 2, 2010 transfer list:

The Indiana Supreme Court unanimously votes to deny transfer in Randolph v. Hunter, No. 45A03-0910-CV-456. Transfer was requested by Sen. Lonnie Randolph (D), who was appealing the post-conviction court's order that he return $3,500 to Larry Hunter, a criminal defendant and former legal client. Sen. Randolph is a former judge as well.
See this ILB entry reporting on the COA opinion from Feb. 18, 2010.

Posted by Marcia Oddi on Friday, July 16, 2010
Posted to Indiana Transfer Lists

Thursday, July 15, 2010

Ind. Courts - Schedule set for interviews of Supreme Court applicants

The Judicial Nominating Commission will interview the nine semi-finalists for the Indiana Supreme Court on Friday, July 30, 2010.  The list below indicates when each applicant will be interviewed and includes a link to their application. 

Time of Interview (EDT) Semi-Finalist
8:45 a.m. – 9:15 a.m. Hon. Steven H. David
9:15 a.m. – 9:45 a.m. Mr. Thomas M. Fisher
9:45 a.m. – 10:15 a.m. Hon. Cynthia S. Emkes
(Break)  
10:30 a.m. – 11:00 a.m. Ms. Ellen E. Boshkoff
11:00 a.m. – 11:30 a.m. Mr. Karl L. Mulvaney
11:30 a.m. – 12:00 p.m. Sen. Brent E. Steele
(Break – Lunch)  
1:15 p.m. – 1:45 p.m. Hon. Robyn L. Moberly
1:45 p.m. – 2:15 p.m. Hon. Steven R. Nation
2:15 p.m. – 2:45 p.m. Ms. Kiply S. Drew
(Break)  
3:00 p.m. Executive Session deliberations begin

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Attorney Donates $20,000 to Purchase Child Identification Kits "

From the NWI Times:

HAMMOND | About 800,000 children are reported missing each year in America - an average of 2,185 each day, according to the National Center for Missing & Exploited Children.

Those sobering statistics and a desire to protect children led Valparaiso injury attorney Kenneth J. Allen and his wife, Nina, to sponsor the Northwest Indiana Child I.D. Program, the couple said Wednesday during a check presentation to the United Ways at the Northwest Family Services' child care center, 5927 Columbia Ave.

The Allens' donation of $20,000 will buy Child Identification Kits for all 19,500 kindergarten and first-grade students in Lake, Porter and LaPorte County public schools this fall. * * *

The pocket-size kit allows parents to fingerprint their children with an enclosed ink strip and record each child's name, address, physical description, birth date, dental records, emergency contact information and a current photo.

If parents wish, they can include a DNA sample in each child's kit.

The kit also includes child safety tips and what to do if a child is missing. Parents are encouraged to keep the kits up-to-date and in a safe, secure place they can access in an emergency.

See also this ILB entry from July 14th.

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Indiana Courts

About this Blog - Think about life without the ILB

Sustaining the Indiana Law Blog requires a far higher level of support than the ILB has been able to achieve to date. This is a serious matter that the blog is now facing.

If you follow the ILB to keep up with developments in Indiana law, or use its archives when researching a question, think about life without the ILB.

If that concerns you, then please -- you individually, your practice group, your firm, your company or your assiciation -- sign on as an annual ILB supporter yet this month.

Review the Supporter Application for more information.

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to About the Indiana Law Blog

Ind. Decisions - One today from the Tax Court

In Lake County Assessor v. Amoco Sulfur Recovery Corp., BP Products North America, Inc., a 17-page opinion filed July 14, Judge Fisher writes:

The Lake County Assessor (Assessor) appeals the Indiana Board of Tax Review‟s (Indiana Board) final determinations concluding that its 2004, 2005, and 2006 personal property assessments of Amoco Sulfur Recovery Corp., n/k/a BP Products North America, Inc. and BP Products North America, Inc. (collectively, “BP”) were untimely under Indiana Code § 6-1.1-16-1. Because the pleadings, orders, and other materials in this case have been filed under seal, see generally Indiana Administrative Rule 9, this Court's opinion will provide only that information necessary for the reader to understand its disposition of the issues. * * *

BP‟s Returns were in substantial compliance with the APCS statutes and regulations, as the evidence in this case indicates that its Returns listed all personal property subject to taxation, provided all necessary acquisition and location data, and used descriptors that allowed its APCS equipment to be identified with particularity upon request. Therefore, the Court AFFIRMS the Indiana Board‟s grant of summary judgment in favor of BP and its denial of summary judgment as to the Assessor.

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (3):

In, a Crisis Connection, Inc. v. Ronald K. Fromme, a 37-page interlocutory appeal, Judge Crone writes:

Crisis Connection, Inc., is a nonprofit organization that provides services, including counseling, to victims of domestic violence and sexual assault. In connection with a criminal case in which Ronald Keith Fromme is the defendant, Crisis Connection was ordered to produce records to the court for an in camera review. Crisis Connection appeals, requiring us, as a matter of first impression, to interpret Indiana‘s victim-advocate privilege and to determine whether it must be limited by a criminal defendant‘s constitutional rights. Concluding that an in camera review properly balances Fromme‘s constitutional rights and the victims‘ interest in privacy, we affirm. * * *

The interest in privacy asserted by Crisis Connection, while important, is not strong enough to bar an in camera review of its records. Requiring defendants to meet the three-step test before obtaining an in camera review creates the proper balance between a criminal defendant‘s constitutional rights and an alleged victim‘s need for privacy. This approach is consistent with our decisions addressing other privileges and with the better-reasoned opinions of other jurisdictions. Therefore, we affirm the trial court‘s order.

In City of Greenwood, et al. v. Town of Bargersville, Indiana , a 22-page opinion, Judge Crone writes:
The City of Greenwood, Indiana ("Greenwood'), Felson and Jane Bowman, and Zinkan & Barker Development Company, LLC ("ZBDC") (collectively, "Appellants"), appeal the trial court‘s order denying their cross-motion for summary judgment and granting the motion for summary judgment filed by the Town of Bargersville, Indiana ("Bargersville"), in which the court upheld Bargersville‘s annexation of 1847 acres ("the Territory') within three miles of Greenwood‘s city limits and voided Greenwood‘s attempted annexation of the Territory. Because we find as a matter of law that fewer than 51% of the Territory‘s landowners consented to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9, we reverse and remand. * * *

In sum, based solely on the plain language of the sewer service agreements affecting at least 407 of the parcels in the Territory – that is, at least 55% of the total number of parcels – we conclude as a matter of law that those agreements (as well as any other agreements with the same or similar wording) do not constitute valid consent to Bargersville‘s annexation pursuant to Indiana Code Section 36-4-3-9. In so concluding, we express no opinion on Appellants‘ collateral arguments regarding the validity of those agreements. Likewise, we express no opinion on the validity of the remaining documents on which both the Bargersville Town Council and the trial court relied in finding that 51% of the landowners in the Territory had consented to Bargersville‘s annexation. Even assuming the validity of those documents, far fewer than 51% of the landowners in the Territory consented to Bargersville‘s annexation. Therefore, we reverse the trial court‘s grant of summary judgment in favor of Bargersville and remand for further proceedings consistent with this opinion.

In Kelly Lee Muncy, Kendra Marie Vondersaar, et al. v. Harlan Bakeries, Inc., an 18-page opinion, Judge Riley writes:
This cause comes before us as an appeal from the trial court’s Order on remand. Whereas the case initially arose from a boundary dispute between the Muncys and Harlan, the remaining issues now before us involve questions of procedure. In essence, the Muncys contend that the trial court’s Order exceeded the scope of issues available on remand. * * *

The Muncys challenge the trial court’s ruling on the issues on remand. Specifically, they assert that the trial court did not limit its ruling to the remanded issues and corresponding awarded damages as specified in Harlan I but instead imposed significant additional conditions and findings "far beyond those remanded" and even "went as far as to designate who will make the repairs and what type of materials will be used." * * *

Based on the foregoing, we conclude that the trial court did not exceed the scope of issues available on remand. Additionally, we find that the Muncys waived the issue of attorney fees. Affirmed.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of B.G., et al.; M.G., D.G. v. I.D.C.S. (NFP)

Jamestown Homes, Inc. v. Ronald L. Comer (NFP)

NFP criminal opinions today (1):

Teresa M. Mason v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Ind. App.Ct. Decisions

Courts - Oral Advocacy of Thomas Fisher

As explained in this post Tuesday, headed "A New Voice at Oral Argument," this week the ILB is featuring the oral advocacy of the three semi-finalists for the current Supreme Court vacancy who have argued cases before the Court. This feature on Thomas Fisher's oral advocacy, from IU Law-Indy Prof. Joel Schumm, is the second of those entries.



Mr. Fisher is Indiana’s first Solicitor General, a position created in 2005. As the “chief litigation policy advisor to the attorney general,” he pursues “issues of vital interest to state government” and handles specific cases involving constitutional challenges.” Mr. Fisher has argued at least a dozen cases to the Indiana Supreme Court. Many have been high-profile cases. Mr. Fisher’s position has prevailed in nearly all of these cases. This entry begins with detailed summaries and short argument excerpts of two recent cases and then lists all the remaining cases argued by Mr. Fisher.

League of Women Voters v. Rokita

After successfully arguing the federal constitutionality of Indiana’s Voter ID law in the U.S. Supreme Court, Mr. Fisher defended the law against claims that it violated Article 1, Section 23 (Equal Privileges and Immunities) and Article 2, Section 2 (Voting Qualifications) of the Indiana Constitution. That March 4, 2010, oral argument may be viewed here. An excerpt of Mr. Fisher responding to Justice Rucker’s concern that some citizens are denied the right to vote may be viewed here:




The Court ruled 4-1 in Mr. Fisher’s favor in an opinion issued June 30, 2010, by Justice Dickson; Justice Boehm dissented. The Court affirmed the trial court’s dismissal of the complaint because the case presented “only facial challenges” to the law and neither constitutional provision “prevents the legislature from promulgating a new way for voters to identify themselves.”

Richard Brown v. State

Mr. Fisher represented the State in a criminal case where the defendant was convicted of criminal confinement for pretending to be a radio DJ and luring adult men to his home to exchange their clothes for a small t-shirt as part of a fake contest. Criminal confinement is defined by statute as removal by fraud or enticement, which the defendant argued was unconstitutionally vague. The Court held oral argument at Indiana University Maurer School of Law on January 30, 2007. The argument may be viewed here.

For those seeking a quick taste, you may view here Mr. Fisher’s response to Justice Boehm’s questions about whether Borat or Candid Camera would be criminal under the Indiana statute:




The Court ruled against Mr. Fisher’s position in an opinion by Justice Dickson; the Chief Justice dissented without a separate opinion. The Court held the criminal confinement statute is unconstitutionally vague because the broad language could apply to “a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in nature, e.g., using misleading reasons to secure a person's attendance for their surprise birthday celebration; evoking Santa Claus's watchful eye to induce a child to go to bed; employing flattery or exaggeration to motivate another person to attend an event; asserting an untruth to persuade an Alzheimer's patient to enter the location of a caregiver.” No mention of Borat, though.

The Three East Chicago Cases

Indiana Attorney General v. City of East Chicago

October 23, 2008 Oral Argument
April 13, 2009 Opinion

The Court reversed the trial court’s dismissal of the Attorney General’s claims for constructive trust and unjust enrichment.

City of East Chicago v. East Chicago Second Century

October 23, 2008 Oral Argument
June 30, 2009 Opinion

The Court held “certain of the City’s claims should survive a motion to dismiss and others should not. We also hold the existing arrangements are subject to alteration, through the appropriate administrative channels, as the Indiana Gaming Commission on advice of the City and others may deem best for the future of East Chicago’s residents.”

Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana

October 29, 2009 Oral Argument
May 18, 2010 Opinion

The Court relied on its earlier opinions in concluding “the 2007 provision did not alter in any substantive way the statutory framework under which the Gaming Commission regulates licenses and license conditions, and thus find it unnecessary to rule on its constitutionality.”

Other Cases Mr. Fisher has argued before the Supreme Court

Bonner v. Daniels

December 4, 2008 Oral Argument
June 2, 2009 Opinion

“Although recognizing the Indiana Constitution directs the General Assembly to establish a general and uniform system of public schools, we hold that it does not mandate any judicially enforceable standard of quality, and to the extent that an individual student has a right, entitlement, or privilege to pursue public education, this derives from the enactments of the General Assembly, not from the Indiana Constitution.”

State of Indiana v. American Family Voices, Inc.

June 16, 2008 Oral Argument
December 23, 2008 Opinion

The Court reversed the trial court’s dismissal of the State’s complaint seeking to enforce Indiana’s Autodialer Law. The Court held the statute applies to “all autodialer calls, not just consumer transaction calls with commercial messages.”

Nu-Sash & Liberty Publishing, Inc. v. Carter

January 28, 2008 Oral Argument
May 27, 2008 Opinion

The trial court’s order was reversed, and the Supreme Court held compliance with the Civil Investigative Demand statute requires “a verified petition, affidavit, or testimony or other admissible evidence presented at a hearing. But naked allegations in a petition are insufficient.”

Bonney v. Indiana Finance Authority

June 13, 2006 Oral Argument
June 20, 2006 Opinion

The Court affirmed the dismissal of the plaintiffs challenge to the “Major Moves” legislation. The Court found no violation of the special legislation provision of Article 1, Section 23; Article 10, Section 2’s requirement that surplus revenues should be used to pay the public debt; or the “uniform and equal” taxation requirement of Article 10, Section 1.

Cantrell v. Morris

October 6, 2005 Oral Argument
June 21, 2006 Opinion

Web summary: “The Supreme Court responds to a certifed question from the U.S. District Court for the Northern District of Indiana, holding that any civil damage remedy available to a public employee terminated for political activity or affiliation, in violation of the Indiana Constitution, is governed by the Indiana Tort Claims Act, but that the Indiana Constitution does not of itself give rise to any such claim.”

Clinic for Women v. Brizzi

June 21, 2005 Oral Argument
November 23, 2005 Opinion

The Court held requiring women be provided certain information and wait eighteen hours before an abortion may be performed does not violate Article 1, Section 1 of the Indiana Constitution

Doe v. O’Connor

May 8, 2003 Oral Argument
June 26, 2003 Opinion

Web summary: “The Supreme Court upholds the Indiana Sex and Violent Offender Directory, as applied to require a man previously convicted of a sex offense to have his picture and address posted on the Directory, rejecting the argument that the offender has a constitutional right to a court hearing on whether the offender poses any future danger to society before such information is posted.”

[Interesting note: John Feighner, a current member of the Judicial Nominating Commission, represented the Allen County Sheriff in the case and was seated at counsel table with Mr. Fisher]

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Vacancy on Supreme Ct

Ind. Law - Interesting Kelo-type case in South Bend?

A long story today in the South Bend Tribune, reported by Jeff Parrott, and headed "Private or public use? Homeowners hire attorney to fight South Bend over eminent domain tactics." Some quotes:

City and neighborhood revitalization advocates in 2005 told The Tribune that they wanted to start building the new homes in 2007. The nonprofit Northeast Neighborhood Revitalization Organization has used about $3 million in city money to buy and demolish most of the properties, helping residents relocate.

But construction has yet to start. Left standing, like an island in a sea of weed-strewn empty lots, are the homes owned by [Wayne] Curry and his next-door neighbors, Sam and Betty Kariuki.

For nearly six years, Curry and the couple have been unable to agree with the NNRO on a price for their properties.

Curry says the NNRO won't offer him enough money to pay off his mortgage and buy a comparable home in the neighborhood he has come to love. The NNRO offered him $114,000 at one point, but he thinks he deserves at least $200,000.

"Basically I'm trying to get a house," he said. "You lay awake at night. I can't sleep. It's not a good experience."

In the landmark Kelo v. City of New London case, the U.S. Supreme Court in 2005 ruled that local governments can take private property for economic development uses, such as revitalizing distressed areas. Previously, governments could only take land for uses that clearly benefited the public, such as new schools, freeways or bridges.

In the wake of the ruling, many states rushed to pass new laws protecting property owners' rights.

Indiana was one of them. In 2006, it enacted Public Law 163, which requires the property owner, as a willing seller in a city-led economic development project, to be paid 150 percent of the property's appraised value, along with attorney and appraisal fees. [ILB: PL163-2006 = HEA 1010-2006]

But cities exercising their traditional public-use eminent domain power don't have to follow P.L. 163.

City attorney Chuck Leone says the city needs Curry's and the Kariukis' properties for a "public use" because a proposed street in the new subdivision would run through their property boundaries.

Curry said it's not fair that the city is using its eminent domain power for a private project. Ultimately the city's redevelopment commission will convey the land to a private developer, who will have it replatted and subdivided before selling it off to new home buyers.

Masters agrees.

"I think there's a question here as to whether they really need to take their properties for a street," Masters said. "They could put that street anywhere. I think this process is designed to skirt around the protections of the law, and I don't like it." * * *

The NNRO has finally broken off talks with Curry and the Kariukis and deferred their cases to the city. This week, the city's Board of Public Works decided to take their properties with its eminent domain power, a process that affords property owners fewer rights than when they were negotiating with the NNRO.

Curry and the Kariukis are fighting the move and have hired attorney James Masters, who specializes in eminent domain cases. * * *

"There is no question that this is a private development project," Curry said. "The question is should they be able to separate the road work from the private development when the road work would never be done by itself, if not for the private development."

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Indiana Courts

Ind. Courts - More on: Finally a U.S. attorney nomination for the SD Ind?

Updating yesterday's brief entry, Jon Murray and Mary Beth Schneider have a report in today's Indianapolis Star headed "Nomination of Joe Hogsett for U.S. attorney greeted warmly." Some quotes:

The nomination of Hoosier Democratic mainstay Joe Hogsett to lead the federal prosecutor's office in Indianapolis would provide its first appointed leader in nearly three years.

The office has been run by an interim U.S. attorney since Bush administration appointee Susan Brooks left in September 2007, and some observers say key investigations have languished.
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If confirmed by the Senate, Hogsett, a former Indiana secretary of state and state party boss, will become U.S. attorney for the Southern District of Indiana, which covers the southern two-thirds of the state. The White House announced his nomination Wednesday night. * * *

Hogsett, 53, is a partner at Indianapolis law firm Bingham McHale, where he has spent much of his nonpolitical career. He has specialized in federal court employment discrimination and civil rights litigation.

Though a legal expert portrayed Hogsett's legal chops as merely adequate for the job, in contrast with his sharp political skills, his nomination won praise from across the aisle. * * *

The one-time candidate for U.S. Senate and House seats also served as chairman of the Indiana Democratic Party from 2003 to 2004, when he stepped down to run for Indiana attorney general. He lost to incumbent Steve Carter.

Ann DeLaney, a former state Democratic Party chairwoman, said Hogsett knows the ins and outs of government and will adapt quickly to the new job.

But she noted the lag in announcing the nomination, more than 18 months into Obama's term.

"It just took them so darned long to get it done."

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to Indiana Courts

Law - "Tuition is rising at law schools even as lawyer jobs are disappearing, raising questions about whether there is a dangerous bubble that is about to burst."

So reads the lede of this ABA Journal entry by Debra Cassens Weiss, quoting Indiana University law professor Bill Henderson.

Posted by Marcia Oddi on Thursday, July 15, 2010
Posted to General Law Related

Wednesday, July 14, 2010

Ind. Courts - Still more on: "Evansville attorney, prosecutor candidate indicted on sex charges"

Updating this ILB entry from July 3rd, Jared Council of the Evansville Courier & Press is now reporting:

William Wallace, the embattled attorney who’s been running for Gibson County prosecutor, is withdrawing from the race, according to his attorney, Scott Danks.

Wallace, through Danks, declined to comment.

“He maintains his innocence,” Danks said, “but he is concerned that if he stays on the ticket, it’s going to diversely [sic.] affect the other candidates.”

The withdrawal, which will be sent via overnight mail to Indianapolis, comes in response to an e-mail Gibson County Democratic Party Chairman Charlie Mayfield sent to Wallace on Wednesday.

“As Chairman ... “ wrote Mayfield, “I, again, plead with you to withdraw your candidacy for prosecutor of Gibson County before the fast-approaching July 15 deadline.”

Mayfield continued, “Inclusion of your name on the ballot will, undoubtedly, pull votes away from other deserving Democratic candidates.”

Mayfield warned that if Wallace stayed in the race, he would not receive any support from the party, including monetary assistance, name recognition and opportunities to commingle with other candidates at events. * * *

Wallace pleaded not guilty earlier this month to obstruction of justice and possession of child pornography, both felonies; and to misdemeanor counts of patronizing a prostitute and false informing.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Indiana Courts

Ind. Courts - Still more on "Identities of Blagojevich jurors could be made public"

Updating this ILB entry from July 12th, the 7th Circuit has now issued an order dated July 14th denying a rehearing en banc:

After the court issued its opinion on July 2, 2010, a judge called for a vote on the judge’s suggestion of rehearing en banc. This procedure is appropriate under Fed. R. App. 35(a), because, although Rule 35 authorizes litigants to file petitions for rehearing en banc, it does not condition en banc consideration on the filing of a petition. This court regularly hears cases en banc, without a litigant’s petition, under the procedure established by Circuit Rule 40(e). A grant of rehearing en banc on the court’s own motion is equally permissible when the panel issues its opinion without a Rule 40(e) circulation.

A majority of the judges in active service have voted not to hear this appeal en banc. Judges Posner, Kanne, Williams, and Sykes voted to hear the appeal en banc.

Circuit Judge Flaum did not participate in the consideration or decision of this case.

This brief statement is followed by an 18-page dissent by Judge Posner, joined by Kanne, Williams and Sykes.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Finally a U.S. attorney nomination for the SD Ind? [Updated]

And certainly not a new name. Joe Hogsett, according to what Jon Murray of the Indy Star is reporting. Mary Beth Schneider reporting the same, both via Twitter.

[Updated at 7:40 PM] Murray's initial story is now available here.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Indiana Courts

Courts - Intensive parenting can become over-parenting: Article, therefore, cautions against hasty incorporation of Intensive Parenting norms into the law.

That is from a forthcoming law journal article currently available at SSRN. Here is the synopsis:

Today the child is king. Child rearing practices have changed significantly over the last two decades. Contemporary parents engage in Intensive Parenting. Parents devote their time to actively enriching the child, ensuring the child’s individual needs are addressed and he is able to reach his full potential. They also keep abreast of the newest child rearing knowledge and consistently monitor the child’s progress and whereabouts. Parents are expected to be cultivating, informed and monitoring. To satisfy these high standards, parents utilize a broad array of technological devices, such as the cellular phone and the Internet, making Intensive Parenting a socio-technological trend.

Many legal doctrines aim at defining the scope of parental responsibilities; yet, courts, legislatures and scholars alike have ignored this significant change in child rearing practices. Unattended, the law already plays an important role in enhancing the socio-technological trend of Intensive Parenting. In the area of custody disputes, legislatures and courts effectively enforce Intensive Parenting norms. Other recent legal developments, such as the constriction of the Parental Immunity Doctrine and recurring transformation of preferred child rearing practices into legal standards, open the door to the incorporation of additional Intensive Parenting norms into the law.

This Article underscores that despite its advantages, Intensive Parenting can become over-parenting. First, the Article shows that Intensive Parenting is not a universal trend. It is class, race, ethnicity and culture dependent. Enforcement of Intensive Parenting in a multicultural society would increase existing biases in the child welfare system and force Intensive Parenting on those who may be financially unable or ideologically unwilling to adopt it. Second, the Article reveals that although Intensive Parenting carries important advantages it can disrupt healthy psychological development in children. The Article, therefore, cautions against hasty incorporation of Intensive Parenting norms into the law.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Courts in general

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

For publication opinions today (4):

In Paul Christy and Julia Christy v. Paul Sebo and Anita Sebo, a 1-page opinion, Judge Crone writes:

The Christys raise two issues, which we restate as follows:
I. Whether the Christys are entitled to attorney’s fees and expenses incurred in defending against an adverse possession claim; and
II. Whether the Christys are entitled to attorney’s fees and expenses incurred in litigating their breach of warranty claim against the Sebos.* * *

[I] The threshold issue in both Rieddle and Keilbach is whether the seller breached the warranty of title. As to that specific issue in the case at bar, on May 21, 2009, summary judgment was granted in favor of the Christys and against the Sebos, and the Sebos have not appealed that ruling. Thus, the Sebos did, in fact, breach the warranty of title. The fact that the Christys and the Clarks ultimately settled their adverse possession dispute is irrelevant to the question of whether Sebos breached the warranty of title. Therefore, the Christys are entitled to their reasonable attorney’s fees and costs incurred in defending against the Clarks on their adverse possession claim. * * *

[II] Here, the trial court found that the Sebos breached the warranty of title. The Christys are the prevailing party and, pursuant to the Agreement, are entitled to their attorney’s fees and expenses incurred in litigating the breach of warranty claim against the Sebos. * * *

We therefore reverse the trial court’s decision not to award attorney’s fees and costs and remand for further proceedings consistent with this opinion.

In Randy O'Brien, et al. v. C. Bruce Davidson, et al. , a 9-page decision, Judge Kirsch writes:
The dispositive issue presented in this appeal is whether the trial court erred by granting summary judgment in favor of Bar Plan. We reverse and remand. * * *

Davidson abandoned his law practice without notice to his clients in November 2003 and later was disbarred by the Supreme Court for his pattern of neglect of his clients. In re Davidson, 814 N.E.2d 266 (Ind. 2004). After abandoning his law practice, Davidson embarked on a multi-state crime spree involving numerous bank robberies in several states for which he is now incarcerated in the federal bureau of prisons.

Ashby and O'Brien separately filed complaints each alleging professional malpractice against Davidson. * * *

Bar Plan argues that even though it received actual written notice of the Clients' claims, there is no coverage under the policy because Davidson, the Insured, did not supply the written notice to Bar Plan and that Davidson did not receive a demand from the Clients within the policy period. Bar Plan contends that this court's opinion in Paint Shuttle supports its position; however, we conclude that Paint Shuttle does not support Bar Plan's argument. * * *

Although we decide the notice issue in the context of summary judgment and not equity, we observe that under the facts of this case, notice provided by Davidson to Bar Plan was an impossibility. Further, Bar Plan received notice that was both “timely” and “true” as those terms are set out in Paint Shuttle. Bar Plan has been able to investigate and defend the Clients' claims against the insured after receiving prompt, actual written notice of the claims. It seems to us that the purpose behind the notice provision at issue here has more to do with the ability of the carrier to investigate and defend against claims in a timely manner than with the ability of a carrier to deny coverage because actual notice was supplied by the wrong individual, i.e., “gotcha.” We decide as a matter of law that the actual notice Bar Plan received from the Clients was proper.

InFidelity National Title Insurance Company v. Rhys Mussman and Sally Mussman, a 15-page opinion, Judge Najam writes:
Fidelity National Title Insurance Company (“Fidelity”) appeals from the trial court’s grant of summary judgment in the amount of $1.6 million in favor of Rhys and Sally Mussman (“the Mussmans”) on the Mussmans’ complaint alleging conversion of funds held in an escrow account by Intercounty Title Company (“ITC”). The question presented is whether ITC was acting as Fidelity’s agent when it provided closing and escrow services for the Mussmans. We hold that while ITC was Fidelity’s title insurance agent, ITC was not Fidelity’s agent for closing and escrow services, and, thus, that the trial court erred when it held that the Mussmans are entitled to judgment as a matter of law. We reverse and remand with instructions. * * *

In sum, the parties agree that the designated evidence does not support a determination that ITC had apparent authority to conduct closing and escrow services as Fidelity’s agent. And the designated evidence does not support a determination that ITC had actual authority, either express or implied, to conduct closing and escrow services on Fidelity’s behalf. The trial court erred when it concluded that the Mussmans are entitled to judgment as a matter of law and denied Fidelity’s cross-motion for summary judgment. We hold that Fidelity is entitled to summary judgment on the Mussmans’ complaint and instruct the trial court to issue judgment for Fidelity accordingly.

In Eastern Alliance Insurance Group, Chubb Insurance Group, and Total Interior Systems America, LLC v. Elizabeth Howell, a 10-page opinion, Judge Najam writes:
Eastern Alliance Insurance Group, formerly known as Employer's Security Insurance (“Eastern”), appeals the decision of the Full Worker's Compensation Board (“the Board”) in which the Board assessed penalties against Eastern due to a lack of diligence. Eastern raises two issues for our review, which we restate as the following dispositive issue: whether sufficient evidence supports the Board's conclusion that Eastern acted with a lack of diligence. We reverse and remand with instructions. * * *

[W]e hold that the Board's conclusion that Eastern acted with a lack of diligence is clearly erroneous. The Board's factual findings demonstrate that Eastern reasonably investigated the claim and communicated with the parties, and, afterwards, it reasonably determined that it was not liable for the claim. And, again, significantly, Eastern offered to split Howell's medical costs up front with Chubb, which, in the Board's own words, was “fully consistent with the stated opinion . . . that [Howell] was entitled to receive the recommended medical treatment as statutory medical under the Act.” As such, we reverse the Board's conclusion that Eastern acted with a lack of diligence, and we vacate the penalties assessed against Eastern. Further, we remand with instructions that the Board determine and enter an order regarding whether Chubb should be held responsible for the entirety of the penalty and attorneys' fees awarded for its lack of diligence.

NFP civil opinions today (2):

Jeannie Hall v. Larry Hall Trust and Trustee (NFP)

Shalini Kohli v. Vishal Mahajan (NFP)

NFP criminal opinions today (5):

John Jacob Campbell v. State of Indiana (NFP)

Marcus R. Berry v. State of Indiana (NFP)

Michael Furlong v. State of Indiana (NFP)

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

Johnny Byers v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Ind. App.Ct. Decisions

Courts - Oral Advocacy of Ellen Boshkoff

As explained in this post Tuesday, headed "A New Voice at Oral Argument," this week the ILB is featuring the oral advocacy of the three semi-finalists for the current Supreme Court vacancy who have argued cases before the Court. This feature on Ellen Boshkoff's oral advocacy, from IU Law-Indy Prof. Joel Schumm, is the first of those entries.



Ms. Boshkoff’s practice focuses on employment law, which means many of her cases have been in federal court. (Unfortunately, federal court means -- no videos available.)

In 2003, however, Ms. Boshkoff represented Indianapolis Public Schools in a case where the Indiana Supreme Court granted emergency transfer to decide whether a teacher facing a termination hearing was entitled to discovery under Trial Rule 28(F).

The oral argument in Board of School Commissioners of City of Indianapolis v. Walpole was held at the Indiana University School of Law—Indianapolis on October 1, 2003. The entire argument may be accessed here. For those who simply want to get a taste of Ms. Boshkoff’s outstanding oral advocacy, two short excerpts are available.

In the first, Justice Sullivan asks about “an interesting hypothetical” involving teachers exercising their First Amendment rights.

In the second, Justice Boehm asks Ms. Boshkoff, as she walks to the podium to begin rebuttal, about concerns of "a surprise, unknown witness."

Ms. Boshkoff’s position prevailed in a 4-1 opinion by Justice Boehm; Justice Sullivan dissented. The Court held that Rule 28(F) does not apply to termination hearings, which are governed by statute. Consistent with Ms. Boshkoff’s response to Justice Boehm’s question, the Court reasoned that “[m]assive, hurry-up discovery can divert attention from other aspects of operating a school system. We do not believe the legislature intended to impose those costs on either school boards or teachers.”

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Vacancy on Supreme Ct

Law - It was certainly the first thing I thought when I heard the news yesterday

The Indianapolis Star reports today in a long, unattributed story:

CHICAGO -- Born on the Fourth of July, George Steinbrenner left the world stage with a great sense of timing too.

By dying in 2010, the billionaire and long-time New York Yankees owner's wealth avoids the federal estate tax, likely saving his heirs enough money to field an entire team of Alex Rodriguezes.
Advertisement

Steinbrenner's death Tuesday came during an unplanned year-long gap in the estate tax, the first since it was enacted in 1916. Political wrangling has stalemated efforts in Congress to replace the tax that expired in 2009.

That deprives the government of billions of dollars in annual revenue but represents an unexpected bonanza for those who inherit wealth.

"If you're super-wealthy, it's a good year to die," said Jack Nuckolls, an attorney and estate planner with the accounting firm BDO Seidman. "It really is."

The death of the 80-year-old Steinbrenner, who had been in poor health for years, highlights a quirky tax situation that has drawn much scrutiny among the moneyed but little on Main Street. Only those with estates valued at more than $3.5 million had to pay under the old law.

Read in conjunction with this ILB entry from Monday headed "Too Rich to Live?"

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to General Law Related

Ind. Courts - "Man accused of commodity fraud against appeals judge: Allegedly told Judge Elaine Brown he could turn $10,000 into $1 million"

That is the headline to this story today by Lydia McCoy in the Evansville Courier & Press. More:

DUBOIS COUNTY, Ind. — A Cincinnati man is being held in the Vanderburgh County Jail on commodity fraud charges alleging that he took $10,000 from Indiana Court of Appeals Judge Elaine Brown after promising to turn it into $1 million within a year.

Robert Buchanan, 54, has been charged with commodity fraud, sale of a commodity contract and failure to register as a commodity merchant, all class C felonies. A class C felony carries a prison term of two to eight years upon conviction.

