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Tuesday, August 31, 2010

Ind. Law - "Professor Henry C. Karlson: A Special Plea For His Life"

William F. Harvey, Emeritus Dean, Indiana University School of Law-Indianapolis, Indiana, has sent this message asking people to join the bone marrow registry where you may possibly become a match for Professor Karlson, or someone else in great need.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Indiana Law

Ind. Gov't. - New "Transparency" web site

Lesley Stedman Weidenbener of the Louisville Courer Journal has a story today headed "New website gives taxpayers a look at state finances." It begins:

Hoosiers can look up salary information for lawmakers and state employees at a new website designed to offer taxpayers a simple place to go for information about government spending.

The site – www.Transparency.IN.gov – pulls together reports, databases and other financial information that had been scattered across state government sites and adds new tools for tracking employee salaries, agency budgets and local government financial reports.

Later this year, taxpayers should be able to search state expenditures to identify payments for goods, services and programs, said state Auditor Tim Berry, who developed the site with the Indiana Office of Management and Budget.

“Much of this is information that wasn’t easy to find. You might not have known it was there,” Berry said Tuesday during a demonstration of the site’s tools. “Bringing it together in a single location will provide greater ease, greater transparency, greater understanding to the taxpayers of Indiana.”

One valuable aspect is that you can see the entire salary range of the employees in a specific state agency, such as the Legislative Services Agency, or the Attorney General, by going to the State Employees page, and selecting only the name of the agency. You can also sort by column.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Indiana Government

Law - "Are Law School Faculties Part of the Problem with Legal Education?"

That is the heading to this interesting WSJ Law Blog entry today by Ashby Jones. Some quotes:

It’s often struck us as an obvious question: how can law schools provide better real-world training to students when their faculties are made up of article-writing academics? * * *

“The academy — both in terms of its preparation of law students to enter the profession and the type of scholarship being produced by the professoriate — has lost its practical moorings,” Newton wrote.*

Much of the problem, Newton writes, owes to the fact that many law professors have too little experience or understanding of the practice of law to teach practical skills to students. “Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an SEC enforcement action?” he wrote.

Newton’s suggestion: that that law faculties be divided into two tracks — research professors and teaching professors, both of whom would be tenure-track. Research professors would account for one-third of a faculty and would concentrate on “theoretical, interdisciplinary research and scholarship” and teach fewer classes. The remaining two-thirds would teach doctrinal, clinical and legal reading and writing courses.

Here is the article by adjunct Georgetown law prof and deputy staff director of the U.S. Sentencing Commission, Brent Evan Newton.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to General Law Related

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

In Hayes Lemmerz Int'l. v. ACE Amercian Ins. (ND Ind., Simon), a 9-page opinion, Judge Posner writes:

This appeal from a judgment dismissing a diversity suit by a disappointed insured against its insurance company presents issues of Indiana insurance law. * * *

Because HLI was, by virtue of Indiana law, a joint employer, ACE was contractually obligated to reimburse the reasonable expense of HLI’s getting itself dismissed from the tort suit. But HLI is not claiming that ACE has refused to pay that modest amount. It is complaining that ACE breached its duty to defend by failing to advise HLI that HLI’s law firm was not defending the suit properly. ACE had no duty to provide its insured’s lawyers with legal advice. AFFIRMED. 8-31-

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

Ind. Decisions - Supreme Court rules in Lamar Advertising appeal

In Lamar Advertising v. View Advertising and INDOT, a 2-page order filed August 30, 2010, Chief Justice Shepard writes:

The Court of Appeals issued its memorandum decision in this matter on January 29, 2010. Lamar Advertising, Inc. v. View Outdoor Advertising, LLC, No. 49A05-0904-CV-217 (Ind. Ct. App. 2010), reh’g denied. The Court of Appeals’ decision instructs the Department of Transportation (“INDOT”) to allow the parties to file new applications for a billboard permit, and interprets an administrative rule as requiring INDOT to grant the first valid application it receives. Appellee filed a petition to transfer in which it argued, among other things, that the parties should be provided with a brief “grace period,” following certification under Appellate Rule 65(E), in which any applications filed by the parties with INDOT would be treated as if filed at the same time. Appellant has filed a brief opposing transfer. * * *

Being duly advised, the Court GRANTS transfer. Having accepted jurisdiction, the Court now SUMMARILY AFFIRMS the Court of Appeals’ decision. See Appellate Rule 58(A)(2). The Court additionally ORDERS INDOT to treat as concurrently filed any billboard permit applications it receives from the parties within three (3) business days of the date on which the Clerk certifies this order as final pursuant to Appellate Rule 65(E).

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Environment - "We don't need Ohio's environmental problems"

That is the heading to an editorial today in the Muncie Star-Press. Some quotes:

East Central Indiana is about to be the final destination of a nasty import from our friends in Ohio: hog manure.

We're already receiving the waste from hog operations in the Buckeye state. But manure-hauling trucks could become more abundant on our roads because Ohio officials want to ship their "product" to Indiana in order to protect Grand Lake St. Marys from poisonous blue-green algae.

What creates problems in Ohio is likely to create problems for Hoosiers, and the state needs to step in to protect our waterways from potential harm.

As detailed in Monday's Star Press article by Seth Slabaugh, Ohio's largest inland lake is being choked by algae. The lake covers 13,500 acres but it's shallow, averaging about 5-7 feet in depth. It's like a huge bird bath of warm water that's ideal for collecting nutrients and growing a toxic brew of algae. The blue-green stuff is poisonous to humans and animals if they come in contact with it. Runoff from Ohio farms that have applied hog manure as a fertilizer is being blamed for causing the algal growth. So Ohio's solution is to ship manure to Indiana, where we will be forced to accept it in the name of interstate commerce.

But Indiana needs to step up the regulations and oversight when it comes to how often and under what conditions manure can be applied to fields. Randolph County earlier suffered a fish kill when hog manure from Ohio was improperly applied, and another fish kill in that county this summer is under investigation by the Indiana Department of Environmental Management.

Nevertheless, East Central Indiana seems to have an abundance of Confined Animal Feeding Operations (CAFOs) that supply plenty of fertilizer. How much more can ECI safely accept?

We might be close to the saturation level now, at least in terms of our waterways.

Also be sure to see this August 29th opinion piece by Stacey Stumpf of the Fort Wayne Journal Gazette, headed "Death of a lake: Toxic algae closes Grand Lake St. Marys." Some quotes:
The sandy beaches at Grand Lake St. Marys should be crowded with sunbathers and swimmers soaking in the last rays of summer. Instead, the shoreline on a perfect summer day last week was packed with dead fish, dead ducks and fat carrion birds feasting on the rotting corpses. Ominous warning signs posted every few yards explain why the Ohio state park, which should be packed with visitors, is an eerie ghost town.

“This lake is dying,” said Sean Logan, director of the Ohio Department of Natural Resources, the agency responsible for the lake and the state park that surrounds much of Grand Lake St. Marys. * * *

Algae blooms are to blame. They are caused by too much phosphorus in the water, and a leading culprit for the source is uncontrolled agricultural fertilizer runoff. What overtook the lake were large blooms of cynobacteria, or blue-green algae. It’s the type of algae that produce neurotoxins, which affect the nervous system, and hepatoxins, which affect the liver. * * *

The lake – the source of the St. Marys River – and state park should be recreational treasures. * * *

The loss of a nearby recreational oasis is not the only reason residents across the state line should care about the algae infestation. Grand Lake St. Marys, built between 1837 and 1845 to feed the Miami-Erie Canal, is the largest inland lake in Ohio. The 13,500-acre lake was the largest man-made lake in the world when it was built. It is also the headwaters for two very important Indiana rivers: the St. Marys and Wabash rivers. * * *

Hoosiers should, however, be concerned by plans concocted by Ohio officials to clean up the unholy mess because the plan involves Indiana. A plan released July 30 by the Ohio departments of health, environmental management, natural resources and agriculture proposes hauling manure to Indiana for disposal. The cleanup proposal also calls for a ban on manure-spreading between December and March to reduce phosphorus runoff from feeding the algae. But the ban won’t kick in until March 2012, so Ohio residents will likely have to wait years before seeing improvement.

Bruno Pigott, assistant commissioner for the Indiana Department of Environmental Management, said he was not aware of Ohio’s cleanup plan.

“We have deep concerns,” said Barbara Sha Cox, of Indiana CAFO Watch. “I think IDEM should be very proactive and testing should be done on a regular basis of those tributaries. If Ohio has a problem, the solution is not bringing it (manure) into Indiana watersheds. The citizens of Indiana should be putting pressure on IDEM to test and make the results known to the public.”

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Environment

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

In Wickens and Shere v. Shell Oil (SD Ind., Judge Barker), a 25-page opinion, Judge Wood writes:

Though the parties’ voluminous filings might suggest otherwise, this case had humble beginnings and there is not much left of it at this point. Pamela and Daniel Wickens owned a small shoe store in Anderson, Indiana. The store rested on a plot of land that once had been used as a Shell gas station. In 2004, when the Wickenses began preparing to sell the store and retire, they received the unwelcome news that their store rested on a bed of contaminated soil.

Not long after, the Wickenses retained Mark Shere as their attorney and began talks with Shell regarding its liability for the contamination. Their discussions centered largely on Shell’s responsibilities under Indiana’s Underground Storage Tank Act (the “Act”or the “USTA”), Ind. Code § 13-23-13-8. This statute provides that any person who takes corrective action to remedy damage caused by an underground storage tank may obtain a contribution from the owner or operator of the tank. Ind. Code § 13-23-13-8(b). If the party taking corrective action brings a successful suit, she is also entitled to attorneys’ fees.

Dissatisfied with the outcome of those discussions, the Wickenses filed suit on March 24, 2005. Much legal wrangling followed, but eventually the parties hammered out a settlement agreement that resolved most of the lingering liability issues. Critically for our purposes, the agreement provided that the calculation of corrective action costs and attorneys’ fees would be left to the court.

The district court granted most, but not all, of the Wickenses’ requests for corrective action costs and attorneys’ fees. After the court issued its decision, Shere revealed for the first time that the Wickenses’ litigation team had been funded in part by Employers Fire Insurance Company (“Employers”). Shell quickly filed a Rule 60(b) motion to vacate, which the court denied. Both parties have appealed. We conclude that the district court made the best of a fractious situation and but for a small calculation mistake, we find nothing erroneous in its judgment. Thus, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion. * * *

Shere devotes a significant portion of his brief to contesting a number of the district court’s findings that portray him in a less than favorable light. But his request shows why we cannot do anything about this. He says, in his brief, that “this appeal also concerns pages of dicta, partially and ambiguously withdrawn, in which the district court gave scathing treatment to hardearned professional reputations. The undersigned respectfully requests that this Court vacate and remand the district court’s orders to allow this dicta to be corrected.” Even if the district court had formally found misconduct, an appeal is not the proper remedy. See, e.g., Seymour v. Hug, 485 F.3d 926, 929 (7th Cir. 2007) (explaining that attorneys can only appeal monetary sanctions). What Shere does not mention is that the district court was, in many places, equally critical of Shell’s approach to this case, and that it had some complimentary things to say about Shere. We sit to review judgments, not particular language in district court opinions, and Shere will have to be satisfied with our decision on the merits, which is largely favorable to him.

We REVERSE the district court’s judgment insofar as it miscalculated when it deducted Colleen Shere’s fees from Shere’s attorneys’ fees award and REMAND for further proceedings consistent with this opinion. We AFFIRM the remainder of the district court’s judgment.

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

Ind. Gov't. - "Make a break from prisons"

Updating this ILB entry from yesterday, the Indianapolis Star today editorializes:

If Indiana is out-performing its neighbors when it comes to government budgeting, as Gov. Mitch Daniels proclaims, there's at least one glaring exception to the rule.

While prison populations in surrounding states rose between 13 percent and less than 1 percent between 2000 and 2008, Indiana's inmate count skyrocketed by 41 percent. The cost of running the correction system leapt by 76 percent, to $679 million a year. By 2017, state officials say, the tab will be $1 billion.
Advertisement

It's no coincidence that a get-tough legislature has passed 117 laws since 2000 that serve to lengthen prison time, and not a single one that reduces sentences. Or that the Indiana criminal code hasn't been revised since 1974.

Determining what works, what conflicts and what's at odds with reality in the code is a major part of a county-by-county study by state government along with the Pew Center on the States and the Council of State Governments. Those groups helped several states, including hard-nosed Texas, with efforts to reduce costs while improving public safety. As The Star's Vic Ryckaert pointed out in a report Monday, Texas saved $2 billion in one shot by abandoning a plan to add 17,000 prison beds.

The keys to fighting inefficiency without surrendering to crime are realistic sentencing and alternatives to incarceration. Both will require hard study and political courage as lawmakers and the governor confront a public conditioned to throw-away-the-key rhetoric.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Indiana Government

Ind. Decisions - Tax Court issues NFP opinion today

In Dora Brown, Ben Kindle, and Sonjia Graf v. Dept. of Local Government Finance (NFP)m a 15-page opinion, Judge Fisher writes:

Dora Brown, Ben Kindle, and Sonjia Graf (the Petitioners) appeal the final determination of the Department of Local Government Finance (DLGF) approving, in part, the Gregg Township [Morgan County] Board's (Board) loan resolution for the 2009 tax year. The Petitioners allege that the DLGF's final determination is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and contrary to law. * * *

The DLGF's final determination not only fails to address this evidence, it fails to address the claim whatsoever. * * * Accordingly, the Court remands the matter to the DLGF so that it may determine what portion of the overall loan amount accurately reflects the fire department's provision of ambulance service to the Township.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 28 NFP)

For publication opinions today (1):

In Timothy Hamby, et al. v. Board of Zoning Appeals . an 11-page opinion, The BZA granted applicants a variance to erect a residential wind turbine. Howowners appealed. Judge Brown writes:

The sole issue is whether the trial court erred in denying Homeowners' claim for declaratory relief. To so decide, we are required to interpret provisions of the Comprehensive Zoning Ordinance for Warrick County, Indiana (the “Comprehensive Ordinance”). * * *

We do not believe that the “customary in connection with” requirement for an accessory use structure should be construed so as to prevent the implementation of new technologies in residential districts. Indeed, if, as Homeowners contend, the definition requires that the intended use be demonstrated as a “habitual practice,” this would preclude improvements in the standard of living since innovations in the production of energy and other technologies could not have been “established by custom; usual or habitual” at the time of the adoption of the Comprehensive Ordinance. Such a requirement would be contrary to public policy. We also note that Homeowners do not specify whether a “habitual practice” be confined to that by the Applicants' neighbors, to that within Warrick County more generally, or whether we should take a broader view. Moreover, Homeowners, as plaintiffs and appellants, have the burden of proof, and they do not include any evidence in the record to demonstrate that residential wind turbines are uncommon (or not customary) in Warrick County.

Also, although we acknowledge that homes have historically received electricity from a power company via a power plant, we recognize that state and federal governments have made it a priority to encourage the implementation of renewable energy technologies such as wind power. * * *

Because we construe a zoning ordinance to favor the free use of land and will not extend restrictions by implication, see Saurer, 629 N.E.2d at 898, and because the Comprehensive Ordinance under R-2 permits accessory use structures, we conclude that a residential wind turbine that meets all of the other requirements of the Comprehensive Ordinance is a permitted use in the R-2 zoning district.

NFP civil opinions today (11):

James R. Meier, et al. v. Homeowners of Mallard's Landing, Inc. (NFP)

James Wright, et al. v. Camaro Costello, et al. (NFP)

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

Lori A. Deardorff (Tilden) v. Kevin L. Deardorff (NFP)

Dennis and Lisa Morrow v. Walter and Lois Kucharski (NFP)

James T. Parado v. Maria J. Parado (NFP)

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

Max Jacobus, et al. v. Peggy L. Proffitt (NFP)

Term. of Parent-Child Rel. of L.R.; A.W. v. IDCS (NFP)

W.G. v. Review Board (NFP)

Pioneer Auto Truck Sales, Inc. v. Dolores Burch (NFP)

NFP criminal opinions today (17):

John Ray Henry v. State of Indiana (NFP)

Timothy William Woolum, Jr. v. State of Indiana (NFP)

Christopher Ostack v. State of Indiana (NFP)

William J. VanHorn v. State of Indiana (NFP)

Brandon L. Lewis v. State of Indiana (NFP)

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

Emily Meyer v. State of Indiana (NFP)

Grante Fricklin v. State of Indiana (NFP)

Charles E. Hubbard v. State of Indiana (NFP)

James R. Cook v. State of Indiana (NFP)

Justin Sparks v. State of Indiana (NFP)

Finnegan J. Coley v. State of Indiana (NFP)

Timothy Treacy v. State of Indiana (NFP)

Stevie W. Davis v. State of Indiana (NFP)

Kevin H. Griffith v. State of Indiana (NFP)

Ovidio Rosario v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Requests from courts are "just one more area that is going to be hard to address during this upcoming long and difficult budget time"

Kathy Kreag Richardson, State Representative District 29, has a column dated August 28th in The Times ("serving Noblesville and Hamilton County"), titled "My time on the Commission on Courts." Some quotes:

As I drove down to the Statehouse last week for one of my summer study committee meetings, knowing that our agenda was going to deal with counties requesting additional court officials, I realized this is just one more area that is going to be hard to address during this upcoming long and difficult budget time.

The Commission is made up of House and Senate Members, Chief Justice Randall Shepard, a County Judge, Circuit Court Clerk, County Commissioner and Council member. It is a Commission I have been honored to serve on, and I have witnessed many issues during my time as a member, both as a clerk and then as a representative.

The main purpose of the Commission on Courts is to review and recommend which additional court officials are needed for counties. These could be new courts, judges or magistrates.

Over the years the State Court Administration has provided us with various statistics to assist in our decision making, but generally it is a matter of county judges coming and pleading their case for the needs of their county.

You see, the state pays the salary and benefits of the judges and the magistrates, so these positions must be created and passed by the legislature. County Commissioners are responsible for providing the facilities, and County Councils fund the actual operations, staff and benefits.

The state receives many of the fees collected to use toward the payment of the salaries and your property taxes goes to pay for the local share of the expenses.

At our meeting we reviewed requests from Johnson, Bartholomew, Allen and Hamilton County. Frankly, as we listen to their presentations, all of us on the committee knew that no matter how great the need, the revenue is not there for any additional court officers at this time.

The difficult part of all of this is that in a time when the economy is down and unemployment is high, the court filings seem to go up-whether it is foreclosures, crime, or divorces.

So the needs of the court become greater when the economy is down, but when the economy is down, the resources are just not there to fund new courts. * * *

The next (and final) meeting for the Commission on Courts is September 23, when we will make final decisions on the issues before us. As we did last year, if a court convinces us of their need, we will make a recommendation that they be approved if funding was available.

At the very least, this will put a county in need at the head of the list, should funds become available.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Indiana Courts | Indiana Government

Courts - "NY Times Series on Civil Commitment and Sex Offenders"

Sex Crimes, "a blog devoted top the criminal laws regulating and punishing sexual violence," yesterday featured a "multimedia New York Times series discussing sex offenders and civil commitment" from 2007.

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Courts in general

Ind. Courts - More on: Tippecanoe County judges pull plug on cell phone use

Updating yesterday's ILB entry, Sohia Voravong of the Lafayette Journal Courier has a follow-up story today headed "Some grumble at courthouse's cell phone rules." Today's story concludes:

Security bailiffs on Monday did have to rewarn some people who turned their phones back on after passing through screening.

But complaints were few, they said.

Tippecanoe Circuit Court Judge Don Daniel said he received one complaint. It was from a Crawfordsville attorney who used the public entrance.

The new policy exempts attorneys and courthouse staff who use the private entrances -- accessible only by a card -- on Third and Fourth streets.

"She was upset that she couldn't look at her calendar," Daniel said. "Out-of-town attorneys aren't given the same access points as local attorneys. Next time, I will tell her -- and other attorneys -- that she is allowed to turn her cell phone on."

Posted by Marcia Oddi on Tuesday, August 31, 2010
Posted to Indiana Courts

Monday, August 30, 2010

Ind. Courts - Still more on: Finally a U.S. attorney nomination for the SD Ind?

Here is the 64-page questionnaire Mr. Hogsett has submitted to U.S. Senate Committee on the Judiciary. Legal career information begins on p. 44.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court rules on long-pending challenge to FSSA to increase Medicaid reimbursement rates for transportation expenses

The Supreme Court issued a per curiam decision in a long outstanding appeal late this afternoon. Oral arguments were held Nov. 19, 2007. Here is the summary for the oral argument, which was held nearing three years ago:

Mitchell Roob v. Jannis Fisher - In this 42 U.S.C. § 1983 action by providers and recipients of Medicaid-provided transportation, the Marion Superior Court ordered that transportation reimbursement rates be increased. The Court of Appeals initially reversed, holding neither providers nor recipients have a private right of action under § 1983. On rehearing, however, the Court of Appeals affirmed in part, finding the State had conceded that recipients have a private right of action. Roob v. Fisher, 856 N.E.2d 723 (Nov. 8, 2006) [see ILB entry here - 5th case], on rehearing, 866 N.E.2d 781 (Ind. Ct. App. May 21, 2007) [see ILB entry here]. The defendants have petitioned the Supreme Court to accept jurisdiction over the appeal.
And what was the decision today? The Supreme Court's unsigned, 7-page, 4-0 opinion, with J. Sullivan not participating, provides:
The trial court ordered the State’s Medicaid agency, the Indiana Family and Social Services Agency (“the State”) to increase Medicaid reimbursement rates for transportation expenses. The Court of Appeals reversed in part and affirmed in part, and remanded to the trial court for further proceedings in Roob v. Fisher, 856 N.E.2d 723 (Ind. Ct. App. 2006), reh’g granted, 866 N.E.2d 781 (Ind. Ct. App. 2007). The case is before us on the State’s petition to transfer. As explained below, we grant transfer and remand for further proceedings. * * *

Under all the circumstances of this protracted dispute over Medicaid reimbursement rates, we conclude the State invited any court error with respect to the right of Recipients to sue for relief in this case. * * *

We acknowledge the State’s argument that the rights of Medicaid recipients may have been in a state of flux at the time the State filed its trial court brief in 2004, but the issue appears to have been in play by that time, and federal circuit courts of appeal began issuing decisions applying Gonzaga before the State filed its opening appellate brief. Accordingly, the State will be held to its concession that Recipients have a private right of action in this case.

Having concluded that Recipients’ suit in this case may proceed, the next matter is the relief, if any, to which they are entitled. * * *

In short, the evidence before the trial court does not directly address (or redress) the Recipients’ claim.

Therefore, we remand the case to the trial court with instructions to allow Recipients to present evidence establishing the transportation to which they may be entitled by Section 30(A), that they have been or will be denied the services to which they are entitled, and what relief they are due. Inasmuch as Recipients’ claim remains alive as a result of the equitable doctrine of “invited error,” we balance the equities and conclude that any relief, injunctive or otherwise, be prospective only. If a class of Recipients is certified and their claims are proved, they will be entitled to prospective relief from the date of the certification order.

Accordingly, we grant transfer, summarily affirm the Court of Appeals’ holding that Providers do not have a private right of action, and remand for further proceedings as outlined above.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "COA upholds Terry Lay convictions"

So reports the Evansville Courier & Press this afternoon, in re the COA decision this morning in the case of Terry Gene Lay v. State of Indiana (ILB summary here). The report begins:

The Indiana Court of Appeals on Monday upheld the conviction of Evansville resident Terry Lay, who was found guilty of beating his 3-year-old son Kalab to death in 2008.

Lay's attorneys contested the trial judge's decision to allow Lay's wife, Amanda Brooks Lay, to waive marital privilege and testify against Terry Lay during the September 2009 trial.

The attorneys also challenged whether the state "provided sufficient evidence to sustain Lay's conviction for neglect of a dependent resulting in serious bodily injury" in regards to Lay's conviction in a case involving Kalab's twin sister Kayla, and whether the "abstract of judgment violates the constitutional prohibition against double jeopardy."

The appeals court rules against Terry Lay on all three issues.

“In any case involving the horrific and senseless death of a young child, it is important that the prosecution and trial be conducted correctly the first time," said Attorney General Greg Zoeller, who represented the state in the appeal. "We aggressively defended the earlier actions taken by the prosecutor and the judge and have believed that defendant’s trial was fair, and that’s what the Court of Appeals has unanimously found as well."

Here is a long list of earlier ILB entries on the Kahlib Lay death.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Blood draw law might benefit from another look by the legislature

This ILB entry from August 23rd concluded:

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.

My thoughts: I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.

Today the Indianapolis Star's Jon Murray writes in his blog, Justice Watch:
Terry Curry, the Democratic candidate for Marion County prosecutor, called a news conference this afternoon to question Prosecutor Carl Brizzi's decision to dismiss DUI-related charges against IMPD officer David Bisard in a fatal crash with motorcyclists. Curry said it's possible Brizzi and his deputies misread Indiana's implied consent law, which governs the admissibility of blood and breath tests in drunken-driving cases. But he wouldn't go so far as to say Bisard's blood test is admissible in court. "We believe it's appropriate to let the court decide its admissibility," said Curry, who is running against Republican Mark Massa.
Reporter Murray ends his entry:
One point on which the two men can agree: There's a hole in the law, and the legislature should fix it. Curry says he has conferred with state Rep. Ed DeLaney, D-Indianapolis, and DeLaney plans to review the issue and submit legislation next year if needed. The General Assembly amended the law this year in response to a court case that found a hospital-conducted blood draw inadmissible, but that change doesn't appear to have direct bearing on the facts of the Bisard case. "The General Assembly in January needs to take a good, hard look at how this statute is laid out," Brizzi said. "The (appeals court) cases are clear that because it wasn't done at a hospital and it didn't fit into any of the exceptions, it's not (admissible)."

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Indiana Law

Environment - BP refinery apparently not "good neighbor" in Texas

"With Neighbors Unaware, Toxic Spill at a BP Plant" is the headline to a story today in the NY Times reported by James C. McKinley, Jr., and datelined Texas City., Texas. The long story begins:

While the world was focused on the oil spill in the Gulf of Mexico, a BP refinery here released huge amounts of toxic chemicals into the air that went unnoticed by residents until many saw their children come down with respiratory problems.

For 40 days after a piece of equipment critical to the refinery’s operation broke down, a total of 538,000 pounds of toxic chemicals, including the carcinogen benzene, poured out of the refinery.

Rather than taking the costly step of shutting down the refinery to make repairs, the engineers at the plant diverted gases to a smokestack and tried to burn them off, but hundreds of thousands of pounds still escaped into the air, according to state environmental officials.

Neither the state nor the oil company informed neighbors or local officials about the pollutants until two weeks after the release ended, and angry residents of Texas City have signed up in droves to join a $10 billion class-action lawsuit against BP. The state attorney general, Greg Abbott, has also sued the company, seeking fines of about $600,000.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Environment

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

In US v. Howard (ND Ind., Springmann), a 13-page opinion, Judge Kanne writes:

Jennifer Howard was convicted of access device fraud, wire fraud, mail fraud, and aggravated identify theft. She now appeals her convictions for wire fraud and mail fraud claiming that there was insufficient evidence to support the jury’s finding that she had the specific intent to defraud two of the victims identified in the superceding indictment. We affirm.
In Runyon v. Applied Extrusion (SD Ind., McKinney), an 11-page opinion, Judge Wood writes:
Timothy L. Runyon worked for Applied Extrusion Technologies, Inc. (“Extrusion”), for about a year, from February 2005 until February 2006. Extrusion is a manufacturer of plastic film. Runyon worked in one of its Terre Haute plants as a support operator in the finishing area. From the start, he had a turbulent relationship with his co-workers. After several heated disputes, Extrusion decided to fire him. Because it did not take similarly harsh action against a younger employee, Troy Corbett, even though Corbett had also misbehaved, Runyon concluded that the company had discriminated against him on the basis of his age and brought an action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. The case went to trial, but at the close of Runyon’s case-in-chief, the district court granted judgment as a matter of law in Extrusion’s favor. We have looked at the record de novo, and, like the district court, we can find no evidence that Extrusion’s action was motivated by Runyon’s age. See Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2352 (2009). We therefore affirm.

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

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Terry Gene Lay v. State of Indiana , a 10-page opinion, Judge Kirsch writes:

Terry Gene Lay (“Lay”) was convicted of neglect of a dependent resulting in serious bodily injury, a Class B felony, neglect of a dependant resulting in death, a Class A felony, reckless homicide, a Class C felony, and he admitted to being an habitual offender. Lay appeals, raising the following restated issues:

I. Whether the trial court abused its discretion when it allowed Lay's wife (“Amanda”) to waive her marital privilege and testify against Lay;
II. Whether the State provided sufficient evidence to sustain Lay's conviction for neglect of a dependant resulting in serious bodily injury, a Class B felony, in regard to his daughter, Ky.L.; and
III. Whether the abstract of judgment violates the constitutional prohibition against double jeopardy.

We affirm. * * *

Lay argues that the trial court erred when it allowed Amanda to testify against him in contravention of the marital privilege. Further, Lay maintains that the State coerced Amanda into waiving the marital privilege and testifying against him. The State asserts that Lay has waived the issue of marital privilege on appeal. We agree.

Prior to trial, Lay filed a motion in limine to prohibit the State from eliciting confidential marital communications from his wife. Prior to Amanda's trial testimony, the trial court held a hearing on the motion and determined that Amanda's waiver of the marital privilege was voluntary and not coerced as alleged and permitted her to testify against Lay. During the trial, Lay failed to raise any objections to Amanda's testimony on the ground that her testimony violated the marital privilege.

Our Supreme Court has observed: "Only trial objections, not motions in limine, are effective to preserve claims of error for appellate review. * * * "

Waiver notwithstanding, the trial court did not abuse its discretion when it allowed Amanda to testify against Lay. The trial court has broad discretion to admit evidence, and the trial court's ruling regarding the admissibility of evidence will be reviewed on appeal only for an abuse of that discretion.

In Alphonzo Fisher v. State of Indiana , a 13-page opinion, Judge Friedlander writes:
In this interlocutory appeal, Alphonzo Fisher challenges the trial court’s denial of his motion to discharge. Fisher presents two issues, which we consolidate and restate as: Did the trial court improperly deny his motion to discharge? We reverse. * * *

In sum, the answer to the question presented in this case is: yes, the State has an affirmative duty to pursue prosecution of Fisher and such duty derives from a defendant’s right to a speedy trial as guaranteed under the Sixth Amendment of the United States Constitution and article 1, section 11 of the Indiana Constitution. As set forth above, our balancing of the Barker factors under the facts of this case leads us to conclude that Fisher’s constitutional right to a speedy trial was violated. Fisher is entitled to relief. We therefore reverse the trial court and remand with instructions to dismiss the underlying action against Fisher.

NFP civil opinions today (4):

Lake Hellene, Inc., et al. v. The Charter Oak Fire Insurance Company, et al. (NFP)

Dan Fry, et al. v. Wilma Sutherlin Hadley (NFP)

Ernest Lansford, III v. Allstate Insurance Company, et al. (NFP)

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

NFP criminal opinions today (4):

Carl Lee Gary v. State of Indiana (NFP)

James B. Perigo v. State of Indiana (NFP)

Richard L. Cripe v. State of Indiana (NFP)

Reymond Barnett v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "What fuels fraud? Classic reasons underlie most embezzlement cases"

A long, interesting story today in the South Bend Tribune, reported by Dave Stephens, begins:

Imagine a triangle. One side is pressure. Another is opportunity. The third is rationalization. It's called the fraud triangle, and the way it explains embezzlement is uncanny.

Pressure: Your home is in foreclosure; your spouse is sick; your gambling habit has turned to full-blown addiction.

Opportunity: You're the treasurer of your church and everyone trusts you; you work for a company that's so sloppy with its paperwork, no one really knows how the money is being spent; your boss put you in charge of the finances and never asks questions.

Rationalization: You work long hours and deserve the extra pay; it's been a bad month, you'll just repay into the account next time; they'll never know it's missing.

Sgt. Dominic Zultanski knows all about the fraud triangle. It's the basic formula the lead financial investigator for the South Bend Police Department says he sees in the majority of the crimes he investigates.

It happens any time someone lets one side of the triangle — too much pressure, too much opportunity, too much rationalization — determine how they're going to act around someone else's money.

"It's a combination of all those things," Zultanski said. "How can I rationalize it? Is there enough pressure? Enough opportunity? It all boils down to how much a person can justify it to themselves."

The formula is so simple, so pervasive, that it's taught in business classes and has its own entry on Wikipedia.

It's so simple, so pervasive, that people, even very smart people, forget all about it, until it's too late.

Until, after the pyramid comes crashing down, the money's already gone.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Indiana Law

Ind. Decisions - Combined medical malpractice verdicts could tap $90M from state fund

Mark Taylor of the Gary Post-Tribune reported August 29th in a long story that begins:

Friday's $300,000 jury verdict in the first medical malpractice lawsuit to go to trial against ear, nose and throat specialist Dr. Mark Weinberger was not huge by Indiana standards.

The maximum allowable payout under Indiana's malpractice statute is $1.25 million, so the award to plaintiff William Boyer was far below that limit.

However, Boyer, a 58-year-old Gary heavy equipment operator, had no permanent injuries from the unnecessary surgery Weinberger performed on him, so some attending the weeklong trial in Lake Superior Court in Hammond expected a smaller verdict.

What is consequential is that Weinberger faces another 357 medical malpractice lawsuits. Most of those cases involve allegations of unnecessary surgery, needed surgery that was not performed or surgery that was poorly performed. At least 20 of those cases have already received opinions of medical malpractice from three-doctor medical review panels, a key step in the state's medical malpractice process.

That could mean that if all of the claims against Weinberger go to trial and result in similar verdicts -- an unlikely scenario because most cases will either be settled or dismissed before going to trial -- the fund could face liability of nearly $90 million.

In 2009, the fund paid a total of 150 malpractice claims for $108,438,141, down slightly from 2008, when it paid 154 claims for $109,809,087.

Can the fund afford to absorb such a financial hit?

Tina Korty, an attorney and the deputy commissioner of the Indiana Department of Insurance, which administers the fund, said it can. Its cash reserves exceed $180 million.

"The patient compensation fund is sound financially," Korty said.

The sheer number of lawsuits and the liability exposure those suits represent to the fund is why it sent Korty and an outside attorney to attend the trial all week.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Tippecanoe County judges pull plug on cell phone use

Sophia Voravong reported in the August 29th Lafayette Journal Courier:

The good news, for people who fear not being able to contact employers, friends or family: Cell phones won't be banned from the Tippecanoe County Courthouse for now.

The not-so-good news for that crowd: Beginning Monday, cell phones must be turned off once courthouse visitors step inside. That includes courtrooms, offices and hallways.

The policy was adopted Thursday during a monthly meeting for Tippecanoe County's judges.

"From my point of view, there were several trials recently where cell phones were not just a distraction but a potential danger," said Judge Thomas Busch of Tippecanoe Superior Court 2. He presides over cases involving major felonies.

"This is the easiest point of control."

Specifically, people going through the public entrance on Columbia Street must switch off their phones in front of security bailiffs there. Two handwritten signs that read "Turn cell phones off!" went up Friday afternoon.

Attorneys, courthouse staff and others who use the private entrances on Third Street and Fourth Street will be exempt, Busch said.

The policy comes about two months after the Tippecanoe County Sheriff's Office, which is ultimately responsible for courthouse security, decided to review whether cell phones should be banned courthouse-wide, largely due to security concerns.

The main concern is picture- taking. Even basic cell phones can take pictures and sometimes video.

During a Superior Court 2 trial in May for a man charged with dealing cocaine, security bailiffs learned that someone may have taken photos of jurors with his cell phone. * * *

Recently, Judge Michael Morrissey of Tippecanoe Superior Court 6 stopped someone seated in the gallery who was videotaping a hearing. Superior 6 is one of Tippecanoe County's high-volume courts, handling traffic infractions, misdemeanors and some lower-level felonies.

"I've also had people answer their cell phones during hearings," Morrissey said. "I tell them, if they need to use their phones, they need to go in the hallway. ... Statewide, the movement has been toward (looking at) bans."

The Allen County Courthouse in Fort Wayne was the first in Indiana to ban cell phones from the building, beginning in November 2006. Steuben County, also in northeast Indiana, soon followed suit.

Morrissey said the decision to require that cell phones be turned off was deemed a less intrusive option.

If a ban was adopted at the Tippecanoe County Courthouse, visitors most likely would have to return their cell phones to their homes or vehicles. That's the policy currently in place for contraband, such as knives and even hairspray.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Indiana Courts

Ind. Courts - "Jeffersonville official Peggy Wilder ordered to use ignition interlock device"

Ben Zion Hershberg reported in the Louisville Courier Journal on August 27th:

At her initial court hearing Friday on a drunken driving charge, Jeffersonville Clerk-Treasurer Peggy Wilder was ordered to use an ignition interlock device that prevents her vehicle from starting if there’s alcohol on her breath.

Superior Court Judge Joseph Weber also entered a not guilty plea for Wilder and set a pre-trial conference for Oct. 21.

Wilder and Brad Jacobs, her lawyer, said they were comfortable with the court’s decisions and look forward to getting the drunken driving charge and Wilder’s pending conversion case resolved as soon as possible.

The conversion charge, a misdemeanor, alleges that Wilder used city credit cards to make personal purchases.

“I do plan to stay in office,” Wilder told reporters after Friday’s brief hearing.

The Jeffersonville City Council has passed a resolution asking Wilder to resign because of her legal issues, but Wilder is an elected official and the council cannot force her from office. Also, the charges against her are misdemeanors, which do not require resignation.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Alleged half-sister must prove relationship for claim to millions"

Friday, August 27th's COA decision in Victor C. Regalado v. Estate of Joseph Regalado (ILB entry here) was the subject this weekend of a story by Dan Carden of the NWI Times. It begins:

The Indiana Court of Appeals on Friday overturned a Porter County judgment and said the alleged half-sister of a man awarded a multimillion settlement following a beating by Chicago police must prove she's entitled to a portion of his estate.

In its 3-0 decision, the appeals court said there is a genuine issue of material fact as to whether Paula Heffelfinger is the half-sister of Joseph Regalado. The court said Heffelfinger must prove the relationship in order to be a legitimate heir.

According to court records, Regalado received $15 million from the city of Chicago for injuries suffered in 1991 after two police officers struck him in the head with either a baton or flashlight. He died in 2004 without a will.

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "ACLU of Ohio produces major report on prison growth and problems"

In this August 18th ILB entry, I asked what was happening with the Indiana Pew report project.

Today Vic Ryckaert of the Indianapolis Star has a lengthy, front-page story on Indiana's slow effort at a change in course. It begins:

For decades, Indiana's answer to crime has been to adopt tough new laws and strict sentencing policies to make sure offenders stay behind bars.

Since 2000, the legislature has passed 117 criminal laws or penalty enhancements. In the same time, Indiana lawmakers have passed not one measure that reduces a prison sentence.

The result: Indiana's prison population has jumped by more than 40 percent, and the cost of running the prisons has soared by 76 percent, to $679 million a year.

By 2017, Indiana Department of Correction officials say, the cost will balloon to more than $1 billion.

At a time when Indiana faces ever-deepening budget problems, building more prisons isn't the answer, said DOC Commissioner Ed Buss. He is leading a push by the administration of Gov. Mitch Daniels to rein in the cost of the state's prison system by changing the way felons are dealt with after sentencing.

No specific proposals are on the table, but these are among the possible options:

» Increasing the number of felons on probation.

» Creating more programs such as home monitoring and work-release.

» Setting up more drug and alcohol counseling.

The effort will require an overhaul of the state's criminal justice system and could face a tough sell in a state long known for a strong anti-crime policy. Some advocacy groups already are speaking out against any effort to reduce penalties or to make it easier for felons to go on probation.

But Buss and several key legislators hope to sell an overhaul as a cost-cutting measure. They point to successes in Ohio and Texas -- another state known for being tough on crime -- in reducing costs by keeping fewer people in prison.

The minutes of the July 28, 2010 meeting of the legislative interim Criminal Code Evaluation Commssion are now available online. They are well worth reading. Here are some quotes:

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending August 27, 2010

Here is the Clerk's transfer list for the week ending August 27, 2010. It is two pages (and 23 cases) long.

One transfer was 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.

Over 6.5 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, August 30, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/30/10):

Thursday, September 2nd

Next Thursday, September 9th

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/30/10):

Tuesday, August 31st

Next week's oral arguments before the Court of Appeals (week of 9/6/10):

Next Wednesday, September 8th

Next Thursday, September 9th

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

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

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

Posted by Marcia Oddi on Monday, August 30, 2010
Posted to Upcoming Oral Arguments

Sunday, August 29, 2010

Courts - More on "Lawsuit seeks to change how Kansas Supreme Court judges are appointed"

Updating this ILB entry from August 27, 2010, here is the complaint filed in USDC, District of Kansas on August 25th, and the supplemental brief in support of the Joint MOTION for Temporary Restraining Order and Preliminary Injunction filed by plaintiffs. Here are some quotes from the complaint:

1. This is a facial and as-applied challenge to the constitutionality of the Kansas Constitution, Article III, Section See), and to Kansas Statutes Sections 20-119 through 20-123, under the Fourteenth Amendment to the Constitution of the United States.

2. Plaintiffs challenge Kan. Const. art. III, § See) and Kan. Stat. §§ 20-119 to -123 because the system they establish excludes Kansas voters from participation in the election of the Chainnan and Attorney Members of the Kansas Supreme Court Nominating Commission and, therefore, denies Kansas voters the right to equal participation in the selection of the Justices of the Kansas Supreme Court and denies them the right to vote for these officials.

3. Plaintiffs challenge the system for selecting Supreme Court Justices in Kansas with respect to the composition of the Kansas Supreme Court Nominating Commission. The Commission is given the power to select the nominees for vacant positions on the Kansas Supreme Court, as well as on the Court of Appeals. Kan. Const. art. III, § Sea); Kan. Stat. §§ 20- 132,30-3004. The Governor must select one of the Commission's three nominees to fill a vacancy. Kan. Const. art. III, § Sea). If the Governor fails to make an appointment from the Commission's list, the chief justice of the Kansas Supreme Court is given the power to make the appointment from the list. Id. § S(b). Invariably, one of the three nominees selected by the Commission will become a justice or judge in Kansas, so that the Commission determines the composition of the judiciary in Kansas. Five of the nine members of the Commission are elected exclusively by the members of the bar of Kansas. Kan. Stat. §§ 20-119, -120. This restricted election denies the citizens of Kansas the right to vote and the right to participate equally in the selection of justices and judges in Kansas. * * *

14. Defendants Kerry E. McQueen, Patricia E. Riley, Matthew D. Keenan, and Jay F. Fowler are the four attorney members of the Kansas Supreme Court Nominating Commission.

15. The four attorney members are selected from each congressional district in Kansas through an election limited to the members of the bar of Kansas who are residents of the relevant congressional district and licensed to practice law in Kansas. Kan. Const. art. III, § 5( e); Kan. Stat. § 20-120. * * *

23. The composition of the Commission is set forth in the Kansas Constitution as follows:

One member, who shall be chairman, chosen from among their number by the members ofthe bar who are residents of and licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district.
* * *

25. At all times, provided there are no existing vacancies, five of the nine members of the Commission are members of the Kansas bar. Kan. Stat. § 20-127.

26. The five bar members exercise majority control over the selection of nominees for vacant positions on the state courts of Kansas.

27. Five members of the Commission, that is, the Chairman and four Attorney Members are elected exclusively by the members of the bar in Kansas. Kan. Const. art. III, § 5( e), Kan. Stat. Ann. §§ 20-119, -120.

You'll have to read the 20-page complaint yourself in order to try to understand why the plaintiffs say the Kansas system is unconstitutional.

How does this match-up with Indiana?

The Kansas structure is similar to the Indiana system, with some significant exceptions. Indiana's Judicial Nominating Commission has seven members, three lawyers elected by lawyers, three laymen appointed by the Governor. But in Indiana the chair is the Chief Justice, not another lawyer elected by the bar. The CJ is a lawyer, but is subject to retention by the voters.

As with Kansas, Indiana's constitution provides that if the Governor rejects the entire panel of three nominees, the Chief Justice makes the selection from the list of three nominees. In Kansas, however, the CJ is not a part of the Commission, so the CJ would have had no part in the initial nomination, whereas in Indiana the CJ chairs the Commission. . .

Posted by Marcia Oddi on Sunday, August 29, 2010
Posted to Courts in general

Saturday, August 28, 2010

Ind. Gov't. - "Show us the IPS numbers"

Last year this time the ILB had several entries under the heading "The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it."

This year the budget is higher, $509, but the facts are the same. As the Indianapolis Star editorializes today:

In a 5-2 vote Thursday that took place after only 15 minutes of discussion, the board approved a $509 million 2011 budget for the state's largest school district. The two board members who voted against the proposal complained, and rightly so, that they weren't provided with adequate time or details to make an informed decision.
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It's not a new complaint. Longtime member Kelly Bentley, a past president of the board and a well-regarded leader in the community, objected last year to a lack of transparency in how the budget was put together and reviewed. IPS Superintendent Eugene White dismissed Bentley's concerns.

White was similarly dismissive this year after Annie Roof, who took office July 1, asked for the district's entire budget to be posted online so the public could review it ahead of the board's vote. Instead, a four-page summary was posted.

"A board member can ask for it, but I work for the whole board," White said. "The whole board didn't ask for it."

Actually, White, although hired by the board, works for the public. And members of the public have a right to review a document that details exactly what they're paying for.

As elected leaders, board members also have an obligation to dig into the details of the budget. That's almost impossible to do, however, given the speed of the process and the lack of information provided to board members. "From the beginning, I haven't felt like the process has been slow enough or transparent enough for me," Roof said.

The other "No'' vote also came from a new board member who said she was disappointed with the process. "We need all the information so we can make the best decisions for our children,'' said Samantha Adair-White, a member of the board for less than two months.

IPS' leaders are entrusted with more than a half-billion dollars a year to run the school system. Even more important, they're entrusted with providing the best education possible to about 30,000 children. Those leaders must be amenable to public review of their work.

Yet, something is seriously wrong when even members of the School Board can't get information they want and need.

Posted by Marcia Oddi on Saturday, August 28, 2010
Posted to Indiana Government

Friday, August 27, 2010

Ind. Courts - Mark Dinsmore named U.S. Magistrate

Mark J. Dinsmore has been selected United States Magistrate Judge for the Southern District of Indiana at Indianapolis, filling the resulting from Magistrate Judge Jane E. Magnus-Stinson's confirmation to the United States District Court.

Here is a biography currently on Barnes & Thornburg's website:

Mark J. Dinsmore is a partner in Barnes & Thornburg LLP’s Indianapolis, Indiana office. Mr. Dinsmore represents clients in litigated matters throughout the United States. His practice concentrates in the areas of complex commercial disputes and construction litigation matters, as well as media law issues. Mr. Dinsmore has extensive experience in the use of technology to facilitate the management of complex matters and chairs the firm’s Litigation Department Technology Committee. He has also represented clients in international and domestic arbitrations, including the arbitration of a matter arising from the civil war in Bosnia and Herzegovina.

Mr. Dinsmore graduated magna cum laude from the University of Toledo College of Law in 1994. While attending law school, he served as lead articles editor of the University of Toledo Law Review and was named the Outstanding Law Graduate. Mr. Dinsmore received his A.B. in economics from Wabash College in 1983. He is admitted to practice in the state of Indiana, the United States District Courts for the Northern and Southern Districts of Indiana, and the United States Court of Appeals for the 7th Circuit.

Prior to joining Barnes & Thornburg, Mr. Dinsmore served as a law clerk for the Honorable John Daniel Tinder, judge of the United States District Court for the Southern District of Indiana. Before attending law school, he served as a captain in the United States Army in, among other places, the Republic of Korea.

Mr. Dinsmore also serves as treasurer of the board of directors of Indiana Legal Services, Inc., and is a member of the board of directors of the Heartland Pro Bono Council.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court issues one disciplinary opinion

From In the Matter of: Anonymous, a 6-page, per curiam opinion:

We find that Respondent engaged in attorney misconduct by improperly revealing information relating to the representation of a former client. For this misconduct, we find that Respondent should receive a private reprimand.
This language deals with the formation of an attorney-client relationship:
Respondent's revelation of the information at issue was a violation of Rule 1.9(c)(2). Respondent argued to the hearing officer that AB initially gave her the information at issue for the purpose of seeking personal rather than professional advice and only later phoned her again to ask for an attorney referral. Thus, she argued, the information was not confidential when AB first disclosed it to her, subsequent events did not change its nature, and she violated no ethical obligation in later revealing it.

The first January 2008 phone conversation did not include discussion of the possibility of forming an attorney-client relationship. If AB's communication with Respondent had ended with that phone call, revelation of the information at issue would not have been a violation of Respondent's ethical duties. "A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a 'prospective client' within the meaning of paragraph (a)." Ind. Prof. Cond. R. 1.18 cmt. [2].

The information at issue, however, was disclosed to Respondent not long before the second call in which AB asked for an attorney referral and Respondent recommended an attorney from her firm. At that point, if not before, AB became a prospective client under Rule 1.18. The formation of an attorney-client relationship with Respondent's firm followed immediately thereafter, and the information at issue was highly relevant to the representation. Respondent then revealed the information with knowledge that her firm had been retained to represent AB in the matter. Under these circumstances, we conclude that once AB became a prospective client, the information became subject to the confidentiality protections of the Rules.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Victor C. Regalado v. Estate of Joseph Regalado , a 22-page opinion, Judge Vaidik writes:

Joseph James Regalado received a fifteen million dollar settlement from the City of Chicago in 2000 and died intestate in 2004. Because he left no surviving spouse or issue, his estate is to be distributed to his surviving parents, brothers, sisters, and issue of his deceased brothers and sisters. Victor Regalado, Joseph's brother, now appeals the Porter Superior Court's determination on summary judgment that Paula Heffelfinger is Joseph's half-sister. Joseph's father married Paula's mother in 2003, thirty-five years after Paula's birth. When the marriage was annulled in 2005, Joseph's father acknowledged Paula to be his biological child.
At issue is whether Indiana Code section 29-1-2-7(b), which governs the paternal inheritance to, through, and from a child born out of wedlock, applies to Paula such that she is an heir to Joseph's estate. Specifically, subsection (b)(4) of the statute provides that a child born out of wedlock shall be treated as if the child's father were married to the child's mother at the time of the child's birth if the putative father marries the mother of the child and acknowledges the child to be his own. We hold that a child must show she is a child born out of wedlock before Section 29-1-2-7 is applicable and that there is a genuine issue of material fact as to whether Paula is a child born out of wedlock. We also hold that Joseph's father's acknowledgment of Paula as his biological daughter in the Agreed Order of Annulment does not preclude Joseph's father or any other heir from challenging his paternity of Paula. We thus conclude that the trial court erred in granting summary judgment in Paula's favor. We reverse and remand.
Brian Adcock v. State of Indiana - "In light of our discussion above, we conclude that Adcock has failed to show that the prosecutor’s analogy of this case to a jigsaw puzzle amounted to fundamental error, and that the trial court properly permitted the State to amend its Notice to have Adcock sentenced as an RSO. Finally, we conclude that none of Adcock’s convictions are barred by double jeopardy principles."

In Michael Butler v. State of Indiana , an 8-page opinion in a pro se appeal out of Judge William E. Young's Marion County traffic court (see also the one from Wednesday, here), Judge Bailey writes:

Michael Butler (“Butler”) appeals pro se from the trial court’s denial of his motions to set aside a default judgment against him for operation of a truck in a restricted lane on a highway consisting of at least three lanes and for speeding, each as civil infractions. He presents one issue on appeal, which we restate as whether his motions to set aside the default judgment were properly denied by the trial court. We reverse and remand with instructions. * * *

In this situation, Butler had clearly made efforts to attend his hearing but did not arrive on-time and had an alleged meritorious defense, due process safeguards like those in Rule 60(D) appear to have been lax, and court-provided forms led to confusion and surprise on the part of the litigant. These factors combined to deprive him of his day in court. See Bunch, 879 N.E.2d at 635 (noting that a default judgment is not intended as a “trap” to the unwary litigant).

Where, as here, Butler alleges a meritorious defense to set aside the default judgment and procedural issues interfered with his ability to obtain a hearing, we cannot agree with the State that the trial court was within its discretion to deny Butler’s motions to set aside the default judgment. We therefore reverse the default judgment and remand with instructions to set a new trial date.

NFP civil opinions today (4):

B.F. v. Review Board (NFP)

Shawn Davis b/n/f Misty Davis v. Animal Control-City of Evansville, Evansville Housing Authority, et al. (NFP)

Ronald C. Hedges v. Weyerbacher Farms (NFP)

Term. of Parent-Child Rel. of M.B., et al.; M.R. v. I.D.C.S. (NFP)

NFP criminal opinions today (5):

Katina Starks v. State of Indiana (NFP)

Steve Ballard v. State of Indiana (NFP)

Danitra White v. State of Indiana (NFP)

Dustin J. Baumbarger v. State of Indiana (NFP)

Thomas Hopkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Probe against Judge Scheibenberger dropped "

Kevin Leininger of the Fort Wayne News-Sentinel reports this afternoon:

Members of the Allen County Election Board have decided not to investigate an anonymous accusation of an Allen Superior Court judge keeping attorneys, defendants and their families waiting for 41 minutes while he campaigned.

A letter requesting investigation that was filed with the election board and the Indiana Supreme Court on Aug. 18 by an attorney who was “unable to identify myself ... for fear of retaliation ... because I regularly appear before this judge” claimed Judge Kenneth Scheibenberger engaged in campaign activities on the public's time and used public computers.

This is a different matter than that before the Indiana Election Commission - see this Aug. 11, 2010 ILB entry for more.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Indiana Courts

Ind. Law - More on "Lawyer Found Dead in Home After Suicidal Gunman Shoots at Downtown Indy Firm"

Updating this ILB entry from this morning, Am Law Daily has a similar story, posted by Brian Baxter, with some new details. This is also a brief post at Above the Law, headed "Barnes & Thornburg Partner is Victim in Apparent Murder-Suicide."

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Indiana Law

Courts - "Lawsuit seeks to change how Kansas Supreme Court judges are appointed"

A story by Ron Sylvester of the Wichita Eagle begins:

An Indiana lawyer has filed a federal lawsuit on behalf of four Kansans, trying to block the filling of a current opening on the Kansas Supreme Court.

The suit seeks to change the way the Kansas Constitution allows the appointment of justices to the state's Supreme Court.

Attorney James Bopp, the lead counsel on the case, also worked on a case which this year resulted in the U.S. Supreme Court overturning controls on campaign financing for corporations.

The suit seeks a federal restraining order to prevent a nominating commission from filling the vacancy on the Kansas Supreme Court left by the recent retirement and death of Chief Justice Robert Davis.

A nominating committee, consisting of nine lawyers and laypeople, interviews applicants and recommends three names to the governor for final appointment. The lawsuit is asking a federal judge to prohibit the nominating committee from being involved in the process.

The lawsuit contends that because most people on the nominating committee are lawyers, it limits the right of voters to be involved in the process of selecting judges to the state's highest court.

Later today the ILB will post the complaint, plus a comparison of the Kansas and Indiana provisions.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Courts in general

Ind. Law - "Lawyer Found Dead in Home After Suicidal Gunman Shoots at Downtown Indy Firm"

Molly McDonough of the ABA Journal has compiled a comprehensive report on this sad event, involving the death of Indianapolis attorney Mary Jane Frisby.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Indiana Law

Law - U.S. Rejected Hen Vaccine Despite Success in Britain"

A long story August 24th in the NY Times, reported by William Neuman, begins:

Faced with a crisis more than a decade ago in which thousands of people were sickened from salmonella in infected eggs, farmers in Britain began vaccinating their hens against the bacteria. That simple but decisive step virtually wiped out the health threat.

But when American regulators created new egg safety rules that went into effect last month, they declared that there was not enough evidence to conclude that vaccinating hens against salmonella would prevent people from getting sick. The Food and Drug Administration decided not to mandate vaccination of hens — a precaution that would cost less than a penny per a dozen eggs.