Brown is a former Dubois Superior Court judge and had practiced law in Jasper and Evansville before her appointment in 2008 to the Indiana Court of Appeals by Gov. Mitch Daniels. Recently she made an unsuccessful bid to fill a vacancy on the Indiana Supreme Court.

According to a probable cause affidavit, Brown and Buchanan met in September. Buchanan was doing business as Buchanan Trading, and on Dec. 24 Brown entered into an agreement with him for investment purposes. In conjunction with the agreement, Brown wrote a check for $10,000 to Buchanan Trading.

"The memo line of the check states 'Deposit into my trading account.' The back of the check was endorsed by Buchanan," according to the report. But Buchanan allegedly deposited the check into an account belonging to his son and ex-wife without their knowledge or authorization.

According to the report, the National Futures Association, which handles the licensing and registration for the Commodity Futures Trading Commission, Buchanan applied to become a commodity trading adviser in 2000. On Jan. 24, 2001, the association abandoned Buchanan's application because of deficiencies.

"As such, Buchanan and Buchanan Trading have never been registered with the NFA and the CTFC. Additionally, Buchanan never disclosed to Brown that he is not registered to sell a commodity contract," according to the report.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Indiana Courts

Ind. Courts - "Supreme Court candidate has ties to Clay County"

Jason Moon of the Brazil Times reports that:

One of the nine semifinalists for the soon-to-be vacant position for the Indiana Supreme Court has ties to Clay County.

Kiply Drew, 48, Bloomington, is the daughter of Bill Shobe, who grew up in Clay County.

She was one of 34 people to interview for a position on the state's high court. Current Justice Theodore R. Boehm, who has been on the court since 1996, will be retiring in later this year.

According to Shobe, Drew is an in-house attorney for Indiana University.

"This makes me pretty proud," Shobe said.

Drew's grandparents, Bill and Leona Shobe, were both residents of Brazil. * * *

The other eight finalists include Ellen Boshkoff, Judge Steve David, Judge Cynthia Emkes, Thomas Fisher, Judge Robert Moberly, Karl Mulvaney, Judge Steven Nation and Sen. Brent Steele.

Of the nine finalists, four are trial judges, while one is a state senator. Two are lawyers for firms while Fisher is the Solicitor General for the Indiana Attorney General's office.

Drew and Steele are the only finalists not from Marion County.

The nine candidates will face a second round of questioning July 30. From there, three finalists will be recommended to Governor Mitch Daniels by the Judicial Nominating Commission.

Currently, there are no women on the Indiana Supreme Court. * * * According to the Indiana Law Blog, Drew was one of 19 female candidates.

"Just to get in the final nine, that's pretty amazing," Shobe said.

Posted by Marcia Oddi on Wednesday, July 14, 2010
Posted to Vacancy on Supreme Ct

Tuesday, July 13, 2010

Ind. Courts - More on: A New Voice at Oral Argument

Although the YouTube clip of CJ Shepard and J Rucker in this afternoon's ILB entry sounds fine on my laptop and desktops, I have trouble hearing it on my iPhone without earphones turned way up. Any YouTube experts out there with suggestions?

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Vacancy on Supreme Ct

Courts - "Federal appeals court nixes ban on Kentucky judicial party affiliations" [Updated]

A story this afternoon via the LCJ by Brett Barrouquere of the AP begins:

LOUISVILLE, Ky. -- A federal appeals court on Tuesday cleared the way for Kentucky judicial candidates to raise money and run with political party affiliations, but ordered a lower court to consider whether the candidates can offer specific positions on issues.

Judge Jeffrey Sutton of the Cincinnati-based U.S. 6th Circuit Court of Appeals said banning campaign fundraising and party affiliations violated the First Amendment's guarantee of free speech.

"Elections are elections, and the same First Amendment applies to all of them," Sutton wrote for the three-judge panel.

In 2008, U.S. District Judge Karen Caldwell also threw out the Kentucky Judicial Conduct Commission's rule against judicial candidates identifying themselves by party and raising money, but she upheld a ban on judicial candidates taking stands on specific issues.

Judge Thomas B. Wiseman of the 6th Circuit said he would have upheld the ban on candidates professing a stand on specific issues. Wiseman said candidates know when such a stance has been taken and states can deal with those on a case-by-case basis.

"Is there any doubt about a commitment when a candidate professes to believe life begins at conception?" Wiseman wrote. "Is there any committed bias in favor of a political party when a candidate for judge states a 'strong belief in the right to keep and bear arms'?"

The decision could affect Ohio, where judicial candidates are barred from identifying a party affiliation after the primary election. Tennessee, also part of the 6th Circuit, allows party affiliation, while Michigan does not have a comparable rule.

Expect to see more on this decision. The AP story concludes:
The new rule was drafted after a judge struck down a previous one that prevented judicial candidates from making statements that "commit or appear to commit" to positions on cases they likely would hear.

Seven states, including Texas, Louisiana and Pennsylvania, already allow judicial candidates to run affiliated with a political party. Nine other states, including North Carolina, Oregon and Wisconsin, ban judges from running as politically affiliated. Fourteen states that elect or vote to retain judges have no comparable rule.

Here is the 44-page, 2-1 opinion in Carey v. Wolnitzek (6th Cir., 7/13/2010). Note that Indiana attorney James Bopp argued the case for the plaintiffs.

[Updated at 6:53 PM] Andrew Wolfson of the Louisville Courier Journal now has a lengthy report, full of detail. From p. 2 of the online version:

In a dissent, Judge Thomas B. Wiseman said the ban on committing on issues should have been upheld because it is obvious when such comments show bias.

"Is there any doubt about a commitment when a candidate professes to believe life begins at conception?" Wiseman wrote. "Is there any committed bias in favor of a political party when a candidate for judge states a 'strong belief in the right to keep and bear arms?'"

[Steve Wolnitzek, chairman of the state Judicial Conduct Commission, a defendant in Carey's suit] and [Carey's lawyer, Jim Bopp of Terre Haute] both said the appellate court ruling was expected because federal courts around the country, including the Supreme Court, have been giving judicial candidates the same rights as contestants in other political races.

The Judicial Conduct Commission and Kentucky Bar Association defended the prohibitions on direct solicitation and announcing party affiliation, saying they help prevent corruption of the judicial process.

But the appeals court panel said that while "party affiliation might not be a reliable indicator of the qualities that make a good judge ... it is simply not the function of government to select which issues are worth discussing or debating in a political campaign."

The court also noted that judicial candidates could already disclose their party membership in response to a question; they were only prohibited from bringing it up themselves.

Seven states already allow judicial candidates to run affiliated with a political party. Nine others ban judges from running as politically affiliated. Fourteen states that elect or vote to retain judges have no comparable rule.

In Indiana, where judges run in retention elections
, they are barred from publicly identifying themselves by party and personally soliciting campaign contributions, according to appendices to the opinion. [ILB -see note at end of entry]

The panel said that the judicial rule barring candidates from soliciting money directly "suppresses speech in the most conspicuous of ways, and in the process favors some candidates over others."

The judges said the rule favors the well-to-do, who may not need to raise any money at all, over lower-income candidates, and the well-connected, who may have an army of fund-raisers, over outsiders.

ILB note: See also John Murray's Indy Star blog entry, where he points out:
[I]t's an interesting decision, [even if its not our Circuit and] even if Indiana already allows judicial candidates to raise money and makes their elections partisan. Except, of course, for the state appellate courts, which are filled through a merit-based appointment process. [ILB And reelected on a 10-year retention ballot.]

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Courts in general

Ind. Decisions - "Pulling Gun During Traffic Stop Requires Cause"

The COA decision Friday, July 9, 2010, in the case of Daniel C. Reinhart v. State of Indiana (ILB entry here) is the subject of a story in theNewspaper.com, a "journal of the politics of driving." Some quotes:

A sheriff's deputy in Noble County, Indiana blew a case against a man suspected of driving under the influence of alcohol (DUI) after he drew his gun on the motorist without probable cause. The state court of appeals on Friday tossed the felony drunk driving conviction of Daniel C. Reinhart because of the actions of Deputy Carey Coney around 3am on August 6, 2008. * * *

The appeals court first determined that the initial traffic stop was justified because Coney was interested in checking the driver's sobriety after seeing the swerve.

"It is well settled that police officers may stop a vehicle when they observe minor traffic violations," Judge Terry A. Crone wrote for the three-judge panel.

The question then turned to whether holding Reinhart at gunpoint or placing him in handcuffs was something more than an investigatory traffic stop. The court found, based on a video recording of the incident, that Coney had taken steps beyond what was required for his own safety.

"Reinhart gave no indication that he was armed or dangerous," Crone wrote. "Nevertheless, with the laser sight of Deputy's Coney's gun prominently fixed on him, Reinhart was ordered first to kneel with his hands behind his head for a period and then lie face down on the ground for an additional period of time while waiting for the second police officer to arrive. Reinhart was then handcuffed before he was searched twice. We believe that a reasonable person in Reinhart's position would not have believed himself to be free to leave but instead would have considered his freedom of movement to have been restrained to the degree associated with a formal arrest."

The court saw no choice but to throw out the evidence gathered after the unlawful arrest to deter police from exceeding their authority in the future.

"While we are mindful of the significant danger faced by police officers during traffic stops, we must balance the interests of officer safety with the privacy interests protected by the Fourth Amendment in requiring law enforcement to use the least intrusive means necessary to investigate a traffic stop," Crone wrote. "Under the facts presented, this was more than a minimal deprivation of Reinhart's liberty of movement necessary to confirm or dispel Deputy Coney's suspicion that Reinhart was operating a vehicle while intoxicated... Accordingly, we reverse Reinhart's convictions."

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Seventh Circuit Upholds Ban on Gun Possession by People With Past Convictions for 'Misdemeanor Crime[s] of Domestic Violence'”

So notes Prof. Eugene Volokh in his blog today.

The en banc opinion is USA v. Steven Skoien (WD Wis.).

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - A New Voice at Oral Argument

IU Law-Indy Prof. Joel Schumm has prepared this introduction for some upcoming entries.

The Indiana Supreme Court hears oral argument in about 75 cases each year. Although the briefs in each case are often of primary importance, oral argument may refine the way the Court views and decides a case. The Chief Justice and Justice Rucker explained the importance of oral argument during this question-and-answer session with law students at Indiana University (Maurer) School of Law after hearing oral argument in Richard Brown v. State on January 30, 2007.

During the first round of interviews, no applicant was asked about their views or approach to oral argument. Will the next justice continue the fairly friendly give-and-take of the current justices, be a non-questioning bystander (like Justice Clarence Thomas), or take on a more aggressive role (like Seventh Circuit Judges Posner or Easterbrook)?

Indiana generally does not allow cameras in its trial courts; therefore, no courtroom video is available of the trial judge semi-finalists . But the Supreme Court has webcast its oral arguments since 2001, and three of the semi-finalists have argued one or more cases before the Court. Each day this week the ILB will feature an applicant with links and summaries of their case(s) argued, the resulting opinion(s), and a couple of short argument excerpts. We will proceed in alphabetical order: Ellen Boshkoff (Wednesday), Thomas Fisher (Thursday), and Karl Mulvaney (Friday).

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In Michael Akens v. State of Indiana , a 4-page opinion, Judge May writes:

Michael Akens appeals the sentence imposed pursuant to his plea of guilty to child molesting. As the plea agreement does not permit Akens to appeal his sentence, we affirm. * * *

In the case before us Creech controls. The trial court’s statement that Akens could appeal his sentence was not made until after the court had accepted the plea agreement and entered Akens’s sentence. Thus, as in Creech, Akens already had received the benefit of his bargain prior to the trial court’s misstatement. Because the agreement included Akens’s express waiver of his right to appeal his sentence, we affirm.

In Deborah Edwards v. State of Indiana , an 8-page opinion, Judge May writes:
Deborah Edwards appeals her conviction of criminal recklessness, a Class D felony. She claims she was denied a fair trial because she was not allowed to present witnesses who would testify they did not see her at the crime scene. We reverse and remand. * * *

Because there was not, as the State asserts, overwhelming evidence of Edwards' presence at the scene and involvement in the crime, we decline the State's invitation to disregard this “fundamental element of due process law.” The State claims three witnesses -- Gene Schill, who was attacked with a baseball bat; Gene's son, Jacob, who also was injured in the altercation; and Gene's wife, Cynthia -- all identified Edwards as the person holding the bat and beating Gene. They did not. * * *

The trial court erred when excluding Rachel Edwards and Robert Bell on the ground they were alibi witnesses. Instead, they were eyewitnesses at the crime scene whose testimony could be used to rebut the prosecution's contention that Edwards was there. We accordingly reverse Edwards' conviction and remand for a new trial.

NFP civil opinions today (6):

John C. Cole, Jr. v. Patrick V. Baker (NFP)

Douglas K. Huffnagel v. Christopher F. Cline (NFP)

Donald Johnston, et al. v. Carl W. Johnston, et al. (NFP)

D.B. Alleged to be C.H.I.N.S.; P.B. v. I.D.C.S. (NFP)

Term. of Parent-Child Rel. of K.I. and R.I.; K.K. and C.I. v. IDCS (NFP)

V.B. v. Review Board (NFP)

NFP criminal opinions today (12):

Randy Allen Long v. State of Indiana (NFP)

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

Ronald Wright v. State of Indiana (NFP)

Timothy Charles Wakefield v. State of Indiana (NFP)

William Baxter v. State of Indiana (NFP)

Otis A. Tate, Jr. v. State of Indiana (NFP)

William Kerr v. State of Indiana (NFP)

Andy Zulu v. State of Indiana (NFP)

James Gilman v. State of Indiana (NFP)

Kenneth McClung v. State of Indiana (NFP)

Lewis Vasquez v. State of Indiana (NFP)

John B. Felder v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: AG Zoeller legal opinion: School bus fees unconstitutional

Updating yesterday's ILB entry, Dan Carden has a story on the opinion today in the NWI Times. Some quotes:

The strained budgets of Indiana's schools got a little tighter Monday following a legal finding that schools are prohibited from charging a student transportation fee.

State Attorney General Greg Zoeller issued a formal opinion to the State Board of Accounts confirming that schools cannot require students to pay a fee to ride the school bus.

"A public school corporation is not authorized to assess and collect a bus rider fee from a student in order for that student to receive transportation to and from the student's school to receive a public education. Such a fee is unconstitutional," Zoeller said in his nine-page opinion.

The State Board of Accounts has repeatedly claimed school bus fees are unconstitutional and has chided several region schools in biannual audits for charging the fee. The attorney general's opinion is not binding law but tends to stand as the ruling practice until a court weighs in on the issue. * * *

The Indiana Constitution requires the General Assembly to establish a uniform system of common schools "wherein tuition shall be without charge." The Indiana Supreme Court has interpreted the "without charge" phrase to mean that schools cannot charge extra for any school program, project, service or curricula mandated or permitted by the General Assembly.

Zoeller said it is clear the General Assembly considers student transportation to be related to education, given the number of laws requiring and regulating student transportation. As such, Zoeller asserts, students cannot be required to pay an extra fee for their ride to school.

Fees, including transportation fees, can be charged for extracurricular activities because students choose to participate. However, a fee charged on all students is the same as tuition and is unconstitutional without specific General Assembly authorization, Zoeller said.

ILB comments: The Supreme Court's 2006 decision in Nagy v. Evansville-Vanderburgh School Corp is referenced often in the AG's opinion. That case involved "mandatory student services fees,' leaving unanswered the question of textbook fees. In short, some might say this is a cloudy area.

While looking back at past entries, I ran across this one from August 18, 2008, quoting an editorial from the South Bend Tribune, critical of Nagy.

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Indiana Law

Ind. Courts - "David Camm case gets special judge for third triple-murder trial"

Updating yesterday's ILB entry, today Ben Zion Hershberg of the Louisville Courier Journal has a full report. Some quotes:

The Indiana Supreme Court has appointed Spencer County Circuit Court Judge Jonathan A. Dartt as special judge to handle the David Camm triple-murder re-trial.

Camm's lawyers asked for the appointment of a special judge earlier this year, arguing that Warrick County Superior Court Judge Robert Aylsworth had taken longer than the statutory 30 days to rule on a request for a change of venue.The appointment, said Stacy Uliana, one of Camm's lawyers, "is what we asked for. We're pleased with the ruling, we're ready to move on." * * *

Camm has been found guilty twice of murdering his wife and their two young children in the garage of their Georgetown home in September 2000, but both verdicts have been overturned.

After the first trial, in Floyd County Superior Court in early 2002, the Indiana Court of Appeals overturned the verdict because, it said, a dozen women had been allowed to testify about affairs they'd had with Camm, a former state trooper, or being approached by him, biasing the jury.

The second trial was moved to Warrick County because of the intense publicity in Floyd County.

After Camm's second conviction and sentence to life in prison without the possibility of parole, the Indiana Supreme Court ruled last summer that Henderson improperly had been allowed to argue that Camm murdered his family to cover up the alleged molestation of his 5-year-old daughter, inflaming the jury against Camm.

Henderson has said he plans to prosecute Camm again, acknowledging that trying such old cases can be difficult. * * *

Dartt has been a judge since last year, but he was Spencer County prosecutor for 10 years before being elected circuit court judge in 2008 and taking office in 2009.

The initial issues Dartt will have to deal with include defense requests for a change of venue and a change of prosecutor. The change of prosecutor motion was based on defense arguments that Henderson created a conflict of interest by agreeing last year -- before the second guilty verdict was overturned -- to write a book about the case.

Henderson has argued that there is no conflict because his book negotiations included language voiding any agreement if the verdict were overturned.

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Some candidates are judges, and some are attorneys who practice in different areas of the law. One is a state senator." [Revised]

[Note: I've revised this entry somewhat; apparently I was referencing a truncated version of the story.]

Jon Murray of the Indianapolis Star has a lengthy story today about the semi-finalists for the Supreme Court vacancy, talking about them mostly as a group, as the heading to this entry indicates. The story concludes:

Daniels, a Republican, has withheld public comment about his criteria.

After the nominating commission narrowed the list from the initial pool of 34, its chairman, Chief Justice Randall Shepard, said legal talent, public service and credibility would be key factors.

Asked whether gender should be considered -- Indiana is one of only two states with an all-male high court -- Shepard said: "I think the consensus is that the state is well served if there is as broad of a range of talents and experiences as possible with the nominees," and some of those arise from gender.

Age could be another factor, if Daniels is aiming to make a long-lasting mark.

The remaining candidates' average age is 53. The youngest is Fisher, 41, and the most senior is state Sen. Brent Steele, 62. Justices must retire at age 75.

There are also, of course, the candidates' qualifications and career backgrounds to consider.

"It's overall a very strong group of semifinalists," said Joel Schumm, a professor at Indiana University School of Law-Indianapolis who observed all of last week's interviews.

But he expressed surprise that only four women made the first cut when they accounted for 19 of the 34 applicants.

Shepard said after Wednesday's vote that trimming the list by nearly three-fourths wasn't easy.

"This will get more painful," he said, "as the process goes forward."

Jon Murray's story includes short bios of the nine remaining candidates:
Ellen E. Boshkoff

• Age: 49.

• Residence: Fishers.

• Education: Swarthmore College, 1983; Indiana University Maurer School of Law, 1990.

• Experience: Partner at Indianapolis power firm Baker & Daniels for most of her career. She focuses on business litigation and employment claims and has defended Eli Lilly and Co., Wal-Mart Stores Inc. and Indiana University against employees' lawsuits.

• Significant matter: Successfully defended IU against a lawsuit by basketball fans challenging the 2000 firing of coach Bob Knight and then-President Myles Brand's briefing of IU trustees in private meetings.

• Hobbies: Spending time with three children, ages 13 to 25; travel; gardening; reading; and going to the gym.

Steven H. David

• Age: 53.

• Residence: Whitestown.

• Education: Murray State University, 1979; IU School of Law-Indianapolis, 1982.

• Experience: Boone Circuit Court judge since 1995, handling civil, juvenile and criminal matters, including death-penalty cases. Earlier, the Republican judge worked as a corporate counsel, a private attorney and an Army judge advocate general.

• Significant matter: Took leave in 2007 to spend a year as chief defense counsel for the U.S. Office of Military Commissions, overseeing defense work for those held at the U.S. detention center in Guantanamo Bay, Cuba. He considers the task the most difficult of his career.

• Hobbies: Competing in triathlons and marathons with his wife, community service and playing golf with his 87-year-old father.

Kiply S. Drew

• Age: 48.

• Residence: Bloomington.

• Education: Hanover College, 1983; IU Maurer School of Law, 1989.

• Experience: Associate general counsel for Indiana University for most of her career. Other work included attorney at Indianapolis firm Barnes & Thornburg, law clerk at the Indiana Supreme Court and high school English teacher.

• Significant matter: While serving as acting general counsel, advised IU officials as they responded to a 2006 plane crash that killed five students who graduated from the distinguished music school.

• Hobbies: Reading murder mysteries, lawyer tales and Harry Potter books; travel with family and attending her sons' activities; entertaining family and friends; and scrapbooking.

Cynthia S. Emkes

• Age: 51.

• Residence: Greenwood.

• Education: Indiana University, 1979; IU School of Law-Indianapolis, 1985.

• Experience: Johnson Superior Court judge since 1987, primarily handling divorce and felony criminal cases. The Republican judge presided over a broader range of criminal and civil cases prior to 2004. Earlier, she worked as a private attorney.

• Significant matter: In the first of two death-penalty trials, imposed a death sentence for Eric D. Holmes in the 1989 murders of two Indianapolis restaurant workers after a jury failed to return a unanimous recommendation.

• Hobbies: Gardening and landscaping, photography, scrapbooking, holiday craft projects, spending time with family, travel and reading.

Thomas M. Fisher

• Age: 41.

• Residence: Indianapolis.

• Education: Wabash College, 1991; IU Maurer School of Law, 1994.

• Experience: Indiana solicitor general in the attorney general's office. He has represented the state before the U.S. Supreme Court three times. Earlier, he worked for Baker & Daniels and in the Washington, D.C., office of mega firm Jones Day.

• Significant matter: Led the team defending Indiana's voter ID law in state and federal lawsuits. He notched victories in the U.S. Supreme Court in 2008 and the Indiana Supreme Court last month.

• Hobbies: Spending time with his wife and four children, reading, listening to recordings of academic lectures, movies, coaching youth sports, exercise and sports events.

Robyn L. Moberly

• Age: 56.

• Residence: Indianapolis.

• Education: Indiana University, 1975; IU School of Law-Indianapolis, 1978.

• Experience: Marion Superior Court judge since 1997, presiding over a civil court for the past decade. The Republican judge also has led a major-felony court, where she sat on a death-penalty trial, and earlier worked as a private attorney.

• Significant matter: Aside from complex litigation, served for several years as the judge on a child-welfare case in which a girl, rejected by her adoptive mother, returned to foster care and, before she became an adult, had a child of her own.

• Hobbies: Practicing yoga, reading, skiing, scuba diving, cooking and movies.

Karl L. Mulvaney

• Age: 60.

• Residence: Indianapolis.

• Education: Ohio State University, 1972; IU School of Law-Indianapolis, 1977.

• Experience: Partner at Indianapolis firm Bingham McHale, which he joined in 1992, handling appeals cases in state and federal courts. Earlier, the Army veteran was assistant court administrator of the Indiana Supreme Court after working as a law clerk.

• Significant matter: Represented two women in an appeal by Ford Motor Co. of a verdict for $18.2 million in a 1993 rollover crash of a Bronco II SUV that caused severe injuries. The damage award was upheld.

• Hobbies: Golf, assembling golf clubs for others and for charity auctions, travel, photography, history and classical music.

Steven R. Nation

• Age: 60.

• Residence: Noblesville.

• Education: Indiana University, 1972; IU School of Law-Indianapolis, 1975.

• Experience: Hamilton Superior Court judge since 1995, handling civil, criminal and juvenile matters. Earlier, the Republican was elected to four terms as Hamilton County prosecutor and worked as a private attorney.

• Significant matter: In 2008, ruled that Fishers could annex 2,200 homes near Geist Reservoir, ending a drawn-out fight between the town and residents that involved 30,000 pages of exhibits. The opponents decided not to appeal.

• Hobbies: Travel, walking, golf, racquetball, and spending time with his wife, grandson and other family members.

Brent E. Steele

• Age: 62.

• Residence: Bedford.

• Education: Indiana University, 1969; IU School of Law-Indianapolis, 1972.

• Experience: Republican state senator and partner with his brother in the family's law firm, now Steele & Steele, handling family law, estate, property and business-related cases. He was elected to the Indiana House in 1994 and to the Indiana Senate in 2004.

• Significant matter: Sponsored a 2006 bill making disorderly conduct within 500 feet of a funeral a felony in reaction to protests by a Kansas-based church group outside the funerals of service members who died in Iraq or Afghanistan.

• Hobbies: Mainly activities shared with his sons, including scuba diving, hunting, competitive shooting (trap and skeet), golf and restoration of old cars.

Sources: Individual applications for the Indiana Supreme Court, Star archives

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Vacancy on Supreme Ct

Courts - "Supreme Court Review: Campaign Cash, Controversy"

NPR's Nina Totenberg had a 7 min 36 sec review of the SCOTUS term on Morning Edition today. Read and listen here. Here is a brief quote from about 2/3 into the story:

The justices also injected themselves into a trial testing the right of gay couples to marry in California. In an unsigned opinion, the court's five most conservative members bowed to a plea from gay-rights opponents who claimed that they would be harassed if the trial were broadcast in even the most limited way. The five-justice majority nixed a plan approved by the federal trial and appellate courts that would have allowed the proceedings to be broadcast to a few other federal courthouses.

Indeed, the whole subject of gay rights seemed to generate disputes about who is an oppressed minority.

Dellinger, the former solicitor general, observes that gay and lesbian groups see themselves as an oppressed minority, as do "Christians and traditional marriage people" — and the justices are dividing, sometimes in unexpected ways, over "who they think needs protection from a larger culture."

Opponents of gay rights lost two cases in which they contended they were the victimized minority. In one, they objected to public disclosure of the names of petition-signers seeking to get an anti-gay-rights initiative on the ballot. In another, the court rejected an appeal brought by a campus religious group that lost its school subsidy at a state law school because the group refused to admit homosexuals as members.

The 5-4 clash of views in this last case was crystallized in a passionate dissent from Justice Samuel Alito and a majority concurrence from Justice John Paul Stevens. Alito accused the majority of putting "political correctness" ahead of the right to free speech and association, and Stevens responded that while a free society "must tolerate" groups that exclude homosexuals — or Jews, or blacks, or women, for that matter — "it need not subsidize them."

Posted by Marcia Oddi on Tuesday, July 13, 2010
Posted to Courts in general

Monday, July 12, 2010

Law - "Too Rich to Live? "

Supplementing this June 13, 2010 ILB entry, headed "Legacy for One Billionaire: Death, but No Taxes" (Ripped from the Headlines), the WSJ this weekend had a long story by Laura Saunders and Mary Pilon subttitled "The estate tax is set to come roaring back in January. That sets the stage for a perverse calculus: End it all—or leave a massive bill for your heirs to deal with." It begins:

It has come to this: Congress, quite by accident, is incentivizing death.

When the Senate allowed the estate tax to lapse at the end of last year, it encouraged wealthy people near death's door to stay alive until Jan. 1 so they could spare their heirs a 45% tax hit.

Now the situation has reversed: If Congress doesn't change the law soon—and many experts think it won't—the estate tax will come roaring back in 2011.

Not only will the top rate jump to 55%, but the exemption will shrink from $3.5 million per individual in 2009 to just $1 million in 2011, potentially affecting eight times as many taxpayers.

The math is ugly: On a $5 million estate, the tax consequence of dying a minute after midnight on Jan. 1, 2011 rather than two minutes earlier could be more than $2 million; on a $15 million estate, the difference could be about $8 million.

Of course, there is a "death incentive" whenever Congress raises the estate tax. But it hasn't happened in decades; the top rate has held steady or fallen since 1942, according to tax historian Joseph Thorndike of Tax Analysts, a nonprofit group. In fact, the jump from zero to 55% would be "the largest increase in a major tax that we've ever seen," Mr. Thorndike says.

That possibility presents a bizarre menu of options for wealthy older people—and their heirs. Estate planning was never cheerful, but now it is getting downright macabre, at least for the tax averse.

This is a really good article.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to General Law Related

Ind. Courts - Perhaps we will get a better docket, and briefs (and other docs) readily accessible online?

The Supreme Court on July 9th posted a Public Notice of Contracting Opportunity (PNCO) for an Appellate Case Management System. Here are some quotes from p. 5, outlining the primary goals of the project:

[We are] seeking the provision and implementation of an Appellate Case Management System (CMS) that satisfies the business and technical requirements of the Appellate Courts and the Clerk’s Office and that delivers on-line access to the general public, media, and practicing attorneys.

The primary goals of this project are to:

  • increase productivity of Appellate Court staffs by providing an efficient means of entering data in the system in a manner optimized for the business processes;
  • ensure the quality of Appellate Court case data by eliminating redundant data entry and providing real-time data validation;
  • improve each court administrator’s ability to manage performance with standard business intelligence (BI) tools for reporting and statistical analysis;
  • ensure adequate security across multiple dimensions, including by:
    • chambers
    • panel of judges
    • court or clerk’s office
    • nature of data (public or private);
  • provide access to Appellate Court case information to the general public, other state agencies, and the trial courts;
  • provide to the Appellate Court parties and their counsel the ability to file briefs and motions electronically with the Clerk’s Office and enter relevant case information;
  • provide to trial court clerks, reporters, and staff, and the staffs of various administrative agencies, the ability to file transcripts and other court and administrative records electronically with the Clerk’s Office; and
  • improve the operation of the Appellate Courts and Clerk’s Office through workflow-enabled management of case-related documents.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Indiana Courts

Ind. Courts - More coverage planned on filling the Supreme Court vacancy

Over the period leading up to the July 30th interviews of the semi-finalists, ILB readers can expect much more coverage, including several great features Prof. Joel Schumm is working on, and some by me.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Vacancy on Supreme Ct

Ind. Law - AG Zoeller legal opinion: School bus fees unconstitutional

6 News Indy is reporting in a story that begins:

The Indiana Attorney General has issued a legal opinion calling school bus fees unconstitutional.

The opinion was issued on Monday after the State Board of Accounts asked for guidance in dealing with a plan by the Franklin Township Community School Corporation to begin charging $75 per student this fall, 6News' Kara Kenney reported.

"A public school corporation is not authorized to assess and collect a bus rider fee from a student in order for that student to receive transportation to and from the student's school to receive a public education," Attorney General Greg Zoeller wrote.

The opinion is not a legal decision, but is aimed at guiding state officials in their efforts to understand specific state statutes, policies and procedures.

Here is a copy of the opinion, via 6 News.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Indiana Law

Ind. Law - Watch out for scams aimed at Indiana attorneys [Updated]

After reading my China entry, a fellow Indianapolis attorney has sent me this note:

I could have easily become a victim of an Internet scam.

I received an e-mail from a person claiming to be an American citizen living in Japan. She said she had entered into an out-of-court agreement with her former partner that had been negotiated by their respective lawyers. She claimed her ex-partner lived in Fishers and was refusing to pay the more than $600,000 he had agreed in writing to pay her.

I asked her for a copy of the agreement, which she furnished to me and which showed her signature, her ex-partner's and the respective signatures of their attorneys. I sent her an engagement agreement to sign and requested a retainer payment to pursue the collection matter for her.

She sent back a signed agreement without the retainer fee. She later contacted me and said her ex-partner had agreed to start making payments to me and that I should take my retainer payment out of his payment and then send the rest to her.

A couple of days letter I got a FedEx delivery from Maryland that contained an official check for more than $90,000 issued by a bank in Pittsburgh (the bank on which the fake check was written was Sovereign Bank.). I took it to the National Bank of Indianapolis branch in my building and asked them to check with the bank to see if it was genuine.

The bank told them it was a fake check. I was told to contact the bank and report the fraud, which I did. The fraud department told me it was a scam that had been successfully pulled off against a number of attorneys, who would deposit the check thinking the money was there and then sending money to the client. The scammers were thought to be located in Nigeria.

[Updated at 4:00 PM] Don Lundberg, formerly Indiana Supreme Court Disciplinary Commission Executive Secretary, and now Litigation Partner and Deputy General Counsel at Barnes and Thornburg, writes that he warned Indiana lawyers about scams like this in his Res Gestae column back in December of 2008. Here is a copy.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Indiana Law

Ind. Courts - "Special judge appointed in Camm case"

Janelle MacDonald of WAVE, Louisville, has reported at 1:29 PM:

The Indiana Supreme Court has officially removed Warrick County Superior Judge Robert Aylsworth from the third murder trial of David Camm and appointed a new judge.

Special Judge Jon Dartt will now preside over the case.

Dartt is a judge in Spencer County's Circuit Court. According to his campaign website, he served as Spencer County Prosecutor for almost 10 years before becoming a judge.

His office says Judge Dartt has not been officially notified, only told, that he will be the judge on the Camm case and no hearing dates have been set.

Reached by phone in Indianapolis, Camm attorney Stacy Uliana said she was "pleased and we hope this moves the case along."