Now, consumers have been shaken by one of the largest egg recalls ever, involving nearly 550 million eggs from two Iowa producers, after a nationwide outbreak of thousands of cases of salmonella was traced to eggs contaminated with the bacteria.

The F.D.A. has said that if its egg safety rules had gone into effect earlier, the crisis might have been averted. Those rules include regular testing for contamination, cleanliness standards for henhouses and refrigeration requirements, all of which experts say are necessary.

However, many industry experts say the absence of mandatory vaccination greatly weakens the F.D.A. rules, depriving them of a crucial step that could prevent future outbreaks.

Salmonella bacteria is passed from infected hens to the interior of eggs when they are being formed. The salmonella vaccines work both by reducing the number of hens that get infected and by making it more difficult for salmonella bacteria to pass through to the eggs.

“They are the only thing I’m aware of that really controls the problem from the inside out, at the source,” said Ronald Plylar, the former president of a company that developed an early salmonella vaccine.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to General Law Related

Ind. Decisions - More on: 7th Circuit reverses stun gun decision

Re yesterday's 7th Circuit opinion (ILB summary here), Mark Wilson reported yesterday in the Evansville Courier & Press:

A federal appeals court today ordered a federal district court judge to reconsider her decision to throw out the sentence and verdict.

A Warrick County jury found Stephenson guilty of murdering Brandy Southard, 21, John “Jay” Tyler, 29, and Kathy Tyler, 29, as they sat in the Tylers’ pickup truck at a rural intersection in the county on March 28, 1996.

U.S. District Judge Theresa Springmann ruled in July 2009 that Stephenson did not have effective legal counsel because his attorney, Anthony Long, did not object to Stephenson’s having to wear a stun belt in the court room. The judge ruled that wearing the stun belt violated his right to presumption of innocence when he appeared before the jury that convicted him.

Warrick County Prosecutor Todd Corne said today the appeals court was critical of the district judge for not considering other issues raised by Stephenson.

Because of that, the appeals court said in its decision, said it was bound to send the decision back to district court for consideration of other issues raised by Stephenson. The appeals court ruled that had the judge considered those issues, it could have upheld the judge’s decision on other grounds even if it disagreed on the stun belt decision.

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

Courts - California on its way to a woman chief justice

From the August 26th Recorder, a story by Kate Moser headed "Judicial Committee Unanimously Confirms California's First Filipina-American Chief Justice" begins:

In a courtroom electric with pride from both her colleagues on the bench and leaders of the Filipino legal community, California chief justice nominee Tani Cantil-Sakauye was confirmed Wednesday by the Commission on Judicial Appointments.

If further confirmed by the electorate in November, she will become the 28th leader of the state's judicial branch.

Her confirmation, said Melvin Avanzado, president of the Philippine American Bar Association, will provide "a tremendous amount of inspiration and strength to those of us who otherwise may not aspire to the bench."

The hearing before the state Commission on Judicial Appointments focused on the themes of Cantil-Sakauye's humble beginnings, broad-based experience and the historic nature of her confirmation. Cantil-Sakauye, whose parents cut sugar cane in Hawaii and harvested crops in California's Central Valley, would give the Supreme Court a female majority and its first Filipino-American justice.

Posted by Marcia Oddi on Friday, August 27, 2010
Posted to Courts in general

Thursday, August 26, 2010

Ind. Courts - Is notice by publication in the Indianapolis Recorder sufficient? [Updated]

That is the issue in Matter of Adoption of L.D., a case argued this morning before the Supreme Court. See the summary of the upcoming argument in this Aug. 23 ILB entry.

The Court of Appeals said: "Mother has not shown that service of process by publication in the Indianapolis Recorder was inadequate."

But now listen to Justice Dickson, followed by Chief Justice Shepard, in the oral argument this morning, from about minutes 30:00 to 33:00, forcefully questioning attorney for appellee Mary Jane Norman.

"Gamesmanship," an attempt to avoid mom's getting notice while still technically complying with the law, is raised first by J. Dickson. Norman responds that she always uses the Recorder.

The CJ states he joins with his colleague -- "If we had African-American parties, even one, in this litigation, I wouldn't give this a second thought. ... I don't see the Recorder unless I go buy it on the newsstand. ... There is a vast difference in the readership of the two [meaning the Star and Recorder] publications. It is a fair reading, or inference, that you either didn't think about this, or didn't want to."

Norman: "Judge, as I said, I do all my publications in the Indianapolis Recorder."

CJ: "Well, I put it to you -- that's a mistake. It hasn't gone down very well with me."

Justice Rucker follows, saying the entire set of facts doesn't pass the straight face test that every effort was made to notify the mother.
______________

[More] A reader writes: "I think just about everyone uses the Recorder for legal notices. I suspect lawyers in other counties similarly use a lower-cost alternative to the more expensive, wider circulation paper."

[More at 3:22 pm] Another attorney writes to say:

Wow! Fascinating about the Recorder post. I represented a woman pro bono on a divorce action through the IBA and Indiana Legal Services. The husband was nowhere to be found, so when I called and asked the Legal Services attorney for guidance on serving by publication, I was told to publish in the Indianapolis Recorder. The person I spoke to implied that all lawyers did that. When I called up court staff to ask what I needed to bring in with me, they told me, without me saying which publication I was using, that "the Recorder would know what to send . . . ."

Your reader that said, "Everyone uses the Recorder" is exactly right. I guess I didn't know it was an African-American-only paper. My client was white, as was her husband.
[More at 4:14 pm] Another attorney: "Having paid an advertising fee of $1,600 for an ad in the Chicago Tribune 15+ years ago, I understand the cost avoidance issue in using the Recorder or Courts and Commercial Record. Is there any idea what a Star ad would cost?"

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge Peter J. Nemeth made it clear this week he intends to pursue the construction of an additional courtroom at the Juvenile Justice Center, despite a recent state Supreme Court decision stating such a space is not 'reasonably necessary"

Erin Blasko reports in the South Bend Tribune in a story that begins:

SOUTH BEND — St. Joseph County Probate Judge Peter J. Nemeth made it clear this week he intends to pursue the construction of an additional courtroom at the Juvenile Justice Center, despite a recent state Supreme Court decision stating such a space is not "reasonably necessary" to the court's operation.

Presented to county officials during a budget meeting, Nemeth's 2011 budget request includes about $300,000 for repairs, including $210,000 to convert a space at the JJC formerly occupied by the Court Appointed Special Advocates Program into a fifth courtroom.

Nemeth is offering to take the money out of the court's Probation User Fees Fund, a non-reverting fund that currently contains about $600,000, rather than the county general fund.

County Council members approved a similar request by Nemeth in 2008, but commissioners, including current President Bob Kovach, D-District 3, refused to release the money, leading Nemeth to issue a mandate order that, on automatic appeal, reached the state Supreme Court earlier this year.

In an order dated June 22, the court ruled that evidence Nemeth presented to support the new courtroom — mostly caseload numbers for 2007 through 2009 — was "insufficient to establish ... that a new courtroom is reasonably necessary to the court's operation." Here is the SBT report on the ruling, also from June 22nd.

The court also ruled on several other mandates. It agreed with Nemeth on the need for certain purchases and renovations, and a $2,709 pay increase for the court bookkeeper, but disagreed on the need for seven other pay increases, including $20,000 for the court's executive secretary.

During a heated exchange Tuesday, Kovach, speaking to Nemeth, said of his request for money for a new courtroom, "I guess you have not accepted the (Supreme Court) verdict ... So now you're going to pursue it again."

"The world doesn't stop, Bob," Nemeth replied, adding the court is "a hell of a lot busier" now than in 2009, creating stronger evidence this time around, should the case again end up in court, of the need for an additional courtroom.

Here is the June 22, 2010 Supreme Court ruling in the mandate case.

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Indiana Courts

Ind. Gov't. - "Northwest Indiana corruption thrives in Chicago's shadow: Nearly 50 officials have been sent to prison in the last decade in neighboring Lake County "

Read the story by Andy Grimm in the Chicago Tribune.

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Indiana Government

Ind. Courts - More on: Indiana Supreme Court Approves Enhanced Education Requirement for Judicial Officers

Supplementing this ILB entry from August 25th, the Fort Wayne Journal Gazette has an editorial today on the new education requirements for judges, plus the proposed restructuring of the Indiana courts. It concludes:

In setting the education requirements, the Supreme Court put into place the recommendation over the one area over which it has the most control. That move should spur the General Assembly to begin looking at the other proposals, which require legislative action.

One overdue measure would reduce the number of judicial titles to help the public better understand the roles. Indiana has judges, magistrates, commissioners and referees – and few people know the differences in their duties. The measure would also require all judges to be attorneys; some city and town court judges are elected and do not have legal backgrounds.

The “New Way Forward” report also suggests reducing the number of types of various trial-level courts. Indiana has 105 circuit courts, 211 superior courts, 75 city and town courts, nine small claims courts and a probate court. “Explaining the jurisdiction of each court is difficult, complicated and confusing,” the report notes. It doesn’t help that the legislature has passed into law many changes that apply only to specific counties, some the result of local politics. More controversial portions of the report would transfer court record-keeping from county clerks to the judges and develop one method of selecting judges – there are seven now, a mix of appointments and elections.

These recommendations warrant serious study by the General Assembly.

The Supreme Court’s action in increasing educational requirements for judges will serve Hoosiers well – and should be the first step to restructure Indiana courts.

For more, start with this Oct. 1, 2009 ILB entry.

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit reverses stun gun decision

In Stephenson v. Wilson (ND Ind., Springmann), a 20-page opinion, Judge Posner writes:

In 1997 a jury in an Indiana state court convicted petitioner Stephenson of three murders. The judge sentenced him to death. After exhausting his state remedies, see Stephenson v. State, 742 N.E.2d 463 (Ind. 2001) (affirming his conviction and sentence), and 864 N.E.2d 1022 (Ind. 2007) (affirming denial of post-conviction relief), he sought a writ of federal habeas corpus. The district judge ruled that he had been denied effective assistance of counsel during both the guilt and penalty phases of the trial (and so she vacated both the conviction and the sentence), because his counsel had failed to object to the state’s making him wear a stun belt in the courtroom. In affidavits and a deposition introduced in the state postconviction proceedings, four jurors said they were aware that he was wearing a stun belt.

Stephenson argued other grounds for relief as well, but the district judge didn’t rule on any of them. That may have been a mistake, considering how protracted capital cases are. It means that if we reject the ground on which the court did rule, we must reverse and remand for consideration of the other grounds, while if those grounds for relief had been before us we might have agreed with one of them and thereby spared the parties a further proceeding in the district court, possibly followed by a further appeal. * * *

Had Stephenson challenged the stun belt on direct appeal, the state would have had to prove beyond a reasonable doubt that the stun belt had not influenced the verdict. Hatten v. Quarterman, supra, 570 F.3d at 603- 04. But because he alleges only that his counsel was ineffective in failing to challenge the stun belt, he must show that he was prejudiced by counsel’s error. And the burden of proving prejudice is on him, because to prevail on a claim of ineffective assistance a defendant must show not only that counsel’s performance fell below minimum professional standards but also that the subpar performance harmed the client. * * *

The question of prejudice from Stephenson’s having been required to wear the stun belt at the penalty hearing will require the further consideration of the district court on remand. REVERSED AND REMANDED.

Here are earlier ILB stun-belt entries, not only relating to this case, but to the Wrinkles case.

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

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

For publication opinions today (3):

In Term. of Parent-Child Rel. of C.G.; Z.G. v. IDCS, a 29-page opinion, Judge Vaidik writes:

Z.G. (“Mother”) appeals the involuntary termination of her parental rights to her child, C.G. She argues that the Indiana Department of Child Services, Marion County (“DCS”), and the trial court deprived her of due process, the trial court abused its discretion by excluding certain evidence, and the evidence is insufficient to support the trial court’s judgment. Concluding that Mother’s due process rights were not violated, that the trial court did not commit reversible error in the exclusion of evidence, and that DCS presented clear and convincing evidence to support the trial court’s judgment, we affirm.
In Dean V. Kruse Foundation, Inc., et al. v. Jerry W. Gates, an 11-page opinion, Judge Crone writes:
The Dean V. Kruse Foundation, Inc., Dean V. Kruse, and Kruse International (collectively, “the Kruse Parties”) appeal a summary judgment entered in favor of Jerry W. Gates and the denial of their cross-motion for summary judgment. We reverse and remand.

We restate the issues as follows:
I. Did the trial court err in granting Gates’s motion for summary judgment and denying the Kruse Parties’ cross-motion on the parties’ breach of contract claims?
II. Did the trial court err in failing to grant the Kruse Parties’ cross-motion for summary judgment on Gates’s fraud claims?
III. Did the trial court err in failing to grant the Kruse Parties’ cross-motion for summary judgment on Gates’s conversion claim? * * *

[I] In sum, Gates was notified of a “condition of record” yet chose not to inquire further before he purchased the property. The uncontroverted facts indicate that Gates “fail[ed] to complete the purchase within a reasonable time due to no fault of the seller[;]” thus, “the earnest money [he] deposited is forfeited.” As such, the Kruse Parties are entitled to summary judgment on Gates’s breach of contract claim and summary judgment on their counterclaim for breach of contract. In their counterclaim, the Kruse Parties request “all damages incurred as a result of the breach … including all transaction costs, auction fees, buyer premiums, realtor commissions, costs of collection and reasonable attorney fees, and for all other proper relief.” Because the record before us does not include this information, we reverse and remand for a determination of damages. * * *

[II] To prevail on a fraud claim, the plaintiff must establish reasonable reliance upon a material misrepresentation by the defendant. Id. Here, Gates was neither misled nor acted in reasonable reliance. Thus, the Kruse Parties were entitled to summary judgment on Gates’s fraud claims, and to the extent the trial court failed to grant the Kruse Parties’ motion for summary judgment on this claim, it erred. * * *

[III] Gates’s conversion claim was nothing more than a repackaged version of his breach of contract claim, brought to “up the ante.”

Tony O. Girdler v. State of Indiana - "[A] defendant such as Gibson may be charged with and convicted of auto theft, even if he was not the original thief, so long as the elements of auto theft are met—the knowing or intentional exercise of control over another’s vehicle, with intent to deprive the owner of the vehicle’s value or use. We acknowledge that some cases from this court have suggested that a defendant cannot be convicted of auto theft if there is no evidence that the defendant was the actual, original thief of the vehicle. * * *

"This is evidence from which the trial court as fact-finder reasonably could have concluded that Girdler exerted control over the van with intent to deprive Penske of the van’s value or use. The State proved all
of the elements of auto theft against Girdler, even though he was not the original thief of the van."

NFP civil opinions today (0):

NFP criminal opinions today (5):

Anthony E. Frink v. State of Indiana (NFP)

Antonio Moore v. State of Indiana (NFP)

Pierre E. Taylor v. State of Indiana (NFP)

Jeremy James Barden v. State of Indiana (NFP)

Michael Pugh v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Waiting for Gov. Daniels' Supreme Court announcement

Although he has 60 days from August 5, 2010 to make his decision, the smart money is on Governor Daniels announcing his Supreme Court selection sometime next week, before Labor Day. Justice Boehm is stepping down Sept. 30th, and the appointee would need some time to win up her or his business before taking the seat.

Posted by Marcia Oddi on Thursday, August 26, 2010
Posted to Vacancy on Supreme Ct

Wednesday, August 25, 2010

Ind. Courts - 7th Circuit decision in Indiana case from August 24th

Here is a decision the ILB missed yesterday. In US v. Hudson (ND Ind., Miller), an 11-page opinion, Judge Wood writes:

This case raises a surprisingly complicated question: under the Sentencing Guidelines, are crimes involving phony versions of illegal drugs properly characterized as “controlled-substance offenses”? Irvin Hudson pleaded guilty to possession of a firearm as a felon and possession of a stolen firearm. Hudson’s recommended sentence under the guidelines depends on the nature of his previous offense: if his earlier conviction amounted to a “controlled-substance offense,” then the guidelines would recommend a longer sentence. Before he was caught with the gun, Hudson had been convicted in the Indiana state courts of the crime of dealing in a substance represented to be a controlled substance (marijuana)—a so-called “look-alike” drug offense. The district court concluded that Hudson’s Indiana conviction qualified as a controlled-substance offense, calculated the guidelines range on that basis, and sentenced him to a within-guidelines sentence of 72 months’ imprisonment. Hudson appeals his sentence to this court.

This appeal turns on how to classify Indiana’s lookalike drug crimes. The Sentencing Guidelines specifically define controlled-substance offenses to include crimes related to controlled substances or “counterfeit substances.” The district court and the government rely on the plain meaning of “counterfeit” to sweep in Hudson’s look-alike offense. Hudson responds that look-alikes literally are neither controlled substances nor counterfeit substances. He observes that different parts of the guidelines, federal drug laws, and Indiana law define the term “counterfeit substance” in a manner that would not include faux marijuana. Those provisions limit the definition of “counterfeit substance” to controlled substances that bear false designations of source and thus appear to have been legitimately manufactured or distributed, rather like the apocryphal “Rolex” watches that can be bought on some streets for $10 apiece. Although Hudson’s argument gives us pause, we join our sister circuits in the view that “look-alike” offenses constitute controlled-substance offenses for sentencing purposes.

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

Ind. Courts - More on: Is a county prosecutor a member of the executive or judicial branch?

Re my question Monday, "Is a county prosecutor a member of the executive or judicial branch?" several readers have sent in their thoughts.

  1. I believe that Foster v. Pearcy, 270 Ind. 533, 535, 387 N.E.2d 446, 448 (1979), sheds some light on the questions posed in your post.
    "In 1896, this Court considered a case wherein a prosecuting attorney, in contravention of the grand jury's decision not to indict one Griffith, had secretly altered the indictment to include Griffith's name. **448 Griffith subsequently was arrested but the charges were later dismissed. He then instituted an action against the prosecutor for libel and malicious prosecution. A unanimous Court stated:
    'The prosecuting attorney, therefore, is a judicial officer, but not in the sense of a judge of a court. The rule applicable to such an officer is thus stated by an eminent author: "Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said duties are performed. If corrupt, he may be impeached or indicted; but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done. No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it." Townsend Slander and Libel (3d ed.), section 227, pages 395-6.' Griffith v. Slinkard (1896), 146 Ind. 117, 121-2, 44 N.E. 1001, 1002."
  2. I would think that since the rules regarding prosecutorial powers and duties are listed under IC 33-39, which falls squarely under the "Courts and Court Officers" section, that would make them officers under the judicial branch. They may have some executive style powers under the judicial branch, but I would hazard to say that they are still judicial branch members.

  3. I believe that a county prosecutor is still a lawyer. As such, he serves as an officer of the Court. And as an officer of the Court, he is subject to disciplinary proceedings.
Thanks to all who responded! BTW, Art. 7 of the 1851 Indiana Constitution contained a prosecuting attorney section similar to that in the post-1970, rewritten version of Article 7.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Indiana Courts

Ind. Courts - "Judge in Simon estate case gives widow access to 1 of 50 CEO e-mails"

The Indianapolis Star's Jeff Swiatek's report begins:

A Hamilton County judge ruled that the chairman and chief executive of Simon Property Group must turn over to his stepmother only one of 50 e-mails she wants to use as evidence in a lawsuit over billionaire Melvin Simon’s will.

Bren Simon isn’t entitled to read 49 other e-mails written by CEO David Simon because they are protected by attorney-client privilege, even though they were written on a company e-mail account, Superior Court Judge William J. Hughes said in a ruling this month in the case.

Attorney-client privilege is a legal protection used to keep communications between attorneys and their clients confidential. The privilege can be lost if the communication is done in public.

In explaining his ruling, the judge cited Simon Property Group’s practice of allowing employees access to their company computers for limited personal use, and testimony by the company’s information technology director that the company never monitored David Simon’s email account.

“Bren’s motion to compel should be denied because David did not waive confidentiality — that is, he reasonably expected the contested communications to be private,” the judge said.

ILB: I'd like to post a copy of Judge Hughes' ruling on e-mails. Please contact me if you can help.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Indiana Courts

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

In U.S. v. Quintero and Martinez (ND Ind., Lozzano and Moody). a 17-page opinion, Judge Kanne writes:

This consolidated appeal arises from a foiled bank robbery. The robber, Jorge Quintero, and his getaway driver and girlfriend, Claudia Martinez, challenge their sentences. Quintero pled guilty to all four counts in the indictment against him. Despite his plea agreement, the government declined to recommend a three-point reduction for acceptance of responsibility because he perjured himself and obstructed justice. Quintero argues, however, that a provision in his plea agreement required the government to recommend the reduction. Martinez was indicted on three counts and her case proceeded to trial. She contends that an erroneous jury instruction and an inaccurate computation of the Sentencing Guidelines made her sentence unreasonable. We dismiss Quintero’s appeal on waiver grounds and affirm Martinez’s conviction and sentence. * * *

Because we find that Quintero’s right to appellate review was properly waived, we DISMISS his appeal. We AFFIRM Martinez’s conviction and sentence because the district court did not err in giving jury instruction number twenty and the sentence imposed was not unreasonable.

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

Ind. Courts - Indiana Supreme Court Approves Enhanced Education Requirement for Judicial Officers

Here is the press release. The new requirements go into effect January 1, 2011.

Here is the order amending the applicable rules.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Indiana Courts

Ind. Courts - "Caseloads mount like Hoosiers' unpaid debt: Consumer advocates contend system favors collectors filing suits"

Jon Murray of the Indianapolis Star has an important, front-page story today. Some quotes:

Debt collectors have dumped a mountain of unpaid credit card obligations and other bills onto Indiana courts in a last-ditch effort to get Hoosiers to pay up.

But the lawsuits clogging court dockets -- up by nearly half since the recession began -- have left people desperate in a conveyor-belt system where judges quickly issue default judgments, and portions of paychecks, bank accounts and other valuables go to collectors. * * *

Consumer advocates have long contended that the court system gives the advantage to the debt collectors in such cases. Last month, the Federal Trade Commission endorsed that view, calling the nation's consumer debt resolution system broken.

The increased volume -- in Marion County's courts, new civil collection filings against consumers and businesses increased by nearly 62 percent from 2006 to 2009 -- has only heightened such concerns.

In its report, the FTC urged states to adopt reforms to better protect consumers targeted by litigation. Among its recommendations were requiring more documentation and detail about an overdue debt in a lawsuit to help the debtor recognize it and other changes that might encourage more people to respond to a case at the outset.

Although creditors and the collection attorneys who represent them in Indiana dispute the FTC's findings, other observers say many of the same problems are evident across the state's courts.

"My biggest concern is that you have a population that is basically being victimized because they don't know what their rights are," said Chris Jackson, an Indianapolis attorney who is the state chairwoman for the National Association of Consumer Advocates. "When you get some of these unscrupulous debt buyers coming in, they just sue them without any documentation that will hold up legally." * * *

Most collections result in default judgments in collectors' favor after debtors fail to respond or don't realize they've been sued.

That means their first trip to court often comes once collectors use the judgments to request garnishments or seize valuables.

Consumer advocates say common problems in collection suits include excessive interest -- sometimes dwarfing the original amount owed -- as well as debts that have aged past the six-year statute of limitations and insufficient documentation to back up the debt.

But by the time most debtors get involved, it's more difficult to fight any shortcomings in a case. * * *

[P]eople who have run into trouble largely are on their own if they are sued for collection, since most can't afford an attorney.

Some states have supplemented federal protections for consumers, but Indiana lacks such a law. Jackson says she sees little prospect for action by the General Assembly.

But she is working with others to draft proposals for more stringent trial rules and other court procedures that would supplement a state courts trial rule that requires plaintiffs to provide some documentation to support financial claims.

Too often, some attorneys say, judges faced with stacks of new filings each day don't scrutinize them carefully enough.

The ILB has been following this topic for some time and has a number of useful entries, including specifically some from the NY Times.

[More] Doug Masson, who represents creditors, posts a different viewpoint.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)


For publication opinions today (0):

NFP civil opinions today (1):

M.H. v. J.H. (NFP)

NFP criminal opinions today (4):

In Uma Chaluvadi v. City of Indianapolis (NFP), a 5-page opinion in a pro se appeal out of Judge William E. Young's Marion County traffic court, Chief Judge Baker writes:

Appellant-defendant Uma D. Chaluvadi appeals the trial court’s order denying her motion to set aside default judgment. Chaluvadi argues that she has established excusable neglect pursuant to Trial Rule 60(B). We agree with Chaluvadi and reverse and remand for further proceedings.

On November 30, 2009, Chaluvadi was driving on Michigan Road in Indianapolis and was stopped by a police officer for driving at a speed in excess of the posted school zone speed limit. The police officer issued a traffic ticket with the “amount owed” portion of the ticket crossed out, with no amount included that Chaluvadi was required to pay. Chaluvadi, therefore, assumed that the ticket was merely a warning and did not pay any fine as she believed that no fine had been assessed.

Chaluvadi then had to leave the country to care for a sick family member. On February 12, 2010, the trial court herein entered a default judgment on the traffic ticket and ordered that Chaluvadi’s driver’s license be suspended. On February 24, 2010, Chaluvadi filed a motion to set aside the default judgment, which the trial court denied the next day.

The City of Indianapolis did not file a brief in this appeal. * * *

Here, we find that Chaluvadi has established excusable neglect [under Trial Rule 60(B)]. Her initial confusion, based upon the “amount owed” portion of the traffic ticket being crossed out, is entirely understandable and excusable. Her subsequent absence from the country, coupled with that confusion, led to her absence at the traffic court proceeding at which her traffic ticket was considered. * * *

Chaluvadi has not explicitly included an argument regarding this part of the rule. She also did not explicitly include this argument in the motion that she filed with the trial court. We note, however, that the form provided by the trial court for litigants seeking to set aside a default judgment is entirely unhelpful to those litigants, inasmuch as it does not emphasize the need to provide a meritorious claim or defense. Instead, it merely includes a number of blank lines following this statement: “I am asking the Court to set aside the default judgment in this case because . . . .” Motion to Set Aside Default Judgment.

Trial Rule 60(B) also provides, however, that a movant “must allege a meritorious claim or defense” to be entitled to relief. * * *

Given the form’s vagueness and the City of Indianapolis’s failure to file a brief on appeal, we will endeavor to glean from the materials available to us what Chaluvadi’s defense would be. To that end, we infer that Chaluvadi has two defenses to the speeding ticket itself. First, she would argue that the police officer did not intend to issue a ticket, given that he crossed out that portion of the ticket that referenced a fine, and did not include an amount owed. Second, Chaluvadi would contend that she does not drive over thirty miles per hour to save gas, so the police officer who pulled her over was mistaken regarding the speed at which he alleged she was driving. We find that this constitutes a meritorious defense pursuant to Trial Rule 60(B). Therefore, under these circumstances, we conclude that the trial court erred by denying Chaluvadi’s motion to set aside the default judgment.

Fernando Eguia v. State of Indiana (NFP)

Michael Yates v. State of Indiana (NFP)

Eric Skeens v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: "Judge rules state workers owed $42 million"

Updating yesterday morning's ILB post which pointed out some issues relating to the calendaring and broadcasting of the Court of Appeals oral argument Monday in the Brattain case, Chief Judge Baker has issued this release this morning:

ORAL ARGUMENT WEBCASTS – EXPERIENCING TECHNICAL DIFFICULTIES – PLEASE STAND BY

It has come to the attention of the Court of Appeals that because of certain technical difficulties, the oral argument in Paula Brattain, et al. v. Richmond State Hospital, et al., was inadvertently not webcast simultaneously with the argument. Additionally, notification of the oral argument was not included in the Court’s online calendar.

Recently, the Court’s webcasting equipment failed and had to be reconfigured. The Court’s IT staff has been working diligently to resolve the technical difficulties with webcasting, and the issues have now been corrected. The system should permit real-time viewing for all future webcasts.

The links for all recent webcasts are being entered as quickly as possible, and the missed entry for yesterday’s oral argument has been updated. The archived oral argument is now viewable on the Court’s website.

Borrowing the words of broadcasters from the past, Chief Judge John G. Baker asks all interested viewers to “Please Stand By.” Chief Judge Baker encourages everyone to visit the Court’s website and watch oral arguments via webcast. He noted, “The webcasting effort attempts to integrate new-age technology and centuries-old legal tradition. The Court is striving to provide the public with opportunities to witness fine appellate advocacy and provide a better understanding of the role of courts of review within the judicial system.”

As I noted in yesterday evening's update, Chief Judge Baker began resolving this problem the minute he learned about it yesterday morning.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Sexting and sextortion

As noted in this ILB entry from August 15th, the interim Criminal Law and Sentencing Policy Study Committee will have its first meeting of the year this afternoon, starting at 1 pm. Sexting issues are the focus of today's agenda. Unfortunately, although most interim legislative committees this year are available for viewing via real-time videocast*, the agenda for a hearing on this high-interest topic does not so indicate.
______________
*See, eg, the Commission on Courts agenda for its meeting tomorrow, Aug. 26th at 10 am. Be aware, however, that "real-time" video does not mean "archived" video. You must watch it as it happens, or miss out.

A welcome change this year, at least for this Commission, is that the minutes include the handouts. See the now-available minutes of the July 29, 2010 meeting of the Commission on Courts.

Posted by Marcia Oddi on Wednesday, August 25, 2010
Posted to Indiana Law

Tuesday, August 24, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

Monty Rader v. State of Indiana

NFP civil opinions today (2):

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

William Adams, et al. v. William Smith, et al. (NFP)

NFP criminal opinions today (4):

Bryan Berryman v. State of Indiana (NFP)

Joseph Dearborn v. State of Indiana (NFP)

Shane Schmutte v. State of Indiana (NFP)

Dennis Ditchley v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: "Judge rules state workers owed $42 million" [Updated]

Updating this ILB entry from July 28, 2009, which includes the 27-page trial court opinion in the case of Paula Brattain et al v. Richmond State Hospital, et al. , and has links leading to the ILB's earlier entries, Jon Murray reported on his Indianapolis Star blog, "Justice Watch" last evening:

Lawyers for the state pleaded their case today at the Indiana Court of Appeals for overturning a year-old $42.4 million judgment over back pay to state workers. A Marion County judge ruled against the state in July 2009 after a four-day trial. But he stayed the judgment while the state appealed the outcome of the 17-year-old class-action lawsuit, filed by current and former state workers.
That came as a big surprise to me, and perhaps to many of the others who have been following this important case, as the Monday oral argument was not listed on the Court of Appeals public calendar. Hence it was also not in the ILB's "Upcoming Oral Arguments." It is also not on the Court webcast list.

[Updated at 4:15 pm] I've been at the Law School for Journalists all day, so was unable to report until now. I can assure you that Chief Judge Baker was dealing with this problem this morning as soon as he learned about it from reading the ILB. The Brattain case is now listed on both calendars, as you can see by using the links in the preceding paragraph. And, happily, the oral argument was recorded, so it is available for viewing now. Watch for more information tomorrow.

Posted by Marcia Oddi on Tuesday, August 24, 2010
Posted to Indiana Courts

Ind. Gov't. - "Nursing homes dodge scrutiny: Attorney general has filed 6 complaints out of 300 cases in past 5 years"

Another long investigative story posted today (from the Sunday paper) by the Indianapolis Star team of Heather Gillers and Tim Evans. The story begins:

When state health inspectors and police investigated a rape reported at a Marion nursing home in June 2008, what they discovered suggested such an assault could have been prevented.

The accused resident was a sex offender on parole -- something the nursing home's administrator had known since the man was admitted to the facility three months earlier. But the administrator did not ensure that information was shared with nurses and aides. Nor did the home make any plan to protect residents from the man.

So, what happened when state health inspectors made the attorney general aware of the Marion administrator's inaction?

Nothing.

The attorney general's office decided not to file an official complaint that would trigger a review by the Indiana State Board of Health Facility Administrators.

Without that complaint, the board -- the body that licenses and disciplines nursing home administrators -- never even had the opportunity to review the case.

In Indiana, that has become the norm. Over the past five years, the Health Department has passed along about 300 inspection reports to the attorney general in accordance with a federal law that says health inspectors must report major problems to licensing officials. At some homes, inspectors found such problems year after year.

But from those 300 reports, an Indianapolis Star investigation found, the attorney general brought the board a grand total of six complaints.

An accompanying Star editorial is headlined "Our Opinion: Asleep at the oversight wheel." Here is a sample:
The office of the current Indiana attorney general, which alone decides whether a nursing home accusation by state health inspectors merits review by the State Board of Health Facility Administrators, has filed zero complaints with the board from the 40 reports sent to Attorney General Greg Zoeller.

Federal law requires health inspectors to report major problems to the state.

Under Zoeller's predecessor, Steve Carter, 463 reports generated all of 38 complaints.

Karen Freeman-Wilson, the attorney general before Carter, did much better, filing 92 complaints from 300 reports. She also got sued by the nursing home trade association and lost the 2000 election to Carter, whose campaign the association generously funded. And Carter commenced to settle the suit.

Posted by Marcia Oddi on Tuesday, August 24, 2010
Posted to Indiana Government

Environment - "Great Lakes waterways a 'carp highway'"

That quote from Michigan assistant attorney general Robert Reichel, arguing in a suit fied "in U.S. District Court in northern Illinois, [that] 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" was picked up in this widely published AP story by Carla K. Johnson. Note the accompanying graphic.

Posted by Marcia Oddi on Tuesday, August 24, 2010
Posted to Environment

Monday, August 23, 2010

Ind. Courts - Is a county prosecutor a member of the executive or judicial branch?

Earlier today, in this entry about Delaware County Prosecutor Mark McKinney, his attorney, Kevin McGoff, was quoted as arguing:

"Sanctioning McKinney would violate the separation of powers doctrine of the United States and Indiana constitutions, which prohibit the judicial branch from invading the discretion of a member of the executive branch."
My question, "Is a county prosecutor a member of the executive or judicial branch?" arises because the Indiana Constitution. Article 7 - Judicial, provides at Sec.16:
Section 16. Prosecuting Attorneys. There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall have been admitted to the practice of law in this State before his election, who shall hold his office for four years, and whose term of office shall begin on the first day of January next succeeding his election. The election of prosecuting attorneys under this section shall be held at the time of holding the general election in the year 1974 and each four years thereafter.
(History: As Amended November 3, 1970).
Thoughts?

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit ruling halts caregiver choices based on race

Chaney v. Plainfield Healthcare Center, the July 20, 2010 7th Circuit opinion reversing the Indianapolis federal district court decision (see ILB summary here), is the subject of a long, must-read, just-posted AP article by Charles Wilson. It begins:

INDIANAPOLIS — Certified nursing assistant Brenda Chaney was on duty in an Indiana nursing home one day when she discovered a patient lying on the floor, unable to stand.

But Chaney couldn't help the woman up. She had to search for a white aide because the woman had left instructions that she did not want any black caregivers. And the nursing home insisted it was legally bound to honor the request.

The episode, which led to a recent federal court ruling that Chaney's civil rights had been violated, has brought to light a little known consequence of the patients' rights movement that swept the nation's health care system over the last two decades.

Elderly patients, who won more legal control over their quality of life in nursing homes, sometimes want to dictate the race of those who care for them. And some nursing homes enforce those preferences in their staff policies.

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

Courts - "Courtroom Paintings Raise Questions on Artist’s Perspective"

Read this article today by Adam Liptak of the NY Times if you have argued a case before the SCOTUS, and bought a painting of yourself making your argument, from an artist who was said to be sitting in the courtroom, watching.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Courts in general

Courts - More on: "What's Behind the Flurry of Judicial Resignations in Georgia?"

Supplementing this ILB entry from August 20th, Nathan Koppel of the WSJ Law Blog today writes about a lengthy Aug. 22nd Atlanta Journal-Constitution article. The WSJ Law Blog article concludes:

The Judicial Qualifications Commission, the Georgia agency that investigates judges, has given its investigator Richard Hyde, a former Atlanta police detective, the authority to confront judges with investigative findings and to negotiate a quick resignation, according to the AJC.

Hyde “is traveling around the state collecting scalps,” one Georgia lawyer said. Hyde declined comment.

Georgia judge Frank Mills III said judges in the state have noticed the recent resignations. “I think we’re all bewildered by it,” he said. “But most of these cases are not similar, so it’s hard to say there’s any trend.”

State judge John D. Allen, the vice chair of Judicial Qualifications Committee, expects the number of judges leaving abruptly will “play out for a period of time.” But, he said, the publicity might prompt some wayward judges to clean up their act.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Courts in general

Environment - "I would like to encourage you to emphasize with your staff that it is not necessary to cite every possible statute and regulation that could be violated in a given situation"

That quote from IDEM assistant commissioner of the Office of Legal Counsel and Criminal Investigations David Joest is from a story today in the Gary Post-Tribune, reported by Gitte Laasby. The story begins:

MERRILLVILLE -- A top state official has issued new guidelines on when and how state employees should cite companies for violating environmental laws. * * *

In a memorandum to managers in the IDEM's Office of Water Quality obtained by the Post-Tribune, the agency's top attorney asked staff to change how they cite companies for violating the state's water pollution law.

"I would like to encourage you to emphasize with your staff that it is not necessary to cite every possible statute and regulation that could be violated in a given situation," wrote assistant commissioner of the Office of Legal Counsel and Criminal Investigations David Joest in late July. "It is sufficient and preferable to pick the most apt legal requirement(s) and cite only those. I know that in the past you received different advice, but I believe that the practice of citing the same violation in multiple ways serves no useful purpose and has contributed to slowing down the enforcement process and creating unnecessary work."

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Environment

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Arthur Balls v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - Blood draw law might benefit from another look by the legislature

The ILB had a number of entries earlier this year on the "certified phlebotomist" issue. You can refresh your memory from this list, particularly this March 21st entry.

This lengthy August 21, 2010 Indianapolis Star story by Jon Murray and John Tuohy includes this:

In [officer David Bisard's] case, officers reported that he showed no signs of intoxication at the scene.

They didn't call in alcohol-crash investigators, and Bisard didn't perform breath or field-sobriety tests. Only several days later -- after test results of a blood draw taken two hours after the crash came back -- did authorities learn his blood-alcohol level was 0.19, more than twice the level at which a driver is considered intoxicated.

On Thursday, Marion County Prosecutor Carl Brizzi announced he had decided to dismiss all six DUI counts, including the lead Class B felony charge, citing officers' failure to follow proper procedures.

An officer had allowed an uncertified medical assistant at the occupational clinic where Bisard was treated after the crash to draw his blood, Brizzi said.

That blood test was the only evidence of Bisard's alleged intoxication.

A WIBC story by Eric Berman from August 20th reports:
The law which prompted the dismissal of drunken-driving charges against an I-M-P-D officer was amended this year -- but not enough to salvage the case.

Marion County Prosecutor Carl Brizzi dropped four alcohol-related counts against David Bisard on Thursday, explaining that the test which showed him with a blood-alcohol level of .19% would be inadmissible because it was taken by a lab technician, and at an occupational health center, not a hospital.

The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification.

In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.

More from the story:
Former Indiana University law professor Henry Karlson says that's where the test conducted on Bisard appears to have gone off the rails: the lab technician who drew his blood didn't meet either of those criteria.

"I've been told that if a physician had walked by the door while the man was doing the blood sample, they would have fought it," Karlson says. "But there wasn't a physician supervising this man in any way, and evidently, there were no established protocols."

There's more disagreement over why hospitals have been added to the law.

House Courts and Criminal Code Chairman Matt Pierce (D-Bloomington) says the goal was to ensure that tests performed by a lab tech at a hospital were considered admissible. But other legal experts say a properly trained lab tech should be able to perform a test at any location under proper supervision.

And Karlson says the section of the law which excludes lab techs -- allowing only doctors, nurses, paramedics or E-M-T's to administer the test -- appears to apply only to a standing contract to perform those tests, such as the prosecutor in Pierce's Monroe County has.

Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year.

My thoughts: I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Law

Ind. Law - "Debtors falling prey to collectors"

Adding to a long list of ILB entries referencing debt collectors, Teresa Auch Schultz of the Gary Post-Tribune had a lengthy story yesterday on the topic, including a look at several lawsuits filed in the U.S. District Court in Hammond.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Law

Ind. Courts - "An attorney for the Indiana Supreme Court's disciplinary commission on Friday formally recommended that Delaware County Prosecutor Mark McKinney's law license be suspended for six months."

Updating a long list of earlier ILB entries on Delaware County Prosecutor Mark McKinney, this entry's heading was the lede in Douglas Walker's August 21st story in the Muncie Star-Press. The story continues:

Lawyer Chuck Kidd's recommendation was issued to Boone Circuit Court Judge Steven David, appointed by the Supreme Court to evaluate allegations that McKinney's dual roles as a prosecutor and a private attorney, in civil forfeiture cases for the Muncie-Delaware County Drug Task Force, violated rules of professional conduct for attorneys.

The commission's probe stemmed from a 2008 complaint filed against the prosecutor by Mayor Sharon McShurley.

McKinney's lawyer, Kevin McGoff, issued his own recommendation to the judge on Friday, maintaining his client was not deserving of any punishment.

Judge David -- one of three finalists to fill an upcoming vacancy on the state Supreme Court -- will issue his own recommendation, on or about Sept. 7, on what sanctions, if any, he believes McKinney deserves.

The final decision rests with the Supreme Court, which last year rejected a proposed resolution of the case that would have seen McKinney's law license suspended for 90 days.

The long story continues with some of the arguments made before Judge David, including:
[Kevin] McGoff argued that it would be unfair to punish McKinney a decade after the potential conflict of a deputy prosecutor handling civil forfeiture cases had been brought to the disciplinary commission's attention.

McGoff said the commission should find the complaint filed against his client by Mayor McShurley "unfounded and without merit."

"Sanctioning McKinney would violate the separation of powers doctrine of the United States and Indiana constitutions, which prohibit the judicial branch from invading the discretion of a member of the executive branch," McGoff argued.

The Indianapolis attorney concluded that the disciplinary commission "has failed to prove by clear and convincing evidence" that McKinney violated ethics rules.

Kidd recommended that McKinney's law license be automatically reinstated after a six-month suspension.

McKinney said last spring that he had been led to believe the harshest penalty he could receive as a result of the misconduct allegations would be a six-month suspension with automatic reinstatement.

A spokesman for the Supreme Court at that time denied any such assurances had been made.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Courts

Environment - More on: Scottsburg biomass project may be out

Updating this ILB entry from July 16, 2010, a long August 17th story in the Louisville Courier Journal reported by Grace Schneider begins:

The developers of a proposed wood-burning power plant in Scottsburg have gone to court to try to reverse a zoning panel’s decision in July to reject the development plans for the project.

A lawyer for Liberty Green Renewables LLC wrote in a petition filed last week in Scott Circuit Court that the Scott County Area Plan Commission violated state law by first approving plans for the power plant in August 2009 and then voting down a revised development plan that included a nearby site, even though that plan also met all legal and zoning requirements. * * *

Liberty Green had proposed building a 32-megawatt power station that would burn logging and milling waste to generate electrical power on city-owned property bordering U.S. 31 south of Scottsburg. But because of concerns about wetlands, the company also arranged to buy 10 adjacent acres, a site known as the “Murphy property” for its previous owner.

The plan commission approved the development blueprint with some conditions on the city property. But when the building outline of the power station was moved to the Murphy property, the development had to be reviewed as a new proposal.

The seven-member plan commission voted 4-2 against the project last month after a string of opponents cited concerns about plant emissions, truck traffic from deliveries of wood to the property and health consequences for area residents. The commission member who did not vote was on vacation.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Environment

Ind. Courts - Delaware Circuit Court 2 Judge Richard Dailey and his wife, Nancy sue Prosecutor McKinney and former Chief Deputy Prosecutor Ron Henderson

From the August 20, 2010 Muncie Star-Press, Keith Roysdon's long story begins:

A Delaware County judge has filed a lawsuit alleging that Prosecutor Mark McKinney and his former chief deputy harassed and intimidated him and his wife to win political payback for the judge's investigation of the prosecutor's office.

The lawsuit, filed by Delaware Circuit Court 2 Judge Richard Dailey and his wife, Nancy, targets not only McKinney and former Chief Deputy Prosecutor Ron Henderson but also the state of Indiana and the county, seeking damages for "adverse publicity, loss of income, future loss of income, emotional distress and suffering."

The Daileys allege in their lawsuit that after the judge began an investigation into McKinney's actions as prosecutor and attorney in civil forfeiture actions in cases involving the Muncie-Delaware County Drug Task Force, "Dailey became aware the official policy of the Delaware County prosecutor's office was to discredit, punish and extract retribution against him."

Dailey and his wife contend that McKinney, Henderson and "employees of the Delaware County prosecutor's office entered into a conspiracy to intimidate, extract retribution and discredit" the judge.

McKinney on Thursday said "the lawsuit filed by Dick and Nancy Dailey is without merit."

"There has never been a 'conspiracy' against the judge or his wife, nor has there ever been any 'official policy' in the prosecutor's office concerning either one of them," the prosecutor said. "I have referred this matter to the office of the attorney general and we will assist our counsel in vigorously and aggressively defending this lawsuit."

The story includes a link to the complaint.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Courts

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

Updating this ILB entry from July 21, 2010, entries are due Tuesday, August 24th.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending August 20, 2010

There is no transfer list for the week ending August 20, 2010.

Posted by Marcia Oddi on Monday, August 23, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/23/10):

Thursday, August 26th

Next week's oral arguments before the Supreme Court (week of 8/30/10):

Next Thursday, September 2nd

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/23/10):

Wednesday, August 25th

Next week's oral arguments before the Court of Appeals (week of 8/30/10):

Tuesday, August 31st

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, August 23, 2010
Posted to Upcoming Oral Arguments

Friday, August 20, 2010

Ind. Gov't. - July Unemployment Rates by State

New, from Sara Murray of the WSJ. Has a chart you can sort - Indiana is one of 11 states in the double digits, along with other "rust belt" states - Michigan, Ohio, Illinois.

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to Indiana Government

Courts - "What's Behind the Flurry of Judicial Resignations in Georgia?"

An interesting story today by R. Robin McDonald of the Fulton County Daily Report that begins:

Since Alapaha Circuit Chief Judge Brooks E. Blitch Sr. resigned his judgeship in April 2008 rather than face an ethics trial in front of the state Judicial Qualifications Commission, at least 21 Georgia judges have been disciplined publicly by the JQC or have stepped down from the bench amid allegations of unethical conduct.

JQC Chairman Benjamin F. Easterlin IV calls the stream of judges who have departed under a cloud since the JQC filed public charges against Blitch -- accusing him of levying unauthorized court fees, improperly ordering the expenditure of county funds, and influence-peddling -- "highly unusual."

Easterlin, a partner at King & Spalding, cautioned, "I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on this recent flurry," and neither is it "a matter of us ratcheting up any investigative efforts."

Easterlin suggested the spate of disciplinary actions and resignations may have been influenced, in part, by publicity highlighting the JQC's involvement in several high-profile judicial resignations. Every time a judge steps down as the result of a JQC action, it seems to embolden attorneys and others to step forward with complaints about other judges, he said.

Indeed, for the fiscal year ending June 30, the JQC received 488 complaints, "the most complaints ever," according to outgoing JQC executive director Cheryl F. Custer, who steps down Sept. 1. The JQC fielded 376 complaints in FY 2009 and 373 complaints in FY 2008.

"I can tell you that persons, lawyers, litigants are feeling a lot more comfortable and a lot less apprehensive about filing complaints now," said Chattahoochee Superior Court Judge John D. Allen, the JQC's vice chairman. "That may be due to the fact we have taken several public actions against judges. It may also be due to the fact the public no longer has the fear of the judiciary they had before about [judges] being untouchable," Allen said.

ILB: A reader sent me the link to this article this morning and asked:
I wonder if complaints like the recent one against Judge Bill Young will embolden lawyers to file more complaints in Indiana?
My thoughts: This, along with the 7th Circuit opinion today, illustrate how important the Indiana Judicial Nominating Commission, which also serves as the Indiana Commission on Judicial Qualifications, is.

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to Courts in general

Ind. Gov't. - "Special judge named in Elizabeth clerk-treasurer case"

Grace Schneider reported Aug. 18th in the Louisville Courier Journal in a story that begins:

A judge decided Wednesday to transfer the Elizabeth Town Council’s effort to remove from office the town’s clerk-treasurer to a special judge.

Harrison Circuit Judge H. Lloyd “Tad” Whitis, after hearing about 30 minutes of procedural arguments on the council’s preliminary injunction request, agreed to turn over the matter to Senior Judge Richard Striegel. A hearing before Striegel is scheduled for Sept. 1.

Afterward, Matthew Lorch, a lawyer for the Elizabeth council, said he expects to return to court with ample evidence to support the council’s position that the current clerk-treasurer is guilty of ghost employment and other illegal acts.

“I feel confident we can amass enough evidence,” Lorch said.

Larry Wilder, who is representing clerk-treasurer Adrian Hall, had to go to another appointment after Wednesday’s hearing and did not comment. But Wilder said in court that the dispute appears to a vengeful bid by former clerk-treasurer Hugh Burns to oust Hall, who defeated Burns in the 2007 town election.

The council last weekend appointed Burns as the interim town manager.

The council had asked Whitis on Monday to issue an injunction barring Hall, 30, from acting in his official capacity because of alleged misconduct, neglect of duty and improper use of town funds.

The request cited an Indiana State Board of Accounts audit in which auditors pointed out that basic duties of the clerk-treasurer had not been performed, including preparation of annual financial reports, reconciliation of bank deposits and timely recordkeeping. The audit also ordered Hall to repay $662 in improperly reimbursed mileage and fees that were shown as given to him but were not deposited to any bank account.

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to Indiana Government

Ind. Courts - "Carroll County clerk refuses to quit"

Sophia Voravong reports today in the Lafayette Journal Courier:

DELPHI -- Carroll County Clerk Nancy Mattox is being asked to resign over what members of the Carroll County Council argue is poor bookkeeping at the expense of taxpayers.

The request came during a council meeting Thursday morning, when Mattox stepped up to give her monthly report.

Mattox refused.

"They have no authority to do this," she said. "I have declined their request."

Though the council's bold move at a public meeting was unexpected, conflict between Mattox and the seven-member board has been ongoing for several months, both parties explained Thursday.

County Council President Ann Brown said it centers on some books that Mattox has not balanced since January 2009, the month that she took office.

Asking Mattox to resign was a unanimous decision among the seven-member council.

"We did our request because of her refusal to follow Indiana Code," Brown said, referring to the unbalanced books. "After month after month ... we felt it was unacceptable for her to violate that code and decided to take action.

"It's fiscally irresponsible for us to allow her to do that. We try very hard to keep Carroll County financially sound." * * *

"I have never refused to do any of my duties as clerk of Carroll County," she said. "I've gone to (the council) on several occasions and requested help, both in the area of staff and help with doing the books.

"I understand that the county has limited funds, but the fact is that I asked for help and have been declined."

The county council does not have authority to force Mattox to resign. And it will not pursue ousting Mattox through legal means because of the likely expense, Brown said.

But the council opted to ask anyway so that Carroll County residents would know.

"It needed to be brought forth to the public," Brown said. "This is the only way we felt that we could get our point across."

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to Indiana Courts

Law - " DOJ Leads Federal Agencies In Student Loan Repayment"

Andrew Ramonas' article in Main Justice begins:

The U.S. Justice Department helped more of its employees pay off student loans in 2009 than any other federal agency, the Office of Personnel Management announced Thursday.

The DOJ used more than $19.3 million in 2009 to help cover the college debts of about 2,350 of its staffers. Federal prosecutors were the leading recipients of student loan assistance, followed by criminal investigators.

See this 32-page Report to Congress titled "Federal Student Loan Repayment Program: Calendar Year 2009."

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to General Law Related

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

For publication opinions today (2):

In Canteen Service Company of Indianapolis, Inc. v. Indiana Dept. of Transportation, an 11-page opinion, Judge Najam writes:

Canteen Service Company of Indianapolis, Inc. (“Canteen”) appeals the trial court's judgment in favor of the Indiana Department of Transportation (“INDOT”) on Canteen's claim for damages from an alleged inverse condemnation. Canteen raises two issues for our review:

1. Whether Canteen's previous sale of its property adjacent and contiguous to First Avenue extinguished its right of direct access to First Avenue; and
2. Whether INDOT's relocation of Canteen's entrance to First Avenue by 210 feet, and by way of a frontage road, amounted to a “taking” under Indiana law.

We hold that the trial court's finding that Canteen had sold fee simple title to the land it used for direct access to First Avenue is supported by the evidence and therefore not clearly erroneous. We also hold that INDOT's reconfiguration of Canteen's access to First Avenue did not amount to a taking under Indiana law. Thus, we affirm the trial court's judgment.

Jeff Sagarin and Shirley Jablonski v. City of Bloomington is an interesting opinion by Judge Bailey on inverse condemnation and eminent domain, prescriptive easement and common law dedication. In addition, at p. 9:
The trial court’s findings included the following: “Due to the actions of the City officials, the landowners were misled into believing that the City had an easement for their properties. Given the circumstances, the Jablonskis and Campbell acted reasonably[.]” In essence, the trial court found that, based upon the City’s representations, the equities were with the landowners and against the City and therefore the City could not prevail upon the affirmative defenses of statute of limitations and laches. That said, the dispositive inquiry for our purposes is whether the trial court clearly erred by concluding that the statute of limitations was tolled due to the City’s actions.

The six year limitation for trespass applies to inverse condemnation actions. Murray, 925 N.E.2d at 733 (citing Ind. Code § 34-11-2-7(3)). The basis for potentially tolling the statute of limitations in these circumstances is appropriately termed fraudulent concealment. The homeowners were aware that the City was installing the path and were aware of the underlying reasons. Despite the fact that the homeowners did not sign any documents gratuitously granting the City an easement, they made no claim for compensation because they had been informed that the City was acting within its existing rights. Essentially what is alleged is that the City concealed from the homeowners the fact they were entitled to compensation from the City for the easement at issue. * * *

This equitable doctrine is now codified as IC 34-11-5-1.4 To claim the benefit of this statute, the wrongdoer must have actively concealed the cause of action, and the plaintiff is charged with the responsibility of exercising due diligence to discover the claims. * * *

There is sufficient evidence of record to support the trial court’s conclusions that actions of the City prevented the homeowners from diligent inquiry and that the lawsuit was brought within a reasonable time after the discovery of information leading to the discovery of the cause of action. We find no clear error in the trial court’s determination that Jablonski’s inverse condemnation claim was not barred by the statute of limitations. * * *

Based on the analysis above, we affirm the trial court’s order but reverse the trial court’s failure to award attorney’s fees.

Affirmed in part, reversed in part, and remanded.

MAY, J., concurs.
BARNES, J., concurs in result in part and dissents in part with opinion. [that begins, at p. 14 of 16] Although I agree with the majority that Sagarin does not have a viable inverse condemnation claim, I do not agree with the majority’s conclusion that the City prevented the Jablonskis from diligent inquiry so as to toll the statute of limitations regarding their claim. On that issue, I respectfully dissent.

NFP civil opinions today (4):

Richard M. Jackson, et al. v. Benjamin Parks (NFP)

Term. of Parent-Child Rel. of E.H.; K.N. and C.H., Jr. v. IDCS (NFP)

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

Kurt Retrum, M.D., et al. v. Sarah Tinch (NFP)

NFP criminal opinions today (1):

Donald Carew v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 20, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two interesting Indiana opinions today from 7th Circuit

In Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard (ND Ind., Springmann), a 29-page opinion, Cheif Judge Easterbrook writes:

The Supreme Court held in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (White I), that elected judges, and candidates for judicial office, have a right under the first amendment to declare their legal views to the electorate during their campaigns. The decision left open myriad questions of implementation, and litigation has ensued across the country in those states that give the voters some say in choosing judges—either through direct election or by retention votes on judges who came to office by appointment. Recently we held that Wisconsin violated the Constitution by forbidding judges to be members of political parties, but that rules restricting partisan activities (such as endorsing a candidate for non-judicial office), and personal solicitation of funds, are valid. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010). Today’s appeal concerns provisions of Indiana’s Code of Judicial Conduct. Some judges in Indiana are appointed by the Governor but must run in retention elections. Others are directly elected. Article VII of Indiana’s Constitution provides the details. * * *

Context may help to disambiguate a statement, but there is an irreducible risk that a promise may be misunderstood— or that the Commission and the Supreme Court of Indiana may treat as “inconsistent with the impartial performance of the adjudicative duties of judicial office” even the sort of statements that are squarely protected by White. We think that statements such as “judges have been too ready to find antitrust problems with mergers” or “mandatory minimum sentences are unjust, and I will read those statutes narrowly” or “drunk drivers are a menace and should be dealt with severely” or “abortion should be freely available, and I will grant a minor’s application for bypass of parental consent when a statute gives me that discretion” are outside the scope of the commits clauses. But will the Commission and the state judiciary agree?