Uliana filed a motion of behalf of Camm in early June to have Aylsworth removed from the case, saying he failed to set a hearing date or rule on a change of venue motion that was pending in Camm's case.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for the week ending July 9, 2010

There is no transfer list for the week ending July 9, 2010.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Indiana Transfer Lists

Ind. Courts - More on "Identities of Blagojevich jurors could be made public"

Updating this ILB entry from July 4th, referencing a July 2nd 7th Circuit opinion released in typescript, a new typescript version has just been posted by the Court, along with a lengthy correction (So if I'm following this, we have a 7/2/10 typescript opinion, a 7/12/10 typescript order amending the 7/2/ version, and a now corrected 7/12 typescript version of the 7/2 typescript opinion.)

The WSJ has a lengthy story today by Ashby Jones and Nathan Koppel headed "Anonymous Ladies and Gentlemen of the Jury: Concerned About Tampering, Threats, Judges Consider Withholding Identities." Some quotes:

A contentious legal issue has emerged during the corruption trial of former Illinois governor Rod Blagojevich that has nothing to do with his guilt or innocence.

It is whether names and addresses of the jurors should be withheld from the public during the trial, a question that is popping up frequently in courthouses across the country. * * *

It is difficult to quantify how often judges have shielded jurors' names from the public. But legal experts say the pervasiveness of the Internet and bloggers, an increasingly hungry press and the rise of witness and juror intimidation are leading more judges to grant anonymity to jurors during trial, and in some cases, after.

Free speech advocates and members of the media say the trend runs counter to the way trials have been held and in some circumstances, the U.S. Constitution. "There's a long tradition in our country of trials being open... and the press has a strong First Amendment right to gather news," said Steven Zansberg, a media lawyer in Denver who has represented media organizations in numerous high-profile criminal cases. Judges should withhold juror names during trials "only in extremely limited situations," he said.

In the Blagojevich corruption case, Chicago federal judge James Zagel ruled in May that juror names would stay out of the public out of concern that bloggers and others would try to contact jurors during the trial, which started last month. One concern appears to be that media questions could prompt the jurors to do their own outside research on the case, which is prohibited. Earlier this month, an appellate court acknowledged the risk that media questions could prompt the jurors to do their own research on the case, but sit still ordered the judge to reconsider his ruling after several media outlets complained. Judge Zagel is to hold a status hearing on the matter Monday.

ILB: "An appellate court" would, of course, be the 7th Circuit. The judges on the opinion are Easterbrook, Wood, and Tinder. (There is a lot to think about here.)

Ashby Jones also writes the WSJ Law Blog and picks up on his story in the blog today.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Ind. (7th Cir.) Decisions

About this blog - China trademark scam unveiled

An ILB reader took up the unspoken challenge this morning ("ILB receives strange note from China") and has sent this note:

I read the ILB story about the Chinese internet domain registration email. Utilizing Google, I found several websites that suggest the email is a scam. The following links are representative of the websites that reject the legitimacy of the email you received.

http://www.firetrust.com/de/blog/chris/domain-name-scams?page=18

http//www.zenwebsolutions.com/news/chinese-cn-domain-scams.html

Thanks for your great work on the ILB!

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to About the Indiana Law Blog

Ind. Courts - "Judges agree that the attorney general’s office’s insistence on intervening in so many of these cases continues to cause headaches and confusion for all involved"

That is a quote from a long, must-read story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, who has had several earlier good reports on sex offender registration issues. Some quotes from the story:

FORT WAYNE – Theothis Allison, 44, served time in the mid-1980s for a sex crime. Since his release from prison in 1986, he has married, had children and stayed out of trouble.

And after the Indiana Supreme Court ruled that Richard P. Wallace, who had a 1989 conviction for child molesting, no longer had to register with the state as a sex offender, Allison asked Allen Superior Judge Fran Gull to take him off the sex offender registry.

In a handwritten letter filed in late April, Allison made his request, which Gull granted about 10 days later, according to court documents.

But since then, the Indiana attorney general’s office has filed motions asking to intervene in the case. In the motion, the attorney general has requested that Gull change her order for a number of reasons – [1] taking issue with Allison’s letter, [2] saying Gull lacked jurisdiction in the case and [3] saying that Allison may be required to register under the federal Sex Offender Registration and Notification Act, which Indiana does not yet follow. [ILB has inserted the niumbers]

Gull has no intention of changing her order. She staunchly refuses to muddy the waters for sex offenders and those who handle the sex offender registry by dealing with the federal question.

But other judges are handling similar motions differently. Allen Superior Judges John Surbeck and Ken Scheibenberger have been inclined to grant the attorney general’s requests.

But the judges agree that the attorney general’s office’s insistence on intervening in so many of these cases continues to cause headaches and confusion for all involved.

More from the story:
Last year, the Indiana Supreme Court issued what is now frequently just referred to as “the Wallace ruling,” which allowed sex offenders who committed their crimes before the creation of the registry to petition the courts to be removed from the list. * * *

The Supreme Court eventually agreed with him, finding that “the changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed,” according to the ruling.

Since the ruling, local courts have been processing requests from sex offenders asking to have their names removed because of the dates of their conviction.

In an effort to streamline the process this spring, the legislature required sex offenders to begin making such requests in the counties in which they reside, not where their conviction occurred.

But along with each sex offender’s request, the attorney general’s office has also filed paperwork, asking that the judges construct their orders or instruct the sex offenders that they may be required to register under the federal law. So far, nearly 70 motions have been filed with various county courts, said Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller.

The paperwork is maddening to the judges, who aren’t sure what the purpose of the request is, other than to confuse.

The story discusses SORNA:
In 2006, the federal government enacted the Adam Walsh Act, officially known as the Sex Offender Registration and Notification Act, and unofficially by its acronym: SORNA. The law was an attempt to combine all the sex offender registries around the country.

Indiana is one of a handful of states not in compliance with the act, said Brent Myers, the director of registration and victim services with the Indiana Department of Correction.

The state has recently filed an extension request, asking it be allowed until June 2011 to comply with the requirements of the law, Myers said.

A state out of compliance misses out on federal grants. When in compliance, sex offenders in that state who fail to register can be charged with a federal crime, Myers said.

And the state attorney general’s office wants to make sure that if Indiana sex offenders are some day required to register, they can still be forced to do so, in spite of an order by a state court judge.

“(The attorney general) wanted to put something there in writing so there is no dispute later,” spokesman Corbin said.

There was a fear that if federal prosecutors chose to charge an offender with a federal failure to register, then the sex offender could come back and say that he or she was not required to register under state law.

“This will prevent them from doing that. We’re foreclosing a sex offender from being able to use that as an issue,” Corbin said. “This keeps them from using it as an escape hatch.” * * *

Myers is not sure whether those released from their registry requirements will still be required to register under SORNA if or when the time comes, or whether they’re required to register now if they cross state lines.

“(The Wallace decision) does not have an impact outside of Indiana,” Myers said.

Surbeck and Scheibenberger are conducting hearings on every request from the attorney general’s office – and so far, both are inclined to grant the office’s request.

“I suppose it is necessary,” Scheibenberger said. “But it would have been nice had the attorney general let us know he was going to take that position.”

During a hearing Friday afternoon, Surbeck told the deputy attorney general handling the case that he felt the state’s request asked him to overstep his boundaries.

“I’ve always been taught that I have no jurisdiction over federal matters,” Surbeck said. “I don’t see anything wrong with my order.”

Gull, so far, refuses to change her orders to reflect any concerns regarding the federal law and she’s not holding hearings.

Her orders are clear in their application to state law, and Gull said, her position is that there is no federal requirement under Indiana law at this time.

“So what do I tell people?” she asks. “My orders are perfectly legal and the attorney general can challenge them if he wants to.

“It is not my job to tell offenders what federal law is or isn’t,” Gull said. “It seems we are splitting hairs and spending a lot of time and talent, and paper on all of this.”

ILB comments: The SCOTUS this term was presented the issue of whether SORNA could operate retroactively, in an appeal from the 7th Circuit, Carr v. U.S . Unfortunately, the high court chose not to address that issue in its decision. See this ILB entry from June 3, 2010. Here is a list of other ILB entries on SORNA, including this one on a July 1, 2010 post-Carr decision by the 7th Circuit.

And here is a long list of ILB entries mentioning the Wallace decision (and unfortunately a few other entries containing the name "Wallace"), including this most-recent entry from July 7, 2010, which at the end details how names removed by the registry by court order were put back on when the entire state "transitioned to the new sex offender/violent offender management system" on July 1, 2010.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Ind. Sup.Ct. Decisions | Ind. Trial Ct. Decisions | Indiana Courts

Ind. Gov't. - "Another judgment call in question"

That is the headline of this editorial today in the Indianapolis Star. Some quotes:

The biggest problem in being stuck with a prosecutor who has destroyed his own credibility is that every public decision he makes is now questioned based less on the facts at hand and more on the decision-maker's record of poor judgment. * * *

[A]s has been demonstrated repeatedly in recent months, good judgment is not one of Carl Brizzi's strengths these days.

The prosecutor has entered into lucrative business deals with a prominent local defense attorney. He later intervened to strike a lenient plea deal for an accused drug dealer represented by that attorney.

Brizzi accepted $29,000 in campaign contributions from the father of a woman convicted of arranging her husband's death. He approved a deal that allowed the woman's early release from prison.

He's accepted expensive gifts from a close friend who is the subject of a federal investigation -- and refused to distance himself from that friend despite repeated warnings about potential trouble.

Brizzi's public image also was further eroded this spring when his predecessor and one-time mentor, Scott Newman, called on him to resign because of the high-profile scandals swirling around the prosecutor's office. * * *

Carl Brizzi is no longer able to correct anyone's bad judgment. His credibility is gone. His moral authority is gone. And it's another five months before he finally will be gone from office.

There's ample reason to fear that the public's trust will be ill served in the interim.

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Indiana Government

About this blog - ILB receives strange note from China

The ILB received this odd email this morning, which is likely some sort of scam, or if it isn't, is still strange. A company in China wants to reqister Indiana Law Blog as their trademark and domain name? What could be going on?

from Angela
to moddi@iquest.net
date Mon, Jul 12, 2010 at 7:28 AM
subject Notice of Intellectual Property-Trademark Name

Dear Manager:

We are a Network Service Company which is the domain name registration center in Shanghai, China. On July,8th,2010, We received HUATAI Company's application that they are registering the name "indianalawblog" as their Internet Trademark and "indianalawblog.cn","indianalawblog.com.cn" ,"indianalawblog.asia"domain names etc.,It is China and ASIA domain names.But after auditing we found the brand name been used by your company. As the domain name registrar in China, it is our duty to notice you, so I am sending you this Email to check.According to the principle in China,your company is the owner of the trademark,In our auditing time we can keep the domain names safe for you firstly, but our audit period is limited, if you object the third party application these domain names and need to protect the brand in china and Asia by yourself, please let the responsible officer contact us as soon as possible. Thank you!

Kind regards

Angela Zhang

Registration Department Manager
3002, Nanhai Building
854.Nandan Road
Xuhui District, Shanghai
Office: +86 216296 2950
Fax: +86 216296 1557
web: http://ygnetwork.cn
web: http://www.ygnetwork.cn

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to About the Indiana Law Blog

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, July 11th, 2010:

From Saturday, July 10th, 2010: From late Friday afternoon, July 9th, 2010:

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/12/10):

Next week's oral arguments before the Supreme Court (week of 7/19/10):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/12/10):

Monday, July 12th

Tuesday, July 13th

Wednesday, July 14th

Next week's oral arguments before the Court of Appeals (week of 7/19/10):

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

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


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

Posted by Marcia Oddi on Monday, July 12, 2010
Posted to Upcoming Oral Arguments

Sunday, July 11, 2010

Ind. Gov't. - "Preserving Valpo records a labor of love for clerk"

Phil Wieland of the NWI Times has this story today:

VALPARAISO | The names have faded into history, and now the ink in the books where the city's early records are kept also is fading -- and the pages are becoming brown and brittle.

Clerk-Treasurer Sharon Swihart last week asked the City Council to approve $20,000 from the city's riverboat gaming funds to preserve seven books holding the minutes of Council meetings dating back to 1857, when Valparaiso was just a town. The request will receieve final action at Monday's meeting.

Swihart's request is to hire Brown's River Marotti Company, of Vermont, to take each book apart, treat each page to halt deterioration caused by acid in the paper, clean them, remove any tape of other materials, repair weak or torn pages and then rebind them in hand sewn leather covers. Books in which the pages are very fragile, such as the 1857 to 1865 town records, are treated and then encapsulated in a polyester film.

The seven books take the written record of Valparaiso minutes to 1905, after which typewritten records were kept. She is not asking that those later records be preserved, yet.

"When I came into office, there were no duplicates of any of these records," she said.

She had everything put on microfilm about 15 years ago, and a copy is stored at the Valparaiso Public Library. Two years ago, she had them put on compact discs. She was storing a copy of the record books at the wastewater treatment plant, but all of them are kept in a safe at City Hall now.

A history buff, Swihart said she will bring out one of the old books to look up something and soon become engrossed in reading the work of her predecessors. She said she found a resolution passed in honor of a previous clerk-treasurer who died in office, and she marveled at the extravagant praise heaped upon her.

"I told the people here if that happens to me they can just use that resolution -- and add that I loved animals," Swihart said.

The preservation process takes about four months, and the company claims the materials should not need further attention for two to three centuries. Swihart, who has been in office almost three decades, said she doesn't figure on being around for the next round of preservation.

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Indiana Government

Ind. Courts - "Magistrates failing to keep up with case loads"

How long should it take for a case to move through the courts? Bob Kasarda of the NWI Times reports today:

VALPARAISO | Both of Porter County's adult court magistrate judges ended most of the last five quarters with more cases pending than when the quarters began, according to statistics compiled by the county court administrator's office.

The case loads peaked the first quarter of this year, which are the most recent figures available.

Magistrate James Johnson ended the first quarter of this year with 332 divorce cases, 1,574 estate cases and 1,364 guardianship cases pending.

Magistrate Katherine Forbes ended the same quarter with 293 divorce cases, 1,347 estate cases and 1,457 guardianship cases pending.

Johnson disposed of slightly more estate cases than Forbes over the last five quarters, while the reverse was true for divorce cases. Both the magistrates disposed of the same number of guardianship cases.

It was revealed last week that the Indiana Judicial Qualifications Commission is investigating a complaint that Johnson is taking too long in disposing cases.

While litigants and defendants are free to file such complaints, there are no definitive guidelines on how quickly civil or criminal case are to move through the legal system, said Indiana Supreme Court spokeswoman Kathryn Dolan.

There are time constraints in place for specific aspects of each case, she said, but there is room for flexibility depending on the unique needs of each situation. "So there is no timeline," Dolan said. * * *

The Indiana Supreme Court ordered Lake County Judge Joan Kouros permanently removed from the bench effective February 2005 as a result of complaints she was too slow in completing routine paperwork, leading to stalled jail inmate transfers and then overcrowding in the county lockup.

A commission reviewing her court found a backlog of hundreds of cases awaiting her signature on decisions made months earlier.

Kouros was suspended for six months in 2003, reinstated in January 2004 after promising to improve and suspended again in July 2004 on grounds she'd failed to keep the promise.

Dolan would not comment on or even confirm the investigation into Johnson's work load. But she said if the commission believes misconduct has occurred, it can file charges against a judge.

The state Supreme Court responds by appointing a panel of five trial court judges to review the charges and make a recommendation back to the high court. The court is not bound by the recommendation, and can respond by doing nothing or going so far as removing a judge from the bench.

The identity of the person filing a complaint is provided to the targeted judge or magistrate, Dolan said.

Porter Superior Court Judge David Chidester recently notified members of the county bar association of the allegations involving Johnson and invited the attorneys to apply for the magistrate position.

Superior Court Judge Roger Bradford, who supervises Johnson, said there is no need for anyone to send in a resume because there are no plans to replace Johnson.

The six Porter County judges are expected to discuss the issue during their next meeting July 20.

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Indiana Courts

Law - Bankruptcy and BP

The NY Times reporter John Schwartz reported in a long story yesterday:

With pockets as deep as BP’s — its assets are worth more than $260 billion — the possibility that it might be forced to seek bankruptcy protection because of the Gulf of Mexico oil spill is considered remote by many industry experts.

But what if the company’s plan to contain the spill in the next several days does not work, and other efforts to stop the gushing oil also fail? If that were to occur, the worst-case projections of some experts, if they came to pass, would strain the ability of any company to pay, said Robin K. Craig, associate dean for environmental programs at the Florida State University College of Law.

Professor Craig said that if the oil hit the Gulf Stream and was carried by currents to East Coast states, Cuba and other Caribbean nations, and possibly even Britain, lawsuits could quickly mount to levels even BP could not handle.

“My bet is that BP will finally go bankrupt from the tort liability and the environmental liability,” she said. “Hypothetically, a bluefin tuna farmer in the Mediterranean could end up with a claim against BP.”

Even those who find it unlikely that BP will seek bankruptcy protection believe it is likely that the company has to at least consider it as a possibility, in light of spiraling environmental costs, economic claims and the unpredictability of American juries.

“They’ve got a duty to their shareholders and others to consider every possibility,” said Samuel J. Gerdano, the executive director of the American Bankruptcy Institute. “It’s not a matter of panic, it’s not a matter of irrationality. It’s a coldhearted and clearheaded consideration of options.”

A BP spokesman, Max McGahan, declined to comment on “hypothetical” questions. The company has said from the start that it has the resources to meet the economic challenge, including strong cash flow and billions of barrels of oil in proven reserves.

A previously unreleased memorandum by the Congressional Research Service
outlined ways that a bankruptcy filing by BP could disrupt the cleanup and compensation.

The letter, prepared in response to questions from Senator Thomas R. Carper, Democrat of Delaware, stated that economic and environmental claims would fall into line behind the company’s secured creditors as “nonpriority, unsecured claims,” leaving much of the continuing cost of cleanup, in all likelihood, to the federal government. With a judge’s approval, the company’s assets could even be sold and its liabilities left behind.

The NY Times has also prepared interactive maps tracking the oil spill in the Gulf, and a devastating map showing combined oil slick areas May 8 to July 8, which allows you to see, day by day, the way the oil has spread during that period.

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Environment | General Law Related

Ind. Courts - Speculation over applicability of SCOTUS "honest services" decision continues in NW Ind. ("The Region")

Updating this ILB entry from July 10th, Sarah Tompkins of the NW Indiana Times reports today under the headline "Supreme Court ruling on Enron CEO could help local defendants." Some quotes:

When the U.S. Supreme Court last month ruled the federal "honest services" law could be applied only to cases of bribery and kickbacks, local defense lawyers celebrated the high court's narrow interpretation of the statute in hopes it would help their clients.

But U.S. Attorney David Capp said the ruling might not have as much of an influence on local cases as defense lawyers anticipate. * * *

Local attorney Kevin Milner, who has represented clients such as region political figure Robert J. Cantrell, said he got the e-mail of the news while driving on the interstate. He pulled over to the shoulder and read the ruling immediately.

"My phones have been ringing off the hook because so many people are looking to challenge this," Milner said. "I'm basically reviewing every case I've had involving honest services."

Tempering this robust view, U.S. Attorney Capp said, "As a general position, I don't believe it's going to impact our ongoing public corruption effort. We've not historically relied solely on honest services-type theories in the district." Capp was referring to the Northern Indiana federal district, from which cases are appealed to the 7th Circuit Court of Appeals in Chicago.

However, Capp indicated former Calumet Township Trustee Dozier T. Allen Jr. and Cantrell, the former North Township supervisor, are some of the high-profile defendants whose lawyers likely will raise the issue.

Cantrell was charged with honest services fraud, insurance fraud, filing false tax returns and other charges in 2007. He helped a counseling business get a contract with North Township and received money from the business in return, without revealing the arrangement with other township officials. Cantrell also arranged for two people to get health insurance coverage through the business by creating false employment records.

Sentenced to 78 months in prison in March 2009, Cantrell is appealing his case to the 7th Circuit Court of Appeals. Attorney Bryan Truitt, who argued the appeal in court last March, was not available for comment.

Milner said he thought the outlook for Cantrell was good.

"I want him in trial," Milner said. "I want everything tossed out because the probability is that the prejudice from the honest services evidence spilled over into the other charges. So I think he's probably going to get a new trial, and whether or not the government wants to go is up to them."

Anticipating a response after the Skilling ruling, federal prosecutors on Tuesday filed a letter with the 7th Circuit Court of Appeals supporting Cantrell's convictions.

"The indictment alleged, and the evidence established, a kickback scheme involving Cantrell," according to the document. "Skilling does not invalidate the honest service fraud convictions in" the Cantrell case, the letter read.

In Allen's case, defense attorney Scott King filed a Skilling-based supplement to a motion in federal district court to release Allen from prison pending his appeal.

Allen was sentenced to 18 months in prison in April for receiving thousands of dollars from a contract through Ivy Tech Community College.

"The way the indictment was worded, it wove together the allegations of receiving money and a lack of honest services to such an extent, that my response with the court of appeals will be, Skilling does apply -- and the conviction must be reversed," King said.

An appeal in Allen's case was filed in March. U.S. Attorney Capp said he would not comment on the Allen case until a filing was made in the federal appeals court.

"Then of course we'll respond fully," Capp said.

In Illinois, speculation has been bubbling as to whether the ruling will affect the case of former Gov. Rod Blagojevich. But local attorneys told The Times that federal prosecutors prepared by adjusting the indictment against Blagojevich in case the Supreme Court erased or limited the honest-services law.

Milner lauded the Supreme Court's Skilling ruling as a good decision, though he would have liked the statute to have been abolished.

"I wanted the whole statute to be thrown out," he said. "But what has been done is, it's modified to the point so that it's not nearly as dangerous of a weapon as it was."

ILB - There were three "honest services" cases, Skilling, Black, and a third, Weyhrauch, all decided by the SCOTUS on June 24, 2010. For more, start with this June 25, 2010 entry in SCOTUSblog.

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Ind Fed D.Ct. Decisions

Environment - The end of "Easterly's Pile" on the Lake Michigan beach?

The Gary Post Tribune, through its environmental reporter, Gitte Laasby, has had a number of articles on the so-called "Easterly's pile," many of them quoted in this list of ILB entries. Today Laasby has a lengthy story headed "Mittal landfill permit appears to seal fate of 'Easterly's Pile': Some waste will make it to the recently approved landfill. The rest will be recycled, company insists." The story begins:

BURNS HARBOR -- When the Indiana Department of Environmental Management recently issued ArcelorMittal Burns Harbor a landfill permit, it marked the end of an intensive shell game and coverup of open dumping that had been going on for years, one critic says.

"They use these words 'recycling' and 'storage' and 'stockpiling' so they don't have to call it open dumping," said Kim Ferraro, attorney with the Legal Environmental Aid Foundation of Indiana, about ArcelorMittal.

"But they didn't deny they've been open dumping waste for 10 years and IDEM has been letting them get away with it."

Under state law, the mill can stockpile waste for recycling for up to six months. If stored longer, waste is presumed open dumped.

That's illegal and subject to enforcement. The company has stored several kinds of waste for years, insisting they were being recycled.

Still, some waste piles have continued to grow over many years, including a pile in the northeast corner of the company's property known as "Easterly's Pile."

It's 900 feet long and 67 feet tall and contains 274,000 cubic yards of basic oxygen furnace sludge and rubble interspersed with burnt lime, according to an IDEM inspection report from March and April 2010.

The pile is only a couple of hundred feet from Lake Michigan and the Indiana Dunes National Lakeshore.

There is much more in the story.

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Environment

Ind. Courts - "It was evident from last week’s Indiana Supreme Court interviews that the state’s legal bar has a few characters"

So begins a brief entry in Political Notebook, a weekly column by Niki Kelly and Benjamin Lanka of the Fort Wayne Journal Gazette. It continues:

One of them is Steuben County Circuit Court Judge Allen Wheat. He opened his interview with the judicial nominating commission explaining that one of the reasons he applied was out of curiosity.

And he explained that his wife thinks it might be part of a midlife crisis.

Wheat also told the group he isn’t “the sharpest knife in the drawer” and ended his interview with the following monologue.

“How about a story, if that’s OK,” he said. “About an hour ago I was terribly nervous. For some reason I envisioned this antelope running across the African savannah. And he was going just as fast as he could. His heart was pounding and his nostrils were flaring and then all of a sudden there appeared a lioness that went right for the antelope’s throat. The antelope screamed in pain, rolled over, died. It’s over.

“I don’t wish to be that antelope.”

Posted by Marcia Oddi on Sunday, July 11, 2010
Posted to Vacancy on Supreme Ct

Saturday, July 10, 2010

Ind. Courts - "Autistic Indiana man sues social services agency"

From the AP, this story by Charles Wilson of another suit by the Indiana ACLU against FSSA. Some quotes:

Indiana's social services agency illegally counts food stamps as income, resulting in a reduction of state benefits paid to developmentally disabled people in a Medicaid waiver program, a lawsuit filed for an autistic Indianapolis man said Friday.

The suit is the latest in a wave of criticism bombarding the state's handling of benefits for its neediest residents, which has drawn national scrutiny.

The federal government levied a $1.2 million penalty last month against the Family and Social Services Administration for miscalculating food stamp benefits; the state has revamped its welfare intake system after firing IBM from a $1.3 billion privatization contract in October; and the state has drawn fire from the federal government for not processing food stamps in a timely manner.

In the latest development, the American Civil Liberties Union of Indiana says the FSSA cut 26-year-old Michael Dick's monthly grocery benefit dollar-for-dollar under the Developmental Disabilities Waiver Program to offset increases in his food stamp benefits.

Federal law states that food stamps "shall not be considered income or resources for any purpose under any Federal, State or local laws, including ... public assistance programs," and prohibits states from reducing any other public benefits because of the receipt of food stamps, according to the lawsuit, filed by the ACLU in Marion County Superior Court.

Posted by Marcia Oddi on Saturday, July 10, 2010
Posted to Indiana Courts

Ind. Courts - More on: "Gambler challenges casino for giving him credit, says he was drunk"

Today's story by Grace Schneider of the Louisville Courier Journal is headed "Judge rejects drunken gambler's claim against Harrison casino," and it follows this story from March 4, 2010, and this one from May 30, 2006. Today's story begins:

A Kentucky man who admitted playing blackjack while he was intoxicated has lost his effort to avoid paying back $75,000 he borrowed from the former Caesars Indiana casino.

But while Orange Circuit Judge Larry Blanton ruled this week that the Harrison County riverboat didn't have a responsibility to protect Jimmy Vance of Corbin, Ky., the judge struck down the casino's effort to recoup triple damages for Vance's failure to repay his credit markers.

Vance's lawyer, Larry Wilder, described the ruling as a "mixed bag." He said Friday that his client, owner of a Corbin bingo hall, has decided to appeal the portion of the ruling that absolves the casino of responsibility.

"The judge's decision seems to be well grounded in existing law," Wilder said. "However, there doesn't appear to be a case on point (that makes a distinction between) the defense of intoxication ... (and) attempts to recover your money while alleging intoxication."

Gene Price, the lawyer who represented Caesars, now Horseshoe Southern Indiana, said in an e-mail that he has not had time to review the ruling and hasn't discussed it with casino officials. But "it initially appears to me Judge Blanton correctly analyzed the facts and accurately applied the law to Mr. Vance's intoxication defense," Price wrote.

He did not say whether an appeal was being considered of the judge's denial of triple damages.

The case isn't the first time in Indiana or the country that a gambler impaired by drinking has waged a legal battle arguing that the casino was responsible for his losses. But courts most always rule for the casinos.

Posted by Marcia Oddi on Saturday, July 10, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Gull tosses plea deal in slaying; trial slated"

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

FORT WAYNE – An Allen Superior Court judge rejected a plea agreement Friday, one that would have reduced a murder charge to aggravated battery.

After a couple of hours of deliberation and hearing arguments from both sides, Judge Fran Gull did what the victim’s family wanted and ordered a trial for Khristopher D. Harvey, 23.

Originally charged with murder and unlawful possession of a firearm by a serious violent felon, Harvey pleaded guilty last month to a single charge of aggravated battery in the June 2009 shooting of 24-year-old Maurio Kerone Edwards at a south-side apartment complex.

Both Harvey and Edwards had prior convictions for dealing drugs, and police linked the slaying to a drug transaction at the time.

But in exchange for Harvey’s guilty plea, prosecutors dropped the murder and gun charges and agreed not to seek the additional prison time that a crime involving a handgun can carry. Had Gull accepted the plea agreement, Harvey’s prison sentence would have been no more than 14 years.

Posted by Marcia Oddi on Saturday, July 10, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Cantrell case should hold up, Capp says"

Jon Seidel reports today in the Gary Post-Tribune:

U.S. Attorney David Capp says the conviction of political insider Robert Cantrell should be upheld despite a U.S. Supreme Court ruling last month that narrowed federal prosecutors' use of the honest services fraud statute.

The Supreme Court ruled the law should only be used against people who took bribes or kickbacks. In a letter to the 7th Circuit Court of Appeals filed Tuesday, Capp said that's exactly what happened in the Cantrell case.

"The indictment alleged, and the evidence established, a kickback scheme involving Cantrell," Capp wrote.

Capp points to the first count in Cantrell's indictment, where he is accused of receiving a share of revenue received by Addiction and Family Care Inc. from the North Township Trustee's office while he was employed there. A jury found Cantrell guilty on that and several other counts in 2008.

"Cantrell ... used his supervisory position at North Township and his influence and access to the North Township Trustee to steer the North Township contract renewals to AFC for private gain," Capp wrote.

Bryan Truitt, Cantrell's attorney, told the Post-Tribune last month his client's conviction of honest services fraud should be overturned because of the Supreme Court's decision.

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

Cantrell was already appealing his conviction before last month's ruling.

Though Cantrell was convicted on other charges, Truitt said the honest services fraud conviction helped extend his prison sentence to seven years.

See also this June 26th ILB entry, quoting another Post-Tribune story, headed "High court ruling could help convicted region politicians."

Posted by Marcia Oddi on Saturday, July 10, 2010
Posted to Ind Fed D.Ct. Decisions

Friday, July 09, 2010

Ind. Decisions - "Judge grants gag order in Carmel case" [Updated]

Updating this ILB entry from earlier today, Carrie Ritchie of the Indianapolis Star reports:

A Hamilton County judge agreed this afternoon to issue a gag order in the case of four former Carmel basketball players accused of assaulting younger players.

Attorneys for one of the defendants wanted the gag order on attorneys, prosecutors, investigators, police, court employees, witnesses and anyone involved in the case because they think inaccurate information has been disseminated in a barrage of media reports.
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Superior Court Judge William Hughes issued the order after a hearing this afternoon. But his order does not yet apply to one of the most vocal parties in the case, Indianapolis attorney Robert Turner, who is representing the family of one of the alleged victims.

During today's hearing, Turner noted that he had not received a copy of the defense motion requesting a gag order and had not had time to prepare a response to it.

Hughes then said he would at least temporarily exclude Turner from the order, but scheduled a hearing for later this month on whether to include him in it. * * *

The gag order request says the allegations against Kitzinger have drawn sensational or inaccurate news coverage, which “threatens to taint the trial of this case.”

[Updated 7/10/10] Today's Star has an updated version of the story, including:
In their request for a gag order, attorneys for Kitzinger claim such an order is necessary because a barrage of media reports has jeopardized "the integrity of ensuring a fair trial."

The decision seemed to be somewhat difficult for Hamilton Superior Court Judge William Hughes, who noted that "this is not easy territory for the court to walk."

Hughes initially denied the request because the attorneys hadn't requested a jury trial, but said he could reconsider his decision "in a heartbeat" if the attorneys requested a jury trial.

Minutes later, the attorneys returned to the courtroom to ask for a jury trial, and Hughes kept his word.

Hughes didn't encounter opposition from the state.

Hamilton County Prosecutor Sonia Leerkamp said during the hearing that she thinks a gag order is "appropriate" in this case but declined comment after the judge's ruling, citing the gag order.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Consider qualified women for Indiana Supreme Court opening"

That is the headline from this editorial in the Anderson Herald Bulletin. Some quotes:

Justice, as the saying goes, should be blind. But should blindness be applied to the selection of judges when it comes to race, gender, ethnicity and other factors?

That’s a particularly pertinent question right now in Indiana, where state Supreme Court Justice Theodore Boehm is retiring and some are lobbying for a female judge to be seated in his place.

They point out that the five-member Indiana Supreme Court is currently all male. And that does make the court seem unbalanced, especially when you consider that more women than ever are choosing law as their profession. * * *

You would expect that in the future, over the course of time, roughly half the justices on the Indiana Supreme Court would be women.

That’s a reasonable expectation that would ensure the bench is regarding cases that come before it from a gender-neutral viewpoint. * * *

Four women sit on federal district benches in Indiana, including two who were appointed in June. Nationally, Elena Kagan is on the verge of joining the U.S. Supreme Court. Her confirmation could come as early as Tuesday. She would join Sonia Sotomayor and Ruth Bader Ginsburg to make three women serving on the nine-justice court.

These are real signs of progress, and it’s up to the nominating commission and Gov. Daniels to see that qualified women are strongly considered for the open Indiana Supreme Court position.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Vacancy on Supreme Ct

Envirnment - "Hoosier consumers are likely to pay bulk of $16B for lines to transport wind power"

So reports Ted Evanoff in the Indianapolis Star today. The lengthy story begins:

The rural Midwest is booming with wind turbines these days -- but guess who's going to pay the $16 billion it will cost to move all that clean electricity to the cities that need it?