The best way to find out is to wait and see. The Commission [on Judicial Qualifications] issues advisory opinions that reduce uncertainty, state judiciary will issue an opinion that makes the state judiciary will issue an opinion that makes the rule more concrete. Plaintiffs want us to deem the law vague by identifying situations in which state officials might take an untenably broad reading of the commits clauses, and then predicting that they will do so. It is far preferable, however, and more respectful of our judicial colleagues in Indiana, to assume that they will act sensibly and resolve the open questions in a way that honors candidates’ rights under the first amendment. * * *

We modify the district court’s judgment to provide that the challenge to the 2008 version of the Code is dismissed as unripe, not as moot. As modified, the judgment is AFFIRMED.

I can't begin to highlight all the significant parts of this opinion. For background, start with this ILB entry from July 8, 2009.

In Schleicher v. Wendt (SD Ind., Hamilton), a 16-page opinion, Chief Judge Easterbrook writes:

When a large, public company makes statements that are said to be false, securities-fraud litigation regularly proceeds as a class action. Class treatment is appropriate when issues common to class members predominate over those that affect them individually. Fed. R. Civ. P. 23(b)(3). Whether the statements are false is one common question. Whether the falsehoods are intentional (i.e., whether each defendant acted with the required state of mind) is another. Whether the falsehoods affected the stock’s price is a third. (If investors already know the truth, false statements won’t affect the price.) Whether the magnitude of any effect shows that the false information was “material” is a fourth. There will be some person-specific issues, such as when (and how many shares) a given investor purchased or sold. Timing of each person’s transactions, in relation to the timing of the supposedly false statements, determines how much a given investor lost (or gained) as a result of the fraud. But these questions can be resolved mechanically. A computer can sort them out using a database of time and quantity information. * * *

The district court assured itself that the market for Conseco’s stock was thick enough to transmit defendants’ statements to investors by way of the price. That finding supports use of the fraud-on-the-market doctrine as a replacement for individual reading and reliance on defendants’ statements. The district court did not commit a legal error, or abuse its discretion, in deciding that the fraud-on-the-market doctrine should not be conscripted to serve some other function, and its decision therefore is affirmed.

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

Thursday, August 19, 2010

Ind. Courts - Yet another post-Wallace lawsuit, required to enforce Supreme Court's ruling

A story today by Bob Kasarda of the NWI Times begins:

VALPARAISO | Portage resident Terry Hough admits up front he was convicted of rape in Pennsylvania in 1993.

But the 46-year-old argues in a lawsuit that he should not be forced to register as a sex offender in Porter County because at the time of his offense and conviction there were no registry laws in either Pennsylvania or Indiana.

"The Indiana Supreme Court has held that the sex offender registration requirements cannot be applied retroactively to one who committed an offense before the Act without violating the state constitution," according to his suit targeting the state of Indiana. * * *

Deputy Prosecutor Cheryl Polarek, who handles sex offense cases in the county, agrees with Hough's reading of the law, but she said the decision will be up to the courts and state attorney general's office.

ILB: In short, despite Wallace, the burden remains on each individual petitioner to file a lawsuit and go to court to prove that the registration requirement does not apply to him.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Judge allows cop in DUI to keep license

Updating this entry from earlier this afternoon, Jon Murray of the Indy Star now reports:

Top public safety officials and the Marion County prosecutor this afternoon announced sweeping actions that will result in the dismissal of DUI charges against the suspended officer accused of driving drunk and causing a fatal crash with two motorcycles that were stopped at a light.
More:
The dismissal of officer David Bisard's six counts of operating a motor vehicle while intoxicated -- leaving intact a reckless homicide charge and two newly filed criminal recklessness counts -- is rooted in a fatal flaw in the case, Prosecutor Carl Brizzi said. Brizzi said a lab tech who drew Bisard's blood sample at an occupational health clinic was not certified under Indiana's DUI laws to do such work for a criminal case. Instead, he said, officers should have taken Bisard to a hospital for the blood draw.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Ind. Trial Ct. Decisions

Courts - "Wall Street Journal Calls For Fitzgerald Resignation"

This August 10, 2010 ILB entry linked to a Chicago Tribune story headed "Verdict could cast light or shadow on Patrick Fitzgerald: One way or another, the man who brought the case against Blagojevich might be affected." Today, as reported by Andrew Ramonas of Main Justice:

The Wall Street Journal editorial board on Thursday called for the ouster of Patrick Fitzgerald over his handling of the mostly unsuccessful prosecution against former Illinois Gov. Rod Blagojevich. * * *

“If Mr. Fitzgerald doesn’t resign of his own accord, the Justice Department should remove him—especially after such other recent examples of prosecutorial bad faith or bad judgment involving Blackwater contractors in Iraq, the forgotten backdating accounting scandal and the late Senator Ted Stevens,” the editorial board wrote.

The U.S. Attorney, who has led the Northern District of Illinois U.S. Attorney’s Office since 2001, is known for aggressive prosecutions against high-profile public figures, including I. Lewis “Scooter” Libby, the national security adviser to former Vice President Dick Cheney. * * *

Fitzgerald said there will be a retrial in the Blagojevich case. The U.S. attorney’s office is almost ready to begin jury selection, and a judge scheduled a hearing on the subject for Aug. 26, the Associated Press reported Thursday.

Sam Adam Sr., one of the ex-governor’s lawyers, said at a news conference on Tuesday that Fitzgerald is “nuts.” “I wish this entire group would go upstairs and ask Fitzgerald one question: I understand he’s got an important job, but why are we spending 25 to 30 million dollars on a retrial? You couldn’t prove it the first time,” Sam Adam Jr., who is also representing Blagojevich, said Tuesday, according to the AP.

Also interesting, this Tribune story by Steve Schmadeke, Vikki Ortiz Healy, Noreen S. Ahmed-Ullah and Duaa Eldeib, headed "Holdout stoked tension on Blagojevich jury."

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Courts in general

Ind. Decisions - Judge allows cop in DUI to keep license

Updating this ILB entry from August 17th, Jon Murray of the Indianapolis Star reports this afternoon in a story that begins:

A judge ruled this morning that a suspended Indianapolis police officer may keep his driver's license while he awaits trial on charges that he was driving drunk on duty when he struck two motorcycles, killing one rider and injuring two others.

The decision by Marion Superior Court Judge Grant Hawkins came down to differences in the language of two chapters of Indiana’s “implied consent” laws for drivers suspected of driving drunk. Police learned that officer David Bisard was drunk when blood test results came back days after the Aug. 6 crash — but officers at the scene had not suspected that he was intoxicated, according to court documents.

That lag in suspicion was key to the judge’s ruling. Citing an appellate court decision, he found that in the law at issue, license suspension only applies to suspects when probable cause to believe they are intoxicated is established by police before any blood test is given. But a separate provision requiring drivers involved in fatal crashes to submit to an intoxication test automatically does not discuss a license suspension unless the person refuses the test.

That latter section of the law applied in Bisard’s case.

The defense could try to keep the blood test from being used as evidence against Bisard in the larger case — a move that, if successful, would torpedo the charges. But that issue was not addressed today, and the defense has not filed a motion to suppress the blood test.

“I think we all agree that probable cause for an arrest is not the same as probable cause for a license suspension,” Hawkins said today, making clear he considered the issues separate.

Don't miss Murray's lengthy background piece on the Bisard case, including a narrative, a timeline, and links to the charging information and probable case affidavit.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Law - More on "Take the Money and Run:The crazy perversities of civil asset forfeiture"

Updating this ILB entry from Feb. 5, 2010, the author quoted in that entry (Radley Balko) has this August 16th article centering on Indiana's civil asset forfeiture practices. Today, another writer, Ed Brayton, builds on the earlier stories.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Law

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

For publication opinions today (1):

In Kari Heyser, et al. v. Noble Roman's, Inc., et al., a 9-page opinion, Sr. Judge Sharpnack concludes:

Thus, on the face of the record, the Franchisees' then counsel unequivocally stated at the March 25, 2009 hearing: (1) the Franchisees' fraud claims against the Banks were based solely on allegedly fraudulent representations by Noble Roman's, with whom the Banks allegedly acted in conspiracy; and (2) the Franchisees were alleging actual fraud, not constructive fraud. Thus, the Franchisees' then counsel admitted that the Franchisees were only pleading actual fraud against Noble Roman's, who was the only defendant that allegedly made fraudulent statements. That admission was binding upon the Franchisees throughout the lawsuit. Under these circumstances, Noble Roman's was entitled to judgment as a matter of law on the Franchisees' subsequent attempt to plead constructive fraud, and the trial court did not err by granting partial summary judgment to Noble Roman's on that claim. See Hockett, 526 N.E.2d at 998 (affirming a grant of summary judgment where an attorney conceded an issue that was dispositive of his client's case).
NFP civil opinions today (3):

Jacqueline Babbitt v. Indiana State Police Trooper, et al. (NFP)

Midwest Psychological Center, Inc., and Dr. Shelvy Keglar v. Silvia Funk, et al. (NFP)

TBS Development LLC, et al. v. Central Bank & Trust Co. (NFP)

NFP criminal opinions today (5):

Grante Ficklin v. State of Indiana (NFP)

Denise Diggins v. State of Indiana (NFP)

Leroy Jones v. State of Indiana (NFP)

Darby Hape v. State of Indiana (NFP)

Taron Raphael Momon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: "Some States Are Lacking in Health Law Authority"

Updating this ILB entry from August 15th, here is a press release from HealthCare.gov, which is "A federal government Website managed by the U.S. Department of Health & Human Services." Some quotes:

Health Insurance Premium Grants: Detailed State by State Summary of Proposed Activities

On August 16, U.S. Department of Health and Human Services Secretary Kathleen Sebelius announced the award of $46 million to enhance States’ current processes for reviewing health insurance premium increases. Forty-five States and the District of Columbia applied for grants, and each will receive $1 million in grant funds to help improve the review of proposed health insurance premium increases, take action against insurers seeking unreasonable rate hikes, and ensure consumers receive value for their premium dollars. A list of States’ current health insurance rate review practices and a summary of their intended use of these new resources is below.

States have proposed to use this funding in a variety of ways.

  • Additional Legislative Authority: 15 States and the District of Columbia will pursue additional legislative authority to create a more robust program for reviewing or requiring advanced approval of proposed health insurance premium increases to ensure that they are justified.
  • Expand the Scope of Health Insurance Premium Review: 21 States and the District of Columbia will expand the scope of their current health insurance review, for example by reviewing and pre-approving rate increases for additional health insurance products in their State.
  • Improve the Health Insurance Premium Review Process: All 46 State grantees will require insurance companies to report more extensive information through a new, standardized process to better evaluate proposed premium increases and increase transparency across the marketplace.
  • Make More Information Publicly Available: 42 States and the District of Columbia will increase the transparency of the health insurance premium review process and provide easy to understand, consumer friendly information to the public about changes to their premiums.
  • Develop and Upgrade Technology: All State grantees will develop and upgrade existing technology to streamline data sharing and put information in the hands of consumers more quickly.
The chart below provides a detailed summary of how each State intends to overhaul its health insurance premium review process. * * *

Indiana

  • Current Authority
    • Individual Market: Individual: All rates require the prior approval of the Department. Minimum loss ratios vary between 50 and 60 percent depending on renewal clause (NAIC model). Rates must be reasonable in relation to benefits (IC 27-8-5-1.5).
    • Small Group Market: Small Group: HMO rates require the prior approval of the Department (IC 27-13-20-1). All other carriers must file rates with the Department.
  • Additional Legislative Authority: No
  • Expand the Scope of Health Insurance Premium Review: No
  • Improve the Health Insurance Premium Review Process: Indiana currently prospectively reviews all premium increases. The State will improve the rigor of its current review process by acquiring contracted actuarial support. Additionally the State will conduct a study to identify best review practices across States and identify areas where existing regulations and legislation can be strengthened.
  • Make More Information Publicly Available: Rate filings are currently available upon request. The State will develop a consumer website that will provide complete rate filings and high -level filing summaries. Consumers will be able to post comments on proposed rate increase directly on the site.
For background, see this May 6, 2010 ILB entry headed "For WellPoint, Math Error Spurs More Scrutiny." Here are some other ILB entries containing "Wellpoint."

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Government

Ind. Gov't. - " What the heck just happened to Howard County? Officials explain how Chrysler and GM low-balled local taxpayers by exploiting state law"

Interesting story today in the Kokomo Perspective, although I don't claim to understand it all.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Government

Ind. Gov't. - "New Albany City Council pay resolution questioned: Salary of elected officials can’t be lowered according to attorney general's opinion" [Updated]

Daniel Suddeath reports in the New Albany News & Tribune:

According to an official opinion rendered by former Indiana Attorney General Steve Carter, pay for elected officials may not be reduced to less than the amount of their salary from the previous year.

This legal interpretation has a local impact, as New Albany City Councilman Dan Coffey has authored a resolution for a vote today that would reduce the pay of the city council members by 10 percent in 2011.

The measure also calls for the council to rescind its option to participate in the city’s medical plan.

Carter’s legal opinion was originally issued in 2003 and updated in 2005. It was prepared for state Senator Joseph Harrison of Attica in response to whether a local clerk treasurer’s salary could be lowered.

Carter cited Indiana Code section 36-4-7-2 that he viewed as an order prohibiting such an action.

“The compensation of a city officer may not be reduced or increased in the year fixed, nor may it ever be reduced to less than the salary of the prior year, regardless of timing,” Carter wrote in his conclusion statement. * * *

Coffey said Tuesday he intends to proceed with the resolution, adding that he researched the state law before writing the measure and believes it to be on par with Indiana code.

Regardless of the 2003 attorney general opinion, Coffey said he would like to know the “moron who would file suit against elected officials for lowering the salary on themselves.”

With city budgets being frozen and a $1.8 million funding shortfall for public safety looming, Coffey said the council should set an example and agree to a pay cut.

ILB notes: First, if you looked at IC 36-4-7-2 and are wondering what the 2009 amendment was, it appears to be irrelevant to this matter. Read it here, at p. 8, SECTION 9 of HEA 1230-2009.

Second, I am unable to locate the 2003 and/or 2005 Attorney General opinions cited in the story. Here is a list of the opinions.

[Updated] Okay, thanks to the AG's Bryan Corbin, I've learned it is a 2004 opinion, 2004-09 Compensation for Elected City Officer.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Government

Ind. Law - Suit filed in federal court challenges Indiana's disfranchisement of qualified voters who have been incarcerated by reason of a misdemeanor conviction

Updating the ILB entry from August 16th, which included copies of the10-page complaint and Exhibit A, the "Notice of Disfranchisement," Jeff Parrott of the South Bend Tribune has a good story today headed "Suit challenges jailed voter ban: Former Roseland council member says statute unconstitutional." Some quotes:

A former Roseland Town Council member jailed for a misdemeanor crime has sued state and county election officials, alleging that a state law allowing cancellation of his voter registration is unconstitutional.

David R. Snyder seeks class-action certification of his lawsuit, filed this week in federal court in Indianapolis.

Snyder spent two months in the St. Joseph County Jail, from March to May of last year, after he was convicted of misdemeanor battery against former Town Council member Ted Penn. While Snyder was in jail, county clerk and voter registration board member Rita Glenn's office mailed a state form letter to his home stating that under a state statute, his voter registration had been canceled.

"The county voter registration office has been notified that you have been convicted of a crime, and are now or were incarcerated," the form letter read. "As a result, your name will be removed from the list of registered voters immediately."

The law allows Snyder to register again after his release from jail. But he said he didn't immediately notice the letter. * * *

Snyder said he didn't realize his name had been removed from the voter registration list until November when he went to his polling place at Clay High School to vote on the South Shore Railroad referendum question.

A poll worker there told him that his name was not on the registration list. She called downtown to the clerk's office, where an official said Snyder's registration had been canceled because he had been jailed on a misdemeanor conviction, he said.

"We thought there was an error," Dorothy said. "We thought only felons couldn't vote."

Actually, the Indiana statute that the suit is challenging treats felonies and misdemeanors the same. In Indiana, people convicted of felonies cannot vote while in prison, but can re-register after their prison release.

Indiana code requires county sheriffs and state prison officials each quarter to supply voter registration officials with the names of people who have been incarcerated for criminal convictions.

Snyder also could not vote in the May 2010 primary because he remained unregistered, and still is not registered.

In interviews Wednesday with The Tribune, Snyder and his Indianapolis attorney, William Groth, acknowledged that Snyder could re-register now, but they said doing so would likely render his complaint moot.

"If the policy is going to be challenged, it has to be challenged by someone with standing," said Groth, who specializes in election-related law. "Mr. Snyder believes the state did not have the authority to disenfranchise him while he was in jail in the first place and would like to use this as a vehicle to challenge the constitutionality of the law." * * *

While many states prohibit convicted felons from voting for some period of time, only five states — Michigan, Illinois, South Carolina, Maryland and Colorado — bar some or all people convicted of misdemeanors from voting, according to a 2005 study by Alec Ewald, political science professor at Union College in Schenectady, N.Y. [ILB - see note below]

The Indiana General Assembly passed the statute, which refers only to people who commit "crimes," in 1995. Snyder's suit alleges that the Indiana Constitution only allows disenfranchisement of people convicted of "infamous" crimes. In other cases, the state Court of Appeals has interpreted "infamous crimes" to be felonies only, the suit claims.

_________
ILB note: The 2005 study is titled "A 'Crazy-Quilt' of Tiny Pieces: State and Local Administration of American Criminal Disenfranchisement Law." It which states at p. 5 (p. 13 of the PDF):
Both critics and supporters of laws barring people convicted of crime from voting usually refer to “felon disenfranchisement.” But on the national scale, this term is not accurate. Five states formally bar some or all people convicted of misdemeanors from voting during their sentences: Colorado, Illinois, Michigan, and South Carolina prohibit anyone in jail or prison after any criminal conviction, including misdemeanors, from voting. Maryland, meanwhile, disqualifies those misdemeanants whose offenses appear on the state’s regularly-revised list of “infamous crimes.” In each of these states, survey responses, statutes, or press accounts suggested that misdemeanants might be formally excluded, and follow-up calls were made to state elections and legal officials inquiring whether confined misdemeanants are eligible to vote in these states. There was usually some uncertainty among officials in the Secretary of State’s and Attorney General’s offices about this question, with one or two staffers unable to answer, often suggesting that the caller try another state agency. But in each of these states, a state official stated definitively that misdemeanants are formally ineligible to vote while confined. Meanwhile, in Mississippi and Kentucky, constitutions and statutes suggest that misdemeanants might be disqualified, but state officials in both states said they should retain the right to vote. And in Indiana, a legal official in the Secretary of State’s office explained that misdemeanants serving time in jail are not eligible to vote, even though Indiana case law suggests that misdemeanants should remain eligible.

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Law

Ind. Courts - "Bail change helps Tippecanoe County recoup costs"

Sophia Voravong reports today in a sidebar to the pauper attorney story in the Lafayette Journal Courier:

Changes to how bail amounts are set for people charged with felony crimes could mean more revenue for Tippecanoe County.

A new bond schedule took effect July 1 that allows Tippecanoe County judges and the magistrate to designate that a defendant's bond be split and payable by both surety and cash.

For instance, someone ordered to pay $10,000 bond in order to be released from the Tippecanoe County Jail would pay $5,000 surety and $500 cash.

Before, higher-level felonies required defendants to post only surety bond.

A surety bond requires defendants to go through a bail bondsman, which is meant to increase the odds that the defendant will appear in court.

Defendants typically pay 10 percent of their surety bond amount, and that payment is not refundable.

By splitting bond between surety and cash, Tippecanoe County can keep the cash portion in escrow and, if applicable, use the money toward public defender fees and other court costs, Magistrate Norris Wang said.

The cash portion also can be used to pay restitution.

It's beneficial because Tippecanoe County has no set way to recoup court-ordered fees, particularly from people released from prison who have moved from the area, said Tippecanoe Circuit Court Judge Don Daniel.

He said going after unpaid fees -- for instance, a $100 probation fee -- through civil proceedings tends to be more costly than the actual amount owed.

ILB question: Are any of these sums properly categorized as forfeitures?

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Courts

Ind. Courts - "Pauper attorney costs scrutinized" in Tippecanoe County

Sophia Voravang reports today in the Lafayette Journal Courier:

Defendants in criminal cases in Tippecanoe County would have to provide better proof that they cannot afford a private attorney if the Tippecanoe County Council has a say.

Faced with another tight budget for 2011, the council is asking all departments to look at how costs can be trimmed, said council president Andy Gutwein, R-District 4.

One suggestion to Tippecanoe County's judges and magistrates was whether tougher guidelines are needed to determine if a defendant qualifies for a public defender.

According to Gutwein, that was prompted by growing expenses from the public defender's office and pauper attorneys appointed by judges.

"We just want to make sure that the judges are making a proper assessment as to someone's indigency," he said. "We want to make sure that judges are reviewing that carefully. * * *

Tippecanoe County does not have the resources to follow up on whether someone is lying about working or what property he owns, [Magistrate Norris] Wang said. He estimates that on Mondays, the busiest days for initial hearings, about half of the defendants ask for a public defender.

One possible solution to cutting costs -- and monitoring defendants -- would be creating a court administrator. Tippecanoe County is the largest county in Indiana without that position, [Tippecanoe Circuit Court Judge Don] Daniel said.

For background, start with this ILB entry from Aug. 9, 2009, headed "Channel 6 finds public defender appointed upon request, with no effort at determining financial need."

Posted by Marcia Oddi on Thursday, August 19, 2010
Posted to Indiana Courts

Wednesday, August 18, 2010

Ind. Law - Great CLE opportunity!

If you are interested in learning about Agricultural Conservation Easements, a farmland protection and estate planning tool, the Indiana Farm Bureau is offering a seminar Sept. 10, 2010. It is worth 4.6 CLEs and costs $20, including lunch! Click here to register or to download the brochure (or here).

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Indiana Law

Law - Prisons Without Walls?

Tieing together our entry earlier today on "Prison Growth and Problems" and earlier entries on GPS surveillance, Ashby Jones of the WSJ Law Blog writes this afternoon:

Today, we came across this article in the September issue of The Atlantic. The topic: whether the ability to track criminals outside the prison setting, as some law-enforcement agencies do with sex-offenders and parolees, might eliminate (or at least reduce) the need for prisons.
The Atlantic article, available here, is titled "Prisons Without Walls."

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to General Law Related

Courts - Interesting commentary on interesting observation in 9th Circuit opinion

From Above the Blog.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Courts in general

Ind. Courts - "7th Circuit Nominee's Net Worth: Nearly $20M"

From an entry newly posted by David Ingram on The Blog of Legal Times - some quotes:

Victoria Nourse, a nominee for the U.S. Court of Appeals for the 7th Circuit, would likely leap into the ranks of the wealthiest federal judges if she is confirmed.

Nourse reported a household net worth of $19.8 million in a financial disclosure required as part of the Senate confirmation process. * * *

The disclosure report doesn’t ask nominees where their wealth comes from, but Nourse’s husband, Richard Cudahy Jr., is descended from the founder of meat processor Patrick Cudahy Inc. He works at the investment firm Robert W. Baird & Co.

(Nourse’s father-in-law, Richard Cudahy Sr., is a senior judge on the 7th Circuit. He is expected to retire if Nourse is confirmed, according to her answers to a separate Senate questionnaire.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Indiana Courts

Ind. Decisions - Two recent Supreme Court rulings

In a 2-page Order filed July 27, 2010, Acting CJ Dickson writes:

Pursuant to Indiana Appellate Rule 64, the United States District Court for the Southern District of Indiana has certified a question of Indiana state law for this Court’s consideration. The question arises in Green v. Ford Motor Co., Case No. 1:08-cv-0163-LJM-TAB (S.D. Ind.). The question, as framed by the district court, is:
“Whether, in a crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act, the finder of fact shall apportion fault to the person suffering physical harm when that alleged fault relates to the cause of the underlying accident.”
The certified question, which each member of this Court has considered, is hereby ACCEPTED pursuant to Indiana Appellate Rule 64.

In State of Indiana ex rel. Center B. v Marion Superior Court, Civil Division 10, et al., a 5-0 opinion filed Aug. 5, 2010, CJ Shepard writes:

Relator filed a verified petition for writ of mandamus and accompanying application papers under the rules governing original actions. Relator alleges, among other things, that the trial court failed to rule on a motion within the time required by Trial Rule 53.1 and that the trial court clerk failed in her duty to withdraw the case from the court for appointment of a special judge after Relator filed its praecipe on January 19, 2010. This Court issued an order allowing an opportunity for the filing of responsive briefs. * * *

The Honorable David J. Dreyer is directed to vacate any orders issued in the case below after the filing of Relator’s praecipe and to cease exercising jurisdiction over the case except as to any administrative tasks necessary to effectuate this writ. Elizabeth L. White, clerk of the trial court, is directed to give written notice to Judge Dreyer and this Court that submission of the case has been withdrawn in accordance with Trial Rule 53.1(E)(2). Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

Judge Dreyer is reminded of his obligation to file a written report pursuant to Trial Rule 53.1(F) once the clerk complies with Trial Rule 53.1(E)(2) and this Court issues an order appointing a special judge.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Hematology-Oncology of Indiana, P.C. v. Hadley W. Fruits, Personal Rep. for the Estate of Elizabeth Ann Cadou, an 11-page opinion, Judge May writes:

Hadley Fruits, as personal representative of the Estate of Elizabeth Ann Cadou, sued Hematology-Oncology of Indiana (hereinafter “Hematology”) for medical malpractice and wrongful death. A jury found for the Estate, and the trial court awarded attorney's fees, costs, and expenses to the Estate. Hematology asserts the court erred by awarding fees, costs, and expenses. As such an award is available under the Wrongful Death Act (WDA) or the Adult Wrongful Death Act (AWDA),1 and the award does not cause the Estate's recovery to exceed the cap provided in the Medical Malpractice Act, we affirm.
_______
[1] We acknowledge that in McCabe v. Comm’r, Ind. Dept. of Ins., no. 49A02-0908-CV-728 (Ind. Ct. App. Jul. 20, 2010) [ILB summary here, 3rd case], a panel of this court addressed the availability of attorney's fees under the AWDA and reached a conclusion contrary to that we reach today. As explained in note five below, after careful evaluation of the McCabe panel's analysis of the same question that is before us, we decline to follow that panel's rationale.
In Meridian Security Ins. Co., et al. v. Stefo Gubic, et al. , a 15-page opinion, Judge Mathias writes:
Meridian Security Insurance Co. (“Meridian”) appeals the trial court's grant of summary judgment in favor of Hoffman Adjustment Co. and Joe Hoffman, individually (collectively “Hoffman”). Meridian argues that genuine issues of material fact exist concerning whether Hoffman, a public insurance adjuster, engaged in fraud, spoliation of evidence, and tortious interference with Meridian's business and contractual relationships with its policy holders, Stefo and Adele Gubic (hereinafter “the Gubics”). Meridian therefore argues that the trial court erred when it granted Hoffman's motion for summary judgment. We affirm. * * *

Meridian's claims against Hoffman are not actionable under Indiana law because Hoffman had no contractual relationship with Meridian in his capacity as a public adjuster and the Gubics' agent. Meridian's claims are simply coverage defenses, which Meridian can and has raised against the Gubics in the pending litigation. Meridian has also not alleged any compensable damages. Finally, Meridian cannot raise a claim of spoliation of evidence against Hoffman because Hoffman is both the Gubics' agent and a party to the litigation. We therefore affirm the trial court's grant of summary judgment in favor of Hoffman.

NFP civil opinions today (4):

In Timothy and Sonia Platt v. Wachovia Dealer Services (NFP), a 5-page opinion in a case with pro se plaintiffs, Judge Mathias concludes:

The Platts misconstrue section 26-2-9-5 to argue that under that statute, the trial court was allowed to unilaterally modify their written credit agreement with Wachovia. To the contrary, section 26-2-9-5 is a statute of frauds that simply provides that a credit agreement may be amended or modified only via a written agreement containing all material terms and conditions that is signed by the creditor and the debtor. Moreover, it is well settled that a “court, even in equity, cannot make a new contract for the parties, or add new terms thereto.” Ballew v. Town of Clarksville, 683 N.E.2d 636, 640 (Ind. Ct. App. 1997), trans. denied (citing Puetz v. Cozmas, 237 Ind. 500, 507, 147 N.E.2d 227, 231 (1958) (“The court cannot re-write and then enforce contracts which, to the knowledge of the court, the parties themselves did not enter into.”)).

For these reasons, we conclude that the trial court did not err when it dismissed the Platts’ complaint pursuant to Trial Rule 12(B)(6) for failure to state a claim upon which relief may be granted.

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

Term. of Parent-Child Rel. of K.N. and D.N.; J.P.N. v. IDCS (NFP)

Adoption of N.W.; J.R. & L.R. v. I.D.C.S. (NFP)

NFP criminal opinions today (10):

David D. Hauk v. State of Indiana (NFP)

Wardel Brown, III v. State of Indiana (NFP)

Alvino Pizano v. State of Indiana (NFP)

Linda Montalvo v. State of Indiana (NFP)

Terry Duckworth v. State of Indiana (NFP)

Clyde Edward Pryor v. State of Indiana (NFP)

Carlee Smith v. State of Indiana (NFP)

William P. Ruel v. State of Indiana (NFP)

Ryan Hade v. State of Indiana (NFP)

William Sebastian, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One Indiana opinion issued today by 7th Circuit

In US v. Anna LaFaiver, aka Phyllis Click (ND Indiana, Springmann), a 13-page opinion, Judge Kanne writes:

Anna LaFaive assumed the identity of her deceased sister, opened checking accounts in her name using counterfeited checks, and withdrew nearly $65,000 before being apprehended. A jury convicted her of two counts of bank fraud and two counts of aggravated identity theft. On appeal, LaFaive challenges her conviction under 18 U.S.C. § 1028A for aggravated identity theft and takes issue with the procedure used by the district court in calculating her sentence. We affirm both her conviction and sentence. * * *

18 U.S.C. § 1028A(a)(1) criminalizes the misuse of another person’s identity, whether that other person is living or deceased. The district court, therefore, did not plainly err in entering the jury’s conviction of LaFaive for violating that statute. The district court also did not plainly err in calculating or imposing LaFaive’s sentence. Accordingly, we AFFIRM LaFaive’s conviction and sentence.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "ACLU of Ohio produces major report on prison growth and problems"

This item from Sentencing Law & Policy Blog may be of interest to those interested in Indiana's prison overcrowding and the Pew Study of Indiana mentioned in this ILB entry from March 17, 2010. From a Star story of that date"

Last year, the General Assembly created the Criminal Code Evaluation Commission and charged it with issuing recommendations in 2011 on changes to the Indiana Penal Code, last updated in 1977. They will consider factors including redundancy and appropriateness of sentencing classes assigned to different crimes.

In January, leaders from all three branches of Indiana's government sent a letter requesting that the Pew Center take a close look at how Indiana might reduce recidivism and safely manage prison population growth.

Gov. Mitch Daniels, Attorney General Greg Zoeller, House Speaker B. Patrick Bauer, Senate President Pro Tempore David Long and Indiana Supreme Court Chief Justice Randall Shepard signed the letter.

Many states have tackled the issue directly, often with the Pew Center's guidance.

Gelb said the Pew Center would respond to the Indiana officials' request for analysis after a site visit next month.

What's happening with this? The Criminal Code Commission has received a report from Pew. The minutes of the first meeting, on June 28, 2010, are sparse and include no attachments. The July 28, 2010 meeting is similar. There are no agendas posted for future meetings.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Indiana Government

Ind. Decisions - Still more on: ND Judge rules LaPorte must replace crumbling sidewalks

Updating these ILB entries from Jan. 1, 2010 (including a link to the opinion) and Jan. 6, 2010, Stan Maddux of the South Bend Tribune reports today under the headline "LaPorte settles sidewalk case: City reaches financial deal it can live with":

LAPORTE — The city of LaPorte has caught a financial break in a settlement that stems from being sued under the federal Americans with Disabilities Act over the condition of its sidewalks.

The agreement unanimously approved Monday by the City Council requires that from $50,000 to $100,000 annually be spent on sidewalk repairs over a 20-year period.

That pales in comparison with the estimated $30 million the cash-strapped city was having to face spending to fix sidewalks after a Dec. 29 ruling in U.S. District Court in South Bend.

The federal court mandated the city comply with ADA requirements by upgrading sidewalk conditions.

"Relief," said LaPorte Mayor Kathy Chroback when asked for her reaction to the settlement. * * *

Representing the city in the case was attorney Mark Phillips, who urged the City Council to accept the settlement.

"The settlement agreement is much more favorable to the city than what we could have expected from the court had we continued the litigation and lost the litigation," Phillips said.

The city's monetary commitment in the settlement was reached based on the city's dire financial condition aggravated by the three-year delay in the recently completed property tax reassessment, he noted.

The city will not have to spend any money fixing sidewalks for three years and possibly as long as five years, which is the time it could take for property tax billing and flow of tax dollars to get back on a normal schedule.

In response to the 2006 lawsuit being filed, the city has been putting in handicapped-accessible ramps the past few years at many street corners. * * *

[Plaintiff Al] Levandoski, 79, is confined to a motorized wheelchair. He often ventures out into the street to get around because of heaved and cracked sidewalks.

He said the settlement is fair given the city's financial condition and recent efforts in putting in ramps at the curbs.

"I see they're working at it. You got to give them credit for that," Levandoski said.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Environment - Carp suit heading to court: Federal testimony will start Monday

From a story yesterday by Dan Egan of the Milwaukee Journal Sentinel that begins:

The lawsuit filed by a coalition of Great Lakes states to force the government to do more to protect Lake Michigan from the advancing Asian carp heads to federal court in Chicago next week.

Testimony will be heard Monday, according to a spokesman for Wisconsin Attorney General J.B. Van Hollen.

The suit, which names the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago as defendants, is asking the court to order shut two lakeside navigation locks - except in emergency situations, such as big storms when the locks are opened as a safety valve to prevent flooding in the Chicago area.

The suit also demands that the corps fast-track a study looking at options for reconstructing the separation between Lake Michigan and the Mississippi River basin that the Chicago canals destroyed more than a century ago.

In addition to testimony Monday, two days have been set aside the following week for the court to hear testimony if it finds the plaintiffs' arguments persuasive, according to a spokesman for Van Hollen.

Wisconsin, Minnesota, Michigan, Ohio and Pennsylvania are the plaintiffs in the suit, which was filed after news in June that an Asian carp had been found within six miles of Lake Michigan, well above the Chicago Sanitary and Ship Canal's electric barrier that was built to keep the fish out of the lake.

Note that Indiana, which appears to have been on both sides of this issue, is not a party.

The Journal-Sentinel has collected its past Great Lakes environmental stories in a special section headed "Great Lakes, Great Peril." They note that experts have forecast this will be the century of water.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Environment

Ind. Law - "Republicans challenge Collins being on [Howard County] ballot"

From a lengthy story yesterday by Tim Turner of the Kokomo Perspective:

Politicking by Howard County Republican Party chairman Craig Dunn failed last week when his attempts to get the Democratic recorder candidate, Josh Collins, removed from the ballot.

Dunn was trying to use part of the Indiana Code that is intended to prevent vote fraud to say that Collins wasn’t a registered voter when he filed his candidacy.

“Under IC3-8-1-1, a candidate must be a registered voter in the county in order to qualify as a candidate,” Dunn said. “Because the vote application had not been processed and the seven-day pending period had not passed and the application approved before the Declaration of Candidacy was filed, it is our belief that Mr. Collins would not have been qualified on the day he filed to become a candidate. Because there is a 30-day window in which a vacancy can be filled and Mr. Collins never filed a declaration after he became a registered voter, it is our opinion that his name may not be placed on the General Election ballot.” * * *

[The story continues with a lengthy timeline and analysis.]

Ultimately the Election Board, which is made up of [Mona Myers, Howard County clerk], Connie Howard, and Mark Hurt voted to keep Collins on the ballot by a 2-1 vote, with Myers being the no vote. Howard, who is a Republican, could have cost herself her position on the Election Board by voting in favor of keeping Collins on the ballot.

“I am really undecided, because I know what the law says in here but I think if you are registered you are registered,” said Howard. “My conscience tells me to say yes.”

Dunn said he was considering removing Howard from the Election Board because he felt her decision was not based on the law. He said based on the opinion he received from Brad King, co-director of the Indiana Election Commission, Collins wasn’t a registered voter until seven days after he submitted his application. He said that he wouldn’t keep someone on the Election Board who didn’t follow the law.

Posted by Marcia Oddi on Wednesday, August 18, 2010
Posted to Indiana Government | Indiana Law

Tuesday, August 17, 2010

Courts - "Blago guilty on one count: Lying to the FBI"

From the Chicago Tribune at 4:45 pm, CDT:

A federal jury today convicted former Gov. Rod Blagojevich of only one count against him: lying to the FBI. Jurors said they were deadlocked on the other 23 counts against the former governor, and all four counts against his brother Robert.
[More] From Main Justice, this story last evening by Joe Palazzolo.

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Courts in general

Ind. Gov't. - More on: "The Indianapolis Public School Board adopted the district's $448 million budget this week, but don't ask board members for too much detail -- they never saw the actual budget before voting on it"

That headline is from an August 30, 2009 ILB entry. Take a look.

Now read this item from Abdul Hakim Shabazz's in the WRTV Capitol Watch Blog!

Nothing has changed, except that unfortunately Kelly E. Bentley is no longer on the IPS Board.

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Indiana Government

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

For publication opinions today (1):

In Cullen Davis Walker v. State of Indiana , a 10-page opinion, Judge Vaidik writes:

Cullen Davis Walker was convicted of burglary, robbery, and criminal confinement, all as Class B felonies. On appeal, he contends that two of these convictions should be vacated pursuant to the continuing crime doctrine. We conclude that the continuing crime doctrine does not apply because Walker was charged with distinct chargeable crimes. However, after considering the oral and written sentencing statements, we conclude that Walker's conviction for criminal confinement is improperly reflected in the Amended Judgment of Conviction & Sentencing Order (“Amended Judgment”) and Chronological Case Summary. We therefore affirm and remand for corrections to these written documents.
NFP civil opinions today (3):

Paternity of M.B., N.B. v. J.W. (NFP)

Mark Stearns v. Amy Taylor-Stearns (NFP)

In re the Guardianship of C.J.; T.J. v. K.M. (NFP)

NFP criminal opinions today (6):

Terry D. McClinton, Jr. v. State of Indiana (NFP)

Breondon D. Pinkson v. State of Indiana (NFP)

Golden Cummings v. State of Indiana (NFP)

Isidro Lopez-Ruiz v. State of Indiana (NFP)

Earl Lee Russelburg v. State of Indiana (NFP)

Kenneth Ramey v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Applications available for Tax Court judge

Updating this ILB entry from August 14th on Judge Fisher's retirement, applications are now available for the position. Here is the notice; here is the application.

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Indiana Courts

Ind. Decisions - More on: "Abortion doc wins injunction in privacy feud"

Updating this ILB entry from August 13th, the Fort Wayne Journal Gazette today has a long editorial headed "What abortion ruling means."

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Law - More on: Two TV news stories on IMPD motorcycle tragedy blood draw issues

Updating this ILB entry from last evening, Vic Ryckaert and Jon Murray report today in the Indianapolis Star under the heading: "Attorney challenges officer's blood test." Some quotes:

A suspended Indianapolis police officer's attorney this week will ask a judge to discredit a blood test that is key to prosecutors' contention that he was driving drunk when he killed a motorcyclist. * * *

The motion challenging the blood test was filed Friday in response to Deputy Prosecutor Ed Zych's request that Bisard's driver's license be suspended.

John Kautzman, Bisard's attorney, and prosecutors will argue the issue before Marion Superior Court Judge Grant Hawkins at a hearing Thursday.

Blood drawn about two hours after the crash showed Bisard's blood-alcohol content was 0.19, more than twice the 0.08 level at which Indiana drivers are considered intoxicated. It led to the drunken-driving and reckless homicide charges.

Kautzman's motion argues that with no other reason to believe Bisard was drunk, reliance on the blood test to suspend his license is unconstitutional. His argument signals the defense likely will try to keep the blood test from being used as evidence in the larger case.

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Indiana Courts

Ind. Law - More on: Asset forfeiture laws and the Common School Fund

Updating this ILB entry from Sunday, August 15th, the Indianapolis Star has now posted on line Sunday's lengthy story by Tim Evans and Heather Gillers headlined "Despite law, schools get little of assets seized from crime suspects." Some quotes:

Critics say a vague section of Indiana law dealing with how law enforcement costs are calculated allows police and prosecutors to keep virtually all the money that is forfeited -- a windfall some contend comes at the expense of Hoosier schoolchildren. * * *

The lack of clear guidelines for calculating law enforcement costs allows some prosecutors to skirt -- at least the intent, if not the letter of -- Indiana's forfeiture law.

Police and prosecutors are not required to justify their expense claims, and judges rarely question them.

Asset seizure cases are seldom challenged by the defendants or state officials with a vested interest in the Common School Fund.

"There is very little oversight and reporting, so it should be no surprise that abuse is rampant," said Darpana Sheth, an attorney with the Institute for Justice, a Virginia-based civil liberties law firm that fights questionable forfeiture laws and practices. * * *

No state agency tracks asset seizures in Indiana, The Star found, nor is there any comprehensive list of forfeitures. * * *

There is no clear definition in state law of what can or should be counted as law enforcement expenses, said Joel Schumm, a professor at Indiana University School of Law-Indianapolis.

"If those (forfeiture) petitions don't have to explain how expenses are calculated and the defendant isn't there to challenge it, which is often the case," he said, "most judges are just going to go along with the request."

Marion Superior Court Judge Cynthia Ayers, who hears civil cases, including forfeiture cases, agreed. She said judges tend to defer to the prosecutor's assessment of how much the seizure cost.

"We don't have any part of that -- to look over their (prosecutors') shoulder and say, 'In this particular case, it cost you $50 to do the seizure, and you seized $1,000, so $950 ought to go to the Common School Fund,' " she said.

"There's no way for us to know really how much that seizure cost. That information is just not generally available to the civil court."

Schumm said he thinks the attorney general, as the state's lawyer, would be the likely advocate to ensure the fund gets its share from forfeitures.

"If the attorney general is not going to be the one who insists that the law is followed," he said, "I don't know who it would be."

Attorney General Greg Zoeller's office doesn't see it that way.

"The 92 county prosecutors are the attorney general's clients, and we provide them legal advice upon request," spokesman Bryan Corbin said. "We do not serve as the accountant for other units of government."

And, apparently, it's not the role of the state Department of Education, either.

"To my knowledge, we have no grounds to challenge the money," DOE spokeswoman Lauren Auld said.

Today's Star has an editorial headed "Don't deny schools their cash."

ILB: Two things. First, remember the wording of Art. 8, Sec. 3 of the Indiana Constitution:

Section 3. The principal of the Common School fund shall remain a perpetual fund, which may be increased, but shall never be diminished; and the income thereof shall be inviolably appropriated to the support of Common Schools, and to no other purpose whatever.
In other words, the amounts would not go directly to the schools, but only the income thereon. But of course if the monies had been going to the Fund all along, there would be quite a nest egg by now.

Second, the "solution" the Star editorial sets forth may not be an ideal solution -- having the "forfeiture collections funneled through a local government body such as a county council, which would calculate and subtract the law enforcement expenses and send the balance to the school fund." Might it not be better to simply clarify the law as to how expenses are to be calculated?

Posted by Marcia Oddi on Tuesday, August 17, 2010
Posted to Indiana Law

Monday, August 16, 2010

Ind. Courts - "No agreement on counties from which to pick Camm jury"

Louisville WAVE 3 has posted a new story by Janelle MacDonald -- some quotes:

Lawyers in David Camm's third murder trial have submitted lists from which to draw potential jurors.

Special Judge Jon Dartt asked prosecutors and Camm's lawyers to turn in a list of five counties. The defense submitted eight but no county appears on both lists.

Prosecutors would like to bring jurors in from Greene, Clay, Lawrence, Martin or Daviess Counties.

The defense would prefer jurors to come from Indiana's northern-most counties: St. Joseph, Allen or Lake Counties. However, lawyers also told the judge if he was reluctant to draw jurors from that far away, they would accept jurors from Boone, Hamilton, Hendricks, Tippecanoe or Marion Counties. * * *

Defense attorney Stacy Uliana said she expects to subpoena prosecutor Keith Henderson's former agent and publisher in a deal Henderson struck to write an account of the Camm family murders. The defense contends the deal means Judge Dartt should not allow Henderson to prosecute Camm's third trial.

Henderson has told reporters he agreed to write a book on the murders, with the understanding if the Supreme Court overturned Camm's second conviction, the deal was terminated. Henderson says there is no conflict of interest in him prosecuting the case because there is no pending book deal.

On August 6th, Judge Dartt ruled Henderson's former agent and publisher could be subpoenaed in the state of New York to come to Indiana testify in the hearing on the matter.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Indiana Courts

Ind. Law - Two TV news stories on IMPD motorcycle tragedy blood draw issues

"DUI attorney says Bisard case may overturn state law" is the headline from Fox 59 News. "Implied consent law under question in IMPD case" is from WTHR 13 Eyewitness News.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Indiana Law

Ind. Law - Suit filed in federal court challenges Indiana's disfranchisement of qualified voters who have been incarcerated by reason of a misdemeanor conviction

Here is a great NY Times graphic from March 27, 2004, showing the numbers of states that prohibit felons from voting: while in prison; while on parole; while on probation; after sentence is completed, for certain types of felons; after sentence is completed, for all felons. Indiana falls only in the "while in prison" group.

I was surprised to learn today that Indiana's prohibition applies to all incarcerated persons, whether imprisoned for a felony, or a misdemeanor.

A lawsuit filed today by David R. Snyder in the SD of Indiana challenges:

discriminatory and unlawful procedures that disenfranchised Snyder and other qualified voters who have been incarcerated by reason of a misdemeanor conviction, even though Article 2, §8 of the Indiana Constitution permits the deprivation of the right to suffrage only of persons convicted of and imprisoned for an "infamous crime," which the courts of Indiana have defined as a felony.
Access the 10-page complaint here; and Exhibit A, the "Notice of Disfranchisement' here.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Indiana Law

Law - "5 Things Every Plaintiffs Attorney Should Know About Tax Law"

A useful article, it begins:

While tax law may seem dull and irrelevant to most attorneys' day-to-day practice, in order to better serve their individual clients, plaintiffs attorneys should always keep the following five basic tax laws in mind, and advise their clients accordingly.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Gail M. Flatow and Flatow Comer, LLP v. Dwane Ingalls, a 13-page opinion, Judge Robb writes:

Gail Flatow and Flatow Comer LLP (collectively, the “Flatow Defendants”) appeal the trial court’s denial of their motion for summary judgment in a lawsuit brought against them by Dwane Ingalls for legal malpractice. The Flatow Defendants raise three issues for our review, which we consolidate and restate as one: whether the trial court properly denied the Flatow Defendants’ motion for summary judgment. Concluding there are no genuine issues of material fact and the Flatow Defendants are entitled to judgment as a matter of law, we reverse and remand. * * *

Ingalls’s complaint alleges the Flatow Defendants were negligent in failing to respond to IPL’s cross-motion for summary judgment. We note first that Ingalls and the Flatow Defendants entered into a contract for limited representation. Indiana Professional Conduct Rule 1.2(c) allows “the scope and objectives of the representation” to be limited “if the limitation is reasonable under the circumstances and the client gives informed consent.” Unfortunately, this rule has not been addressed in any substantive way by the appellate courts of this state. * * *

Ingalls does not allege that he did not understand the agreement or that he did not give consent to it. Under the terms of that agreement, the Flatow Defendants’ only duty was to file a motion for summary judgment on Ingalls’s defamation claim, reply to any response thereto, and keep Ingalls informed of the status of that matter. * * *

As to the legal malpractice alleged by Ingalls, the Flatow Defendants either had no duty due to the limited nature of their representation or Ingalls has failed to show an issue of fact as to proximate cause. The trial court erred in denying summary judgment to the Flatow Defendants. The judgment is reversed and this cause remanded for entry of summary judgment in favor of the Flatow Defendants.

FRIEDLANDER, J., concurs.
KIRSCH, J., concurs in result with separate opinion. [that begins, at p. 12 of 13] I take a more expansive view of the professional obligations that the Flatow Defendants owed their client regarding the defamation claim than my colleagues, but I agree with their ultimate conclusion that Ingalls has failed to show any legal argument that the Flatow Defendants should have made or evidence that they should have designated in response to the summary judgment motion. As a result, I concur in the result that my colleagues reach.

In Paternity of P.B.; D.B. v. M.B, a 21-page opinion, Judge Crone writes:
D.B. (“Mother”) appeals the denial of her motion to modify and terminate the parenting time of M.B. (“Father”) with their son, P.B., her petition to hold Father in contempt of a visitation order, her motion for attorney's fees and therapist's fees, and her “Motion to Correct Prior Order and to Establish Correct Support Arrearage.” We affirm in part, reverse in part, and remand.
In Teresa Perry v. Whitley County 4-H Clubs Inc., a 14-page opinion, Judge Robb writes:
Teresa Perry appeals the trial court's entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry's negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry's claim for injuries resulting from inherent risks of equine activities, we affirm.
In William R. Morell, III v. State of Indiana, a 16-page opinion, Judge Brown writes:
William Morell, III, appeals his conviction for battery by means of a deadly weapon as a class C felony.' Morell raises three issues, which we revise and restate as: I. Whether the trial court abused its discretion by failing to swear the State's witnesses and failing to allow questioning related to the alleged violations of the trial court's separation order outside the presence of the jury; II. Whether the evidence is sufficient to sustain Morell's conviction; and III. Whether the cumulative effect of the errors committed at trial warrant reversal of the conviction. We affirm.
NFP civil opinions today (1):Brian Eby v. Jennifer Eby (NFP)

NFP criminal opinions today (2):

Arvester Williams v. State of Indiana (NFP)

Matthew Donoho v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Ind. App.Ct. Decisions

Courts - "The New Politics of Judicial Elections, 2000-2009: Decade of Change"

That is the title of a report released today by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law, and the National Institute of Money in State Politics. Access it here.

Listen to this NPR story from Morning Edition.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Courts in general

Ind. Decisions - Transfer list for week ending August 13, 2010

There is no transfer list for the week ending August 13, 2010.

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Indiana Transfer Lists

Catchup - What did you miss since last Thursday morning in the ILB?

The eye surgery went very well and I've tried to do some catchup. (And BTW, to those who have missed your "ILB fix", I continue my pleas for supporters.)

Posted by Marcia Oddi on Monday, August 16, 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 8/16/10):

Next week's oral arguments before the Supreme Court (week of 8/23/10):

Thursday, August 26th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/16/10):

Next week's oral arguments before the Court of Appeals (week of 8/23/10): Wednesday, August 25th

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

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

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

Posted by Marcia Oddi on Monday, August 16, 2010
Posted to Upcoming Oral Arguments

Sunday, August 15, 2010

Ind. Law - Asset forfeiture laws and the Common School Fund [Updated]

The Indianapolis Star has a long front-page story today on asset forfeitures, pointing out that such monies are required by law to go to the Common School Fund, but hardly ever make it there because law enforcement entities first deduct their costs. In keeping with the Star's recent practice, the excellent story is not available online.

Here are some items not touched or, or not developed fully, in the story, not in any particular order.


[Updated 8/16/2010] Attorney Paul K. Ogden, ROBERTS & BISHOP, writes this morning to note:

Some people are grossly misinterpreting that [5/12/2010 AG] opinion. It says that only criminal forfeiture MUST go to the common school fund. Civil forfeiture doesn't have to...but the legislature has made the decision that the excess above law enforcement costs goes to the common school fund. The opinion expressly recognizes that. A few people I've run across misinterpret the AG opinoin as that even though the legislature says excess civil forfeiture funds goes to the common school fund under the statute it doesn't have to because it's not constitutionally mandated per the AG opinion. Obviously that's an incorrect way to interpret the law.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Law

Ind. Gov't. - "Indiana Office of Utility Consumer Counselor says it has "serious concerns" about Duke Energy Indiana's construction of 630-megawatt coal gasification facility at Edwardsport

Here is the Office of Utility Consumer Counselor (OUCC) press release from August 9, 2010. Some quotes:

Duke Energy Indiana's construction of a new power plant in Knox County should continue but only with new ratepayer safeguards in place, according to the state agency representing consumer interests in utility regulatory cases.

While the Indiana Office of Utility Consumer Counselor (OUCC) continues its support for Duke Energy's plan to operate a new 630-megawatt coal gasification facility at Edwardsport, the OUCC has serious concerns regarding the project's cost overruns and inaccurate, unreliable cost estimates from the utility. The OUCC's concerns are detailed in testimony recently filed with the Indiana Utility Regulatory Commission (IURC). * * *

In a docket now pending before the IURC, Duke Energy is requesting authorization to increase its projected cost estimate again to $2.88 billion, a 45 percent increase over the utility's original estimate. The utility also expresses an "85 percent" certainty that no additional cost increases will be needed beyond the current request to complete the project.

"My staff has closely examined Duke Energy's most recent request including current data on the Edwardsport project," stated Indiana Utility Consumer Counselor David Stippler. "While the OUCC recognizes the importance of this project and the state's need for the additional generating capacity, it is deeply concerned about the dramatic rise in the project's costs in this short period of time. The OUCC is equally concerned with Duke Energy's apparent inability to constrain its budget for this project, whose costs are being borne by the utility's ratepayers."

"Utilities have a responsibility to demonstrate that rate-recovered costs, including increases to approved costs, are reasonable, necessary and prudent," continued Stippler. "Unfortunately, Duke Energy has not met this burden of proof in its pending request to increase the project's cost estimate by more than a half-billion dollars."

The OUCC's testimony in the pending docket recommends that the IURC cap the project's overall costs at an amount significantly lower than the $2.88 billion Duke Energy is currently requesting. If the cap is exceeded, the utility would then be required to seek any additional cost recovery through a base rate case filing rather than through the semi-annual cost tracking mechanism currently in use. (The tracking mechanism allows the utility to incrementally recover project costs through rates as they are incurred.)

In addition, the OUCC is recommending that the IURC discontinue a financial incentive that is allowed in Duke Energy's cost tracker filings. The utility is currently allowed to exclude deferred income taxes from its capital structure. That incentive has resulted in increased earnings for Duke Energy - on costs up to the project's original $1.985 billion estimate - that are significantly higher than what would normally be allowed under traditional ratemaking practices. While discontinuing this incentive would nonetheless allow Duke Energy to continue receiving its authorized 10.5 percent return on equity from its last base rate case, removing this incentive would save ratepayers tens of millions of dollars in the near future. * * *

The OUCC's testimony in this case, along with other key documents in the IGCC proceedings, can be found online at www.in.gov/oucc/2625.htm.

By way of background, Indiana's Marble Hill Nuclear Power Plant project was abandoned at the beginning of 1984, because of continuing cost over-runs related to the special requirements of nuclear facilities and to the double-dip inflation during that period. In addition, at that time Indiana law did not allow a return on investment on plants as they were being constructed (CWIP)* -- rather plants were required to carry capital costs for the plant until completion. The result, in the end, would have been severe rate-shock for all ratepayers, including business and industrial users as well as homeowners. All of this was highlighted in a report to Governor Robert Orr by a special task force he had appointed made up of business and industrial CEOs. (See this ILB entry from March 18, 2005.)