Officials are trying to figure out how much wind developers should pay to build the transmission lines to get their energy to market. But because other regions have shifted the entire cost to utility rate payers, the Midwest officials likely will feel pressure to do the same.

If they don't, industry analysts say, it could hurt the development of green energy in the region.

The Midwest -- with its heavy reliance on coal-fired power plants -- can ill-afford that, as federal regulations clamp down on carbon emissions.

Over the next few years, the development of wind energy could cost Indiana households more than $40 million per year, adding at least $2 per month on average to the typical bill for the state's 1.5 million homes.

The new cash would help pay for about $16 billion worth of new transmission lines that wind developers say are needed. The lines would move wind energy into the electric grid -- the interlaced power lines that tie utilities into a massive network.

Paying for the new lines raises an issue of fairness because households in, say, Indianapolis could subsidize electricity made by North Dakota wind turbines and used in cities such as Milwaukee, Chicago or Fort Wayne, experts say.

That could happen because the electric grid that covers Indiana is monitored by a Carmel-based nonprofit organization whose territory includes a wide swath from Ohio to the Dakotas.

More from the story:
"Within 25 years, we expect wind will be 16 percent" of our power, said John Bear, president of the Midwest Independent Transmission System Operator.

Bear's group, known as Midwest ISO or MISO, is largely funded by utilities. It is scheduled to present its transmission cost allocation plan to the federal regulators Thursday. The regulatory commission will rule on the plan in determining transmission cost allocation for the 13 states in MISO's district.

Wind farm operators had feared MISO would stick to its long-held proposal of having power generators pay for 20 percent of the cost for building the transmission lines from the wind farms to the grid. Consumers, including homes and businesses, in the 13 states would have paid 80 percent.

Last month, however, MISO changed course. It tentatively proposed consumers handle the full 100 percent.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Environment

Ind. Courts - "Enhanced education requirements for judges"

On the Indiana Coyurts website:

The Board of Directors of the Judicial Conference of Indiana voted unanimously in favor of enhanced education requirements for judges. The Chair of the Judicial Education Committee, Warren Circuit Court Judge John Rader explained, “To be effective, a judge must continually improve his or her legal skills. Our committee wants an increase in the number of required education hours for Indiana judges. We are asking the Supreme Court to change the Court Rules to require enhanced education.”

Complete details on the proposed changes can be found here.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Indiana Courts

Ind. Decisions - One Indiana decision today from the 7th Circuit, and a bankruptcy ruling

In Freddie L. Byers, Jr. v. Basinger (ND Ind., Sharp), a 17-page opinion, Judge Cudahy writes:

After a jury trial, the petitioner, Freddie Byers, Jr.,1 was convicted of two counts of first degree murder, one count of attempted murder and one count of robbery. The Supreme Court of Indiana affirmed on direct appeal, Byers v. Indiana, 709 N.E.2d 1024 (Ind. 1999), and, after the Indiana Court of Appeals denied his petition for post-conviction relief, 878 N.E.2d 542, 2007 WL 4531828 (Ind. App. Ct. Dec. 27, 2007), the Indiana Supreme Court denied transfer, 891 N.E.2d 41 (Ind. 2008). The district court denied Mr. Byers’ habeas petition, in which Mr. Byers argued that his trial counsel performed deficiently. Byers v. Superintendent, No. 3:08 cv 0240 AS, 2009 WL 537662 (N.D. Ind. Mar. 4, 2009). We granted Mr. Byers a certificate of appealability on the question whether he had been denied effective assistance of counsel. We affirm the district court’s denial because, even if Mr. Byers successfully exhausted his claim, it lacks merit.
In In the Matter of Luis E. Solis, a bankruptcy case, Judge Hamilton's 11-page opinion begins:
The legal profession has not treated debtor Luis Solis well. The secretary of an attorney who settled Solis’ workers’ compensation claim stole nearly half of the amount he was owed. Then a second attorney whom Solis had hired to recover the rest of the stolen settlement—appellant Joseph O’Callaghan—asserted an attorney fee claim for a percentage of the entire amount of the settlement, including the portion that Solis had already been paid before he hired that second attorney. The legal issue in this appeal is whether the second attorney “recovered” money for his client when he established the client’s entitlement to the sum of money already in the client’s possession. Appellant O’Callaghan insists that the answer is yes. We disagree. Under the terms of the contingent fee agreement in this case, O’Callaghan is entitled to a percentage of only the money he actually recovered from other parties, not a percentage of the money Solis had received earlier. We affirm the judgment of the district court.

This appeal comes to us from a bankruptcy proceeding in which the court resolved O’Callaghan’s claim for an attorney fee and costs on cross-motions for summary judgment.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In Daniel C. Reinhart v. State of Indiana , an 11-page opinion, Judge Crone writes:

Daniel C. Reinhart appeals his convictions for class D felony operating a vehicle while intoxicated and class A misdemeanor possession of marijuana. The sole issue presented for our review is whether the trial court abused its discretion when it admitted evidence obtained following the traffic stop of Reinhart's vehicle. Specifically, Reinhart asserts that the police violated his Fourth Amendment right to be free from unreasonable search and seizure. We agree and reverse Reinhart's convictions. * * *

While we are mindful of the significant danger faced by police officers during traffic stops, we must balance the interests of officer safety with the privacy interests protected by the Fourth Amendment in requiring law enforcement to use the least intrusive means necessary to investigate a traffic stop. See Wilson v. State, 745 N.E.2d 789, 792 (Ind. 2001). Under the facts presented, this was more than a minimal deprivation of Reinhart's liberty of movement necessary to confirm or dispel Deputy Coney's suspicion that Reinhart was operating a vehicle while intoxicated. The police officers' behavior in this case exceeded the scope of a Terry stop and became an arrest without probable cause. “To generally deter police from violating people's Fourth Amendment rights, the [United States] Supreme Court has created the exclusionary rule, which prohibits the admission of evidence seized in violation of the Fourth Amendment.” Caudle v. State, 754 N.E.2d 33, 34 (Ind. Ct. App. 2001), opinion on reh’g, trans. denied. Because the officers here lacked probable cause to arrest Reinhart prior to their seizure of the marijuana evidence and prior to obtaining evidence that Reinhart was indeed operating a vehicle while intoxicated, the trial court abused its discretion when it admitted evidence obtained following the invalid arrest. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004) (citing Wong Sun v. United States, 371 U.S. 471, 485 (1963)) (the “fruit of the poisonous tree” doctrine bars evidence obtained during or as a direct result of an unlawful search or seizure)), trans. denied.[3] Accordingly, we reverse Reinhart's convictions. Reversed.
______
[3] [Long footnote begins] We note that the continued vitality of the exclusionary rule has been called into question by the U.S. Supreme Court in its Fourth Amendment jurisprudence. See Herring v. U.S., 129 S. Ct. 695, 700 (2009) (recognizing that the U.S. Supreme Court has repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation). However, we apply the law as it still exists today in determining that evidence obtained as a result of Reinhart's invalid arrest should have been excluded.

In Allen A. Halferty v. State of Indiana , a 10-page opinion, Judge Kirsch writes:
Allen A. Halferty was convicted of dealing in methamphetamine as a Class A felony and maintaining a common nuisance, a Class D felony. On appeal, we address the following two issues, the second of which we raise sua sponte. I. Whether there was sufficient evidence that Halferty had control of the premises to support his conviction for maintaining a common nuisance; and II. Whether there was sufficient evidence of the presence of three grams of methamphetamine to support Halferty's conviction for Class A felony dealing in methamphetamine. We affirm in part, reverse in part, and remand with instructions.
In Charles Taylor v. State of Indiana , a 16-page opinion, Judge Waidik writes:
After Charles Taylor initiated a direct appeal of his three convictions for Class B felony unlawful possession of a firearm by a serious violent felon, he filed a Davis/Hatton petition, which this Court granted. Taylor then filed a petition for post-conviction relief, which the post-conviction court denied. Taylor now appeals the denial of post-conviction relief and reinstates his direct appeal. Concluding that Taylor's trial counsel did not provide ineffective assistance by failing to object to the admission of the weapons and that Taylor's convictions do not violate Indiana's prohibition against double jeopardy, we affirm.
NFP civil opinions today (1):

Donald J. Zellers v. Sharon Zellers (NFP)

NFP criminal opinions today (4):

Ben Gill v. State of Indiana (NFP)

Mark A. Shepard v. State of Indiana (NFP)

Robert Townsend v. State of Indiana (NFP)

Kirby D. Oliver v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Odds reduced that a woman will be selected for the Supreme Court

From the Fort Wayne Journal Gazette's editorial page today:

The initial list of candidates for the Indiana Supreme Court was promising for the prospect of ending Indiana’s dubious distinction as one of just two states without a woman on the highest court. A majority of the applicants – 19 of 34 – were female.

Wednesday, the list was reduced to nine, and the majority – five finalists – are male. That certainly doesn’t preclude the appointment of a woman to the court, but it certainly reduces the odds.

See also this ILB opinion entry from yesterday.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Vacancy on Supreme Ct

Ind. Gov't. - "Pulling back the curtain on redistricting"

Transparency in redistricting?

Michael McDonald and Micah Altman of the Washington Post have an intriguing column today. Some quotes:

Every 10 years -- unfortunately, sometimes more frequently -- legislative district lines are redrawn to balance population for demographic changes revealed by the census. What goes on is much more than a simple technical adjustment of boundaries, with ramifications that largely escape public notice. * * *

Critically, these decisions are made with little or no public input or accountability. While Arizona and California are among the few states that give the public a chance to see and participate in how the boundaries are set, by using open redistricting commissions, most states gerrymander legislative lines behind closed doors. * * *

For many reasons it has been hard to fault the public. An immense amount of population data must be sifted and then assembled, much like a giant jigsaw puzzle, to ensure that districts satisfy complex federal requirements relating to equal population and the Voting Rights Act, and varying state requirements that may include compactness and respect for existing political boundaries or communities. And access to these data and the software necessary to assemble and analyze them have long been out of public reach.

In the previous round of redistricting, according to a 2002 survey of authorities we conducted with our colleague Karin Mac Donald, most states did not provide any tools, facilities, dedicated assistance or software to support the public in developing redistricting plans. Many states failed to provide even minimal transparency by making data available, providing information about their plans online or accepting publicly submitted plans. Many redistricting authorities have not made firm plans to support transparency or public participation in the current round of redistricting.

In the coming year, however, technological advancements will enable anyone with a Web browser and an interest in how he or she is represented to draw district maps of his or her community and state that meet the same requirements as official submissions. Under the direction of scholars at the Brookings Institution and the American Enterprise Institute, and with consultation from an array of experts in redistricting issues, we have developed a set of principles for transparency and public participation [here]. These principles have been endorsed by an array of stakeholders, including Common Cause and the League of Women Voters of the United States.

Americans will be able to participate directly in their democracy by offering plans to be compared with the politician-drawn maps. The public and even the courts will no longer have to accept that whatever is devised by politicians in the backroom.

The Wizard of Oz appeared powerful because he hid behind a curtain -- until it was pulled back. The time has come to pull back the curtain on redistricting. A good place to start is by passing Rep. John Tanner's Redistricting Transparency Act, which has 38 co-sponsors from both parties. If Congress will not act, state governments can follow the lead of the few states that provide for meaningful transparency and public participation. Failure to provide for transparency and public participation should be recognized for what it is: an obviously self-serving act, placing the interests of politicians above the public interest.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Indiana Government

Courts - "Arrest has put one of the hottest controversies in American law enforcement to its first major test"

From a lengthy, interesting story by Jennifer Steinhauer in today"s NY Times:

Only two states, Colorado and California, have a codified policy permitting a so-called familial search, the use of DNA samples taken from convicted criminals to track down relatives who may themselves have committed a crime. It is a practice that district attorneys and the police say is an essential tool in catching otherwise elusive criminals, but that privacy experts criticize as a threat to civil liberties.

This week, law enforcement struck a significant blow for the practice when the Los Angeles Police Department used it to arrest a man who they say murdered at least 10 residents here over 25 years. It is the first time an active familial search has been used to solve a homicide case in the United States.

Lonnie D. Franklin Jr., 57, was charged Thursday with 10 counts of murder and one of attempted murder after the state DNA lab discovered a DNA link between evidence from the old crime scenes and that of Mr. Franklin’s son, Christopher, who was recently convicted of a felony weapons charge.

The information developed from the state’s familial search program suggested that Christopher Franklin was a relative of the source of the DNA from the old crime scenes. The police confirmed the association of Lonnie Franklin through matching of DNA from a discarded pizza slice. The match provided the crucial link in a seemingly unsolvable crime that struck terror and hopelessness throughout one of the city’s poorest areas for years.

Chief Charlie Beck of the Los Angeles Police said Thursday that he expected to connect Mr. Franklin, who is being held without bail, to other murders.

“This is truly a breakthrough,” said Attorney General Jerry Brown, whose office wrote the DNA policy, in a telephone interview. The use of the practice demonstrates that law enforcement can “stop criminals in their tracks and lock up some of the most vicious and dangerous members of our society,” Mr. Brown said. “That’s why this technology is so important.”

The arrest in the protracted, gory case could settle the internal debate among lawmakers and the law enforcement agencies across the country currently considering the use of familial search, evidence law experts said. California is awaiting a court ruling on whether its DNA database can be expanded to include people who have been arrested.

Here is an earlier ILB entry re familial searching, from Oct. 8, 2009.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Courts in general

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

Updating this ILB entry from June 29th, the Indianapolis Star reports this morning in a brief story that begins:

Carmel -- A Hamilton County judge could decide today whether to silence everyone involved 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 one former player are asking Hamilton Superior Court Judge William Hughes to issue a gag order to limit public comment on the case. A hearing on the request is scheduled for 1:30 p.m. today.

Posted by Marcia Oddi on Friday, July 09, 2010
Posted to Indiana Courts

Thursday, July 08, 2010

Ind. Decisions - Supreme Court decides one today

In Steven W. Everling v. State of Indiana, an 18-page, 5-0 opinion issued late this afternoon, Chief Justice Shepard writes:

A jury found appellant Steven W. Everling guilty of three counts of child molesting and two counts of sexual misconduct with a minor. Although Everling raises several grounds for reversal, we address only whether the judge’s conduct during the trial deprived him of a fair trial. Because we conclude that the court’s overall conduct evidenced partiality, we reverse and remand for a new trial. * * *

The cumulative result of Judge Spencer’s comments, exclusions, and general demeanor toward the defense was a trial below the standard towards which Indiana strives.

See this list of some earlier ILB entries about now-former Judge Fredrick R. Spencer, including "Judge Spencer tearfully steps down" from Sept. 27, 2009, and "Appeals court upholds child molester ruling; complaints aganst judge" from August 21, 2009.

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - One view on the slowness of change

Re the stories today that all the semi-finalists selected for the Supreme Court are from Indiana University law schools, in contrast to the schools attended by the current justices, things indeed have changed.

"Back in the day" when I graduated from IU-Indy, the big Indy firms rarely hired in-state grads, Ivy League was the rule. And I don't remember any women judges.

Law jobs for women were problematic. I can attest that the stories told by Justices O'Connor and Ginsberg are true -- upon passing the bar, I applied at the Attorney General's office and was asked if I could type or take shorthand. When I replied no, the interviewer asked, "Well, little lady, what can you do?"

Much has changed in the last 40 years, women now make up more than half of law school graduates and gender is not an issue in finding law jobs (although the economy is right now). But our Supreme Court remains all male. The Judicial Nominating Commission has only one female member. And although 19 well-qualified women, some of the state's best and brightest, applied for consideration to replace Justice Boehm, 15 were swept out yesterday in the first go-around.

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "All nine of the semifinalists for the upcoming vacancy earned law degrees from one of IU's two law schools."

Jon Murray writes this afternoon in Justice Watch in an entry that concludes:

The IU-Indy grads include all four trial judge candidates, plus Mulvaney and Steele. The IU-Maurer grads are Boshkoff, Drew and Fisher. The semifinalists earned undergraduate degrees from a variety of in-state and out-of-state colleges and universities, but none in the Ivy League.

So where did the current justices study? Chief Justice Randall Shepard has undergrad and law degrees from Princeton and Yale, respectively; Justice Theodore Boehm, from Brown and Harvard; Justice Frank Sullivan, from Dartmouth and IU-Maurer; Justice Brent Dickson, from Purdue and IU-Indy; and Justice Robert Rucker, from IU and Valparaiso. Besides IU's two law schools and Valparaiso, Indiana has a fourth law school at Notre Dame.

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Semi-finalists Moberly and Fisher answering questions

Two of the semi-finalists. On the left, Judge Moberly. On the right, Tom Fisher.

(Still no photos of Kiply Drew or Judge Nation, but should receive a photo of Ms. Drew within the next few days.) [Update: Now have posted Ms. Drew's photo.]

moberly fisher10

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Reporters at interview, intent on capturing the Q & A

The Supreme Court press office has put some photos taken over the last two days online. I have selected some and will highlight them here, This first one is of the hardworking Prof. Joel Schumm on the left, Michael Hoskins of the Indiana Lawyer in the middle, and Jon Murray of the Star on the right.

reporters

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on the semi-finalists - all are Indiana University Law alums [Updated]

Joel Schumm writes in to note:

The four judges and Mulvaney are Indianapolis alums; the remaining four are from Maurer (Bloomington). All three lawyer members of the Commission are also Indy alums.
Whoops, my mistake. His application shows Steele is Indy also, making the total 6-3.

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

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

For publication opinions today (1):

In Marcus Lewis v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:

Appellant Marcus Lewis appeals his conviction for domestic battery as a class A misdemeanor. We reverse and remand with instructions.

Lewis raises two issues, one of which we find dispositive and restate as whether Lewis received ineffective assistance of trial counsel because counsel failed to timely file a written request for a jury trial.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Russell W. Maddex v. State of Indiana (NFP)

Dorian Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still need photos of several semi-finalists

Thanks to Judge Emkes, who just e-mailed a recent photo to the ILB.

Still missing -- Judge Nation and Ms. Drew. Also, we do not have a color photo of Judge Moberly. And Mr. Fisher's could benefit from higher resolution.

If any of you don't have a photo you can send electronically, let me know for other arrangements.

Posted by Marcia Oddi on Thursday, July 08, 2010
Posted to Vacancy on Supreme Ct

Wednesday, July 07, 2010

Ind. Courts - Recap of the semifinalists selected for the Supreme Court vacancy

One final post this evening by the hard-working Professor Schumm. As he told me, now back to grading papers ...

As expected, the list of 34 has been whittled down to nine. But, although a majority of the applicants were women (19), a slight majority—five—of the finalists are men (David, Fisher, Mulvaney, Nation, and Steele) and only four women (Boshkoff, Drew, Emkes, and Moberly) remain.

Four finalists are trial judges: David, Nation, Emkes, and Moberly. One is a state senator (Steele), and the other four are either big firm lawyers (Boshkoff and Mulvaney), in-house university counsel (Drew), or a governmental lawyer (Fisher).

Seven are from Indianapolis or a donut county, while only two come from other parts of the state: Drew is from Bloomington and Steele is from Bedford.

The ages range from 41 (Fisher) to 62 (Steele) with Drew (48), Boshkoff (49), Emkes (51), David (53), Moberly (56), Mulvaney (60), and Nation (60) rounding out the middle.

There are no major surprises on the list. Many, if not most, trial judges are always regarded as solid candidates. When a state senator (Cleo Washington) applied in 1999, he also made the second round. The practitioners all have distinguished academic and practice records.

What’s next? The nine semi-finalists will face a second round of questioning on July 30. Between now and then, commission members will call their references.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Here are the names of the semi-finalists

Boshkoff, David, Drew, Emkes, Fisher, Moberly, Mulvaney, Nation, Steele

---------------------------------

Boshkoff, Ellen B. - Attorney, Baker & Daniels -- interview notes

David, Steven H. - Judge, Boone Circuit Court -- interview notes

Drew, Kiply S. - Associate General Counsel, Indiana University -- interview notes

Emkes, Cynthia S. - Judge, Johnson Superior Court 2 -- interview notes

Fisher, Thomas M. - Solicitor General, Indiana Attorney General's Office -- interview notes

Moberly, Robyn L. - Judge, Marion Superior Court, Civil Division 5 -- interview notes

Mulvaney, Karl L. - Attorney, Bingham McHale -- interview notes

Nation, Steven R. - Judge, Hamilton Superior Court 1 - interview notes

Brent E. Steele - Attorney, Steele & Steele; State Senator -- interview notes

-------------------------------

Joel Schumm is preparing another post for this evening.

Meanwhile, an observation, for what it may be worth. Two were selected from the first panel on the first day - Boshkoff and Nation, and all three from the first panel on the second day, Mulvaney, Moberly, and Emkes. No one made it from the last two panels on either day one or day two.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Day Two: Report on the Final 3 interviews of Wednesday afternnon

This is IU-Indy Law Prof. Joel Schumm's report on the FINAL three interviews (for now) - check here for the photos and links for group 11.

Wheat, Allen N. - Judge, Steuben Circuit Court

Judge Wheat noted service on the Court would be the ultimate pinnacle of any lawyer’s career. He also noted “curiosity” as part of the reason for applying.

He told the commission that until recently only twice in his 33-year marriage has his wife said, “we need to talk.” Both times he ended up being a father. This third time, though, she discussed mid-life crisis issues—such as expensive cars or new women—and noted others aspire to the Indiana Supreme Court. She said history treats two of the three harshly.

Judge Wheat asked rhetorically why litigants in a civil case are entitled to an automatic change of judge in a civil case involving money but not in a criminal case involving liberty. That is what the rules currently provide. He could bring a useful perspective to the discussion of such issues if appointed to the Court.

Mr. McCashland asked if Judge Wheat had noticed about any changes in the past twenty years in the ability of new lawyers. Judge Wheat noted the rise of mediation, which has diminished the number of great trial lawyers. He noted some new and even not-so-new lawyers never try cases and look like a deer caught in the headlights when in court.

Shirley, Curtis E. - Attorney, Law Office of Curtis E. Shirley

Mr. Shirley served as a law clerk to Judge Noland (S.D. Ind.) and Judge Manion (7th Cir.). He has engaged in practice in a large firm and solo practice. He has taught high school and law school classes. He stressed he has a diverse and statewide practice. He has been in up to two-thirds of Indiana’s counties. He specializes in probate litigation but also does civil and even some criminal work. He has represented plaintiffs and defendants nearly equally.

Words have meaning and consequence. Greatest care must be taken in the words used in opinions.

The Chief Justice asked about Mr. Shirley’s work for the Legal Aid Society and wondered about the change for the need of those services. Mr. Shirley believes the Indianapolis Legal Aid Society is the “national standard,” serving more than 8,000 persons who appear at its office each year and making frequent court appearances.

In response to a question about his qualifications for the position, Mr. Shirley explained when the position became available he received phone calls from some of his mentors (law school professors and lawyers) who encouraged him to apply. He said it was humbling to even be considered for the position. He believes his “qualities as a person” would fit well with service on the Court. If appointed, he noted in jest that his jokes would be funnier and he would have more friends.

And because many of you are wondering and will ask . . . no, he was not asked about the disciplinary matter on page 15 of his application.

Kuzma, Abigail Lawlis - Consumer Counsel, Indiana Attorney General's Office

Ms. Kuzma feels completely humbled and honored to be considered. She has been interested in the judiciary for many years. She served as staff to the Senate Judiciary Committee in the 1980s. Public service is very important to her. She currently heads a consumer division of the AG’s office.

The Chief Justice asked about her efforts in foreclosure cases. The bill that passed last year and allows homeowners to request a settlement conference. There seems to be a lack of communication in many cases, but the office is working to better educate the public about this right and how to exercise it.

In light of Ms. Kuzma’s work for the U.S. Senate Judiciary Committee, Ms. Keck asked what questions should have been asked of nominees and were not. Ms. Kuzma observed a lot of senators' questions were about a specific case or issue and went on for a long time, but the nominee is not able to answer. We did not get an idea how the nominee would serve the people.

Mr. McCashland asked how much time it took Ms. Kuzma to assemble her application (it is by far the longest, filing a binder of a few inches in width with writing samples). She responded, two entire, long weekends.

Ms. Kuzma’s view of ideal characteristics of a justice: deep respect for the rule of law, humble, a good listener, and one who takes into consideration the view of others while engaging in debate. Fairness is perhaps the most important attribute.
___________

What is Next?

The Indiana Judicial Nominating Commission is now, or soon will be, meeting in executive session to arrive at the applicants it will call back to answer a second round of questions on Friday, July 30th. The Commission will reconvene for a public vote sometime in the next few hours. Check back.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Day Two: Report on the first 3 interviews of Wednesday afternoon

This is IU-Indy Law Prof. Joel Schumm's report on the first three interviews of the afternoon of Day Two (three more to go) - check here for the photos and links for group 10.

Hughes, William J. - Judge, Hamilton Superior Court 3

Judge Hughes has been on the bench for 22 years; he believes people should be able to come to courts to find justice. He does not have an agenda to change things but does want to continue some things that have worked well.

The Chief Justice asked about Judge Hughes involvement with jury reform. Indiana allows, and Judge Hughes is often asked about, allowing jurors to discuss the case while breaks and to ask questions of witnesses. Judge Hughes believes Indiana is “close to the top” on jury issues among states.

Mr. Gavin asked about his work in the Chad Cottrell death penalty case and noted President Obama’s statements on looking for empathy in judges. Judge Hughes responded that personal passion has nothing to do with the role of a trial judge, rather, be sure their decision is required by the law and facts in that case—not their personal views.

Mr. Feighner asked about the transition from a trial court judge to a multi-member appellate panel. Although judges have their own court, he is one of several judges in Hamilton County, which includes a combined budget, shared space, and shared responsibilities. He does not always think he’s right and benefits from considering the views of others.

In response to Mr. McCashland’s question about three essential characteristics for judges, he mentioned humility (his wife has kept him humble, despite the black robe), a willingness to work hard (it can take a long time to research, consider, and decide a case), and good relationship management (a liking of people and willingness to listen to and engage them).

In responding to a question about issues facing the judiciary, Judge Hughes mentioned accessibility of the courts, especially with more self-represented litigants. He also observed it is sometimes hard to know what a child wants in a custody matter, although it must be considered.

Nuechterlein, Clare Kraegel - Assistant Professor of Law, Valparaiso University

Ms. Nuechterlein stressed her career of service, through her previous legal work and current work as a law professor. She would bring a depth and breadth of experience, as a city attorney, attorney for the Dept. of Education, and assistant U.S. Attorney. She tells law students in her first-year writing class that she is their “worst nightmare,” as a lawyer and former seventh English grade teacher.

She has gained “quasi-judicial” experience through her work on the Indiana State Ethics Commission. She has been chair since 2007 and makes rulings on admissibility of evidence at hearing and writes final opinions. One of those opinions was recently affirmed by the Supreme Court in a “fine opinion.” [Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General, an 8-page, 5-0 opinion, authored by Justice Boehm.] In response to the Chief Justice’s question about trends, she noted although the Ethics Commission has existed since 1976, the creation of the Inspector General in 2005 has allowed for more investigative power and increased the importance of the Commission.

Ms. Keck asked about Ms. Nuechterlein’s experience in the U.S. Attorney’s office. She “earned her stripes as a litigator” there. She did all civil work and was in court a lot. She would also do appeals and had some surprising success in the Ninth Circuit.

Mr. McCashland opined she seemed like a “take charge” person and wondered her views of collegiality. She stressed the importance of taking charge in a classroom, but noted she is a member of an 18-member faculty on which she works well with others through committees.

She would be “calm and even tempered” and bring a “great curiosity” to the position.

Hardman, Lyle R. - Attorney, Hunt Suedhoff Kalamaros LLP

Mr. Hardman stressed his broad-based civil litigation practice and legal writing experience as good preparation for the Court. When asked by the Chief Justice about his work on the (30-member) ISBA ethics committee, Mr. Hardman explained the commission discusses and offer opinions, sometimes in writing, on difficult ethical issues .

Ms. Keck asked about involvement in significant constitutional matters, and Mr. Hardman noted he was on the losing end of a case involving the statute of limitations in a medical malpractice case. He has also represented lawyers in legal malpractice and noted missing the statue of limitations is a frequent basis for claims. They rarely reach the Supreme Court because lawyers often want to resolve the cases quickly, unlike some medical malpractice claims.

He stressed the importance of professionalism, noting he runs into the same lawyers on a regular basis—unlike in Chicago where 50,000 lawyers rarely see each other.

He described the attributes of an ideal justice as intelligent, ethical, hard-working, a researcher, and a good writer.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Court of Appeals issues 2 today (and 16 NFP)

For publication opinions today (2):

In the Matter of: A.C. v. State of Indiana is a 10-page opinion by Judge Crone, who writes:

A.C. appeals his adjudication as a delinquent child for committing an act that would be considered class A misdemeanor resisting law enforcement if he were an adult. He argues that there is insufficient evidence to support the true finding that he committed resisting law enforcement. We agree and reverse his adjudication.
In Leroy Jones v. State of Indiana , an 8-page opinion, Judge Friedlander writes:
Leroy Jones appeals his conviction of two counts of Dealing in Cocaine, one as a class A felony and one as a class B felony. Jones presents the following restated issues for review: 1. Should Jones’s conviction for dealing in cocaine as a class A felony be reduced to a class B felony because the jury was incorrectly instructed regarding the statutory definition of “family housing complex”? 2. Did the trial court err in sentencing Jones to consecutive terms of imprisonment? We reverse and remand. * * *

[The court quotes two versions of IC 35-41-1-10.5] This version of the statute became effective on July 1, 2006, which was after the date that Jones committed the offense in question. The version of the statute in effect on that day, i.e., May 18, 2006, provided as follows: * * * Jones contends application of the revised statute to his offense is a violation of the constitutional prohibition against ex post facto laws. He is correct. * * *

Jones contends the trial court erred in sentencing him to consecutive terms of imprisonment because the two offenses were nearly identical and involved state-sponsored buys of cocaine. We will address this argument because the same issue might arise upon remand. * * *

In the instant case, Jones’s two convictions stem from controlled buys involving the same confidential informant, the same quantity of the same drug, and although they occurred at two different locations, they both were supposed to have been consummated at the same place - Greentree. Moreover, they occurred only two weeks apart. Under these circumstances, consecutive sentences are not appropriate. See Gregory v. State, 644 N.E.2d 543.

We reverse the conviction for dealing in cocaine as a class A felony and remand with instructions to enter instead a conviction for dealing in cocaine as a class B felony. We also remand for resentencing consistent with the principles set out in this opinion.

NFP civil opinions today (4):

Sally G. Leonard v. United Farm Family Mutual, et al. (NFP)

Involuntary Commitment of R.C. (NFP)

T.H., et al., Alleged to be C.H.I.N.S.; T.H. & S.H. v. I.D.C.S. (NFP)

Robin Parks v. Michael Grube (NFP)

NFP criminal opinions today (12):

Michael A. Balasquide v. State of Indiana (NFP)

Theodore N. Hannibal v. State of Indiana (NFP)

Tyshekia Burris v. State of Indiana (NFP)

Marco Hernandez-Lopez v. State of Indiana (NFP)

Jonathan Graves v. State of Indiana (NFP)

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

Kevin Risner v. State of Indiana (NFP)

Kurt O. Elder v. State of Indiana (NFP)

Matthew Baugh v. State of Indiana (NFP)

Brian L. Riker v. State of Indiana (NFP)

Harry Green, Jr. v. State of Indiana (NFP)

Denise L. Black v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Day Two: Report on the final 3 interviews of Wednesday morning

This is IU-Indy Law Prof. Joel Schumm's report on the final three interviews of the morning of Day Two (six more to go, this afternoon) - check here for the photos and links for group 9.

David, Steven H. - Judge, Boone Circuit Court

Judge David loves being a trial court judge and loves being in Boone County. He has a diverse background of state practice, not mention international and military law. He understands what lawyers go through and tries to operate a court that is user-friendly and respects everyone. He understands the commission is electing a “steward” for the Court and wants to be part of the future.

He was involved in drafting parenting time guidelines. The guidelines have kept some people out of the courtroom by setting default rules. Their beauty lies in the comments, which are not in “lawyer speak” but rather provide specific examples understandable to litigants.

Mr. Feighner asked about Judge David’s work in the Zolo Azania death penalty case. Judge David said he was appointed special judge in that case and would never turn down such an appointment. He found the State could not proceed with the death penalty after 23 years of delays and new trials. He was reversed 3-2. He simply stated, “It is what it is.” He supports the concept of the death penalty and believes it is appropriate in the right circumstances. He respects the Supreme Court’s opinion and “will march forward with that precedent.”

He is proud to be a Hoosier. When justices dissent in Indiana, they do it respectfully. Unlike some other states, where lawyers “laugh” at their elected appellate judges’ insults to each other, the judiciary here treats each other with respect.

In response to Mr. Gavin’s question about using international law in considering constitutional issues, Judge David noted his experience has been limited to the human rights context.

Mr. McDonald asked if Judge David could be called back into active duty. He has no intention of re-engaging and has no obligation to do so.

He provoked laughter when he said, if he had been asked if the size of the Court should be expanded, he would have suggested a 34-member court.

Bonaventura, Mary Beth - Judge, Lake Superior Court, Juvenile Division

Judge Bonaventura was selected in 1993 (in part by Chief Justice Shepard) through merit selection in Lake County.

When asked about the 2009 legislative changes that require DCS to pay for placements (but allows a role in recommending those placements to judges), Judge Bonaventura explained the changes have made judges more mindful of costs. Not only is she a steward of children but is now also a steward of the taxpayers.

Mr. Trimble was impressed with Judge Bonaventura’s “energy” and wondered how it would transfer to the Supreme Court. She would learn and master what the Supreme Court does. She is a “people person” and believes she would fit in. She thinks she could bring a juvenile expertise that is lacking. (Note: Justice Sullivan has written and taken an interest in juvenile issues.)

Mr. Feighner asked how Judge Bonaventura could reach out to small, rural counties. She noted she serves on the Juvenile Justice Improvement Committee, which includes judges from smaller counties, who sometimes call her to discuss issues.

When asked by Mr. Gavin about the goal of criminal justice system, Judge Bonaventura responded, first and foremost, to “keep people safe in the community” and later added in a “cost-effective way.”

Ms. Keck asked her view of televising proceedings. Although she was part of a project allowing some camera access (for example, the “Juvies” show on MTV), she explained this was the Chief Justice’s idea in which she participated. She thinks cameras normally should not be in juvenile courtrooms. She thinks televising “some types of criminal cases” may have merit.

When asked about her judicial philosophy, she responded that she treats people the way she would want to be treated.

Willis, Mary G. -Judge, Henry Circuit Court

Judge Willis believes judges should be educated at least to the level of the lawyers appearing before them. She participated in the statewide judicial strategic plan, which includes a requirement of 50% more judicial education beyond lawyer requirements. She noted there has been some push-back from judges, although many were already receiving additional education.

The strategic plan also mentions creating “judicial districts.” More specialization among judges could be allowed, and the state could take on more funding of the judicial branch (most cost, beyond judicial salaries, is paid by counties). She acknowledged this would mean diminishing or ending the system of generalist judges (some of which are applicants for the position). Although larger districts could make it more difficult for citizens to get to court, the districts being considered would be fairly compact (26 statewide).

Judge Willis has been involved with JTAC and technology issues. She stressed the importance of making information available to the public while limiting private/confidential information.

In response to Mr. Trimble’s question about characteristics of a good justice, she emphasized the reasonable application of the law and need to explain the rules of the game and reasons for the ruling to litigants and lawyers.

The Chief Justice asked about the evolution of women in the profession and continuing challenges. She noted the impropriety of asking professional women if they plan to have children. She ran for judge at age 35. She was pulled aside by a “well-meaning” person who said, “You want to be a judge? But you’re a girl.” She is frequently the only woman in a group of women making a decision and does well working with others.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Look for a list of semi-finalists late today

Kathryn Dolan, Indiana Supreme Court Public Information Officer: "I anticipate the Commission will vote late this afternoon/early evening on the semi-finalists." The public announcement will follow.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Day Two: Report on the second 3 interviews of Wednesday morning

This is IU-Indy Law Prof. Joel Schumm's report on the second three interviews of Day Two - check here for the photos and links for group 8.

Menges, William C. Jr. - Judge, Howard Superior Court 1

Judge Menges said a position on the Supreme Court would be attractive to any lawyer. His background includes work as a prosecutor, public defender, and now a judge. He has “no idea” how many jury trials he has tried—over 100. He did a lot of appellate work as chief public defender. He has reduced pending caseload and shortened disposition time since becoming a judge. He has a solid academic background.

One complaint trial judges have about appellate courts is a lack of connection to “real-life experience.” Specifically, he mentioned Judge Najam’s recent opinion in Gosha v. State as “a good opinion,” as long as it is narrowly followed. Judge Menges expressed concerned that notice and a hearing could lengthen what needs to be a swift process in terminating participants in drug court.

Judge Menges noted important characteristics for a supreme court justice included being a strong leader and patient. In response to Ms. Keck’s question about his experience as public defender, Judge Menges noted that most judges have been prosecutors. His work as a public defender (and prosecutor) provides some balance.

In response to Mr. McCashland's question about collegiality, he believes there has been a decline in collegiality over the past thirty years. Judge Menges thinks it is important for the Supreme Court to set a good example.

Fisher, Thomas M. - Solicitor General, Indiana Attorney General's Office

Mr. Fisher has wanted to be a judge since he clerked for Judge Kanne on the Seventh Circuit. He has considered over the years where he would want to work, as he has argued in both federal and state courts. When this current position came open, it fit well with his “career trajectory.”

Mr. McCashland observed that Mr. Fisher has a very good job now and he has “not heard a negative comment about” him. Why would he want to go to the Supreme Court? Mr. Fisher responded the Soliciter General job cannot last forever; it will turn over in the future. He has been very committed to the job but thinks being a judge is the next logical step. The SG job has been “excellent training.” The thought of serving on the SC “thrills me to no end” in making a difference for the people of the state.

In response to questions about the characteristics of an ideal justice, he cited “intellectual curiosity,” a sense of fairness, dispassion, and “open-mindedness about where the law can take us.”

In response to Mr. Gavin’s question about his lack of trial experience, Mr. Fisher opined it was not “debilitating” in any way. Each candidate brings different things; it would be “just one more thing” he could have brought. (For those suspecting Tribbett-type moments, this was the closest and more mild.)

Ms. Keck asked about ordinances restricting smoking ordinances, but Mr. Fisher was reluctant to discuss an issue that could come before the Court. Generally, though, he said the methodology would be the same as with any constitutional issue; he would look to the text and history of Constitution. Unlike some of yesterday’s candidates, he did not espouse the view of a living and evolving Constitution.

Mr. Feighner observed the Court is often unanimous, but Justice Boehm has sometimes been a swing vote in 3-2 cases. When asked how his judicial philosophy would differ from Justice Boehm’s, Mr. Fisher was hesitant to describe others. Mr. Fisher believes courts exist to resolve disputes. He is a textualist, an originalist. He would not impose his own views. He merely said sometimes Justice Boehm has disagreed with the views expressed by the Attorney General’s office. (The most recent example would be the June 30, 2010 Supreme Court decision in the voter ID case, where Justice Boehm was the lone dissent.)

Although Mr. Fisher has been involved with the Hudson Institute and the Cato Institute, he does not look to those for “opinion leadership” but rather for debate and an opportunity to keep abreast of issues. Mr. Fisher is “very much in favor” of merit selection, which is essential to judicial independence.

Ayers, Cynthia J. - Judge, Marion Superior Court, Civil Division 4

Judge Ayers has been in private practice before serving on different trial courts for more than twenty years. She would bring a unique perspective, including as a single mom working full-time while in law school.

She believes judges should provide every citizen the right to redress in courts, often before a jury unlike in many countries, and on appeal.

Judge Ayers has worked for two years on a committee revising the civil jury instructions into plain English. She believes this was important but suspects some lawyers will be hesitant about some changes in the terms, as lawyers often cite the instructions in arguments to the jury.

She believes there has been a decline in collegiality (for example, more motions and requests for sanctions), but she teaches law students that “what goes around comes around” and how important it is to work well with others. They should step back and not become personally involved. She agrees many view law as a business because of the importance of billable hours.

Judge Ayers has unique experience as a probation officer before attending law school. She said alternatives to incarceration are important; we cannot afford to send everyone to prison. Electronic devices now allow for monitoring.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: What is it like during a Supreme Court interview?

Here is another photo from the Indiana Courts site, this one taken this morning before the start of Day Two. The fellow on the sidelines to the left, in blue shirt, partially blocked by Chief Justice Shepard in the foreground, is, I believe, Prof. Joel Schumm.

day2opening

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - What is it like during a Supreme Court interview?

Here is a photo I found on the Indiana Courts site, taken of yesterday's interview with attorney Judy Woods: The fellow on the sidelines to the left, in white shirt, is, I believe, Prof. Joel Schumm.

woodsinterview

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Day Two: Report on the first 3 interviews of Wednesday morning

This is IU-Indy Law Prof. Joel Schumm's report on the first three interviews of Day Two - check here for the photos and links for group 7.

Mulvaney, Karl L. - Attorney, Bingham McHale

The Chief Justice started by noting that Mr. Mulvaney, as the long-time court administrator, had observed proceedings around the conference table more than just about anyone. Mr. Mulvaney believes it would be a “pinnacle” for any appellate lawyer to join the Court. He recounted with agreement the CJ’s comments from decades ago how lucky he would be to come to this job every day.

In response to Mr. Trimble’s question about the characteristics of an ideal justice, he stressed the importance of being open minded and willing to listen. The person must be collegial, expressing differences of opinion with respect.

In response to Ms. Keck’s question about the greatest challenges facing the judiciary, Mr. Mulvaney stressed the importance of cases involving children. He described the termination of parental rights as the most difficult cases and thinks the Court has done a good job addressing the needs of children.

In response to Mr. McDonald’s concern about Mr. Mulvaney’s lack of jury trial experience, Mr. Mulvaney observed he had tried disciplinary, mandate of funds, and other types of cases. He has worked with excellent trial lawyers and been trusted to work on their cases.

In contrast to yesterday’s final interview, Mr. Mulvaney was exceedingly modest.

Moberly, Robyn L. - Judge, Marion Superior Court, Civil Division 5

Picking up with a familiar theme of other applicants, Judge Moberly stressed her widely varying “general practice” of law for 17 years before becoming a judge. Her “work in the trenches,” followed by 14 years (in criminal and civil courts) as a judge make her a well-rounded candidate.

Judge Moberly “loves to write” and almost always takes cases under advisement to write (and in the process think through) a decision. She appreciates the importance of clear and precise writing.

Mr. Gavin asked about the “goal of criminal justice system,” and Judge Moberly responded “rehabilitation” primarily, but also deterrence and punishment.

In response to Feighner’s question about the transition from trial judge to multi-member court, Judge Moberly noted she has done a lot of committee work and enjoys the “give and take” that comes with working with others.

In response to Mr. McCashland’s questions about collegiality, Judge Moberly recounted a case where two lawyers have been going at either other in unflattering emails, which has been attached to pleadings. She has told them this does not accomplish anything and can harm their reputations and relationships in future practice. Judge Moberly dresses in a suit and sets a professional tone, unlike some trial judges (no names were mentioned).

The Chief Justice evoked some laughter when he observed that Judge Moberly’s application is the only one of hundred over the years in which the term “vampire” appears (see p. 17). She was sued in federal court by “a self-avowed vampire and former gubernatorial candidate.”

Judge Moberly was personable, engaging, and thoughtful in her responses. She strikes me as the strongest trial judge candidate interviewed to this point.

Emkes, Cynthia S. - Judge, Johnson Superior Court 2

Ms. Keck asked about the significant population growth in Johnson County and how it has impacted the administration of justice. Johnson County ended random rotation filing, allowing judges to specialize and hear specific types of cases.

Mr. Feighner asked what it would mean for a trial judge to be appointed, and Judge Emkes noted trial judges would see it as a honor, showing their work has been taken into account. “I don’t consider it an elevation to the Supreme Court; it would be an express elevator.” Filling Justice Boehm’s shoes would be impossible for any candidate, but she would be honored to serve on the Court.

Mr. Gavin asked Judge Emkes about her work as a young judge in a death penalty case. Although the jury was not able to reach a unanimous decision, she imposed death. She noted death penalty cases are very emotional, and the last evidence heard by the jury was mitigating circumstances. The jurors were “worn out” at the end of the five-week trial while being sequestered. She thought she had a better grasp of the law and was less wrapped up in emotion in making the decision.

In response to Mr. McCashland’s question about the legal profession being viewed as a business and not a profession, Judge Emkes noted that many lawyers still do pro bono work. Advertising is fine as long as it complies with the rules of professional conduct.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Upgrades made to state's sex offender registry" [Updated]

Sophia Voravong of the Lafayette Journal Courier reported July 6, 2010:

Mandy Bailey, a mother of two, can now be cautioned via e-mail if a registered sex offender moves into her Lafayette neighborhood -- and all neighborhoods within one mile.

Being able to sign up for e-mail notifications is among the new features of Indiana's revamped Sex and Violent Offender Registry, which quietly launched statewide on Thursday.

The Web-based registry is now partnered with Louisiana-based OffenderWatch, a sex offender management and notification program used in 39 states. Hoosiers can still search for registered offenders by name or address.

But now, in addition to e-mail notifications, residents can track an individual offender and easily view all offenders in one county -- something previously limited to looking through hard copies of a county's registry at sheriffs' offices. * * *

In Indiana, most sex and violent offender registries are coordinated by the county sheriff's department. Information posted online includes offenders' pictures, home addresses and type of conviction.

Tippecanoe County Sheriff Tracy Brown said the switch to OffenderWatch is meant to be more user-friendly for residents. For instance, a simple link shows all offenders whom are known to be noncompliant in registering.

Those required by courts to register must provide law enforcement their new addresses within 72 hours of a move. * * *

Law enforcement is required to verify all registered offenders' addresses annually. Those dates are staggered, depending on when an offender is added.

Carroll County Sheriff Tony Burns said a calendar provided through OffenderWatch is one of the most significant internal upgrades. He plans to ask OffenderWatch to switch Carroll County's calendar to 180 days.

Police in some communities elect to check on sex offenders more often than required by law -- for instance, Lafayette and West Lafayette assign officers and detectives to verify addresses monthly.

This story by Kristin Bien of WSBT-TV, South Bend, includes:
As of midnight on Thursday, the entire state — all 92 counties — transitioned to the new sex offender/violent offender management system. Like the old registry, this new system allows you to type in an address and see exactly what offenders are in the area. * * *

Most sheriff’s department websites have the offender watch link posted there. Here it is on the LaPorte County Sherriff’s Department website.

ILB Note: "Thursday" would be July 1, 2010 for activation of the new sex offender/violent offender management system. The ILB has learned that the new system has put at least some of those removed from the registry by court order after the Wallace decision back on the registry again.

[More] One of the individuals put back on was Richard Wallace himself, according to his attorney, Kathleen Sweeney, who wrote the ILB on July 2:

We've spent all morning faxing the removal orders to different counties for our clients that were removed and who have been placed back on the registry. Honestly.
Sweeney adds this morning:
The State is not removing these folks from the registry but merely blocking the information to the public. This appears as it relates to two of my clients, Farmer and Cogswell, to violate the court orders, since the parties were ordered to remove them from the registry, not just public view.
Sweeney attached the orders, which I may post here later.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Indiana Courts

Ind. Courts - Several news stories about yesterday's Supreme Court interviews

Niki Kelly of the Fort Wayne Journal Gazette reports on the interviews yesterday afternoon of Allen Superior Court Judge Fran Gull and Fort Wayne civil attorney Christine M. Marcuccilli -- two of 19 people interviewed Tuesday. She adds that "Steuben Circuit Court Judge Allen Wheat is among 15 remaining applicants to be interviewed today.." More:

Gull confidently told the members she would be an outstanding addition to the court. She focused on her work as a criminal prosecutor and trial judge as well as her administrative experience running a major courts system and working inside the judiciary to establish statewide court rules.

One member of the commission said Gull is a “take-charge” kind of person and wondered how she would handle being the junior member of a five-member court.

She said she would relish the opportunity to change her role and focus on listening and learning, saying, “I recognize keenly that what I say doesn’t go.”

Gull, 51, also said she believes the Indiana Constitution is a living, breathing document and that an effective judge can interpret it without trampling it.

Words she used to describe an effective Supreme Court justice included fair, tolerant, patient, courteous, mindful and neutral.

One member questioned how much study Gull would need to increase her expertise in the area of civil litigation, noting that more than half of the court’s business now is civil.

“I think you have to be willing to continue to learn, always recognizing that I don’t know a tenth probably of what I should know,” Gull said.

Marcuccilli, 40, is a partner at Rothberg, Logan & Warsco LLP in Fort Wayne. She told the commission that she would bring flexibility, longevity and vision to the court.

“Aspiring to become a judge has been one of my career goals,” she said. “I love the law, and I love the quiet contemplation and intellectual challenges that being an appellate lawyer has afforded me. But I also really see this as an opportunity to really serve the people of Indiana.”

Marcuccilli noted she is the youngest applicant and said it could be beneficial for her to serve for three decades and provide continuity on the court while older justices leave at the mandatory retirement age.

She talked of some specific cases she has worked on, including defending Fort Wayne’s smoking ordinance at the appellate level.

“I think I’m the ideal candidate because of my strong legal acumen,” she said.

Marcuccilli said that as a justice she would want the high court to focus on how expensive the appellate system has become and to possibly move toward more electronic filing of cases and other documents.

Jon Murray writes today in the Indianapolis Star:
[D]uring her interview with a nominating commission Tuesday, Fort Wayne attorney Christine M. Marcuccilli cut to the chase.

"I don't know if any of you did the math," said Marcuccilli, 40, "but I'm the youngest candidate."

That she or several other candidates could spend three decades or longer on the state's highest court underlines the opportunity for Gov. Mitch Daniels to leave a lasting mark. It will be the first appointment by a Republican governor in nearly 25 years.

Marcuccilli, who handles civil litigation and appeals cases, said her youth would ensure longevity and continuity if she were selected. After the retirement of Justice Theodore Boehm, 71, in September, the four remaining justices will be in their 60s; the mandatory retirement age is 75. * * *

Notably, the commission members pressed judges and attorneys with primarily criminal experience about their comfort and skills in the civil arena. [Retiring Justice Ted] Boehm has been known for his expertise in complex civil litigation.

The governor's general counsel, David Pippen, quietly took notes on the sidelines. Daniels has withheld public comment about his selection criteria, though some court observers have urged him to choose a woman for Indiana's all-male court. * * *

Among those up for interviews today are Marion Superior Court Judges Robyn Moberly and Cynthia Ayers and Indiana Solicitor General Thomas Fisher.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: Supreme Court Disciplinary Commission's hearing into allegations of misconduct by Delaware County Prosecutor McKinney related to the city-county Drug Task Force are going on today in Lebanon

Updating yesterday's entry, linking to the coverage, by Douglas Walker and Keith Roysdon of the Muncie Star Press, of yesterday's Indiana Supreme Court Disciplinary Commission hearing into allegations of professional misconduct by Delaware County Prosecutor Mark McKinney, the hearing has ended, and the judge (Judge Steven David of Boone County) has set a deadline for the attorneys in the case to submit their last-ditch arguments. Read more here.

Posted by Marcia Oddi on Wednesday, July 07, 2010
Posted to Indiana Courts

Tuesday, July 06, 2010

Ind. Courts - "The two women with current region ties seeking a seat on the Indiana Supreme Court appear to have as good a chance as any of the 34 justice candidates"

Dan Carden of the NWI Times reported this morning on upcoming interviews tomorrow for two women from, as the headline proclaims, the "region". Some quotes:

Lake Superior Court Judge Mary Beth Bonaventura and Clare Kraegel Nuechterlein, an assistant professor at Valparaiso University School of Law, will be interviewed Wednesday by the Indiana Judicial Nominating Commission.

A review of their applicant files by The Times found the women come to the process with significant achievements in law and highly recommended by their peers. * * *

Since 1993, Bonaventura has served as juvenile court judge in Lake County. She was a juvenile court magistrate from 1982-93.

In her application, Bonaventura tells the committee one of her most significant achievements as a judge was in 1996, when she mandated the Lake County Board of Commissioners build a new juvenile courthouse and detention center. At the time, juvenile court was held in the Superior Court building in Gary.

"The situation was volatile, without decorum or security," Bonaventura said. "Adults in shackles sat next to abused children, next to disgruntled parents, next to attorneys trying to conference with clients."

After several lawsuits, a new $23 million facility eventually was built on 93rd Avenue in Crown Point.

Nuechterlein, 60, was born in Rochester, N.Y., and now lives in South Bend. She earned her bachelor's, master's and law degrees at Valparaiso University, where she now teaches.

Teaching is an important aspect of who she is, Nuechterlein explains in her application.

"As both professor and mentor, I am presented daily with opportunities to assist students in reaching their personal and professional goals and becoming contributing members of the legal profession," Nuechterlein said.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Final panel of applicants for the Supreme Court vacancy -- to be interviewed Wednesday afternoon, July 7th, 2010

Wheat, Allen N.Wheat, Allen N.

Interview #32 -- Set for 2:45 pm, July 7, 2010

Judge, Steuben Circuit Court
Angola, Steuben County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1976    Age: 60

Biographical Link


courtroomShirley, Curtis E.

Interview #33 -- Set for 3:05 pm, July 7, 2010

Attorney, Law Office of Curtis E. Shirley
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1991    Age: 49

Biographical Link


courtroomKuzma, Abigail Lawlis

Interview #34 -- Set for 3:25 pm, July 7, 2010

Consumer Counsel, Indiana Attorney General's Office
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1981    Age: 54

Biographical Link

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

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 1st of two panels of applicants for the Supreme Court vacancy to be interviewed Wednesday afternoon, July 7th, 2010

courtroomHughes, William J.

Interview #29 -- Set for 1:30 pm, July 7, 2010

Judge, Hamilton Superior Court 3
Noblesville, Hamilton County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1980    Age: 54

Biographical Link


Neuchterlein, Clare Kraegel Nuechterlein, Clare Kraegel

Interview #30 -- Set for 1:50 pm, July 7, 2010

Assistant Professor of Law, Valparaiso University
Valparaiso, Porter County

Link to Candidate's Application

Education: JD, Valparaiso University 1979    Age: 60

Biographical Link


Hardman, Lyle R.Hardman, Lyle R.

Interview #31 -- Set for 2:10 pm, July 7, 2010

Attorney, Hunt Suedhoff Kalamaros LLP
South Bend, St. Joseph County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1991    Age: 44

Biographical Link

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

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Day One Marathon Concludes: Report on the final 4 interviews of day one!

This is Prof. Schumm's report on the final four interviews of Day One - check here for the photos and links for group 6. (Unfortunately, photos could be located online for only one of the four applicants.)

Henderson, Susan Orr - Judge, Fountain Circuit Court

The importance of geographic diversity was brought up by commission members Keck and McDonald while interviewing Judge Henderson, the only judge in rural Fountain County. In response to Ms. Keck’s question about what geography (a small rural county) would bring to the Court, Judge Henderson explained that judges in small counties have to hear all types of cases, unlike judges in larger counties, who often specialize. In response to McDonald’s comment that much of the population lives in rural counties, Judge Henderson noted that all judges face similar problems in finding and funding services. In response to Mr. Feighner’s question about what would it mean to trial court judges if one was appointed, the judge responded that she and others have a wide variety of experience, which would inform the decisionmaking on the Supreme Court.

Mr. Gavin asked a long question, which I believe was taken verbatim from this George Will column about questions to ask Elena Kagan:

Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?
Judge Henderson would not say Justice Scalia was wrong, but emphasized the importance of adhering to precedent.

Owens, Bryce D. - Attorney, Owens & Owens

Mr. Owens told the commission he would bring 25 years of “work in the trenches.” Besides one year as a clerk, he has been in private practice in Pendleton (pop. 3,000) resolving problems for real people. The Chief Justice commented that many candidates had described themselves as engaged in general practice and observed this was especially true for Mr. Owens.

When asked by Mr. McCashland a question about his judicial philosophy, Mr. Owens responded, “to interfere the least possible” and “provide guidance only when necessary.”

Mr. Owens told the commission he regularly reads opinions posted online and his general practice background would be an advantage to the Court. He mentioned the Court’s recent opinion in U.S. Bank v. Integrity Land Title, stressing a need for understanding the history and evolution of the title business. His lengthy and somewhat rambling summary of title procedures did not appear to engage the commission members, who had understandably become a bit less energetic in the late afternoon. They appeared more interested in discussing sentencing disparities earlier in the day.

Spahr, Robert A. - Judge, Miami Circuit Court

Judge Spahr’s interview was easily the most awkward of the day. Although the commission members were very gracious in their questioning, the thought of Judge Spahr asking questions during oral argument or giving speeches as a representative of the Court would likely be a cause for concern. Throughout the interview he would pose questions to the members. “Do you have any other questions?” “Have you ever written a book?” “Have you ever got a call at 1:00 in the morning?” (He did when representing child services.)

In response to a question from the Chief Justice about how child services has changed over the years, Judge Spahr offered a pointed critique of the centralization of services in recent years and the accompanying restrictions on payment. As a lawyer, Spahr worked for child services for 20 years, observing he had been “blessed with intervening to protect children all his adult life.” Although counties were doing an effective job several years ago, he is gravely concerned with the direction in recent years. As a judge he is supposed to be protecting children but is concerned about “micro-managing” and cut-back in services.

When asked about the state of the judiciary, he responded that trial courts are often “confused” by appellate opinions. There is not enough direction or clarity in his view.

Finally, in response to his question to the commission about how many of them have written a book, he urged members to visit his website. (The books there are self-described on the site as a “fantasy/adventure series is geared toward grades 4-5.”) He concluded, “I’m a good writer; you will see that on the website.”

Tribbett, Donald J. - Attorney, Tribbett Law Office

In my interview preview post yesterday, I noted the importance of personality and demeanor and opined, “Arrogance, condescension, and strained or awkward conversation could work against, or eliminate, a candidate.” Of the 19 candidates interviewed today, Mr. Tribbett seemed to have the biggest problem in this department. In response to the first question from the Chief Justice about his reasons for applying, Tribbett quipped, “It’s not the money.” He noted that he could not have applied ten years ago because of financial commitments but will be making his last tuition payment in the next year. Beginning an interview by stressing the inability to live on $150,000/year stands in stark contrast to many other candidates who talked about the poor economy and efforts they have undertaken or would undertake on the Court to help the less fortunate.

But it got worse. He admitted part of the reason for applying was an “ego thing” and proceeded to list his many accomplishments in a monologue that used well over half of his interview time. He told the commission he would not need to “learn as much as some” because of his diverse practice background. In stark contrast to the modesty of applicants throughout the day, at one point Mr. Tribbett literally patted himself on the back when telling the commission how he had negotiated a land sale for five times what the sellers had thought it was worth. In response to Mr. McCashland’s question about collegiality, Mr. Tribbett responded that he gets along with the people he deals with “most of the time.”

Although Mr. Tribbett worked as a clerk for the court (in the administrator’s office) in the 1970s and appears to have a varied and distinguished record of practice, his demeanor during the interview would seem nearly fatal to any chance of appointment to a Court that values collegiality and modesty.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Last of 3 panels of applicants for the Supreme Court vacancy to be interviewed Wednesday morning, July 7th, 2010

David, Steven H.David, Steven H.

Interview #26 -- Set for 11:30 am, July 7, 2010

Judge, Boone Circuit Court
Lebanon, Boone County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1982    Age: 53

Biographical Link


Bonaventura, Mary BethBonaventura, Mary Beth

Interview #27 -- Set for 11:50 am, July 7, 2010

Judge, Lake Superior Court, Juvenile Division
Crown Point, Lake County

Link to Candidate's Application

Education: JD, Northern Illinois University 1981    Age: 55

Biographical Link


willisWillis, Mary G.

Interview #28 -- Set for 12:10 pm, July 7, 2010

Judge, Henry Circuit Court
New Castle, Hentry County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1991    Age: 43

Biographical Link

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

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 2nd of 3 panels of applicants for the Supreme Court vacancy to be interviewed Wednesday morning, July 7th, 2010

Menges, William C. Jr.Menges, William C. Jr.

Interview #23 -- Set for 10:15 am, July 7, 2010

Judge, Howard Superior Court 1
Kokomo, Howard County

Link to Candidate's Application

Education: JD, University of Tulsa 1976    Age: 59

Biographical Link


Fisher, Thomas M.Fisher, Thomas M.

Interview #24 -- Set for 10:35 am, July 7, 2010

Solicitor General, Indiana Attorney General's Office
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1994    Age: 41

Biographical Link


courtroomAyers, Cynthia J.

Interview #25 -- Set for 10:55 am, July 7, 2010

Judge, Marion Superior Court, Civil Division 4
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1982    Age: 62

Biographical Link

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

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 1st of 3 panels of applicants for the Supreme Court vacancy to be interviewed Wednesday morning, July 7th, 2010

Mulvaney, Karl L.Mulvaney, Karl L.

Interview #20 -- Set for 9:00 am, July 7, 2010

Attorney, Bingham McHale
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1977    Age: 60

Biographical Link


Moberly, Robyn L.Moberly, Robyn L.

Interview #21 -- Set for 9:20 am, July 7, 2010

Judge, Marion Superior Court, Civil Division 5
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1978    Age: 56

Biographical Link


Emkes, Cynthia S.Emkes, Cynthia S.

Interview #22 -- Set for 9:40 am, July 7, 2010

Judge, Johnson Superior Court 2
Franklin, Johnson County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1985    Age: 51

Biographical Link

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

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Coming this evening, the ILB has prepared another set of printable reference sheets, these for tomorrow's 15 applicants

Check back - I'll be posting them between 6 and 8 pm. And how do you like the ILB's wall-to-wall coverage of the selection process?

And remember, the interviews are still going on this afternoon -- Joel Schumm will have another report, on the final four interviews of the day, shortly after 5:30 pm.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Report on the second round of interviews this afternoon

This is Prof. Schumm's report on the second set of interviews this afternoon - check here for the photos and links for group 5.

Gull, Frances C. - Judge, Allen Superior Court

Mr. Gavin asked Judge Gull about the possible transition from the role of a trial judge, where her word is final, to the role of an appellate judge. She responded she was “keenly aware” of the role of an associate justice through her work on committees. Her role would be to listen and contribute, as she done in committee work.

She described the Constitution as “a living, breathing document.” Judges can “interpret” the Constitution without “trampling” it.

In response to Mr. Trimble’s question about the ideal qualities of a justice, Judge Gull mentioned the following: patient, fair, impartial, neutral, tolerant, respectful, and courteous.

In response to questions about her exclusive practice and judging experience in the criminal arena, she replied has more jury experience than any other candidate, and hearsay, for example, is the same in both civil and criminal courts.

Mr. Gavin asked about disparate treatment in sentencing. She explained the site of the crime might make a difference; crimes “shock or horrify” those in a small rural county and garner a long sentence while a defendant in the urban county, where the public is less shocked, may get a shorter sentence. The Supreme Court has appropriately reduced sentences that are too long.

Marcuccilli, Christine M. - Attorney, Rothberg Logan & Warsco

Ms. Marcuccilli emphasized that she would bring flexibility, longevity, and vision to the job. As to flexibility: She has represented both plaintiffs and defendants in civil cases. Much of her experience has been in “economic areas,” such as foreclosure, receivership, and bankruptcy. On longevity, she reminded the commission that she was the youngest applicant and could provide continuity as the Court’s membership changes. [See 7/2/10 ILB entry by Schumm, "Age at Appointment and Years of Service of Recent Justices."]

Mr. Gavin asked about her work for the city of Fort Wayne in a case involving a smoking ordinance, which was upheld on appeal. Mr. Gavin expressed concern if cities can ban smoking, can they ban trans fats? Ms. Marcuccillii responded that smoke could not be easily contained and affect others while trans fats would not.

She expressed interest in working on rule-making, such as allowing service by email, and the rules of professional conduct.

Slaughter, Geoffrey G. - Attorney, Taft

Mr. Slaughter expressed an interest in the “intellectual challenge” that serving on the Court would bring. He would bring a commitment to excellence in his work, civility, respect for lawyers, and collegiality.

Mr. Feighner asked Mr. Slaughter for his view on merit selection. Mr. Slaughter received a round of laughter when responding he should withhold judgment until he sees the results of this process. He then explained the system works much better than elections, which have produced divisive courts in other states. He has been involved in the Federalist Society but does not believe the group has a view on merit selection.

Ms. Keck had “dog-eared” the pages of Mr. Slaughter’s application listing his five most significant cases and asked which he thought was the most important. He responded with Burris v. Parks, and explained as a result of his work in capital litigation he had gained an appreciation for “getting it right” in death penalty cases.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - "Brief interviews cover a lot of terrain"

Here are quotes from Jon Murray's new entry on his Indianapolis Star blog, Justice Watch:

At the outset of a couple of the 20-minute interviews this morning, the chief justice noted the moxie it takes to sit in the hot seat; he asked the candidates to begin by describing their interest in the position and what they might bring to the court. A few of the nine applicants -- among 34 who will be interviewed today and Wednesday -- seemed nervous, but most exuded confidence. Many spoke off the cuff or from memory, while Court of Appeals Judge Elaine B. Brown began with a 10-minute prepared address outlining initiatives and other ideas for the court. * * *

[I]t was clear the members had spent the holiday weekend poring through thousands of pages of applications and writing samples. They had pointed questions targeted at each applicant's experience. They asked Indianapolis attorney Judy Woods about her service on the Presbyterian Church's General Assembly Permanent Judicial Commission, a court body that decides administrative and disciplinary matters for the church -- and which, Woods noted, works in a similar manner to an appeals court. They asked Indianapolis attorney Monica Foster about her specialty, death-penalty defense. She said she could approach such cases neutrally if appointed to the Supreme Court. And they asked Zionsville attorney Yasmin Stump about her representation of the state in efforts to acquire land for I-69 southwest of Indianapolis; she said she considered the affected landowners part of "the state," and with a legitimate interest of their own.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: "Lawsuit argues anyone who passes bar exam should be licensed; state says law school graduation is vital"

Building on the July 5th Indianapolis Star story (ILB entry here), Ashby Jones of the WSJ Law Blog writes this afternoon in an entry that begins:

In this day and age, there’s pretty much one path to becoming a lawyer and it goes something like this: college, LSAT, law school, bar exam, lawyer.