As for Marble Hill costs, according to this Jan. 30, 1984 Time Magazine article:

Public Service began constructing Marble Hill in 1978. The original cost estimate for the plant, situated near the small town of Madison, was about $1.4 billion.
At the time of its cancellation: "Marble Hill has already eaten up some $2.5 billion, making it the most expensive nuclear power project ever to be dropped." Its cost of completion: "The task force, set up by the Governor, estimated Wednesday that the cost of completing the plant would be $7.7 billion, and said it could go higher." (NYT, Dec. 24, 1983)
__________
*For more on CWIP, see this opinion letter by Kerwin Olson in the FWJG, dated April 22, 2010.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Government

Ind. Gov't. - "Neighbors who fought a rezoning request this month to allow for heavy industrial use of property near the planned Hoosier Heartland Corridor are upset that they were late learning about the plans."

So begins a long story today in the Lafayette Journal Courier, reported by Dorothy Schneider, headed "Case puts focus on rules for rezoning."

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Government

Ind. Law - "Massage therapists decry law Say it’s too weak, allowing for untrained workers, prostitution"

Jeff Wiehe of the Fort Wayne Journal Gazette had this report August 14th.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Law

Courts - Still more on "GPS and Privacy Rights"

Updating this ILB entry from August 6, 2010, Charlie Savage of the NY Times had a story Aug. 13th headed "Judges Divided Over Rising GPS Surveillance." Some quotes:

The growing use by the police of new technologies that make surveillance far easier and cheaper to conduct is raising difficult questions about the scope of constitutional privacy rights, leading to sharp disagreements among judges.

A federal appeals court, for example, issued a ruling last week that contradicts precedents from three other appeals courts over whether the police must obtain a warrant before secretly attaching a Global Positioning System device beneath a car. The issue is whether the Fourth Amendment’s protection against unreasonable searches covers a device that records a suspect’s movements for weeks or months without any need for an officer to trail him.

The GPS tracking dispute coincides with a burst of other technological tools that expand police monitoring abilities — including automated license-plate readers in squad cars, speed cameras mounted on streetlight poles, and even the widely discussed prospect of linking face-recognition computer programs to the proliferating number of surveillance cameras.

Some legal scholars say the escalating use of such high-tech techniques for enhancing traditional police activities is eroding the pragmatic considerations that used to limit how far a law-enforcement official could intrude on people’s privacy without court oversight. They have called for a fundamental rethinking of how to apply Fourth Amendment privacy rights in the 21st century.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Courts in general

Ind. Gov't. - "Some States Are Lacking in Health Law Authority"

So report Robert Pear and Kevin Sack in this August 14th NY Times story. Some quotes:

WASHINGTON — Faced with the need to review insurance rates and enforce a panoply of new rights granted to consumers, states are scrambling to make sure they have the necessary legal authority to carry out the responsibilities being placed on them by President Obama’s health care law.

Insurance commissioners in about half the states say they do not have clear authority to enforce consumer protection standards that take effect next month.

Federal and state officials are searching for ways to plug the gap. Otherwise, they say, the ability of consumers to secure the benefits of the new law could vary widely, depending on where they live.

Meanwhile, state governments that have for years allowed insurers to set premiums virtually at will are gearing up to establish procedures to review rate increases.

Under the new federal standards, insurers generally must offer coverage to children under 19 and must allow adult children up to age 26 to stay on their parents’ policies. Insurers cannot charge co-payments for preventive services or impose a lifetime limit on benefits; must allow consumers to appeal a denial of benefits; and cannot rescind coverage, except in cases of fraud or intentional misrepresentation.

States have the primary role in enforcing many of the new standards. If a state fails to enforce a standard, the federal government will step in to do so — as it did in several states after passage of a health insurance law in 1996.

The federal government recently surveyed states to assess their enforcement capabilities, and the results suggest a patchwork of protections.

California, Florida, Hawaii, Michigan, Nebraska, Oklahoma, Virginia and Wyoming, among other states, said they did not have authority to enforce federal law.

Some state regulators said they would ask state legislators to expand their authority by putting the federal standards into state law next year. Others said they would rely on their powers of persuasion, the good will of insurers or general state laws that ban unfair or deceptive trade practices. * * *

Thirteen states currently have no authority to review proposed health premium increases for most forms of coverage, according to the National Association of Insurance Commissioners. About a dozen have limited power to review increases after they take effect, while half the states require some form of state approval.

With insurers proposing heavy rate increases this year, possibly in anticipation of tougher regulation, several states have exerted their rate review authority with new vigor.

Sandy Praeger, the Kansas insurance commissioner and chairwoman of the health committee for the National Association of Insurance Commissioners, said states were eager to toughen their procedures to ward off federal interest in obtaining that authority. “The pressure is on us to prove that what we do is effective, and for states that don’t have the authority to get it done,” Ms. Praeger said. Many states will require legislation to change their rate review systems, she said.

Here is a survey on state authority -- Indiana may not have responded. Here is the cover letter, from the National Ass'n. of Insurance Commissioners.

Here is another story, this one from Noam N. Levy of the LA times, headed "State regulators can often do little to control what insurers are charging." It begins:

WASHINGTON -- As Americans struggle with double-digit hikes in their health insurance bills, millions are coming up against a hard reality: the state regulators who are supposed to protect them can often do little to control what insurers are charging.

In many states, it is the insurance industry that largely control the regulatory process, funneling money to key state lawmakers and squelching efforts to expand government oversight of premiums, a review of state regulations and campaign donations shows.

"The pressure that the industry can bring to bear in state legislatures is unbelievable," said J. Robert Hunter, a former insurance commissioner in Texas. "They pretty much get what they want."

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Government

Ind. Courts - "Judges use fund left by Spencer to improve courthouse"

Christina M. Wright reports today in the Anderson Herald Bulletin, in a story that begins:

Madison County Judge Fredrick Spencer left behind a goose-egg of a fund that has allowed the courthouse to upgrade and renovate in an environment of continual budget cuts across the county and nation.

“One of the pleasant surprises we had when I came into the Circuit Court was that Judge Spencer had left behind a sizable fund saved up from probation user fees,” said Judge Rudolph Pyle. “They have to be used to improve the courts.”

Pyle said the fund, in excess of $200,000, has been used to install wireless on the third and fourth floors of the courthouse, install needed carpeting and a plasma screen in his courtroom, and turn the library into a problem-solving courtroom to help with the grant.

The fund, Pyle said, is a sum of fees that offenders on probation must pay to the courts.

Spencer said he had rarely used the fund over the years, supplementing a probation officer’s salary once. He didn’t comment on how it’s been spent since he left the bench.

“I intentionally didn’t spend money I didn’t need to spend,” he said. “I’m a frugal guy.”

After a dissection of the wordy Indiana statute, Board of Accounts deputy state examiner Paul Joyce agreed that the probation fees could be used for courthouse renovations. However, a technical word — “supplement” — in the statute may cause a slight problem, he said.

“It’s not there to replace,” Joyce said of the fund. “It’s to supplement. It should already be a line-item thing; it shouldn’t be something new.”

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Courts

Ind. Courts - More on: "Judge: Sweeping change in Indiana law makes traffic tickets more costly"

Updating this ILB entry from August 10th, the Fort Wayne Journal Gazette editorializes today:

If you ever get a traffic ticket, a little-noticed change in state law will affect you.

Annoyance with a single Marion County traffic court judge is to blame for a major change to state law governing traffic fines. The change, which took effect July 1, removed judicial discretion and could dissuade first-time offenders from participating in deferral programs.

During the last legislative session, state lawmakers increased the cost of a moving violation and created a flat rate fining system for state traffic violations – speeding, rolling past a stop sign or blowing through a red light. Defendants who handle their traffic tickets by mail or at a court clerks’ office before their court date pay a fine of $35.50 plus court costs of $114.40, for a total of $150.

Defendants who admit their guilt at court or lose at trial pay the same fine. Traffic violators who decide to admit their guilt and save the court’s time are punished equally with the person who refuses to accept responsibility for breaking the law. People who challenge their tickets and lose are not punished for exercising their right to a trial.

Punishing people who fought their tickets is exactly what the Indiana Commission on Judicial Qualifications accused Marion Superior Court Judge William Young of doing. The law has been labeled the “Indy traffic court bill” because it was created in response to evidence that Young levied excessive fines – and criticism – to people contesting tickets. Proponents claim it removes what was essentially a “trial tax” and helps make it more affordable for people to have their day in court.

The fine does increase for people who habitually challenge tickets at trial and lose. If a person challenges a ticket, loses the challenge and has already lost a challenge on another ticket within the last five years, the fine is increased to $364.50. It’s $614.50 for those losing a third challenged ticket in court.

Allen County’s Chief Deputy Prosecutor Mike McAlexander said it’s too early to tell how the change will affect Allen County, but he worries it could cause fewer people to use the deferral program. That program costs $164.50 and allows first-time offenders to pay a slightly larger fine but maintain a clean driving record if they don’t get another ticket for six months.

But the new law denies judges’ discretion and decreases judges’ ability to deter future violations. The change serves the interests of unsafe drivers and low-income violators.

Before the change, judges had more authority to encourage better driving. They could lecture risky drivers from the bench, order teenage traffic lawbreakers to take the bus rather than drive and order defensive driving school. And give stiffer fines.

“If I was a judge I’d be very upset if I saw someone coming in for the umpteenth time and I couldn’t give that person a harsher penalty,” said Mike McAlexander, chief deputy prosecutor in Allen County.

There is a reason these issues go before judges. They are in the best position to decide if the defendants are sincere and if their story is credible. Are they really sorry and will drive more carefully next time?

But there is also something to be said for uniformity and for making sure that drivers’ constitutional rights to a trial are not denied. Many, probably most, drivers who get tickets know they were breaking the law and pay the fine. Just as trials take up the courts’ valuable time, guilty drivers generally don’t want to wait in a courtroom to argue their ticket.

Sadly, it appears that one judge’s actions will take away discretion from many more judges throughout the state.

Some ILB readers will recall that this is precisely what Porter County Superior Court Judge David Chidester warned in his Feb. 16th letter posted by the ILB and published Feb. 17th in the NWI Times. Read the letter in full here.

Meanwhile, as reported in this July 16, 2010 ILB entry, disciplinary charges have been filed against the Marion County traffic court judge whose actions were the impetus behind the law changes passed in 2010.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Courts

Ind. Law - Sexting and sextortion

A story by Indiana AP reporter Charles Wilson has appeared nationwide this weekend. Here it is in yesterday's LA Times. The story gives an Indiana example, then continues:

Federal prosecutors and child safety advocates say they're seeing an upswing in such cases of online sexual extortion. They say teens who text nude cell phone photos of themselves or show off their bodies on the Internet are being contacted by pornographers who threaten to expose their behavior to friends and family unless they pose for more explicit porn, creating a vicious cycle of exploitation.

One federal affidavit includes a special term for the crime: "sextortion."

No one currently tracks the numbers of cases involving online sexual extortion in state and federal courts, but prosecutors and others point toward several recent high-profile examples victimizing teens in a dozen states: * * *

The cases have prompted law enforcement officials and advocates to caution teens about their activities. Privacy is nonexistent on the Internet, and once indiscretions appear online, they are virtually impossible to take back. A nude photo sent to a boyfriend's cell phone can easily be circulated through cell phone contacts and wind up on websites that post sexting photos. Once there, it's available for anyone who wants to trace it back to the person who made it.

The ILB has had a number of entries on sexting.

Sexting was the focus of legislation in the 2010 General Assembly, but ultimately became a subject for an interim study committee. See particularly this entry from March 20, 2010, which references SEA 224-2010, and this entry from April 2, 2010.

As passed, SEA 224 added this provision to the responsibilities of the interim Criminal Law and Sentencing Policy Study Committee:

(11) Study and make recommendations regarding the sending of sexually suggestive or sexually explicit material over the Internet or by use of a cellular telephone or similar device, including whether school corporations should adopt policies regarding this topic.
The Committee's first meeting, on August 25, 2010 at 1:00 pm, will deal with sexting.

Although most interim committees this year are available via real-time videocast, this agenda does not so indicate.

Posted by Marcia Oddi on Sunday, August 15, 2010
Posted to Indiana Law

Saturday, August 14, 2010

Ind. Law - "Maybe elected city leaders now realize they could have helped the situation months and months ago if they simply took a stand regarding Wilder instead of sitting on their hands."

Until now, the most recent ILB entry on Peggy Wilder was this one from June 17, 2010, quoting a report from the Jeffersonville News & Tribune that:

Jeffersonville Clerk-Treasurer Peggy Wilder has been charged with conversion, a class A misdemeanor, in relation to allegations that she used a city credit card for personal purchases.
As noted in this ILB entry from Jan. 1, 2010, "The ILB has posted a number of entries involving either attorney Larry Wilder or Peggy Wilder, both of Jeffersonville, Clark County, over the past several years."

So many entries, in fact, that, that the ILB intentionally did not blog this N&T story from August 3, 2010, by David A. Mann, that began:

JEFFERSONVILLE — Despite the fact that Clerk-Treasurer Peggy Wilder routinely has not showed up for work — and continues to collect a $65,000-per-year city salary — the Jeffersonville City Council passed a resolution Monday night saying that there had not been a general failure to perform the official duties of her office.

Further, the resolution serves as a indication that the council will not pursue impeachment for the controversial clerk. It comes as a response to numerous calls from residents for the council and Mayor Tom Galligan to address her repeated absences. Wilder also has had legal trouble in recent years, charged in Indiana with conversion, a class A misdemeanor for allegedly using city credit cards for personal purchases. She ended up paying for the charges, not the city.

She was also sentenced to community service for a misdemeanor theft charge in Kentucky, wherein she traded in a vehicle for which she couldn’t produce a title.

Until now, that is.

A story the following day, August 4, 2010, begins:

CLARK COUNTY — Jeffersonville Clerk-Treasurer Peggy Wilder said Tuesday she’s planning on keeping regular office hours again.

The statement comes a day after the Jeffersonville City Council passed a resolution indicating it would not pursue her impeachment. And the resolution came after months of criticism that she was not showing up to work on a regular basis.

Then, on August 11, 2010, Harold J. Adams reported in the Louisville Courier Journal:
Embattled Jeffersonville Clerk-Treasurer Peggy Wilder was arrested early Wednesday on a charge of drunken driving.

Wilder’s arrest marks the third time that she has been charged with a crime in the past year, prompting the City Council president to say it may be time for her to resign.

Wilder, 44, was arrested on Court Avenue in Jeffersonville at 1:46 a.m. after an Indiana State Police trooper stopped her for a traffic infraction and then noticed she seemed intoxicated, according to state police Sgt. Jerry Goodin.

She was taken to the Clark County Jail, where she spent the night before being released at 9:30 a.m. Maj. Chuck Adams of the Clark County Sheriff’s Office said Wilder’s blood-alcohol was measured at .10, above the .08 threshold for triggering a charge of driving while intoxicated. * * *

Last month, Wilder was charged with conversion, a misdemeanor case that is pending in Clark Superior Court. The charge stemmed from an Indiana State Board of Accounts audit that uncovered $85,000 in charges and fees for personal purchases made by Wilder on city credit cards.

Wilder has acknowledged making “a serious error in judgment” in using the cards and said that she, and not the city, made all of the payments on her personal purchases.

Last November, Wilder was charged in Jefferson County, Ky., with theft by deception after she failed to provide a Louisville auto dealer with the title for a vehicle she used in a trade-in purchase. She pleaded guilty under a plea bargain to a misdemeanor charge of failure to register the transfer of a motor vehicle and was ordered to perform 120 hours of community service.

Wilder is due back in Jefferson District Court on Sept. 27 to show proof that she transferred the vehicle and performed the community service, said Bill Patteson, a spokesman for the Jefferson County Attorney’s office.

Jeffersonville City Council President Nathan Samuel, while acknowledging that Wilder is an elected official and hasn’t committed a felony that would require her to resign, said he and his colleagues nevertheless were talking about asking Wilder to resign.

"There's nothing we can do legally," Samuel said. "But enough is enough."

He said he expects the council to take some action at its meeting Monday, perhaps voting on a resolution asking Wilder to resign.

Wilder has not kept regular working hours since her legal troubles began, and last month she moved out of her office at the request of Mayor Tom Galligan and into a former storage room to make way for a financial adviser hired by the mayor.

David Mann of the N&T has a lengthy exclusive interview with Ms. Wilder, dated August 12th. The interview itself took place before the DWI arrest.

Lesley Stedman Weidenbener and Ben Zion Hershberg of the LCJ have an August 12th story that begins:

INDIANAPOLIS — One day after Jeffersonville Clerk-Treasurer Peggy Wilder was arrested for a third crime in the past year, state Rep. Steve Stemler said he will pursue legislation to make it easier to remove elected officials who are not meeting “the public’s standards.”

Stemler, D-Jeffersonville, said in a statement Thursday that he is concerned about Wilder’s well-being but feels “a sense of responsibility to respond to public concerns and find some resolution to these unfortunate events as they continue to escalate out of control.”

“It is a shame that these measures need to be considered,” Stemler said. “However, the public’s trust in its elected officials must be the top priority in a true and free democracy.” * * *

State law does provide a procedure by which taxpayers can seek to have a public official removed from office, said David Bottorff, executive director of the Association of Indiana Counties.

Any taxpayer can petition the court, alleging that a public official is failing to perform his or her duties and a judge then holds a hearing and rules on whether the official should be removed, Bottorff said.

The law is not used often, though, in part because if the judge rules for the public official, the taxpayer can be held responsible for all the associated legal costs of the hearing.

Also, embattled public officials often resign before there’s a hearing, Bottorff said.

Last year, state Sen. Beverly Gard, R-Greenfield, proposed legislation to require that such hearings be expedited but the bill did not pass.

Stemler said he has not developed specific proposals for his legislation yet but is interested in tightening up the minimum time requirements that a full-time elected official needs to be working at official duties.

Any changes Stemler proposes would not impact Wilder, said her attorney, Brad Jacobs.

Hershberg reported in a story yesterday, August 13th:
A plea agreement under negotiation in a credit card misuse case against Jeffersonville Clerk-Treasurer Peggy Wilder may be affected by the drunken driving charge filed against her this week.

“In plea negotiations I take all pending cases into account,” said Chris Owens, the special prosecutor in the case that alleges Wilder used city credit cards for personal expenses.

When Owens charged Wilder in June with conversion, a misdemeanor, Wilder attorney Brad Jacobs said, “This was about as good as we could get.” It meant that Wilder, 44, wouldn’t have a felony conviction that would mean the loss of her job.

The N&T's "Cheers and Jeers" column for August 14th includes this item:
JEERS

... to the further unraveling of the life of Peggy Wilder before the public’s eye.

No one wants to see such a personal downward spiral — or shouldn’t want to.

It’s obvious Wilder has made some mistakes — as she noted in an interview with The Evening News on Tuesday, just hours before an arrest on operating while intoxicated charges. It was her third scrape with the law in less than a year.

In that same interview, although Wilder said she was sorry, she also attached excuses to the apologies.

But maybe now Wilder has hit rock bottom and will “get her life back,” as she said in the interview that she is trying to do. Maybe elected city leaders now realize they could have helped the situation months and months ago if they simply took a stand regarding Wilder instead of sitting on their hands.

The council is planning a resolution to be introduced at Monday’s meeting asking for Wilder’s resignation. Read more about that issue in Sunday’s Evening News.

More important than any legal trouble, work history or public persona is human life. Peggy Wilder will have to decide to help herself, but a little tough love couldn’t hurt. Regarding that, there’s a difference in reporting the actions of a public official in the newspaper and people trashing Wilder for their amusement. It’s far past a funny issue at this point.

I hope for her and her family, she’s able to achieve her stated goals of betterment.

— Editor Shea Van Hoy

Posted by Marcia Oddi on Saturday, August 14, 2010
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Courts - "Radio Host Is Convicted for Comments on Judges"

Updating this ILB entry from August 10, 2010, and this one from August 11th quoting Judge Posner's compelling testimony in the third trial of "blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges," Colin Moynihan of the NY Times reports in a story dated August 13th that begins:

A right-wing Internet radio host was convicted on Friday by a federal jury in Brooklyn of threatening three federal judges who had issued a ruling he disagreed with.

Two previous prosecutions of the host, Harold C. Turner, ended in mistrials after jurors were unable to agree on a verdict, but the decision Friday came after less than two hours of deliberation.

Mr. Turner, 48, posted inflammatory Internet messages about the three appeals court judges who had upheld a ban of handguns in Chicago. He was charged with a single count of threatening to assault or kill the judges with the intent of impeding their official duties.

In a June 2009 posting about their unanimous decision to uphold the gun ban, which the Supreme Court overturned in June, Mr. Turner wrote, “If they are allowed to get away with this by surviving, other judges will act the same way.”

Mr. Turner, who lives in North Bergen, N.J., also wrote a blog entry accompanied by photos of the judges in which he said they “deserve to be killed.”


[Updated 8/16/10] "In Third Trial, Blogger Found Guilty of Threatening 7th Circuit Judges," reported by Mark Fass of the NY Law Journal.

Posted by Marcia Oddi on Saturday, August 14, 2010
Posted to Indiana Courts

Ind. Law - "Law shields teachers in discipline suits"

Attorney General Greg Zoeller explains the 2009 Teacher Protection Act in this letter published August 12, 2010 in the Fort Wayne Journal Gazette. Zoeller notes that:

This year-old law, also known as Public Law 121-2009, was passed due to concerns that teachers were reluctant to discipline students out of fear parents would sue them.
The "year-old law" is HEA 1462-2009, which went into effect July 1, 2009. As Zoeller writes, the law essentially shifted the burden to defend teachers against lawsuits from the school corporation to the State of Indiana, along with the liability:
Thanks to our new Teacher Protection Act, educators no longer need fear frivolous lawsuits, since lawyers in my office will defend them in civil court. The State of Indiana will assume the legal risk, meaning school administrators and their liability insurance carriers no longer ought to have to pay out nuisance settlements in such cases.

I believe that the Teacher Protection Act serves as a deterrent – that plaintiff’s lawyers are now more reluctant to file suit on behalf of parents of unruly children since they know they are likely to lose the case. The qualified legal immunity for teachers, coupled with legal representation by the Attorney General’s Office, means that teachers now are in a much stronger legal position when school discipline disputes arise. I hope that this deterrence of lawsuits in turn will embolden teachers to impose reasonable classroom discipline without fear. And I hope it will remind parents that respect for authority starts in the home, and parental discipline and school discipline should complement and not undercut the other.

I don't see the term "frivolous lawsuit" in the bill, but I do see SECTION 12, beginning at p. 12 of the PDF, which amends IC 20-33-8-8 by adding a new subsection (b)(3) which provides that "(b) In all matters relating to the discipline and conduct of students, school corporation personnel: * * * (3) have qualified immunity with respect to a disciplinary action taken to promote student conduct under subdivision (2) if the action is taken in good faith and is reasonable."

Posted by Marcia Oddi on Saturday, August 14, 2010
Posted to Indiana Law

Ind. Courts - Updates on Supreme Court vacancy; new tax court vacancy

How close is Gov. Daniels to picking a new Supreme Court justice? Not close, according to this story published Aug. 12th by Niki Kelly of the Fort Wayne Journal Gazette. The story concludes:

Daniels said he does not know any of the three finalists but believes that the process to select the three was fair.

He will meet with them all but has not yet done so.

More from the story:
Daniels has 60 days to make his appointment. The clock started running Aug. 5 when the judicial qualifications panel formally sent three recommendations to Daniels.
The story points out that out of 19 women and 14 men who applied, only one woman made the final three. More:
Gov. Mitch Daniels said Wednesday that he would like to use his first Supreme Court appointment to put a woman on the bench but not at the expense of qualifications and judicial philosophy.

“It would be gratifying (to appoint a woman), but it cannot be the controlling factor,” he said.

"Judge of tax court to leave: His 1996 ruling led to home value shift" i the headline to reporter Kelly's Aug. 13th story in the FWJG. Some quotes:
Indiana Tax Court Judge Thomas G. Fisher announced Thursday he is stepping down from the bench effective Jan. 1.

Fisher, the state’s first tax court judge, is best known for the 1996 ruling in which he declared Indiana’s system of assessing property for tax purposes unconstitutional.

As a result, Indiana adopted fair-market value standards, which have increased property taxes substantially for many older homes throughout the state.

Fisher, 70, was appointed judge of the Indiana Tax Court in 1986 by then-Gov. Robert Orr. He previously was Jasper County prosecutor and also maintained a private law practice in Remington for 21 years.

“Those who worked to create the Indiana Tax Court in 1986 hoped that our state would benefit from thoughtful and predictable application of the tax laws. The energy and superb craftsmanship of Judge Thomas Fisher have made this come true,” Indiana Supreme Court Chief Justice Randall T. Shepard said. * * *

The seven-member Indiana Judicial Nominating Commission will search for Fisher’s successor. Candidates will be interviewed Sept. 27 for the first time, with a second round of interviews Oct. 27.

The commission will send the names of three candidates to Gov. Mitch Daniels, who will select Indiana’s next tax court judge.

Daniels is currently contemplating whom to select from among three finalists to replace retiring Indiana Supreme Court Justice Theodore Boehm.

Here is the press release announcing Judge Fisher's retirement.

No application forms have yet been posted for the tax court opening.

Posted by Marcia Oddi on Saturday, August 14, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - More on: "Judge Rules Uniontown Porn Store Must Close"

Updating this ILB entry from Aug. 4, 2010, the Aug. 10th Crothersville Times reports under the heading: "Porn Store Closes But Court Appeal May Be Filed." Some quotes:

An adult sexually oriented business in Uniontown closed its doors last Tuesday in response to a Jackson Superior Court I ruling on Friday.

But signs taped to its front doors could be an indication the store’s owners plan to appeal that ruling. A sign on the door of the business at 11769 E. Ind. 250 stated the business was “closed temporarily by court order.” * * *

In answer to questions about the possibility of the store reopening, [county attorney Susan Bevers] said if the owners of The Lion’s Den reopen the store, the county cannot send the sheriff down to close it.

“We have to go back to court,” Bevers said.

Owners of The Lion’s Den have 30 days from the date of Heimann’s ruling to appeal it.

Posted by Marcia Oddi on Saturday, August 14, 2010
Posted to Indiana Courts

Friday, August 13, 2010

Ind. Decisions - "Abortion doc wins injunction in privacy feud"

The most recent ILB entry on the Fort Wayne "abortion ordinance" or "patient safety ordinance" dispute is from June 13, 2010 and quotes from a Fort Wayne Journal Gazette story that begins:

The Christian legal group defending Allen County against a lawsuit challenging its patient-safety ordinance is one of the best-funded and most successful of its type in the country.
Today's FWJG story, written by Rebecca S. Green, begins:
A federal judge granted an abortion provider’s request for a temporary injunction prohibiting parts of a new Allen County ordinance from taking effect and denying the county’s request to dismiss a lawsuit challenging it.

And both sides seem to be declaring victory with the ruling.

According to an order handed down Wednesday by U.S. District Judge Robert L. Miller Jr., Allen County officials cannot enforce portions of the amended ordinance concerning patient notification forms and patient-identifying information. The county also cannot provide identifying information to the Indiana State Medical Licensing Board.

The ordinance enacted this year by the Allen County commissioners requires that out-of-town doctors provide contact information to area emergency rooms and the local health department.

It requires phone numbers where the out-of-town doctors can be reached 24 hours a day, as well as written notification signed by the patient.

The ordinance gives a health department employee charged with enforcement the authority to review the department’s records, including documentation of emergency contact information.

In May, Dr. George Klopfer and his clinic, Fort Wayne Women’s Health, sued the county, arguing the ordinance would give health officials unlimited access to patient medical records, thus violating patients’ and physicians’ right to privacy.

Klopfer’s attorney, Ken Falk of the American Civil Liberties Union of Indiana, argued that connecting the patient’s name on the written notification form to the abortion clinic’s notification form would unnecessarily violate the patient’s right to privacy, thereby making women less likely to seek an abortion, according to court documents.

The Allen County commissioners, represented by the Arizona-based Alliance Defense Fund, filed a motion to dismiss the lawsuit, a request that was denied by Miller.

The ACLU did not prevail on all of its arguments, however. Miller disagreed with Klopfer’s assertions that existing state law prohibits Allen County from enacting further regulation of the medical field, nor did the judge believe the county would seek to search patients’ notification forms in an unconstitutional manner, according to court documents.