A handful of states allow an aspirant to bypass law school by apprenticing with an active lawyer or judge, but for the most part, if you wanna be the next David Boies, you’ve pretty much got to go the law-school route.

Is this fair? An Indiana man doesn’t think so. Clarence K. Carter is a former Indiana prisoner and aspiring lawyer who wants to become a lawyer without going to law school, which is required by Indiana law.

So Carter is doing what you might imagine: he’s suing Indiana, claiming the law requiring law-school graduation is unconstitutional. Click here for the story, from the Indianapolis Star. Click here for Carter’s complaint.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Indiana Courts

Ind. Courts - Report on the first set of interviews this afternoon

This is Prof. Schumm's report on the first set of interviews this afternoon - check here for the photos and links for group 4.

Drew, Kiply S. - Associate General Counsel, Indiana University

Three things attract Ms. Drew to the position: she loves the State of Indiana, the law, and this Court. She clerked for Justice DeBruler twenty years ago. She would be good at it based on her intellect, her writing ability, and her appreciation for the role of Court. She has been the first candidate to discuss the importance of clear writing.

She appreciates that the Court, unlike SCOTUS, is not a “political court.” Based on her clerking experience she understands and appreciates the importance of collegiality.

As in-house counsel at Indiana University, she has engaged in a wide variety of legal practice. University counsel is one of the few remaining “generalists.” She has to learn a lot of different areas of law in a short period of time: “You never know what the next phone call is going to bring.” She is actively involved in working with outside counsel on all aspects of cases. She is the “eviction queen” at IU, which is one part of the job she enjoys least. IU is the “nicest landlord in town,” and will allow students to remain through the end of a semester.

Haseman, Christine Talley - Lawrence County Deputy Prosecutor

Ms. Talley was a judge for one year in Monroe County (appointed by Gov. Daniels and not reelected in the heavily Democratic County) and previously a juvenile referee in Lawrence County. Although she heard several cases every day as a judge, she appreciated that each case was the most important case to that litigant.

When asked about lawyer advertising, she responded there is very little in Lawrence County.

She summarized some of the key attributes of the next justice as collegiality, passion about the law, energy, and a willingness to listen. In response to a question about her judicial philosophy, she emphasized the importance of “ensuring the courts are open to the citizens.”

In what could be viewed as less-than-positive sign, one (lawyer) commission member excused himself from the table and went to get a cup of coffee during the interview.

Carmichael, Vicki L. - Judge, Clark Superior Court 1

The Chief Justice asked Judge Carmichael about sentencing issues and the relative role of trial and appellate judges. As a trial judge she could “really look at the individual” and the crime. Alternatives to prison are important. When sentencing a female defendant convicted of child molesting, she treated her the same as she would treat a male defendant (a response that provoked nodding in agreement from some commission members). She emphasized the importance of appellate judges looking at the same things the trial judge did, albeit removed from the emotion of the courtroom.

Ms. Keck asked Judge Carmichael about her work as a public defender. She was selected for the chief public defender position because of her appellate background. Her role was to “represent the process,” ensuring the rules were followed and defendants received a fair trial.

Mr. Trimble asked about her experience with civil cases. She practiced family law in private practice and has presided over civil trials since becoming a judge.

She has served as an adjunct professor (employment and business law) of Ottawa University, which has a campus in Jeffersonville with about 120 students and includes both live and distance classes.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Law - "Greene County hamlets boast buildings with hundreds of auto sales tenants but few workers"

Laura Lane of the Bloomington Herald Times, a great reporter the rest of the state reads little of, because her paper is behind a fire wall, has an amazing, and long, story today that happily the Indianapolis Star picked up. A few quotes:

Rural Greene County has become a hub for more than 640 individual car sellers from across the nation who have established offices in the long-empty factories. By establishing a storefront office and obtaining the necessary licenses, certificates and insurance, the absentee tenants can legally buy and sell cars at dealer auctions across the state.

State law mandates that these car wholesalers have an actual business office in Indiana. And Chicago-based Dealer Auction Access supplies everything the wholesalers need: help establishing themselves in good standing with the Indiana secretary of state, dealers' insurance, plus a 100-square-foot office complete with walls, a door, a desk and a chair -- required by statute.

The Dealer Auction Access website says it's the largest "host" of wholesale license holders in Indiana. Each of their buildings in Greene County, which rent offices for $300 per month, employs a 9-to-5 secretary who sits at a reception desk answering the phone, allowing access to the offices and forwarding mail to the renters wherever they reside. * * *

Adrian Kiglies is part-owner and vice president of Dealer Auction Access. He knows some people question the legitimacy of his business but says everything is above board. The Indiana secretary of state's office, which has taken over wholesale car dealer oversight from the Bureau of Motor Vehicles, agreed: Kiglies' business is legal.

Kiglies said Dealer Auction Access helps people he calls "the little guys" break into the automobile wholesale business and make a living as their own boss. He said the law does not require that the businesspeople who rent offices in his buildings be on site, just that they establish a legitimate Indiana business address. They must buy or sell at least 120 cars a year to keep a wholesale license. * * *

Dealer Auction Access purchased its first Greene County building, the old woolen mill on the west edge of Bloomfield, for $80,000 in January 2009. The offices went quickly; five months later, the company bought two buildings on Vincennes Street in Linton, an abandoned plant and the old Murphy store, each for $85,000.

This year, Dealer Auction Access bought land and two buildings in Jasonville: the former Charles Industries plant, vacant the past decade, for $37,500, and an old extension cord factory on North Meridian Street for $75,000. Construction of 10-by-10-foot offices is under way at what locals call "the cord plant." * * *

But as Kiglies admits, his enterprise does not employ more than a few secretaries and a small work crew that remodels the sites and erects office walls.

In all, Dealer Auction Access has a total of 20 staff, he said.

The state does benefit from his business in a monetary way, Kiglies pointed out. He pays property taxes to the county. Each of his tenants buys licenses and insurance, in addition to the other costs of doing business. And they pay sales tax on vehicle purchases.

And it would seem there is little demand on the county for services -- roads, etc.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Indiana Law

Ind. Courts - "Steele interviews for Supreme Court post; Carmichael up this afternoon"

Lesley Stedman Weidenbener of the Louisville Courier Journal has this report. A quote:

In the initial round of interviews, each applicant has 20 minutes to answer questions from the panel.

During Steele's appearance, the group focused largely on his time as a lawmaker and how it might influence his work as a judge.

"It's a different role completely," Steele said.

He said lawmakers understand the differences and look to the judicial branch to assess laws and determine whether they are appropriate and constitutional.

Lawmakers "do the best job they can," he said. "But they look to the judiciary to make that final decision, be the final arbiter of it."

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: To help keep track, the ILB has prepared a set of printable reference sheets

One of the applicants has just sent me a more current photo, which I am happy to substitute. As I wrote in this entry yesterday, if you see any errors in the information posted, or have a photo or biography link to add, please contact the ILB -- corrections will be made immediately.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Report on the final 3 interviews of the first morning

This is Prof. Schumm's report on the final three Tuesday morning interviews - check here for the photos and links for group 3. That makes 9 in all for the morning session. There are 10 more to go this afternoon, and 15 tomorrow.

Stump, Yasmin L. - Attorney, Office of Yasmin L. Stump

Ms. Stump identified three reasons for applying: (1) her upbringing to believe public service is a high honor, (2) the importance and opportunity of mentoring, and (3) opportunity to engage in intellectual debate and consideration of legal issues.

In response to a question from the Chief Justice about issues facing women in the legal profession, Ms. Stump noted gender bias still exists but has lessened over her twenty years in practice.

Mr. Gavin asked about her work on eminent domain cases and her view of Kelo. Ms. Stump did not know how she would have decided Kelo because she did not know all the underlying facts in the record. Ms. Keck, from Evansville, asked about her work for the State in acquiring land for I-69. Ms. Stump acknowledged the emotion surrounding the issue and explained her role as working for the State of Indiana, which includes the landowners. She emphasized that everyone who comes before the court is entitled to equal treatment.

Brent E. Steele - Attorney, Steele & Steele; State Senator

Sen. Steele emphasized he was raised with a commitment to public service. He believes his work as a legislator, forging relationships on both sides of the aisle, prepared him well for work on the Court.

Mr. Feighner asked Sen. Steele’s view on merit selection. While in the Senate, he voted against Sen. Mike Young’s bill to elect appellate judges. Sen. Steele noted that raising money is the hardest thing he must do as a legislator. People give money because they think legislators will vote a certain way. If the legislator does not vote that way, the money will dry up. If Indiana elected judges statewide, they would be required to raise a lot of money. Judges should be free of that requirement and the concerns about fairness for those who have contributed money.

Mr. Trimble asked how his background as a legislator would prepare him for work on the Court. He emphasized the importance of listening to colleagues because “many times they are right.”

Mr. McDonald asked Sen. Steele’s view of increasing the size of the Court of Appeals. He was on the committee that considered the issue in 2009. He suggested the court’s workload did not require an increase, especially in this economic climate.

Craney, Jane Spencer - Judge, Morgan Superior Court 3

Judge Craney emphasized her experience, including law review in law school, trying many jury trials as a prosecutor, and working as a trial judge. She believes her collegiality and personality would fit well with the Court.

Mr. Gavin asked about her comments regarding State v. Martin Murray (p. 8 of application). She pursued, at the elected prosecutor’s insistence, the death penalty in a case against an 18 year old defendant with no criminal record. She believed death was not an appropriate sentence and put on no evidence in the penalty phase and allowed defense counsel to present objectionable information. She resolved never again to ask for a death sentence unless she was willing to carry it out herself. Nevertheless, she believes in capital punishment in rare cases and would uphold the law if appointed to the Court.

Mr. Trimble asked about opportunities to improve the judiciary. She is interested in JLAP and working on wellness issues. She has been impressed with a program called Volunteers for Probation from Michigan, which involves civilians mentoring probationers.

She has been a member of the Race and Gender Commission, which is holding hearings around the state. She believes the next big focus will be the juvenile justice system and reducing disparities within it.

She described her judicial philosophy as “truth and fairness.”

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Derrick Bush v. State of Indiana, a 4-page opinion on a petition for rehearing filed by the State, Judge Robb writes:

The State petitions this court for rehearing of our opinion dated April 27, 2010. In that opinion, we held the canine sniff and resulting warrantless search of Derrick Bush’s automobile violated the Fourth Amendment because the State did not meet its burden of showing the traffic stop was not unreasonably prolonged or there was independent reasonable suspicion to justify the canine sniff. Bush v. State, 925 N.E.2d 787, 791-92 (Ind. Ct. App. 2010). In its petition for rehearing, the State argues this ground for reversal was waived because: 1) Bush did not argue to the trial court that his detention was unreasonably prolonged; and 2) Bush’s appellant’s brief did not address the duration of his detention or the legality of the canine sniff. We grant rehearing for the purpose of clarifying the procedural history of this case and addressing the State’s claim of waiver, but in all other respects affirm our original opinion. * * *

The State, by not responding in its brief to Bush’s contentions regarding Gant and instead focusing its Fourth Amendment argument on the canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly framed only in terms of whether the search was valid under Gant. See State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005) (noting “[a] petition for rehearing in the Court of Appeals must rely on the same theory as that advanced in the original brief”).

George H. Culbertson v. State of Indiana

NFP civil opinions today (2):

H & L Motors, LLC v. Millennium Auto Group, Inc. (NFP)

L.M., et al.; Alleged to be C.H.I.N.S.; L.M. Sr. and N.D. v. I.D.C.S. (NFP)

NFP criminal opinions today (7):

Terry Huddleston v. State of Indiana (NFP)

Sylvario Wilson v. State of Indiana (NFP)

Roger L. Storey v. State of Indiana (NFP)

Bryan Claywell v. State of Indiana (NFP)

Vidal Clayton v. State of Indiana (NFP)

Frank Byers v. State of Indiana (NFP)

Benjamin L. Underwood v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Plenty to choose from for the next Indiana justice And the process here seems to be working out pretty well"

From an editorial today in the Fort Wayne News-Sentinel:

Could any vacant office draw as much interest as the slot vacated by self-deposed GOP 3rd District Rep. Mark Souder, around which 15 candidates circled before the selection of State Rep. Marlin Stutzman? Well, yes, now that you mention it. The announced retirement of Indiana Supreme Court Justice Theodore R. Boehm has drawn 34 candidates.

And unlike the House race, which only required candidates to be 25, citizens, state residents and breathing, the Supreme Court seat asks a little experience of contenders. The list of candidates includes 16 current judges, along with a state senator and the state's solicitor general. All the rest are attorneys. More than half are women, and all areas of the state are represented.

There is another difference: House members are selected by that messy, unpredictable process known as voting. The selection process for Indiana Supreme Court justices is a little more orderly. * * *

There has been much discussion of late about trying to make the selection of justices more democratic by putting them on the ballot.

There is merit to that position, but the current selection process is pretty good. It was designed to keep politics to a minimum and make competence the primary consideration. And the process is open to the public almost at every step. The public may view the candidates' applications and writing samples, and the interviews today and Wednesday are open to the public.

All we can ask is that the process be fair and thorough and that the governor make an honest choice. It's worked out well so far.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Supreme Court Disciplinary Commission's hearing into allegations of misconduct by Delaware County Prosecutor McKinney related to the city-county Drug Task Force are going on today in Lebanon

Douglas Walker and Keith Roysdon, who write a weekly investigative column, The Walker/Roysdon Report, for The Muncie Star Press have a long, "must read," report here - some quotes:

Delaware County Prosecutor Mark McKinney found himself reunited this morning in a Boone County courtroom with his former boss, ex-prosecutor Richard Reed.

The reunion was hardly a joyous one, however: Reed was a witness in the Indiana Supreme Court Disciplinary Commission's hearing into allegations of misconduct by McKinney related to the city-county Drug Task Force.

For his part, Reed — out of public life since he retired in 2006 — testified only briefly, telling Judge Steven David about how he wanted the DTF program to work when he was in office. [ILB - Judge David is scheduled to be interviewed for the Supreme Court vacancy tomorrow at 11:30 am.]

Reed answered a few questions with "I don't remember," but said he would "probably" object if he learned that deputy prosecutors working under him — at the time including McKinney — were taking civil action to claim seized property through forfeiture at the same time they were conducting plea bargain negotiations with criminal defendants.

After Reed testified, the judge called a brief mid-morning break. Testimony is expected to continue this morning and again after lunch.

The story is being periodically updated by the reporters.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Indiana Courts

Ind. Courts - Report on the second 3 interviews

This is Prof. Schumm's report on the second three interviews - check here for the photos and links for group 2.

This was a high-powered panel of three distinguished female candidates: two Super Lawyers and a Court of Appeals judge.

Woods, Judy L. - Attorney, Bose McKinney & Evans

The Chief Justice asked Ms. Woods about her work as a judicial officer with the Presbyterian Church. She explained the Constitution of the Presbyterian Church predated the United States Constitution. The types of cases heard are administrative (2/3) and disciplinary (1/3). She included as a writing sample one of the decisions she wrote for the church. Mr. McCashland asked if, as a result of that work, she had a judicial philosophy. She responded that she is a “very careful jurist.”

Ms. Keck asked about smoking ordinances. Ms. Woods responded, whether a smoking ordinance or religious clause issue, the personal interest must be examined against the broader community interest. The personal interest must be considered first.

Mr. Feighner asked about the impact of Cincinnati Ins. Co. v. Willis. Ms. Woods responded she has been surprised the decision did not have much of an effect. Some insurance firms still use in-house or captive firms, but many private firms still do insurance defense work.

Mr. McCashland asked about the importance of collegiality. Although judges should engage intellectually and may dissent, Ms. Woods emphasized they must have respect for each other.

In concluding, Ms. Woods noted that she is very bright, an excellent writer, and “very fair.” She is ready for a new phase in life.

Foster, Monica - Attorney, Office of Monica Foster

Ms. Foster gave a particularly down-to-earth and energetic interview. She explained she has argued many cases at the Indiana Supreme Court, and those cases have been “the best time” she has had as a lawyer. The justices’ job is “the coolest job” a person could have. She described herself as “fun to work with” and has a good reputation of working with others.

She discussed her work over the past several years for the Mexican Consulate. Her work has helped her better understand the concerns of the immigration population and the importance of justice and the appearance of justice.

Mr. McCashland asked if Ms. Foster talks to high school students, which she does and very much enjoys. Mr. Gavin asked what she tells high school students about the death penalty, which is a primary part of her practice. For every “off the charts” bad crime, the defendant’s childhood has been every bit as bad with all sorts of abuse.

Although she thinks the death penalty is “bad public policy,” it is constitutional. She must put aside her personal feelings as a lawyer and would do the same as a justice.

Mr. Trimble asked how her criminal law background would translate to civil cases. Her work “pushes the boundaries” of the Constitution and statutory interpretation; the court sets those boundaries. The rules of evidence are the same in civil and criminal cases.

She was the first candidate to say that it is important a woman be on the court. Women would bring something different to the court.

Brown, Elaine B. - Judge, Indiana Court of Appeals

Judge Brown explained that she would bring a wide range of experience from private practice, as a trial judge, and most recently an appellate judge. The last six years of her private practice were complex civil litigation. She noted her proven judicial temperament and positive relationship with her colleagues.

She explained her humble upbringing and her understanding of blue collar Hoosiers. She did not mention the importance of appointing a women but did note that elevating a Court of Appeals judge would encourage the best and brightest to apply to the COA in the future.

She lauded the Kernan-Shepard report, which shows justices are “smart people” and understand and work with other branches of government. Among her priorities, she would like to address prison overcrowding and disparate sentencing, including programs for drug-addicted defendants. She would also like to work on family law issues to make them “less adversarial.”

Judge Brown was the only candidate who seemed to have prepared an opening speech and occasionally looked down at notes. She thanked the commission for allowing her to deliver “that monologue,” which lasted more than ten minutes.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Report on the first 3 interviews

This is Prof. Schumm's report on the first three interviews - check here for the photos and links for group 1.

Setting the Stage

Setting: Less than twenty people, including the Governor’s counsel, David Pippen, in chairs around the perimeter of the Supreme Court conference room.

The Chief Justice walked to the door and retrieved each candidate, who then walked around the table, shaking hands with each member of the commission. All members of the commission were engaged in asking a wide range of questions. Many were fairly standard (questions about the candidate’s background and practice, respect for precedent and deference to the General Assembly). A little more surprising: Mr. Feighner and Mr. McDonald both asked Ms. Boshkoff about lawyer advertising.

The first couple of questions came from the Chief Justice, including a fairly standard one about what each candidate finds attractive about the appointment and why he or she would you be good at it. At the end of the twenty minute interview, each candidate was given an opportunity to make brief closing remarks.

Boshkoff, Ellen B. - Attorney, Baker & Daniels

Focused on her depth of experience from practicing for 20 years. Noted she’s been in the trenches, arguing cases in trial courts and on appeal.

Her answers demonstrated she had done her homework and had a good sense of the many functions of the Court. She emphasized her ability and desire to learn, while candidly admitting unfamiliarity with some areas of law.

During and at the end of the interview, she noted she was “passionate” about her clients and the law. She would bring passion and energy to the job.

Perhaps the most surprising comment was that she tries a lot of cases: “I don’t know if it’s because I’m stubborn.”

Clapp, Sean M. - Attorney, Clapp Ferrucci

Secured the biggest laugh. Chief Justice Shepard noted Clapp had recently been to the Court. Mr. Clapp, who prevailed, remarked it was a “very well-written opinion.” [This was the 6/1/10 openion in Wells Fargo Bank, authored by the CJ]

Ms. Keck asked Mr. Clapp to identify a significant recent opinion. Mr. Clapp (after a pause) did not identify an Indiana Supreme Court case but instead summarized the recent SCOTUS case from Hastings Law School. He said the Court “got it right.” [That would be Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, (Sup. Ct., June 28, 2010)]

Mr. Gavin quoted Justice Marshall, “Do what you think is right and then let the law catch up,” and asked if Mr. Clapp could defend that.” Mr. Clapp did not wholly reject the view, noting there are rights and wrongs. Judges are confined by rights and responsibilities in the Constitution.

Nation, Steven R. - Judge, Hamilton Superior Court 1

Emphasized his experience in private practice and primarily as a prosecutor and as a judge. Discussed programs and alternatives to incarceration, emphasizing reaching out to kids early on.

In a response to a question from Mr. Trimble, he discussed the wide range of cases heard as a judge (juvenile, criminal, probate, negligence and contract, civil commitments). Some have been very complex; the Geist zoning case included 30,000 pages of documents.

Mr. Feighner observed that Judge Nation had letters from law enforcement and defense lawyers (Jim Voyles). Judge Nation noted after a murder trial that Mr. Voyles had thanked him for a “fair trial.”

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Law - "We're looking at a maelstrom of litigation here"

That is a quote from Ed Roberts, legal counsel for the Indiana Manufacturers Association, in this story today by Dustin Grove, WSBT-TV reporter via the South Bend Tribune, about the law that went into effect July 1:

It is considered the most controversial law to take effect in Indiana this year: Now for the first time, employers cannot stop employees from taking a gun to work as long as the employees have a permit to carry and keep it locked in their cars and out of sight. * * *

At least 11 other states have similar laws, but the debate isn't over. South Bend employment attorney Gerald Lutkus says there are still questions, including whether employers can require employees who carry a gun to park in a designated area of the parking lot.

"It's extremely divisive," Lutkus said, "and there is a lot of anxiety on both sides."

For more, see this ILB entry from July 2nd.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Indiana Law

Court - Georgia death penalty case full of murky legal questions

A long story reported by Russ Bynum in yesterday's Atlanta Journal Constitution begins:

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail.

Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial. Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Courts in general

Ind. Courts - Interviews have now begun

Interviews have now commenced. Here is the info on the first three interviewees. Surely being first has to present special challenges.

Be sure to read "A preview of the first round interviews to fill the Supreme Court vacancy," posted here yesterday afternoon by IU-Indy Law Prof. Joel Schumm, ILB special correspondent on the judicial nomination process.

Professor Schumm has sent two photos this morning from the Statehouse, the first "The Setting," is of the interview room, awaiting the first interview. The second is "Who Will Join Them?" If you look carefully, you will see the current justices and recent former justices.


courtroom


courtroom


Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Gov't. - More on "Legislature sets summer study committees "

Updating this ILB entry from June 6, 2010, Dorthy Schneider reports today in the Lafayette Journal Courier in a story that begins:

Even though it's been months since the General Assembly convened -- and months before it will reconvene -- Lafayette-area lawmakers are still working to advance key issues.

Interim committees and commissions are meeting this summer and into this fall to discuss issues likely to arise in the 2011 legislative session, which starts in January.

Most study committees need to wrap up by November.

Issues on lawmakers' plates this summer likely will include economic development, government consolidation, vote centers and a renewed discussion of a statewide smoking ban.

Follow the summer schedule via this legislative calender, which currently shows two meetings already set for July, one on Health Finance, and find out about inidividual commitees - makeup, minutes, etc. - here.

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Indiana Government

Law - "'Paperless ticketing' aims to thwart scalping at concerts, sports events"

A long, interesting article reported by Paul Farhi in the Washington Post. Here is a quote from far into the story:

The debate revives a long-running question about the nature of a ticket: Is it a piece of property that its holder has the right to buy and sell as he sees fit, or is it merely a seat-rental contract subject to restrictions determined by its issuer? State and municipal legislators have wrestled with this question for decades, as they have tried to balance event owners' attempts to control scalping against resellers' desire for an unfettered market.

Team owners and promoters believe they are entitled to participate in the secondary market just like everyone else, especially since it's their tickets that are being resold, says Veritix's Kline. But in hearings last month before the New York and New Jersey state legislatures, which are considering updating anti-scalping laws, Adler and his members advocated that consumers and brokers have the option to resell paperless tickets on any Web site they want.

Without such a legislated option, resellers worry that Ticketmaster could impose its will on the concert industry. Earlier this year, the company completed a merger with Live Nation, the world's biggest concert promoter and a major artist manager, giving the combined company a stake in every step of concert production and management.

With the Live Nation merger, Ticketmaster is "now in a position to control both the primary and the secondary levels of the market," says Marianne Jennings, a business professor at Arizona State University who has studied the ticket market. Innovations like paperless tickets "are often touted as being in the best interest of consumers, but in reality, primary [ticket] sellers have been trying to get rid of brokers and maximize their profits for 30 years."

But Joris Drayer, an assistant professor of sports marketing at the University of Memphis, says the concert and sports businesses are too large and decentralized for one company to dominate. He says paperless tickets may become an option, but conventional tickets aren't about to disappear. Not only do sports fans still like them, but "the sports industry is notoriously slow to adopt to new technology."

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to General Law Related

Ind. Courts - WANE news clip on two Supreme Court applicants

Here is a 1:53-minute WANE Fort Wayne(News Ch. 15) video clip featuring two Fort Wayne applicants, Judge Frances Gull and attorney Christine Marcuccilli. (I had to play the very beginning twice to make sure I'd heard right -- "more than 3,000 people hope to become the next ...")

[More] An observant reader writes: "Did you see brief footage of Karen Horseman arguing the voter ID case in the middle of it?"

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Kokomo locals apply for Supreme Court

Ken de la Bastide reported in the July 5th issue of the Kokomo Tribune:

Two area judges and an attorney have submitted applications in hopes of becoming the next jurist on the Indiana Supreme Court. * * *

Howard Superior Court 1 Judge William Menges, Miami Circuit Court Judge Robert Spahr and Logansport attorney Donald Tribbett have all submitted applications for the vacancy.

Menges has served as Superior Court 1 judge for 5 1/2 years.

“I’ve not applied before,” he said Friday. “It’s a question of timing more than anything else. It’s not an ideal time in my career, but those positions don’t open very often. The last time was 11 years ago.”

Menges said he will be interviewed by the Judicial Nominating Commission this week. He isn’t nervous about the interview.

“The nice thing about this is I’m running unopposed [for Howard Superior Court judge] this year,” he said. “As long as I can scrap up one vote in November, I’m assured I will be a judge for the next 6 1/2 years either in Howard County or on the Supreme Court.”

Spahr has served as Miami Circuit Court judge for 2 1/2 years and described his chances of receiving the nomination as one in 34.

“This is the first opening that came along in 11 years,” he said of submitting the application. “I believe there should be a strong presence on the Supreme Court to respect and enforce the Indiana Constitution.

“I was not sure of who would be applying and didn’t want to chance someone being appointed that didn’t have that same viewpoint,” Spahr said. “I know I have the qualifications.”

Posted by Marcia Oddi on Tuesday, July 06, 2010
Posted to Vacancy on Supreme Ct

Monday, July 05, 2010

Ind. Courts - Last of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday afternoon, July 6th, 2010

courtroomHenderson, Susan Orr

Interview #16 -- Set for 4:00 pm, July 6, 2010

Judge, Fountain Circuit Court
Covington, Fountain County

Link to Candidate's Application

Education: JD, University of Dayton 1984    Age: 52

Biographical Link


courtroomOwens, Bryce D.

Interview #17 -- Set for 4:20 pm, July 6, 2010

Attorney, Owens & Owens
Pendleton, Madison County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1985    Age: 50

Biographical Link


Spahr, Robert A.Spahr, Robert A.

Interview #18 -- Set for 4:45 pm, July 6, 2010

Judge, Miami Circuit Court
Peru, Miami County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1974    Age: 64

Biographical Link


courtroomTribbett, Donald J.

Interview #19 -- Set for 5:05 pm, July 6, 2010

Attorney, Tribbett Law Office
Logansport, Cass County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1975    Age: 60

Biographical Link

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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 2nd of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday afternoon, July 6th, 2010

Gull, Frances C.Gull, Frances C.

Interview #13 -- Set for 2:45 pm, July 6, 2010

Judge, Allen Superior Court
Fort Wayne, Allen County

Link to Candidate's Application

Education: JD, Valparaiso University 1983    Age: 51

Biographical Link


Marcuccilli, Christine M. Marcuccilli, Christine M.

Interview #14 -- Set for 3:05 pm, July 6, 2010

Attorney, Rothberg Logan & Warsco
Fort Wayne, Allen County

Link to Candidate's Application

Education: JD, Valparaiso University 1995    Age: 40

Biographical Link


Slaughter, Geoffrey G. Slaughter, Geoffrey G.

Interview #15 -- Set for 3:25 pm, July 6, 2010

Attorney, Taft
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1989    Age: 47

Biographical Link

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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 1st of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday afternoon, July 6th, 2010

drewDrew, Kiply S.

Interview #10 -- Set for 1:30 pm, July 6, 2010

Associate General Counsel, Indiana University
Bloomington, Monroe County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1989    Age: 48

Biographical Link


Haseman, Christine TalleyHaseman, Christine Talley

Interview #11 -- Set for 1:50 pm, July 6, 2010

Lawrence County Deputy Prosecutor
Bloomington, Monroe County

Link to Candidate's Application

Education: JD, Indiana University-Bloomington 1995    Age: 44

Biographical Link


Carmichael, Vicki L.Carmichael, Vicki L.

Interview #12 -- Set for 2:10 pm, July 6, 2010

Judge, Clark Superior Court 1
Jeffersonville, Clark County

Link to Candidate's Application

Education: JD, University of Louisville 1986    Age: 47

Biographical Link


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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 3rd of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday morning, July 6th, 2010

courtroomStump, Yasmin L.

Interview #7 -- Set for 11:30 am, July 6, 2010

Attorney, Office of Yasmin L. Stump
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1989    Age: 47

Biographical Link


Steele, Brent E.Steele, Brent E.

Interview #8 -- Set for 11:50 am, July 6, 2010

Attorney, Steele & Steele; State Senator
Bedford, Lawrence County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1972    Age: 62

Biographical Link


Craney, Jane SpencerCraney, Jane Spencer

Interview #9 -- Set for 12:10 pm, July 6, 2010

Judge, Morgan Superior Court 3
Martinsville, Morgan County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1979    Age: 56

Biographical Link

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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 2nd of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday morning, July 6th, 2010

Woods, Judy L.Woods, Judy L.

Interview #4 -- Set for 10:15 am, July 6, 2010

Attorney, Bose McKinney & Evans
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1987    Age: 58

Biographical Link


Foster, Monica Foster, Monica

Interview #5 -- Set for 10:35 am, July 6, 2010

Attorney, Office of Monica Foster
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis1983    Age: 50

Biographical Link


Brown, Elaine B.Brown, Elaine B.

Interview #6 -- Set for 10:55 am, July 6, 2010

Judge, Indiana Court of Appeals
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1982    Age: 56

Biographical Link

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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - 1st of 3 panels of applicants for the Supreme Court vacancy to be interviewed Tuesday morning, July 6th, 2010

Boshkoff, Ellen B.Boshkoff, Ellen B.

Interview #1 -- Set for 9:00 am, July 6, 2010

Attorney, Baker & Daniels
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1990    Age: 49

Biographical Link


Clapp, Sean M.Clapp, Sean M.

Interview #2 -- Set for 9:20 am, July 6, 2010

Attorney, Clapp Ferrucci
Fishers, Hamilton County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1988    Age: 47

Biographical Link


No photo locatedNation, Steven R.

Interview #3 -- Set for 9:40 am, July 6, 2010

Judge, Hamilton Superior Court 1
Noblesville, Hamilton County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1975    Age: 60

Biographical Link

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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - To help keep track, the ILB has prepared a set of printable reference sheets

The interviews before the judicial nominating commission start tomorrow at 9:00 am and continue on through Wednesday. Jon Murray of the Star has set out the interview timetable on his blog, Justice Watch.

The 20-minute interviews are scheduled in groups of three, followed by a 15-minute break for the commissioners. After three sets of three, the commission breaks for lunch. In the afternoon, there will be two more groups of three interviews, followed by four interviews in succession. The day ends at 5:25 pm, if all goes as planned.

Wednesday is more of the same with three sets in the morning. In the afternoon, however, there are only two sets of three, ending at 3:45 pm.

Then the schedule indicates deliberation in executive session, with the results -- the list of semifinalists -- to be announced that evening, or Thursday.

There are a lot of names and faces involved. To help keep track, the ILB has prepared a set of printable reference sheets. Those for tomorrow morning are being posted this afternoon.

Joel Schumm will be covering the interviews and sending reports back to the ILB. We hope it will be useful to you to have the names and faces readily at hand.
_____
Note: Not every applicant has a photo available online. When none could be located, a photo of the Supreme Court courtroom has been substituted.

And not everyone has a biography online, although most attorneys in private practice do. In some cases where there was no bio, the ILB has substituted a recent news story about the applicant.

If you see any errors in the information posted, please contact the ILB -- corrections will be made immediately.

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - A preview of the first round interviews to fill the Supreme Court vacancy

Tomorrow and Wednesday, the Judicial Nominating Commission will conduct a whirlwind of interviews, 18 Tuesday and 15 on the following day.

IU-Indy Law Prof. Joel Schumm, ILB special correspondent on the judicial nomination process, has prepared this preview of what factors might be used by the commission in narrowing down the list of 34.

This is just the start of the ILB's intensive coverage of the coming days. Watch later this afternoon for reference cards you might use in following the applicants.


By Wednesday evening or Thursday, the field of 34 will be cut by more than a third. In 1996 the commission narrowed the field of 23 applicants by granting second interviews to nine for the vacancy filled by Justice Boehm and in 1999 narrowed the field of 25 to seven for the vacancy filled by Justice Rucker. Nine seems more likely this year in light of the large applicant pool.

The initial screening occurred over the weekend as the seven commission members pored through the voluminous applications. Some applicants have especially impressive records and are likely to make the second round unless they commit a significant gaffe during the interview. Applicants with less distinguished records (or some type of baggage in their background) face a steep uphill climb. They need to wow the commission in order to have a chance to make the second round.

What considerations are likely to weigh on the commission in sorting through the 34 applicants? Here are, in no particular order, seven:

Academic Record and Writing Ability

As detailed in this ILB post, commission members are instructed by statute to consider legal education and “legal writings” in making their selections. Will commission members ask questions about (and hold against candidates) less-than-stellar law school grades? How thoroughly will they have considered the hundreds of pages of writing samples submitted?

Gender

Although not a statutory consideration, gender will surely weigh heavily. As frequently noted on this blog, The Indiana Supreme Court is one of only two all-male state supreme courts in the country.

When Justice Selby announced her retirement in 1999, the Court was left with four white male justices. No white men made the second round of interviews; rather, three white women, one Hispanic man, two African American men, and one African American woman advanced. Justice Rucker, an African American man, was ultimately selected by Gov. O’Bannon.

Although the applicant pool for this vacancy is less diverse, look for a majority of the semi-finalists to be women. There may not be another vacancy for more than five years, which makes the appointment of a woman now, especially with a fairly progressive Republican Governor, seem likely.

Age

As detailed in this post, the average age at appointment of the last seven justices has been 45; the oldest has been 57. Unlike the U.S. Supreme Court, justices must retire at 75. This will likely be Governor Daniels’ only opportunity to leave his mark on the state’s highest court, and the younger applicants would seem to have an advantage here.

Geography

Unlike the Court of Appeals, which is divided into districts from which judges must be appointed, Supreme Court justices may be appointed from any part of the state. There has generally been geographic diversity on the Court, although Governor Bayh’s four appointees had each spent much of their legal careers at large law firms in downtown Indianapolis (Justice Krahulik at Bingham Summers; Justice Sullivan at Barnes & Thornburgh; Justice Selby at Ice Miller; Justice Boehm at Baker & Daniels).

With Justice Boehm’s departure, there is arguably an Indianapolis void on the Court. Chief Justice Shepard hails from Evansville; Justice Dickson grew up in Lake County and practiced in Lafayette, Justice Sullivan is a native of South Bend (but practiced in Indianapolis); and Justice Rucker is from and practiced in Lake County. Half of the applicants are from Indianapolis or a donut county, but the commission members come from different parts of the state. There will surely be some geographic diversity in the second round of applicants, although a majority will likely be from central Indiana.

Practice Area

Justices hear arguments in a wide range of cases. Although each justice also writes opinions on a wide variety of issues, Justice Boehm was frequently tasked with authoring opinions in especially complex civil cases, an area well-suited to him based on his significant practice experience at Baker & Daniels and as in-house counsel for GE and Lilly. To the extent there is a legal expertise void to be filled, the void is in the complex corporate civil arena, which could work against applicants whose practice or judging experience has been exclusively or primarily criminal.

Among the civil practitioners, there is another wrinkle. Although the three lawyers on the nominating commission all engage in civil practice, Mr. Trimble is a prominent member of the defense bar while Mr. Feighner and Mr. McDonald are both leading members of the plaintiff’s bar. Applicants were required to list the names of three opposing counsel, and the next justice will need to be well-respected and viewed as open-minded by opponents.

Judging Experience

Judges generally fare well in advancing to the second round, although Chief Justice Shepard is the sole trial judge to secure an appointment in the past 25 years and Justice Rucker is the only Court of Appeals judge elevated to the Supreme Court since merit selection began in 1970. The Governor’s glowing comments about Justice Boehm upon his retirement suggest that he would have no hesitation appointing a non-judge to the Court. He is not singing the lack-of-judicial-experience tune popular with some Republican senators opposing the Kagan nomination.

Collegiality / Judicial Temperament

Personality and social interaction are the big intangibles where even a short interview can make a significant difference. How well do candidates present themselves? Does the commission see the person as capable of representing the state’s highest court in a dignified and professional manner while working well with the other members of the Court? Arrogance, condescension, and strained or awkward conversation could work against, or eliminate, a candidate. An exceedingly engaging and memorable interview may propel an otherwise unlikely candidate into the second round.

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Owens and Tribbitt Supreme Court applications featured

Justin Schneider of the Anderson Herald Bulletin reported July 2nd:

PENDLETON, Ind. — Pendleton attorney Bryce Owens has been scheduled to appear for an interview on Tuesday as he attempts to join the Indiana Supreme Court.

On Thursday, The Judicial Nomination Committee announced that Owens was among 34 applicants pursuing a vacancy on the state’s highest court. He said his experience sets him apart.

“I think that I bring a different perspective in my background to the possibility of serving the court,” Owens said Friday. “Many of the candidates have careers in the judicial system and in academia, but they don’t have a lot of people coming up from the practitioner standpoint. What I have to offer is practical experience, as opposed to theoretical experience.”

Nearly half of the applicants (16 of 34) are sitting judges. Owens, by contrast, has 25 years in private practice. His only other professional experience after graduating law school at the Indiana University was a year working under a bankruptcy judge in South Bend. * * *

The process should be somewhat familiar to Owens who has applied for previous judgeships with the Indiana Court of Appeals and the supreme court.

“I think it’s helpful to have been through it before,” he said. “The committee does a thorough job of reviewing the material in advance and they ask good, focused questions. It’s not a time for chit-chat.”

Unlike in the U.S. Supreme Court, Indiana Supreme Court nominees face no confirmation hearings before a legislative body. Once the field has been narrowed to three finalists on July 30, Gov. Mitch Daniels will make his selection. And unlike on the federal court, Indiana justices do not receive a lifetime appointment, they are subject to a retention vote by statewide ballot.

When asked about his judicial philosophy, Owens said the legal system should avoid meddling in citizens’ private lives.

“An integral part of it is interfering with people the least possible amount,” Owens said. “I think the court should solve their problems. If they have a contractual agreement, the court should enforce that agreement. My philosophy is basically to interfere and provide guidance as needed.”

Kevin Lilly of the Logansport Pharos-Tribune reported July 3rd:
A Logansport attorney is among the record number of applicants vying to fill the coming vacancy on the Indiana Supreme Court.

Veteran lawyer Donald Tribbett applied for the position that will be open Sept. 30 when Justice Theodore R. Boehm steps down from the bench. Tribbett is among 34 applicants in what he is calling a “highly competitive” field of judges and lawyers.

“A lot of very qualified people have put their names in,” he said.

Tribbett has been practicing law since 1977. He says he enjoys research and writing, two things vital to being a justice, he said.

Tribbett clerked for the Indiana Supreme Court early in his career.

That experience not only helped to shape his main law interest, which is handling appeals, but it also led to him to apply for a vacancy that rarely becomes available.

“I felt like when it opened up, if I didn’t do it now, I might never do it, so I decided to put my name in,” he said.

Besides how infrequently a justice’s position becomes available, Tribbett, a Republican, says the appointee generally has to be the same party as the governor because he or she makes the final appointment. * * *

Tribbett says he heads into the process optimistic but with a realistic approach.

“I feel I am qualified for the position, but at the same time I know it’s a highly competitive position,” he said.

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Gov't. - "Probe of ex-toxicology chief likely"

Mark Alesia and Tim Evans of the Indianapolis Star have a lengthy, front-page story today continuing a series of Star stories on (For background, start with this ILB entry from June 12, 2010.) Some quotes:

The contract ended up going to the only other company that submitted a bid in a process that former toxicology Director Michael Wagner -- who resigned in May -- controlled unchallenged, an Indianapolis Star investigation found.

The way in which Wagner spent taxpayer money appears headed toward an investigation by the state's inspector general. But whether anything illegal happened, the process raises questions about leadership and oversight by the Indiana University School of Medicine, which by law runs the Toxicology Department, whose main responsibilities are the testing of blood samples in drunken-driving cases and the training of police on breath-alcohol testing equipment.

It also is more evidence for those who want the lab taken away from IU, which was the recent recommendation by an "assessment team" that included two state legislators and a former judge.

Although IU says it is making progress to improve the toxicology lab, significant damage has been done, prosecutors say. The Toxicology Department has frustrated prosecutors with slow turnarounds on blood test results, little or no communication and a lack of training for breath-test operators.

"Things have never been worse," Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said in a March meeting of the Governor's Council on Impaired and Dangerous Driving.

Taxpayers, meanwhile, continue in effect to pay for Wagner's purchase. The breath analysis machines bought from the winning bidder -- Intoximeters -- were placed in storage unused in October and won't begin to be implemented for at least five more months. They won't be in full use for at least a year. Until then, it costs the state $670 a month to store them.

Taxpayers also continue to pay for Wagner. Though he resigned as head of the Toxicology Department, he remains on IU's faculty. An IU spokeswoman said she didn't know whether his salary of $155,000 changed after the resignation.

Taxpayers also are covering the services of former Marion County Prosecutor and Public Safety Director Scott Newman, hired by IU as a consultant to help implement the machines Wagner bought.

The machines are used at police stations to take readings for use in court, as opposed to breath tests administered in the field.

Adopting new machines requires changes in police protocol that must be written into the administrative code. Wagner apparently hadn't started that process. There is also the need to train operators statewide on the new machines.

Prosecutors and the Toxicology Department also can expect to spend time fighting challenges from defense attorneys, who will try to attack the new machines from every angle. That's especially likely in light of Wagner's resignation.

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Indiana Government

Ind. Courts - "Lawsuit argues anyone who passes bar exam should be licensed; state says law school graduation is vital"

Jon Murray of the Indianapolis Star reports today in a long story headed "Ex-con fights to become a lawyer." Some quotes:

Like a lot of prisoners, Clarence K. Carter spent his days brushing up on the law so he could draft a torrent of court motions and petitions in a bid to overturn his conviction.

But he was no mere jailhouse lawyer. Since his time was up six years ago, he has tried to become the real thing -- and now he is turning to the courts, once again, in a long-shot attempt to conquer his biggest barrier.
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A federal lawsuit filed by Carter against state court officials takes aim at what he sees as an unfair rule. It requires graduation from law school to take Indiana's bar exam, necessary to become a licensed lawyer.

Carter, 47, maintains the law school rule violates the constitutional rights of people like him who have tried to follow the prescribed route but failed to get in to law school.

"All I'm asking for is the opportunity to prove I'm competent to practice law," Carter said during an interview last week at his brother's home on Indianapolis' Far Eastside. * * *

The Indiana attorney general's office has requested a quick dismissal of Carter's suit.

"Our position is that the Rule 13 educational requirement is not only lawful but also is a reasonable precondition for those desiring to enter the legal profession," said Bryan Corbin, the attorney general's spokesman. "We intend to vigorously defend this rule from the plaintiff's challenge."

But Carter calls the rule arbitrary, and his suit presses claims that it violates the U.S. Constitution's due process and equal protection guarantees.

Indiana's law school requirement is hardly unusual, and legal experts say state judicial officials have wide latitude to set admission rules.

The vast majority of states have a similar restriction. Even the seven states that allow some alternative -- including California, New York and Virginia -- require that an applicant study for an extended period with a lawyer or a judge. * * *

His own legal work challenging his conviction and 30-year prison sentence for cocaine dealing proved unsuccessful, though he did notch one short-lived victory.

In granting Carter a new trial in 2000, a federal judge in Northern Indiana noted that his previous legal briefs were "truly remarkable presentations by a pro se prisoner."

A federal appeals court later overturned the ruling.

Carter makes a bold claim: Let him sit for the rigorous two-day bar exam in the next year, and he will pass it.

"Who's more qualified to practice law?" Carter said. "The person who graduated from law school but failed the bar exam, or the person who didn't go to law school but passed?" * * *

Even if Carter's suit prevails, and he is able to take the exam, he will face another hurdle -- that felony record.

It has already been "a scarlet letter" in his efforts to find work as a paralegal, he said. And under another of the state Supreme Court's admission rules, that record would automatically disqualify him from earning the finding of "good moral character" required to practice law, unless he convinces officials otherwise.

The ILB has earlier, but dissimilar, entries on challenges to the bar exam, including this one from Jan. 30, 2010, headed "ACLU Lawsuit claims Indiana law examiners violate the ADA " and this one from Dec. 3, 2009, headed "Concord Online Law School Places Second in National Moot Court Competition". Perhaps closest is this entry from Feb. 8, 2010, headed "A former bank robber, Shon R. Hopwood emerged from more than a decade in federal prison as a skilled Supreme Court practitioner."

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Indiana Courts

Law - "Online Bullies Pull Schools Into the Fray"

From the June 27, 2010 NY Times, a very long story by Jan Hoffman. A quote:

Schools these days are confronted with complex questions on whether and how to deal with cyberbullying, an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. The extent of the phenomenon is hard to quantify. But one 2010 study by the Cyberbullying Research Center, an organization founded by two criminologists who defined bullying as "willful and repeated harm” inflicted through phones and computers, said one in five middle-school students had been affected.

Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.

See also these letters to the editor from the July 2, 2010 Times.

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to General Law Related

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

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

From Sunday, July 4th, 2010:

From Saturday, July 3rd, 2010: From late Friday afternoon, July 2nd, 2010:

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/6/10):

Next week's oral arguments before the Supreme Court (week of 7/12/10):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/6/10):

Wednesday, July 7th

Next week's oral arguments before the Court of Appeals (week of 7/12/10):

Next Monday, July 12th

Next Tuesday, July 13th

Next Wednesday, July 14th

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

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


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

Posted by Marcia Oddi on Monday, July 05, 2010
Posted to Upcoming Oral Arguments

Sunday, July 04, 2010

Environment - Asian Carp raises its ugly head again

From commentary today by Sylvia A. Smith, Washington editor of the Fort Wayne Journal Gazette:

WASHINGTON – Who would have thought a mere fish could cause a huge Washington battle, a Supreme Court case, cross-state conflict and potential devastation for two industries?

Meet the Asian carp.

Thirty years ago, an Arkansan fish farmer imported an Asian carp, which is not native to the U.S., eats voraciously (gaining a pound or two each month) and kills native species.

It’s migrated up the Mississippi River and threatens Lake Michigan. One was found in Chicago’s Lake Calumet, six miles past an electric barrier designed to stop the fish.

Everyone – no one seems to like this behemoth – is afraid it will reproduce in massive numbers throughout the Great Lakes.

That part is alarming to the $7 billion-a-year commercial and recreational fishing industries of the Great Lakes. They want accelerated government action to kill the Asian carp and block its migration northward.

One of the ways to do that (and no one has a fool-proof method) involves closing the locks in Chicago and northwest Indiana, which would be harmful to the shipping industry to the tune of $70 million in additional costs transportation costs. The lock system is the only way to get water-shipped goods between the Mississippi River and the Great Lakes. Plus, the locks are a flood-control measure in northwest Indiana, and many people’s homes are at stake.

An Asian carp was found within the past year south of the dam in Roush Lake in Huntington County. Although the Wabash doesn’t drain into the Great Lakes basin, some lawmakers are concerned that during flooding, an Asian carp from the Wabash River will find its way to the Maumee River in Fort Wayne. The Maumee does drain into Lake Erie. * * *

Indiana’s Department of Natural Resources is providing information to federal agencies that are trying to figure out just how realistic the Wabash-to-Maumee-to-Erie pathway is for a giant fish.

There is no natural connection between the waterways. But when the St. Marys River floods enough, the area around Fox Island Park is where it backs up. That’s also the vicinity of the flood zone for the Little Wabash River. Could an Asian carp from the Little Wabash River somehow get past the 91-foot dam at Roush Lake, be swept by floodwaters into Fox Island and from there be carried into the St. Marys and then to the Maumee River in downtown Fort Wayne and from there to Lake Erie? * * *

People in Fort Wayne have a legitimate expectation that no barrier between their houses and the flood plain will be erected.

This is one of those almost intractable problems that governments face. There are pressures – in this case, valid pressures – from all sides, and it is difficult to see how this ends up in a win-win solution.

Indiana doesn’t welcome the Asian carp and would prefer it go away. But the state’s interests lie more with keeping the locks and shipping lanes open. However, Indiana is moving into a position of weakness in Washington.

Meanwhile in Gary, Mark Taylor writes in the Post Tribune:
The U.S. Army Corps of Engineers reiterated concern this week that closing the locks on the Chicago Shipping and Sanitation Canal to prevent the release of Asian Carp into Lake Michigan and the Great Lakes could aggravate flooding in regional rivers and waterways, including the Little Calumet River.

On Thursday, a group of 14 U.S. senators and more than 30 House representatives signed a letter to President Obama expressing their desire for "pursuing an aggressive strategy for permanent hydrologic separation" to prevent the carp species from entering the Great Lakes.

While that strategy to close the Chicago Sanitary and Ship Canal -- which connects the Great Lakes to the Mississippi River through the Des Plaines River -- could curtail the passage of the carp into Lake Michigan, Army Corps of Engineers officials said they feared greater flooding would occur during heavy rains if the locks were closed, sentiments shared by the Little Calumet River Basin Development Commission.

And Gitte Laasby, environmental reporter for the Tribune, has a long story headed "Corps: No Asian carp here yet."

Posted by Marcia Oddi on Sunday, July 04, 2010
Posted to Environment

Ind. Courts - "Identities of Blagojevich jurors could be made public"

John Chase reported late Friday in a lengthy story in the Chicago Tribune:

A federal appeals court ruled the judge overseeing former Illinois Gov. Rod Blagojevich's corruption trial acted too hastily when he decided to keep secret the identities of jurors.

The three-judge panel ordered U.S. District Judge James Zagel to hold a "prompt" hearing and allow members of the media, including the Tribune, to argue why the jurors' names should be made public before the trial's conclusion.

Zagel had previously ruled the media's request was "untimely" because it came just days before the trial was scheduled to start but before the judge had told jurors their names would be disclosed only after the trial ended. Prosecutors argued that in mid-2009, Zagel had mentioned he was considering keeping the juror names private and that the media should have objected sooner.

But the appellate court agreed with attorneys for the Tribune, The New York Times, The Associated Press and other media outlets that Zagel was wrong to find the Tribune's motion untimely because he never made an official ruling on when jurors' names would be released until after the news media filed their motion.

"People need not intervene in response to musings," wrote Chief Judge Frank Easterbrook, who was joined by Judges Diane Wood and John Daniel Tinder in Friday's opinion. "Had the Tribune moved to intervene in mid-2009, the district court likely would have rejected the motion as premature and told the newspaper to bide its time."

While the appellate court decided in the media's favor, it didn't rule that the jurors' names should necessarily be made public. Indeed, the names are remaining confidential until the hearing is held and a decision is rendered.

Still, throughout the opinion, the judges said that under the common law, there is a presumption of access to the names of jurors as soon as they are seated and that any effort to keep those names secret must be backed by actual evidence.

Here is the Tribune's main page on the Blagojevich trial. And here is the Sun-Times page.

Here is the 7/2/2010 opinion, released in typescript Friday afternoon by Judge Easterbrook, in USA v. Rod Blagojevich.

Posted by Marcia Oddi on Sunday, July 04, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "State unemployment agency sued: Appeals process taking too long, ACLU suit alleges"

Niki Kelly reports in the Fort Wayne Journal Gazette:

The Indiana Department of Workforce Development is taking too long to process unemployment appeals, according to a lawsuit filed by the American Civil Liberties Union of Indiana.

The suit was filed in Marion Superior Court in June on behalf of John Gorman of Indianapolis who worked for the same company for 31 years before being terminated in December. He has been waiting for a decision on his unemployment appeal for at least 100 days.

But Gorman isn’t the only one being affected. Ken Falk, legal director for the ACLU of Indiana, said the group is asking that the litigation be certified as a class-action suit for all similarly situated Hoosiers.

“As a result of the defendants’ practices or policies, the plaintiff and the class are suffering irreparable harm for which there is no adequate remedy at law,” the lawsuit said.

Federal law requires that 60 percent of all first-level unemployment appeals must be decided within 30 days; and 80 percent of them have to be decided within 45 days.

These decisions are made by an administrative law judge.

“Indiana falls far, far short of that,” Falk said. “It’s just outrageous.”

According to the suit, the agency routinely issues fewer than 5 percent of first-level appeal decisions within 30 days, and routinely issues fewer than 15 percent of first-level appeal decisions within 45 days.

About 25 percent of all first-level appeal decisions are issued more than 120 days after the appeal request, the suit alleges.

Posted by Marcia Oddi on Sunday, July 04, 2010
Posted to Indiana Courts

Saturday, July 03, 2010

Courts - More on the Kagan nomination for the SCOTUS

Two articles from the last week caught my eye:

"Kagan Reminds Senators: Legislation Is Your Job" is the headline to an Adam Liptak anaylsis in the July 1, 2010 NY Times that begins:

WASHINGTON — Supreme Court confirmation hearings are usually designed to probe a nominee’s conception of the role of the justices. But this week’s questioning of Elena Kagan turned into a tutorial on Congressional responsibility.

Over and over, Ms. Kagan reminded the senators questioning her of their own duty to pass cogent, sensible — and constitutional — laws. The Supreme Court, she said, was not created to strike down foolish measures.

On Tuesday, for instance, Senator Tom Coburn, Republican of Oklahoma, asked what should happen if Congress enacted a law requiring Americans “to eat three vegetables and three fruits every day.”

“It sounds like a dumb law,” Ms. Kagan said. But she would not commit to striking it down. “I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” she said.

Ms. Kagan repeatedly said she would show “great deference to Congress.” Perhaps surprisingly, that was not what many senators seemed to want to hear. They appeared to want the Supreme Court to save them from themselves.

Richard H. Pildes, a law professor at New York University, said Ms. Kagan’s attitude toward Congress amounted to tough love. “Elena is a hard-minded person,” he said. “She’s lucid and clear and demanding of herself and demanding of others.”

“The deference to Congress that she’s talking about,” Professor Pildes added, “brings with it a real sense of the responsibilities of Congress as well.”

Asked on Wednesday by Senator Orrin G. Hatch, Republican of Utah, why, in her role as solicitor general, she had made an aggressive argument in defending a federal statute outlawing the sale of dogfighting videos, Ms. Kagan said poor legislative craftsmanship had left her little choice.

“I hesitate to criticize Congress’s work,” she said, “but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge.”

Ms. Kagan aligned herself with Justice Oliver Wendell Holmes Jr., who held his nose in the early years of the last century while voting to uphold statutes he thought were foolish.

Justice Holmes, Ms. Kagan said, “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

"The Confirmation Process: Is this the Judiciary Committee We Deserve?" was written by Elie Mystal of the blog, Above the Law. Some quotes:
[T]here seems to be a media blind spot when it comes to grading the Senate Judiciary Committee itself. These 19 elected representatives are entrusted with the awesome responsibility of being the people’s voice in a process that ends with a lifetime appointment; yet few seem to care if these guys are doing a good job — or if they even know what they are talking about. Sure, we’ve got to live with confirmed SCOTUS Justices for the rest of their lives, be we have direct electoral control over the Senators who do the confirming. Is it too much to ask that we find 19 people in the entire U.S. Senate that actually understand what judges do for a living?

Let’s get this ball rolling. Which Senator best fulfilled his or her duty to all of us, and which ones need to be transferred to Foreign Relations — where only our enemies and allies have to suffer under their stupidity?

Let’s take a look at all 19 members of the Senate Judiciary Committee and grade how they did during the Kagan confirmation hearings.

Intriquing idea, applicable not only in Washington!

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Courts in general

Ind. Law - More on: Reviewing the 34 voluminous applications

Supplementing this ILB entry, Jon Murray of the Indianapolis Star also was present at the Supreme Court library yesterday afternoon to inspect the applications for the Supreme Court vacancy. He reports:

You don't just slip a resume in the mail to apply for this job.

Assembling an application for this year's rare vacancy on the Indiana Supreme Court is almost a job in itself.

With endless references, expansive descriptions of legal experience and significant cases handled and four sample briefs or written orders, some of the 34 applications -- all released by court officials Friday -- resemble dense law books. * * *

A review of some applications Friday found glowing academic records for some applicants; some were not so flattering. Some drew no recommendation letters, while at least one binder was filled with upward of three dozen.

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Vacancy on Supreme Ct

Courts - "Summary rulings spike at the high court"

Interesting article by Tony Mauro of The National Law Journal - a quote:

[A]t the end of a term that produced 77 signed decisions in argued cases, a new wrinkle has emerged. The Court seems to be putting more and more energy into a different kind of widget: namely, summary decisions in cases that have not been argued or fully briefed. It's a trend may alter Supreme Court practice.

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Courts in general

Courts - Kentucky public defenders challenge the constitutionality of allowing prosecutors to decide whether to seek the death penalty

Jim Hannah of the Cincinnati Enquirer reported July 1, 2010. Some quotes:

A person who commits a crime in one county may face death while a person who commits the same crime in another county may not face death.

That practice makes Kentucky's death penalty process "arbitrary and capricious," public defender Joanne Lynch argued Thursday in Kenton Circuit Court. She is representing Marion "Timmy" Lawson Parker III, 27, of Covington. He could be sent to death row if found guilty in the January beating and strangling of Shawn Davis, 28, of Covington.

While state law outlines what crimes are death penalty-eligible, there is no guideline to help individual prosecutors to decide when to apply it, Lynch said. Under state law, the death penalty applies only in homicides in which an aggravating circumstance exists. Those include if the killing occurs during the commission of arson, robbery, burglary, rape or sodomy.

"As far as our research has shown, this is relatively a novel issue," Lynch said. "It has not been decided by the courts of the commonwealth."

Lawyers from the Kentucky Attorney General's Office traveled from Frankfort to defend the state's death penalty statute from the legal attack.

Robert Long of the attorney general's office said Lynch's argument is flawed because, if it was equally applied to all cases, prosecutors would lose all discretion in whether to decide to charge individuals. He also pointed out there are 12 states where someone can commit a crime without worrying about being sent to death because the death penalty remains illegal.

Kenton Circuit Judge Gregory Bartlett said federal courts have a system to review all death penalty-applicable cases, even if the death penalty isn't sought.

"They are arguing Kentucky may need a review of when death penalty cases are not sought," Bartlett said.

The judge declined, however, to weigh in on the debate.

"What we have in essence here is a challenge to the legislation," Bartlett said. "I think this needs to be addressed, if not by the supreme court, then legislators."

By making the arguments now, Parker will be able to appeal on those constitutional grounds if he is ultimately found guilty of murder and sentenced to death.

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Courts in general

Ind. Courts - More on: "Evansville attorney, prosecutor candidate indicted on sex charges"

Updating this ILB entry from June 16, 2010, Lydia X. McCoy of the Evansville Courier & Press reports:

William Wallace, the Democratic candidate this fall for Gibson County prosecutor, will have to wait until after the November election to go to trial on charges of soliciting sex from a client, possession of child pornography and obstructing justice.

Gibson Superior Court Judge Earl Penrod on Friday set a trial date of Jan. 24 for Wallace.

The 57-year-old was indicted last month after he was accused of soliciting sex with a former client to pay off a $550 debt to him for work he did in a civil case. The woman also claimed that 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. * * *

During Friday's hearing, Wallace's attorney, Scott Danks, said he anticipates that discovery in the case will be extensive, and while his client was hoping to have the case complete by the November election, he didn't think it would be possible. * * *

Danks said Wallace remains in good spirits and will continue practicing law while his case makes its run through the courts.

He said he has notified the Indiana Supreme Court's Disciplinary Commission of the charges against Wallace and that the attorney maintains his innocence in the case.

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending July 2, 2010

Here is the Clerk's transfer list for the week ending July 2, 2010. It is two pages (and 24 cases) long.

Four transfers were granted last week.

Two of the transfers were granted "with opinion": Curtis F. Sample, Jr. v. State of Indiana and Austin Knight v. State of Indiana on 6/30/10 - see this ILB entry summarizing the opinions - they are the 3rd and 5th listed .

In a third case, Maria Chavarria v. State of Indiana, the Court granted transfer, vacated the COA opinion, and remanded to the trial court with directions to grant Appellant's motion to file a belated notice of appeal. Here is the vacated NFP COA opinion, from April 14, 2010. In this case the COA wrote: "Chavarria filed a Verified Motion for Permission to File a Belated Notice of Appeal, claiming that her interpreter had failed to convey that she had a right to appeal her sentence." The trial court denied and the COA affirmed..

In the fourth case, Richard L. Barnes v. State of Indiana, transfer was granted. Here is the 4/15/10 ILB summary - 3rd opinion. The COA wrote: "We reverse Barnes's disorderly conduct conviction because the State failed to prove that Barnes's noisy political expression was an abuse of his right to free speech."

__________

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 Saturday, July 03, 2010
Posted to Indiana Transfer Lists

Courts - "Martin Ginsburg's Legacy: Love Of Justice"

Listen to NPR's Nina Totenberg's report this morning: Martin Ginsburg's Legacy: Love Of Justice. It begins:

On the last day of the Supreme Court term, less than 24 hours after her husband had died, an ashen-faced Justice Ruth Bader Ginsburg announced her opinion for the court in one of the term's major cases. She was on the bench, she told colleagues, because "Marty would have wanted it this way."

The Ginsburg marriage was one of those marvels of life, a 56-year marathon of love and support.

Martin D. Ginsburg met Ruth Bader on a blind date at Cornell. She was 17; he a year older. As he would later put it, she was a "top student." He was a "top golfer."

That characterization belied his intellect, and she would often say that he was the only person she ever dated who was interested in her brain.

Posted by Marcia Oddi on Saturday, July 03, 2010
Posted to Courts in general

Friday, July 02, 2010

Ind. Law - Reviewing the 34 voluminous applications

The submissions of the 34 applicants to fill the Supreme Court vacancy, laid out for public review this afternoon in the Supreme Court library.

The ILB's special correspondent on the judicial nomination process,IU-Indy Law Prof. Joel Schumm, was there this afternoon and has filed this report.

The Setting

The applications of all thirty-four candidates were displayed in alphabetical order over two tables in the Indiana Supreme Court library. In the ninety minutes that I was there, three reporters (from Northwest Indiana, Fort Wayne, and Indianapolis) perused the applications.

Presentation

Some applicants obviously put a lot of time into both the presentation and content of their applications with glossy pictures and binding. (see photo)

Other applications were simply printed and stapled, one with a particularly casual and unflattering picture appended.

Law School Grades

A candidate’s legal education is a statutory consideration in appointing a justice.

The law school grades of the candidates vary widely. Some graduated near the top of their class (e.g., Ellen Boshkoff, summa cum laude with a 3.83), while others were far from the top of their class. Some even earned D’s and F’s.

Letters of Recommendation

Some candidates had no letters of recommendation. Other candidates had several. Solicitor General Tom Fisher probably had the most, and many were from political figures, including Secretary of State Rokita, Speaker Pat Bauer, Minority Leader Brian Bosma, State Senator Hershman, and leading attorneys in the Attorney General's office. Abigail Lawliss Kuzma, who also applied for the vacancy, even wrote a letter in support of Mr. Fisher’s candidacy.

Court of Appeals Judge Elaine Brown had letters from half of her fourteen colleagues on the Court of Appeals: Chief Judge Baker and Judges Bailey, Barnes, Mathias, May, Najam, and Vaidik.

Writing Samples

Another statutory consideration for the commission to consider is “legal writings.” Carefully crafting thoughtful and clear opinions that will have a significant impact on the entire state for many years is arguably the most important thing each justice does.

The length and level of complexity and sophistication in the writing samples varied widely. Some trial judge candidates submitted orders of only three pages that cited or applied no law. Other trial judges, such as Judge Hughes and Judge Nation of Hamilton County, submitted particularly lengthy and impressive orders. Judge Brown submitted some of her recent opinions, including the "birther" case.

Not surprisingly, the most impressive (and Indiana Supreme Court-like) writing samples were submitted by appellate practitioners.

Interesting Choices in Writing Samples

One writing sample was thirty years old and looked like it had been reprinted from microfilm.

Judge David submitted his order in a death penalty case, which was reversed by the Indiana Supreme Court in a 3-2 opinion (the Chief Justice, a member of the commission, voted to reverse).

Judy Woods included the brief she filed in the Greenwood school prayer case. She represented the school, and her position was resoundingly rejected by Judge Barker.

Perhaps the longest writing sample was a 99-page brief submitted by Monica Foster in Kubsch v. State, a death penalty case in which she prevailed and secured a new trial for her client.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Age at Appointment and Years of Service of Recent Justices

Under current law, an Indiana Supreme Court justice must retire at or before age 75. The length of the initial term is 2 years, succeeding terms, upon a successful retention vote, are 10 years. The information below, compiled by IU-Indy Law Prof. Joel Schumm, ILB special correspondent on the judicial nomination process, sets out via a table the age of appointment and years of service of each of our recent Indiana justices, and then lists, in ascending order, the ages of the 34 current applicants to fill the upcoming vacancy.

Age at Appointment and Years of Service of Recent Justices
Chief Justice Shepard appointed in 1985 at age 38 currently 25 years of service
Justice Dickson appointed in 1986 at age 44 currently 24 years of service
Justice Krahulik appointed in 1990 at age 45 resigned in 1993
Justice Sullivan appointed in 1993 at age 43 currently 17 years of service
Justice Selby appointed in 1995 at age 39 resigned in 1999
Justice Boehm appointed in 1996 at age 57 retiring with 14 years of service
Justice Rucker appointed in 1999 at age 52 currently 11 years of service
    average = 45  
Estimated current ages: Shepard 63, Dickson 69, Sullivan 60, Boehm 71, Rucker 63

The current applicants range in age from 40 to 64. The average age is 53.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - 7th Circuit issues important en banc RLUIPA opinion today

This is a case out of Illinois, River of Life Kingdom Ministires v. Village of Hazel Crest, Illinois, before Before EASTERBROOK, Chief Judge, and CUDAHY, POSNER, FLAUM, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES , TINDER , and HAMILTON.

The entire opinion is 57 pages. Judge Posner writes for the majority, there are individual dissents at pp. 16, 17, and 18. The lone, and lengthy, dissent, by Judge Stykes, begins at p. 22. Judge Posner begins:

The court granted rehearing en banc to consider the proper standard for applying the equal-terms provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc. That provision states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” § 2000cc(b)(1).
Judge Stykes' dissenting opinion begins:
This is an important religious-liberty case. We took it en banc to decide a key question of statutory interpretation involving § 2(b)(1) of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc(b)(1)—the statute’s “equal terms” provision—and to resolve a conflict the panel opinion created in our caselaw.

The circuits are divided over how to read this part of RLUIPA. Until this case we had followed the Eleventh Circuit’s interpretation of the equal-terms provision, first announced in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), and explained in Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005), and Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir. 2006). See Digrugilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 616 (7th Cir. 2007); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1003 (7th Cir. 2006). The en banc court now prefers the Third Circuit’s approach, announced in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), though in a slightly modified form. This interpretation departs from the text, structure, and history of RLUIPA, and the conflict in our circuit caselaw remains. With respect, I cannot join the court’s opinion. We were right in Vision Church and Digrugilliers to follow the Eleventh Circuit’s lead; I would build on that start, with some elaboration.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Ind. (7th Cir.) Decisions

Sports Law - "The Man Who Carries LeBron’s Legal Bags"

Ashby Jones of the WSJ Law Blog writes about LeBron James’s lawyer, Squire Sanders’s Frederick Nance, with a link to the original story by Brian Baxter of The American Law Daily.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to General Law Related

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

For publication opinions today (0):

NFP civil opinions today (1):

Charles Michael Myers v. Dee Dee Myers (NFP) - Re post-secondary education expenses, affirmed.

NFP criminal opinions today (1):

Clifton Mauricio v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't - Still more on the 476 pages’ worth of detailed budget cuts

Updating this ILB entry from June 26th, an editorial in today's Fort Wayne Journal Gazette:

Some officials, to their credit, offered detailed information on budget reductions. The Department of Correction, for example, noted cuts in officer training pay and an increase in the co-pay inmates must make for medical treatment. The Indiana Tobacco Prevention and Cessation agency detailed more than $1 million in reductions for fiscal year 2011, including cuts in administration, community-based programs and the public-education campaign.

Other agencies provided lots of information, but much of it was worthless. The Indiana State Fair Board posted minutes from its meetings, with comments such as, “Sheep barn is moving along. Starting open market lamb show, we are also hosting the national Tunis Show.”

The Indiana Family and Social Services Administration dumped 218 pages of documents, including copies of newspaper articles and editorials critical of the agency’s budget cuts.

Then there were the departments where no details were posted. Tony Bennett, state superintendent of public instruction, offered only platitudes as to how “Hoosiers have been doing more with less and learning to live within our means as our country’s economy has been reset.”

Simpson wisely asked agency directors to describe the “estimated impact of cuts on people served by each program” affected.

Most ignored the request.

It’s unfortunate that it took individual requests from a state senator to uncover even incomplete information. State budget reductions represent important policy decisions. Was it a wise move for the Department of Labor to eliminate a job from the Bureau of Mines and reduce its total $170,000 budget by $25,000? How did the Department of Education cut its budget by 25 percent without affecting services to students?

Budget transparency in the Internet era is not a difficult task. Absent the initiative from the administration, Simpson should pursue legislative efforts to require easily accessible information in a user-friendly format, with specific details.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Indiana Government

Ind. Decisions - "Singling out a budget provision"

That is the headline to a front-page item in this week's issue of Indiana Legislative Insight, reprinted here with permission:
Court: budget bill insertion no concern

Does an Indiana Supreme Court ruling last week serve to warn off those who might challenge non-budget items inserted into the budget bill?

For years, legislative observers have waited for the Indiana Supreme Court to render a definitive judgment as to whether the singlesubject matter restriction of the Indiana Constitution barred insertion of seemingly unrelated matters into the budget bill . . . and, if so, under what circumstances.

But in Peoples v. State, No. 79S02-0912- CR-549, a little-noticed criminal appeal, the Court issues a unanimous opinion with some curious language buried deep in the ruling. The Court writes that "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."

That "special rule" was found in the budget bill, and the justices suggested that "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."

And in trying to reconcile the law "written in 1977" with subsections "written in 2001 by the conference committee on the budget bill," the Court finds that "It is not surprising that the provisions do not mesh perfectly."

The two references in the opinion would seem to indicate that the Court had no problem with the unrelated statutory language found in the budget bill, and, indeed, even found on its own initiative a valid reason as to why it may have wended its way in there.

The Indiana Law Blog suggests that "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."

See the ILB's summary of the June 29th Peoples decision here.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Applicant Information And Interview Times Of Those Seeking Position On High Court Now Available

Access it here.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Could Gov. Daniels Appoint a Democrat?

IU-Indy Law Prof. Joel Schumm, ILB special correspondent on the judicial nomination process, writes:

Could Gov. Daniels Appoint a Democrat?

One thing you won’t see on the applications for the Indiana Supreme Court is party affiliation. But it may come through in the letters of recommendation, and this list of applicants is almost exclusively Republican.

Article 7, Section 10 of the Indiana Constitution makes clear the Governor shall fill the vacancy “without regard to political affiliation, from the list of three nominees presented to him by the judicial nomination commission.” This procedure was adopted in 1970, and every Governor to date has appointed justices from his political party. Although not quite a majority, the three gubernatorial appointees have considerable influence on the seven-member commission.

Among the 34 applicants for the Boehm vacancy are at least two Democrats. Judge Vicki Carmichael was elected to the Clark County Superior Court as a Democrat in 2006. She is the only applicant who also applied for the 1999 vacancy that was filled by Justice Rucker. At least one Republican, long-time Johnson County Prosecutor Lance Hamner (now a Superior Court judge) applied for that position as well but is not an applicant this round.

The other applicant with strong Democratic ties is Monica Foster, a highly regarded criminal defense attorney who has represented several capitally charged defendants.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Vacancy on Supreme Ct

Ind. Law - "Take a gun to work law" goes into effect

The new law went into effect yesterday, July 1, 2010. Charles Wilson of the AP has this report - some quotes:

INDIANAPOLIS -- A new state law that went into effect Thursday allowing employees to keep guns locked and out of sight in their vehicles while parked at work caused some confusion as the Indiana Chamber of Commerce weighed the possibility of a legal challenge.

One steel company told workers at two northwestern Indiana mills that they were not permitted to bring guns onto its property despite the law.

In a memo dated Monday, ArcelorMittal said federal law prohibits the company from having firearms at its mills at Indiana Harbor and Burns Harbor, but the memo didn't cite the specific law.

When asked Thursday for more details, the company declined to specify the law. * * *

The trouble, said Indiana Chamber of Commerce president Kevin Brinegar, is that the law is inconsistent.

The law includes a list of 10 exemptions, including schools, prisons, child care centers, utilities and some chemical plants. But the list doesn't include banks, he said.

And Bill Reardon, the police chief at Indianapolis International Airport, said he believes the law allows airport employees to bring guns to work despite security concerns.

"We probably should have been included," he said. "I understand everybody's concerned over their rights, but there has to be some commonsense perspective as it relates to aviation security." * * *

The Indiana General Assembly passed the bill March 4 -- one day before police said a state Department of Workforce Development auditor went to his car and returned with a shotgun that he fired inside an agency office, sending other employees fleeing.

Jon Seidel of the Gary Post Tribune has this report that begins:
ArcelorMittal declined to explain its rationale Thursday for telling employees a federal law trumps Indiana's new gun law giving people the right to leave firearms locked in their cars at work.

Representatives of the steel giant refused to cite the federal law and instead released a written, one-sentence statement by Vice President of Operations Andy Harshaw."ArcelorMittal is committed to providing all employees with a safe work environment and is handling the new gun law in accordance with applicable law," a spokeswoman said.

Harshaw's memo warned violations of ArcelorMittal's policy prohibiting guns on company property could result in discipline or discharge.

"Under federal law, which pre-empts the new state law, ArcelorMittal cannot have firearms or ammunition at Burns Harbor or Indiana Harbor," Harshaw wrote Monday.

Even supporters of the state's guns-at-work law expect it to end up in court.

Seidel also has a side-bar story headed "Airport Clarifies Gun Policy."
Gary/Chicago International Airport Authority clarified its firearms policy in the wake of the state workplace gun law.

No guns or ammunition are permitted within the secured fencing area on the airport's property, according to board attorney Patrick Lyp. The policy focuses on the airport's fenced perimeter.

Lyp knows of no policy that would prohibit an employee from legally and properly storing a firearm in the parking lot.

The Indianapolis Star yesterday had this editorial that concluded:
In Indiana, much of the pro-gun work already has been done. Indeed, the state has been a counter-example of virtually every gun-restriction measure even the conservative Supreme Court approves. Indiana doesn't limit the number of guns bought at one time, encouraging resale on the street. This year, it enacted a law allowing guns in cars at workplaces and, in response to a Star expose of gun permits issued to known violent persons, made it illegal to publicize those permits. It allows guns in state parks.

Cities have been less gun-friendly, and more homicide-conscious. A proposal this year to drop the firearms ban in city parks went nowhere in the Indianapolis City-County Council and faced a mayoral veto threat. At the state level, however, government consistently has tilted against practical safety considerations in favor of platitudes about individual rights. Business owners, emergency room physicians and police officers have decried the imbalance, and the Supreme Court has not contradicted them. It would be unfortunate if the court's call for moderation became ammunition for the other camp.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Indiana Law

Ind. Courts - A wealth of stories this morning on Supreme Court applicants [Updated]

Jon Murray of the Indiasnapolis Star, this story that sets the stage. It begins:

One by one, 34 hopefuls will face a panel of seven people charged with narrowing the field of contenders to become the next Indiana Supreme Court justice.

The spectacle of public interviews to fill a vacancy on the state's highest court will play out next week for the first time in more than a decade. Each of the applicants, whose names were announced Thursday, might get about 20 minutes of face time.

But many are already well known. There are 16 judges, including Elaine B. Brown from the Indiana Court of Appeals, as well as partners at large law firms in Indianapolis and other cities. One is state Sen. Brent Steele, R-Bedford.

Seven county judges are among 19 applicants from Indianapolis and its surrounding counties.

Murray notes:
Daniels will be the first Republican governor to make an Indiana Supreme Court appointment in nearly 25 years.

Indiana's nomination process is intended to diminish the role of politics, but not eliminate it. Daniels appoints three of the nominating commission's members, and lawyers elect attorneys for three posts.

Niki Kelly reports in the Fort Wayne Journal Gazette under the heading "Two more from area pursue job as justice." (The third, Judge Gull, was the subject of a FWJG story yesterday.) From today's story:
The local applicants are Allen Superior Court Judge Fran Gull, Steuben Circuit Court Judge Allen Wheat and Fort Wayne civil attorney Christine M. Marcuccilli.

Wheat was first elected to the bench in 1994 and handles a mix of criminal, juvenile and civil cases. Last year, he worked with Ball State University to produce a DVD showing a drunken-driving case from arrest through trial. Before becoming a judge, he spent 19 years in private law practice.

“There are very few kinds of cases I haven’t seen, participated in or written opinions concerning, including briefs to the Supreme Court,” Wheat said. And at age 60 he recognizes this is likely the last opportunity for him to seek the position.

Marcuccilli, 40, is a partner at Rothberg, Logan & Warsco LLP in Fort Wayne. She has spent 14 of her 15 years as a lawyer in private practice, focusing on civil litigation and appeals. One local case she successfully worked on was a defense of Fort Wayne’s public smoking ordinance.

“Being on the court has been a lifelong career aspiration for me, and it seemed like the right thing to do right now,” she said. “I truly see the court as a place where you can get personal fulfillment with the challenge of the law, but also you can serve the public.” * * *

“There is a groundswell for the governor to appoint a female,” said Ed Feigenbaum, a lawyer and author of three political and governmental newsletters. “One would expect two of the final three – if not all three finalists – will be female. So gender will definitely make a difference in this process.” * * *

Joel Schumm, a professor at the Indiana University School of Law, said he expects the semifinalists and finalists to lean heavily toward women. He described many of the female applicants as “high caliber.”

He noted that while the Indiana Constitution says the appointment should be without regard to political party, “the reality is it usually does come into play.”

Some governors previously made clear their favorites in the beginning, but Daniels has not.

Some considered in legal circles to be leading contenders are Marion Superior Court Judges Cynthia J. Ayers and Robyn L. Moberly and Lake Superior Court Judge Mary Beth Bonaventura.

All three are current judges, but Schumm and Feigenbaum agree that judicial experience isn’t required to get the job.

Of the current five members on the Indiana Supreme Court, only two had previous judicial experience.

“I think the nominating commission is looking for someone who understands the law, has a good temperament and is effectively a generalist,” Feigenbaum said. “Someone who understands all aspects of the law and can approach a case from number of angles.”

Erioc Bradner of the Evansville Courier & Press reports:
If Gov. Mitch Daniels wants to use his first appointment of an Indiana Supreme Court justice to appoint a female member to the court, he soon could have that opportunity. The appointment would remove Indiana from the roster of only two states without a female member on its high court. * * *

Indiana and Idaho are the only states without female members on their high courts. The only woman who has served on the Indiana Supreme Court is Myra Selby. She was appointed in 1995 by then-Gov. Evan Bayh, and she resigned in 1999.

Sophia Voravang of the Lafayette Journal Courier reports:
As Fountain County's sole elected judge, Susan Orr Henderson presides over all criminal accusations and civil disputes -- from acts of child molestation caught on videotape to juvenile delinquency proceedings and estates.

Henderson said she believes that breadth of experience helps her stand out as a candidate for the Indiana Supreme Court. * * *

"This is an opportunity that is not going to come along very frequently," Henderson said Thursday. "This is an opportunity to serve the public beyond the county that I love -- and I do love serving Fountain County. * * *

Henderson is serving her 12th year as Fountain Circuit Court judge. She was twice elected and is seeking a third term, come November. That was preceded by 14 years as a practicing attorney.

Harold J. Adams has this report in the Louisville Courier Journal. Some quotes:
Clark Superior Court Judge Vicki Carmichael and state Sen. Brent Steele, R-Bedford, are among 34 applicants to fill an upcoming vacancy on the Indiana Supreme Court. * * *

While half of the candidates are from Marion County or a county adjacent to it, Carmichael and Steele are among only three who are from south of Bloomington. The third is Indiana Appeals Court Judge Elaine Brown, who is a former Dubois Superior Court judge. * * *

Carmichael will be interviewed Tuesday, which coincides with her 48th birthday.

In her office Thursday she said a 12-year stint as a public defender in Clark County, including six as the county's first chief public defender, is one of the strengths of her application.

"When I was chief public defender here, half of my case load was all of the appeals for the public defender's office," she said. "I'll know what it's like for the attorneys arguing in front of me because I've been there and I've done that work."

She said her eight years as Jeffersonville City Court judge before her election to Superior Court in 2006 and the fact that she is in Clark County, away from the cluster of most candidates, are also strengths.

Steele, speaking by telephone from his law office in Bedford, said his major strength is having practiced law for 37 years without restricting himself to one area of specialization.

"I kept my feet wet in all areas of it and I think that's important, because you're going to get all kinds of cases," the District 44 senator said.

He said serving eight years in the House and nearly the same so far in the Senate is a strength because "it's important to keep a good rapport between the court system and the legislature."

Carmichael said the one thing the commission might see as a weakness in her application is that she's been a trial judge for only 3-1/2 years.

"I would say that some of my limitation would be my lack of judicial experience, although I don't know that ... really matters as much," she said.

Steele has never been a judge. But he said he doesn't believe that really matters.

"When a man or a woman runs for judge in the circuit court at the local level what have they been? They've never been a judge before; they've just been a lawyer," he said. "This job is so big, I'm not sure being a judge of a circuit court or superior court at the local level could prepare you to sit as a judge of the Supreme Court. It's a different kind of judging."

Matt Thacker of the Jeffersonville News & Tribune has a story headed "Carmichael seeks Indiana Supreme Court appointment." A quote:
CLARK COUNTY — Clark County Superior Court No. 1 Judge Vicki Carmichael has applied for the Indiana Supreme Court.

The Judicial Nominating Commission announced Thursday it has received 34 applications for the seat that will become available when Justice Theodore Boehm retires Sept. 30.

“It’s a next step in my judicial career,” Carmichael said. “I love being a trial court judge and serving in Clark County, but I just think it would be an honor and privilege [to be selected for the Supreme Court]”

Carmichael said she has planned to apply for the next Court of Appeals vacancy, but the Supreme Court position became available first.

Michael Malik reports ($$) in the Bloomington Herald Times:
Four of the 34 people who applied to be the next justice named to the Indiana Supreme Court have ties to Monroe, Morgan and Lawrence counties.

According to a statement disseminated Thursday from the Judicial Nominating Commission, two attorneys from Bloomington — Kiply S. Drew and Christine Talley Haseman — and Morgan Superior Court Judge Jane Spencer Craney applied.

Republican state Sen. Brent Steele of Bedford, whose district includes four townships in southern Monroe County, is also a candidate.

In 2007, Haseman was appointed by Gov. Mitch Daniels to serve as Monroe County’s ninth judge for a one-year term. She only served for a year though, because she lost an election for the judgeship.

Craney, who was the Morgan County prosecutor before becoming a judge, has applied for vacant Indiana court seats in the past. In 2007, she applied for an open seat on the Indiana Court of Appeals.

Drew is an Indiana University attorney in the general counsel’s office.

[Updated at 11:00 AM] Amy Oberlin reports in KPCNews:
Steuben Circuit Court Judge Allen Wheat has put his name on the list to fill a vacancy on the Indiana Supreme Court. * * *

Noting the longevity of the five justices on the Supreme Court, Wheat, 60, said this may be his last opportunity to try for a Supreme Court seat. The most recent appointment was in 1999. Indiana Supreme Court and Court of Appeals judges are required to retire at 75 years old.

Boehm will retire Sept. 30. The slate of candidates for his job include a number of judges and attorneys from Indianapolis and from throughout the state. Among them are Wheat and Allen County Judge Fran Gull, who if selected would be the second woman ever to serve on the Indiana Supreme Court. She is among 19 women who have applied. * * *

Wheat said his 16 years on the Steuben Circuit Court bench and experiences in 19 years of private practice give him the know-how to deal with legal issues of state import. The Supreme Court hears cases forwarded from the Indiana Court of Appeals and cases that deal with county judge discipline, capital murder and county mandates.

In his early days as circuit court judge, Wheat was seated as special judge in St. Joseph County by a Supreme Court order made through a county mandate. He presided over a dispute on the use of county courthouse facilities, and his decision was upheld by the court 4-1.

Wheat said the work was fun and part of his well rounded experience in the Indiana legal system. The Steuben Circuit Court takes criminal cases and civil cases, as well as juvenile, estate, probate and others.

“There are very few cases that I haven’t encountered on the criminal and civil side,” said Wheat. “The Supreme Court looks at every kind of case imaginable that comes before it.”

The depth of the judicial reviews in some of the cases and the opportunity to help shape Indiana law are attractive to Wheat along with the obvious prestige. He said the replacement of Boehm, whether it is himself or another candidate, is an opportunity to bring a new perspective to the high-court bench and possibly change some antiquated common law.

Posted by Marcia Oddi on Friday, July 02, 2010
Posted to Vacancy on Supreme Ct

Thursday, July 01, 2010

Ind. Courts - "Several prominent names in legal circles applied"

Jon Murray of the Indianapolis Star reports this afternoon:

Several prominent names in legal circles applied, including Ellen E. Boshkoff, a partner at Indianapolis firm Baker & Daniels; Thomas M. Fisher, Indiana's first solicitor general; Monica Foster, an Indianapolis death-penalty defense attorney; Karl L. Mulvaney, a partner at Indianapolis firm Bingham McHale; Geoffrey G. Slaughter, a partner in the Indianapolis office of Taft Stettinius & Hollister; and Judy L. Woods, a partner at Indianapolis firm Bose McKinney & Evans.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - One today from the Supreme Court [Make that 2 Today]

In Che B. Carter v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Shepard writes:

Che B. Carter has sought post-conviction relief, contending that appellate counsel was deficient for failing to challenge a jury instruction on attempted murder. The post-conviction court was likely wrong in concluding that Carter‘s lawyer performed within the range of reasonableness when she omitted this issue, on which there was considerable flux at the time. Nevertheless, it seems apparent that Carter did not suffer sufficient prejudice to warrant setting aside the verdict.
In the Matter of Anonymous is a 4-page per curiam Attorney Discipline Action, where "The Court concludes that Respondent violated Professional Conduct Rule 5.3. The parties propose the appropriate discipline is private reprimand." Here are some of the facts:
The State Public Defender assigned Respondent as an independent contractor to represent a client in a post-conviction relief ("PCR") proceeding. With the client's consent, Respondent entered into an agreement with a nonlawyer inmate in the same facility where the client was incarcerated under which the inmate would assist in researching and preparing a PCR petition for the client. In exchange, Respondent agreed to represent the inmate in his own PCR proceeding.

Respondent retained the inmate as an independent legal assistant who was not employed by a specific firm or lawyer. The inmate had limited access to communication, no expectation of privacy, and limited access to research resources. Respondent had limited ability to review the inmate's work. Respondent could not supervise the inmate and could not ensure that the inmate would be able to comply with the Rules of Professional Conduct. These events took place in 1998-1999. There was considerable delay in the submission of a grievance to the Commission, which filed a verified complaint against Respondent in 2008.

Reminds me, in some respects, of this ILB entry from Feb. 8, 2010, headed "A former bank robber, Shon R. Hopwood emerged from more than a decade in federal prison as a skilled Supreme Court practitioner."

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on applicants

Check back to this list of applicants posted earlier - we (Prof. Schumm and I) are adding links to any easily retrievable bios. Of course, tomorrow we will have access to the applications.

NOTE: If you can find a better bio this afternoon, or point to one where we came up short, let me know!

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Factoids on list of applicants

How does the list mesh with names previously posted here on the ILB as potential applicants?

Five of the eleven names applied, all are currently county judges: Ayers, Bonaventura, Brown, Craney, and Moberly.

What is the breakdown, judge v. non-judge; woman v. man?

16 judges, 18 non-judges.

15 male applicants, 19 women.

Of the non-judge applicants, 9 are men and 9 are women.

Another factoid:

It looks like one of the applicants still has a pending disciplinary complaint.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Here is the list - [Update - will be adding links]

Here, from the information just released by the Court:

The Judicial Nominating Commission received thirty-four applications for the upcoming Indiana Supreme Court vacancy. It is a record number of applicants, the highest in twenty-five years. The following attorneys and judges have applied for the seat which will be available when Justice Theodore Boehm retires in September.

1. Hon. Cynthia J. Ayers, Marion Superior Court, Civil Division 4

2. Hon. Mary Beth Bonaventura, Lake Superior Court, Juvenile Division

3. Ms. Ellen E. Boshkoff, Indianapolis

4. Hon. Elaine B. Brown, Indiana Court of Appeals

5. Mr. Sean M. Clapp, Fishers

6. Hon. Vicki L. Carmichael, Clark Superior Court 1

7. Hon. Jane Spencer Craney, Morgan Superior Court 3

8. Hon. Steven H. David, Boone Circuit Court

9. Ms. Kiply S. Drew, Bloomington

10. Hon. Cynthia S. Emkes, Johnson Superior Court 2

11. Mr. Thomas M. Fisher, Indianapolis

12. Ms. Monica Foster, Indianapolis

13. Hon. Frances C. Gull, Allen Superior Court

14. Mr. Lyle R. Hardman, Granger

15. Ms. Christine Talley Haseman, Bloomington

16. Hon. Susan Orr Henderson, Fountain Circuit Court

17. Hon. William J. Hughes, Hamilton Superior Court 3

18. Ms. Abigail Lawlis Kuzma, Indianapolis

19. Ms. Christine M. Marcuccilli, Fort Wayne

20. Hon. William C. Menges, Jr., Howard Superior Court 1

21. Hon. Robyn L. Moberly, Marion Superior Court, Civil Division 5

22. Mr. Karl L. Mulvaney, Indianapolis

23. Hon. Steven R. Nation, Hamilton Superior Court 1

24. Ms. Clare Kraegel Nuechterlein, South Bend

25. Mr. Bryce D. Owens, Pendleton

26. Mr. Curtis E. Shirley, Indianapolis

27. Mr. Geoffrey G. Slaughter, Indianapolis

28. Hon. Robert A. Spahr, Miami Circuit Court

29. Sen. Brent E. Steele, Bedford (votesmart profile, which is more detailed than his legislative page)

30. Ms. Yasmin L. Stump, Zionsville (click on "authors")

31. Mr. Donald J. Tribbett, Logansport

32. Hon. Allen N. Wheat, Steuben Circuit Court

33. Hon. Mary G. Willis, Henry Circuit Court

34. Ms. Judy L. Woods, Indianapolis

Here is the full press release.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - No Indiana cases, but post-Carr SORNA decision today

The opinion is in United States v. Vasquez. It is a 30-page opinion with a dissent by Judge Manion beginning on p. 12. The dissent begins:

In reading the court’s opinion and the recent Supreme Court case Carr v. United States, this fact cannot be lost: there are seemingly two statutes at issue here. There is § 2250 as we interpreted it in United States v. Dixon, and as the court continues to interpret it, and then there is § 2250 as the Supreme Court interpreted it in Carr. That being said, I have two principal disagreements with the court’s opinion. The first is that it gives Carr too limited a reading; the second is that its interpretation of § 2250 renders the statute constitutionally defective.
Check also this post from Sentencing Law & Policy blog.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Luiz Alves v. Old National Bank f/k/a St. Joseph Capital Bank, a 9-page opinion involving a pro se appellant, Judge Vaidik writes:

Luiz Alves appeals the trial court’s denial of his Indiana Trial Rule 60(B) motion for relief from judgment, which was based on newly-discovered evidence and fraud pursuant to subsections (2) and (3). Because Alves filed his Trial Rule 60(B) motion more than one year after the trial court granted summary judgment in favor of Old National Bank and Alves’ earlier appeal of that judgment does not toll the one-year limit applicable to motions brought pursuant to subsections (1)-(4), we find that Alves’ Trial Rule 60(B) motion is untimely. In any event, even if we consider Alves’ evidence on appeal, it does not show that Old National Bank owed a duty to Alves or that Old National Bank breached a duty by conspiring with Alves’ former business partner to remove Alves from their company. We therefore affirm the trial court’s denial of Alves’ Trial Rule 60(B) motion.
NFP civil opinions today (4):

John M. Knight v. Kelly A. Knight (NFP)

Luiz Alves v. Damon Leichty, James Tuesley, and Barnes & Thornburg, LLC (NFP) [ILB: This is currently a bad link]

In Re: the Marriage of J.R. and M.R. (NFP)

Elizabeth Saldivar-Cruz v. Guardian Industries Corp. (NFP)

NFP criminal opinions today (3):

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

Derrick Hammond v. State of Indiana (NFP)

Gregory Harpenau v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "New law expected to increase appeals of IHSAA eligibility decisions"

Here is a long list of earlier ILB entries on cases involving the IHSAA.

Maureen Hayden had this long story in the June 29, 2010 Terre Haute Tribune Star. Some quotes [emphasis by ILB]:

INDIANAPOLIS — Student athletes denied eligibility after transferring schools will no longer have the option to go to court before exhausting an appeals process established by the state legislature a decade ago.

The new law, which goes into effect Thursday, requires student athletes ruled ineligible by the Indiana High School Athletic Association to seek relief through the state Department of Education review panel before they can file a lawsuit asking for the IHSAA decision to be overruled.

IHSAA Commissioner Blake Ress says he hopes the new law will serve to reinforce IHSAA rules that bar students from playing sports for up to a year if they transfer for “primarily athletic reasons.”

“If they’re told often enough that they’re playing outside the rules, maybe they’ll get the hint,” said Ress.

He said lawsuits filed in local courts have sometimes been successful in overturning IHSAA eligibility decisions because of what he called “politics” exerting pressure on the presiding judge.

“Everybody wants rules,” Ress said. “They just don’t want the rules to apply to them.”

The new law is expected to increase the number of appeals filed and puts the IHSAA in a likely battle with the state’s superintendent of public instruction, Tony Bennett, who wants barriers removed for students who want to transfer into a new school.

“We should always make the best interests of Indiana’s students our top priority,” Bennett said. “Each student should be entitled to attend a school that can provide for his or her individual needs – no matter the need or the reason.”

Members of the DOE review panel that will hear appeals to the IHSAA eligibility decisions are appointed by Bennett. Several new openings on the panel are coming up this summer. Those appointments could impact the outcome of the eligibility disputes.

Ress said about 3,000 student-athlete transfers occur every year and that 90 percent of them are approved by the IHSAA because they meet the organization’s transfer rules, which require a “bona fide” change of residence by the family of the athlete into a school district.

But within the past year, as Indiana school districts have begun to accept students living outside their districts under a new “open enrollment” plan that allows students to transfer schools without moving their residence, the number of transfers by student athletes has increased by an additional 500.

“It would be naïve to think that athletics don’t play a role in that,” Ress said.

Under current IHSAA rules, students may be barred from participating in interschool athletics if they make the switch to a new school to take advantage of a better sports program at the other school, or transfer because of a conflict with a coach.

But under Indiana’s relatively new open enrollment system, students can transfer to another school willing to accept them without giving a reason.

Bennett says the IHSAA has no business questioning a student’s decision to switch schools. Bennett said school choice without limits was the intent of the Indiana General Assembly, which passed the open enrollment law in 2008 that cleared the way for more students to transfer into another school district.

“Parents and students should make this decision,” Bennett said. “It should not be made by adults who are concerned about their own interests. I believe Indiana’s legislators demonstrated tremendous wisdom in creating an open enrollment policy, and I think all organizations should honor the General Assembly’s intent.”

A side-bar defines "primarily athletic reasoning":
When Indiana eliminated local funding for schools from local property taxes, it opened the way for open enrollment by eliminating the need for schools to collect tuition from students outside their school district who wanted to transfer. School districts responded by re-examining their transfer policies. But open enrollment presents a challenge to the Indiana High School Athletic Association. The IHSAA forbids a student from transferring for primarily athletic reasons.
The IHSAA’s Rule 19 defines “primarily athletic reasons” as including, but not limited to:

• transferring to obtain the athletic advantage of a superior, or inferior, athletic team, a superior athletic facility or a superior coach or coaching staff;
• transferring to obtain relief from a conflict with the philosophy or action of an administrator, teacher or coach relative to athletics;
• transferring to seek a team consistent with the student’s athletic abilities;
• transferring to obtain a means to nullify punitive action taken by the previous school

Source: Bylaws of the Indiana High School Athletic Association

Here is the new law - HEA 1168-2010 (PL 92-2010). It amends IC 220-26-14-5.5, 6 and 7. Note there is also a noncode SECTION 4, which:
Directs a high school athletics association in collaboration with the department of education to study and prepare a report to the general assembly by December 31, 2010 concerning the impact and the feasibility of allowing a high school student who attends a nonpublic nonaccredited school, a nonpublic school or a charter school that is not a member of an interscholastic athletic association to participate in high school athletics at a public high school that is a member of an interscholastic athletic association, including a study of practices in other states.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Indiana Law

Ind. Courts - Here [NOT] are the applicants to fill the upcoming vacancy on the Supreme Court

The list of applicants hasn't been posted yet, but while we are waiting, Rebecca S. Green of the Fort Wayne Journal Gazette has been able to report this scoop this morning, headed "Gull applies for seat on state’s high court." The ILB was especially taken by this quote:

Applying for the Indiana Supreme Court seat was an opportunity she could not pass up, just as she pursued the vacancy left when Allen Superior Court Judge Philip Thieme retired in 1996.

“You seize opportunities as they arise,” Gull said. “The opportunity came up (for Thieme’s seat) and if I didn’t seize it, I wouldn’t have the opportunity to be a trial court judge for a long time. The likelihood of me getting on the bench wouldn’t have happened for a long time.”

Boehm’s retirement brought the same feelings.

“This is an opportunity that probably won’t happen again for the rest of my legal career,” she said.

[Updated at 10:09 AM] No list yet.

[Updated at 11:05 AM] Still no list. Will post a new entry when there is a list.

Posted by Marcia Oddi on Thursday, July 01, 2010
Posted to Vacancy on Supreme Ct