But Miller agreed with Klopfer about the patient notification forms.

In his ruling, Miller said that while the ordinance’s purpose is to ensure communication among Allen County medical providers and out-of-town doctors, it is unclear how much of a need there is to have patients sign a form.

There is also a question as to the need for county health officials to “leaf through medical records or files containing these signed forms to ensure compliance with the ordinance and the need to send unredacted patient identifying information to the Indiana State Medical Licensing Board,” Miller wrote in his opinion.

Read the 38-page, 8-11-10 opinion by Judge Robert L. Miller, Jr.

Posted by Marcia Oddi on Friday, August 13, 2010
Posted to Ind Fed D.Ct. Decisions

Thursday, August 12, 2010

About this blog - Expect few new entries until Monday

Just back from cataract surgery.

Hopefully, we can all look forward to fewer typos in the future, but who knows?

Probably few entries until Monday (I wrote this one in advance), unless of course the Governor announces his choice for the Supreme Court between now and then!

Posted by Marcia Oddi on Thursday, August 12, 2010
Posted to About the Indiana Law Blog

Wednesday, August 11, 2010

Ind. Courts - "Blog rants were threat on our lives, two judges testify in trial of Internet shock jock/blogger Hal Turner"

Updating this ILB entry from August 10th, Michaelangelo Conte reports today in The Jersey Journal in a story that begins:

Two of the Chicago judges who Hal Turner is accused of threatening to kill took the stand this morning to give testimony in a Brooklyn federal courthouse.

Judge Richard Posner, who along with Judges William Bauer and Frank Easterbrook, upheld a handgun ban, was questioned by U.S. Attorney Diane MacArthur, and was asked what he thought of Turner's blog posts about the three judges. In posts on June 2 and 3 of 2009, Turner said the judges "deserve to be killed."

"It's threatening," Posner said. " 'Killing Judge Lefkow's mother and husband did not send an adequate message,' " he said, quoting from a Turner blog post. "It's an invitation (to) go kill the three devils, as he refers to us later."

Posner was referring to Judge Joan Humphrey Lefkow, who came home the evening of Feb. 28, 2005, to find her husband, Michael Lefkow, 64, and her mother, Donna Humphrey, 89, shot to death in the basement.

How Appealing has links to a number of stories here.

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to Ind. (7th Cir.) Decisions

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

In U.S. v. Cantrell (ND Ind., Lozaon), an 8-page opinion by Judge Evans writes:

Although this is primarily a sentencing appeal, we begin by briefly addressing Cantrell’s preserved argument regarding his § 1346 conviction. While this case was pending on appeal, the Supreme Court decided Skilling v. United States, 561 U.S. ___, 2010 WL 2518587 (2010), Black v. United States, 561 U.S. ___, 2010 WL 2518593 (2010), and Weyhrauch v. United States, 561 U.S. ___, 2010 WL 2518696 (2010), all of which involved the honest services statute. In Skilling, the most comprehensive of the three opinions, the Court observed that “[t]he ‘vast majority’ of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes.” Skilling, 2010 WL 2518587, at *27. Based on this observation and a desire to avoid “taking a wrecking ball to a statute that can be salvaged through a reasonable narrowing interpretation,” id. at *28 n.44, the Court ultimately held that, “[i]nterpreted to encompass only bribery and kickback schemes, § 1346 is not unconstitutionally vague.” Id. at *30.

The indictment charged Cantrell with using his position as a public official of North Township of Lake County, Indiana,2 to secure contracts for Addiction and Family Care, Inc. (AFC), a counseling company owned by an acquaintance, Nancy Fromm, in exchange for a share of the proceeds from the contracts. By failing to fairly, honestly, and candidly award contracts, Cantrell defrauded North Township and its citizens of their right to his honest services. This was clearly a kickback scheme, so § 1346—even as pared down by Skilling— applies to Cantrell. As he presents no other challenge to his convictions, they will not be disturbed.

In US v. Carlisle (ND Ind., Lee), a 19-page opinion, Judge Flaum writes:
On February 18, 2008, Eddie Lamar Carlisle was arrested at the home of Michael Chapman during a drug sweep. Two officers caught Carlisle fleeing from the back of the house while two other officers entered the front door of the house. Carlisle was carrying a closed backpack with him. The officers searched the backpack and found marijuana, crack, a scale, a spatula, and packaging materials. Carlisle was charged with one count of knowingly possessing with intent to distribute five grams or more but less than fifty grams of a mixture containing a detectible amount of cocaine base and one count of possessing with intent to distribute marijuana. Carlisle moved to suppress the evidence found in the bag, arguing that the search violated his Fourth Amendment rights. The district court held a suppression hearing. At the hearing, Carlisle claimed that the backpack was not his and that someone in the house asked him to carry the bag to the garage. The district court denied the motion to suppress on the ground that Carlisle did not have standing to raise a Fourth Amendment challenge to the search of the bag because he did not have a privacy interest in the bag. Carlisle pleaded guilty but reserved his right to appeal the district court’s denial of his motion to suppress. Because we agree with the district court that Carlisle did not have a reasonable expectation of privacy in the bag, we affirm.

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Mary Beth & Perry Lucas v. U.S. Bank, N.A., et al. , an interlocutory appeal, Chief Judge Baker writes:

In April 2005, Mary Beth and Perry Lucas (the Lucases) entered into a consumer mortgage loan transaction (the Loan) with Argent Mortgage Company, LLC, (Argent). An escrow account was established from which the hazard insurance and property taxes were to be paid.

Unfortunately, less than four months after the Lucases closed on the Loan, disputes began to occur between the Lucases and the loan servicer regarding the escrow account. These disputes continued for several years despite numerous attempts to resolve them. Finally, on January 15, 2009, the mortgage holder filed a complaint seeking to foreclose on the mortgaged property.

In the Lucases’ answer, they raised several counterclaims against the mortgage holder and third-party claims against the loan servicer asserting that each had violated various federal and state statutes and state common law. The Lucases also requested a jury trial, which was denied by the trial court and is the subject of this interlocutory appeal.

While a foreclosure action is essentially equitable and it is well settled that equitable claims are tried to a court rather than to a jury, the fact that a cause contains a foreclosure action does not necessarily draw the entire cause into equity. Indeed, when, as here, the essential features of the cause are not equitable, a party is entitled to a jury trial on the legal claims.

Appellants-defendants Mary Beth Lucas and Perry Lucas appeal the trial court’s denial of their motion for a jury trial. Specifically, the Lucases argue that the essential features of the cause are not equitable and that even if they are, their legal claims are sufficiently distinct and severable from the foreclosure action such that they are entitled to a jury trial on their legal claims. Inasmuch as the essential features of the cause are not equitable, we reverse the judgment of the trial court and remand with instructions that the Lucases be granted a jury trial on their legal causes of actions.

In D.H. v. State of Indiana , a 6-page opinion, CJ Baker writes:
Here, a juvenile was in a school classroom and got into an altercation with another student. As his teacher attempted to separate the students, D.H. threw a punch at the other student but struck his teacher instead. The juvenile court found that D.H. committed the equivalent of battery against his teacher, and D.H. now argues that the evidence does not support a conclusion that he knowingly or intentionally struck his teacher. We disagree, and find that the doctrine of transferred intent supports the delinquency finding.

Appellant-respondent D.H. appeals the juvenile court’s finding that he committed an act that would have been Battery, a class D felony, had it been committed by an adult. D.H. contends that there is insufficient evidence supporting the conclusion that he intended to strike his teacher. Finding sufficient evidence, we affirm.

NFP civil opinions today (3):

Paternity of C.T.; J.M. v. R.T. (NFP)

Paternity of I.H.; R.P. v. C.H. (NFP)

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

NFP criminal opinions today (2):

Brian Stearman v. State of Indiana (NFP)

Devon Sterling v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge Hughes orders mediation in Simon will suit"

An Indianapolis Star story today by Jeff Swiatek begins:

A lawsuit challenging billionaire Melvin Simon's will is headed to court-ordered mediation.

And his widow, all of his children by his first wife and attorneys from the mall development company he co-founded will have to take part.

Hamilton County Judge William J. Hughes said Tuesday he will issue his mediation order Friday in the 7-month-old lawsuit. The judge also wants attorneys in a related case, in which Simon Property Group is suing Melvin Simon's widow, to join the mediation.

"I'm ordering you all into the same room. I'm doing kind of a funky combined (mediation)," the judge told 11 attorneys in his court, where two hearings related to Melvin Simon's estate were being held back to back.

"It's clear we need to mediate now," the judge told the assembled attorneys.

For background, start with this ILB entry from July 30th.

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Bid to pull judge from ballot advances"

The Fort Wayne Journal Gazette has had a number of articles/editorials/letters on this issue; the ILB picked up the first one in this entry from Aug. 5, headed "A dozen Allen County residents challenge Allen Superior Court Judge Kenneth Scheibenberger’s re-election bid, citing judicial discipline he received in early 2009." That entry explains the issue in detail,.

In brief, Allen County's court statute provides that to qualify for superior court judge, a person ... may not previously have had any disciplinary sanction imposed upon the person by the supreme court disciplinary commission of Indiana. Judge Scheibenberger was disciplined in 2009 by the Supreme Court, on a complaint filed by the Indiana commission on judicial qualifications, They are two different bodies. It is clear to me that the language of the statute doesn't disqualify the judge.

Be that as it may, Niki Kelly of the FWJG reports today:

The effort to remove Allen Superior Court Judge Kenneth Scheibenberger from the fall ballot passed its first administrative hurdle Tuesday when the co-directors of the Indiana Election Division formally agreed to accept the filing.

There had been some question whether the complaint met the appropriate deadline.

Scheibenberger filed his statement of candidacy in January. The deadline to contest that form was Feb. 26, according to the election division.

But there is also an Aug. 20 deadline to contest candidates who have filled vacancies on the ballot.

The Republican and Democratic co-directors of the division decided the law was not clear on which deadline applied, so they let the complaint proceed to the Indiana Election Commission. * * *

The group of citizens who filed the complaint claims Indiana law governing the selection of Allen County Superior Court judges prohibits people from running for election if they have had any Indiana Supreme Court Disciplinary Commission action.

The law is unique to Allen and Vanderburgh counties. * * *

“Since we have no precedents in this area to guide us, and since resolving the issue involves more than a straightforward reading of statutory language, we have decided to accept the filing, and furnish the document to the election commission for their consideration and action,” King said.

The matter now moves to the four-member Indiana Election Commission, but no hearing date has been scheduled.

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to Indiana Courts

About this blog - Back to its normal look!

Yes, the ILB looked odd yesterday. All of a sudden in mid-morning the right column went wacky. Fortunately, I could continue to add new posts.

I worked on it for four hours last night, but nothing seemed to cure the problem. This morning I wrote up with another idea, and it worked! So here we are, back to normal. My apologies!

Posted by Marcia Oddi on Wednesday, August 11, 2010
Posted to About the Indiana Law Blog

Tuesday, August 10, 2010

Ind. Courts - "Judge: Sweeping change in Indiana law makes traffic tickets more costly"

Bob Kasarda of the NWI Times reports in a story dated August 11, 2010:

VALPARAISO | Porter Superior Judge David Chidester said a sweeping change in state law has brought an end to his attempts to rein in young traffic offenders and those charged with driving at particularly high speeds.

Chidester said he and other judges, who handle traffic-related offenses, no longer are allowed to order the biggest share of accused traffic offenders into court and apply special sanctions if the motorists simply want to pay their tickets instead.

The change, he said, is part of a wider restructuring by state lawmakers that increased the cost of tickets for moving violations from $123 to $150. The change took effect July 1.

Legislators also set a flat $150 fee for those who challenge their tickets in court, Chidester said. Judges used to have the discretion to either charge less or up to hundreds more if a motorist loses at trial.

The cost jumps to $365 for those with a prior ticket with the past five years who lose at trial and goes to $614.50 for those with two prior tickets in five years.

"It was too broad-brushed," Chidester said of the changes.

In hopes of heading off problems, Chidester said he intends to place a detailed explanation of the changes and new procedures on his court's website.

Chidester, who lobbied against the changes in the law, argued in a column in The Times in February that the only ones who stand to benefit from the changes are extremely poor and dangerous drivers. This group can pay the flat fee without having to hear from a judge. [See this ILB entry from Feb. 16, 2010]

Chidester, along with Porter Superior Judge Julia Jent, have ordered young traffic offenders to take the bus rather than drive to school. He said he also has ordered offenders to defensive driving school and lectured them in court.

Chidester also responded to the state changes by doing away with evening traffic court and having police officers sequestered in the jury room on trial day so the accused cannot base their decision on whether to go ahead with a trial based on whether the officer shows up. If an officer does not show up, cases are dismissed.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Indiana Courts

Ind. Courts - "The dominoes have finished falling in Marion Superior Court after one judge's departure for the federal bench in Indianapolis"

So begins Indianapolis Star reporter Jon Murray's entry this evening on the Star blog, "Justice Watch." A sample: "Protective-order Judge David Certo, the one-time counsel for the Indiana Department of Environmental Management, moved to the environmental court."

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Indiana Courts

Sports Law - More on: "Ex-players say coach 'did it again' Story unfolding at IUPUI sure sounds familiar to some

Updating this ILB entry from earlier today, USA Today's site now has the entire story on one page, without the hassle of the Star site.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to General Law Related

Ind. Decisions - More on: In the Matter of Curtis E. Shirley

Updating this ILB entry from yesterday, re the disciplinary action taken by the Supreme Court against Curtis Shirley, Bruce C. Smith of the Indianapolis Star reports this afternoon in a story headed "Conflict benches ex-Indiana Supreme Court hopeful."

Interestingly, as indicated quite clearly on p.15 of his application (see below), at the time of his application for the Supreme Court opening, Mr. Shirley had already submitted to the Indiana Supreme Court Disciplinary Commission for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline. This was the document the Supreme Court accepted in its order yesterday: "The parties propose the appropriate discipline is a 30-day suspension with automatic reinstatement."
________
From p. 15 of the Supreme Court application signed June 29, 2010:

In the Matter of Curtis E. Shirley, Cause No. 49S00-0712-DI-581 (disciplinary commission matter involving a conflict of interest and an unreasonable fee for my representing and charging a corporation while also representing its controlling shareholder on an individual matter). An agreed statement of circumstances and conditional agreement for diSscipline is pending before the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Ind. Sup.Ct. Decisions

Environment - "Echoes of Gulf Spill Ripple in BP's Midwest Refinery Expansion "

From the NY Times, see this story by Elana Schor, dated Aug. 6, 2010 -- a few quotes from the long story:

Almost 1,000 miles from the Gulf of Mexico, BP PLC is pressing ahead with a $3.8 billion expansion of the largest refinery in the Midwest -- and facing off with environmental groups over controls aimed at preventing a gusher-style release of chemicals into the air.

The two-year clash over BP's refinery modernization in Whiting, Ind., where the company aims to process more high-sulfur crude from Canadian oil sands, touches on some of the same thorny political issues that continue to dog the Gulf recovery effort. In both regions, the industry's bottom line and its value as a job creator is being pitted against local green advocates' skepticism about the ability of regulators to effectively rein in pollution.

"Putting economics above public safety and the environment appears to be a pervasive practice" at BP, said Environmental Law and Policy Center senior attorney Faith Bugel, whose group joined a 2008 petition against the company's Whiting expansion permit. "If there's a loophole, the practice appears to be to find their way through it. Our concern is that what happened in the Gulf doesn't happen here." * * *

EPA asked the Indiana Department of Environmental Management (IDEM) in October to revise parts of its permit for BP's project, walking back an earlier approval granted by the George W. Bush administration. The latest EPA order kick-started ongoing talks between BP and advocates who objected to the permit and now hope to secure new controls aimed at minimizing toxic releases from the retooled refinery. * * *

The power of the jobs created at Whiting, and the local leverage that comes with it, is not lost on BP. With discussions proceeding on possible changes to the refinery's permit, the company's political action committee (PAC) focused all its donations in June -- a total of $27,300 -- on 80 state-level candidates in Indiana. Members of Congress got no BP PAC money in June, according to Federal Election Commission records.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Environment

Ind. Courts - "Sen. Steele praises process to fill Indiana Supreme Court vacancy"

Here is a feature ($$) by Roger Moon, reported in the August 8, 2010 issue of the Bedford Times-Mail:

BEDFORD — Although Bedford attorney and State Sen. Brent Steele was eliminated from consideration for an Indiana Supreme Court justice vacancy, he believes the experience of seeking the seat was a positive one.

“It’s humbling,” he said, “And to get close — you never ever let your mind even go to the thought that you might make it.” He likened it to “lightning strike” odds. Even though he had made it to a list of nine finalists, he said, “It was actually more like one in a million. That’s the way I look at it.”

The nine finalists were interviewed on July 30 and, following that process, the Indiana Judicial Nominating Commission narrowed the list of finalists to three: Marion Superior Court Judge Robyn Moberly, Boone Circuit Judge Steven David and Indianapolis attorney Karl Mulvaney.

In early July, the commission had narrowed the list to nine after interviewing 34 applicants for the seat being vacated by Justice Theodore Boehm, who plans to retire in September after 14 years on the court.

“It just possesses your mind as you approach those interviews that you’re going to be grilled by the Judicial Nominating Commission,” Steele said. “For a couple of nights ahead of those days, I slept about two hours a night. ... Even though you’re used to speaking in public and those kinds of things, it’s a little intimidating. I’d be lying if I said it wasn’t intimidating.

“It’s a good process,” he continued. “The right decision will be made, and it wasn’t meant to be me.”

Each candidate interviewed for the seat on July 30 was asked to name two improvements needed in state courts.

One of the improvements Steele proposed related to an educational process he believes would benefit newly elected legislators.

“One of the things I think would be extremely helpful would be that the Supreme Court institute a cram course, if you will, for the new legislators coming to the Statehouse who are not lawyers.”

Steele said that of 150 Hoosier lawmakers, 19 are attorneys. “The point is, there are various aspects of the law, whether it’s divorce law or criminal law or adoption law or real estate law, every segment has at least half a dozen anchor points, main things that need to be considered in making a law.”

Citing criminal law as an example, Steele said, “New legislators always bring in criminal law. They want to toughen the criminal law. There has been something that has happened in their district and they want to toughen it up.” He said too many legislators aren’t familiar with a tenet of criminal law called “proportionality of sentencing. ... They don’t know that tenet of law. They try to propose a law that may have a sentence for a (Class) D felony greater than for a (Class) C.”

Steele added, “There are a lot of little basic tenets that legislators could learn real quickly.” A “cram course,” Steele suggested, would help the Legislature avoid wasting time on proposals that are contrary to tenets of the law and, consequently, are proposals “that are not going to go very far.”

The second improvement Steele suggested would involve expanding capabilities around the state for attorneys to file court matters electronically. He talked about the technologically savvy 20-somethings who are in law schools today and said, “They are not going to appreciate nor will they work well with a paper (filing) system.”

Although the opportunity to serve as a court justice has passed for Steele, he said he can still continue to advocate for the improvements he suggested, pursuing them as a legislator and through the Indiana State Bar Association and the Indiana Continuing Legal Education Forum.

Steele never second-guessed whether seeking the justice’s seat was the right thing for him to do.

He said, “Somebody asked me, ‘Why did you do this?’ My response is I cannot imagine a lawyer in Indiana that would not want to serve his profession in such a capacity. ... I just think it’s the highest calling that you can get to help your profession.”

See also: "Senator Steele on legislation impacting the court selection process" from the July 28, 2010 ILB.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Vacancy on Supreme Ct

Courts - Blagojevich on trial: " The jury, in its 10th day of deliberations, has sent no notes and asked no questions in more than a week"

It just occurred to me that the Blagojevich jury is still out! I checked the Chicago Tribune and it looked like there was nothing on the front page anymore about the trial. But then I found the special "Blagojevich on Trial" page.

Here is how the August 10th coverage begins:

Lawyers in the trial of former Gov. Rod Blagojevich were called into court this morning for a routine status check at which U.S. District Judge James Zagel informed them that he really had nothing new to report.

The jury, in its 10th day of deliberations, has sent no notes and asked no questions in more than a week. Zagel said the six men and six women on the jury also have not asked him for anything in recent days.

"We are all in the exact same position," Zagel said. "We are waiting."

Also interesting is this story from August 7th by Stacy St. Clair and Jeff Coen, headed "Verdict could cast light or shadow on Patrick Fitzgerald: One way or another, the man who brought the case against Blagojevich might be affected," which includes speculation about Fitzgerald heading the FBI in the future.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Courts in general

Ind. Decisions - One Indiana case decided today by 7th Circuit; and a FACTA decision

In US v. Robinson (ND Ind. Judge Springmann), a 10-page opinion, Judge Wood writes:

Riding around in a car with cocaine in one’s pocket is not, generally speaking, a good idea, given the myriad reasons why the police might legitimately stop the vehicle. A stop based on a traffic violation is what tripped up Jermarcus Robinson on the afternoon of June 16, 2008. Robinson was a passenger in the car driven by his friend David Robinson (no relation) that day. (We refer to the defendant as Robinson and to his friend as David Robinson.) One thing led to another after Officer Shane Pulver ordered the car to pull over, and before long, the police found a plastic bag with 54 grams of crack cocaine gripped between Robinson’s buttocks. This prosecution for possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1) followed. The only question on appeal is whether there is some reason for suppressing the drugs Robinson was trying to hide. We conclude, as did the district court, that the answer is no, and thus that the conviction should stand. * * *

Whether an officer has a reasonable suspicion to support a Terry frisk is a “fact-specific” inquiry that looks at the “totality of the circumstances” in light of “common sense and practicality.” E.g., United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006). The proper way to view this encounter with the police, we conclude, is as a single event, not two or three different stages.

In Shlahtichman v. 1-800 Contacts (ND Ill.), a 19-page opinion, Judge Rovner writes:
After Eduard Shlahtichman purchased contact lenses over the Internet, 1-800 Contacts, Inc. emailed him a confirmation of his order which reflected the expiration date of his credit card. The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) prohibits a vendor who accepts a credit or debit card as a means of payment from “print[ing] more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction,” 15 U.S.C. § 1681c(g)(1); the prohibition “appl[ies] only to receipts that are electronically printed,” as opposed to those on which the credit or debit card information is written by hand or taken by imprint or photocopy, § 1681(c)(g)(2). Did 1-800 Contacts “electronically print” the expiration date of Shlahtichman’s credit card, and thereby violate FACTA, by including it in the email? This is a question of first impression at the appellate level. We answer that question in the negative and affirm the dismissal of Shlahtichman’s complaint.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Joey Wilson v. State of Indiana, a 12-page opinion, Judge Bradford writes:

Appellant/Defendant Joey Wilson appeals his convictions for Receiving Stolen Auto Parts, a Class C felony, and Driving While Suspended, a Class A misdemeanor. Upon appeal, Wilson contends that the trial court erred in allowing the State to amend the charging information on the day before his trial was scheduled to begin. Wilson also contends that the trial court abused its discretion by admitting his complete Bureau of Motor Vehicles (“BMV”) record without first requiring the State to redact substantial evidence of unrelated prior misconduct. We affirm. * * *

Here, unlike in Fajardo and Fuller, it is uncontested that the State's request to amend the charging information was timely under the amended version of Indiana Code section 35-34-1-5 because the amendment was made before Wilson's trial commenced. Thus, the only question is whether the amendment prejudiced Wilson's substantial rights. As such, we conclude that this case is more akin to Riley and its progeny than Fajardo and Fuller. We further conclude that under the amended version of Indiana Code section 35-34-1-5, a defendant's failure to request a continuance after a trial court allows a pre-trial substantive amendment to the charging information over defendant's objection results in waiver. Here, Wilson had the opportunity to request a continuance for the purpose of giving himself the opportunity to prepare his defense after the trial court allowed the State to amend the charging information over his objection but chose not to pursue that course. Therefore, Wilson has waived this issue for appellate review.* * *

In light of the unchallenged evidence that Wilson was driving on a suspended license after having received a prior driving while suspended conviction, we do not believe that the admission of Wilson's BMV record, in and of itself, rose to the level of irrelevant and prejudicial evidence discussed in Rhodes, nor do we believe that the admission of Wilson's BMV record, without any other irrelevant character evidence, was so prejudicial that it made it impossible for Wilson to receive a fair trial.

Moreover, to the extent that Wilson relies on Dumes and Jones v. State, 708 N.E.2d 37 (Ind. Ct. App. 1999), trans. denied, in support of his claim that the admission of his complete BMV record constituted fundamental error, we conclude that both Dumes and Jones are unpersuasive because in both Dumes and Jones, this court concluded that the admission of the defendants' unredacted driving records constituted reversible error, not fundamental error. Again, a finding of fundamental error “requires a defendant to show greater prejudice than ordinary reversible error.” Purifoy, 821 N.E.2d at 412. Although we believe that the trial court erred in admitting Wilson's unredacted BMV record, we conclude that Wilson has failed to prove that its admission subjected him to any greater prejudice than ordinary reversible error. Thus, Wilson has failed to prove that the admission of his complete BMV record constituted fundamental error.

In Indiana Spine Group v. Pilot Travel Centers, an appeal from the worker's compensation board, Judge Friedlander writes:
Indiana Spine Group, PC (ISG) appeals the dismissal of its Application for Adjustment of Claim for Provider Fee (the Application) by the Worker’s Compensation Board (the Board) in favor of Pilot Travel Centers, LLC (Pilot). ISG presents two issues on appeal, which we consolidate and restate as follows: Did the Board err in determining that it did not have jurisdiction because the Application was filed outside the statute of limitations set out in the Worker’s Compensation Act (the Act)? We reverse and remand. * * *

The Act sets forth two statutes of limitations. The first involves the initiation of a worker’s compensation claim. [IC 22-3-3-3] * * * Thus, an injured employee must initiate a claim for TTD benefits, PPI benefits, and/or medical services within two years of the work-related accident. * * * In the instant case, there is no dispute that Wetnight timely sought benefits under the Act or that he presented a compensable injury claim. * * *

We now turn to I.C. § 22-3-3-27, the statute upon which the Board dismissed ISG’s claim. * * * Thus, I.C. § 22-3-3-27 establishes a two-year statute of limitations for the “modification” of an award due to a “change in conditions”. This two-year period begins to run on the last day for which compensation (that is, TTD or PPI benefits) was paid to the injured employee, which in this case was August 27, 2006. Thus, if the statute of limitations applies to ISG’s claim, the deadline for filing said claim would have been August 27, 2008. We conclude, however, that the statute does not apply in this case. * * *

We reject Pilot’s invitation to apply the statute of limitations set out in I.C. § 22-3-3-27, which by its plain language is not applicable here. In fact, application in this context could lead to absurd results. * * *

Moreover, we fail to see the wisdom of tying a medical service provider’s ability to seek full payment due under the Act to the last date for which the employee received compensation. While a medical service provider is able to determine the date of an injured employee’s accident, the provider does not generally have ready access to the dates of compensation to the employee, which vary widely from case to case. Rather, a statute of limitations for claims like that asserted by ISG would seem to be more appropriately related to the date of service. We leave that decision, however, as well as the appropriate length of the limitations period, for the Legislature.

The Full Board erred in dismissing ISG’s claim pursuant to I.C. § 22-3-3-27. On remand, ISG shall be entitled to a determination on the merits of its application for adjustment of claim for provider fee.

ILB: Note that two NFP decisions today involving Indiana Spine Group are reversed on the same grournds.

In City of Indianapolis v. Cynthia Hicks, a 16-page opinion, Judge Robb concludes:

The City waived any challenge based on the magistrate's lack of authority to grant Hicks's motion to correct error by failing to object until after time for ruling on the motion expired. Waiver notwithstanding, the trial court properly used a nunc pro tunc order to grant Hicks's motion to correct error, as the CCS provides a sufficient written memorial indicating the trial court adopted the magistrate's recommendation within the required time. On its merits, the trial court's ruling was not an abuse of discretion because the City failed to show that Hicks's tort claim on behalf of her daughter is barred by ITCA. Affirmed.
NFP civil opinions today (3):

Thompson Thrift Construction Inc. v. Bank of Indiana, N.A. (NFP)

Indiana Spine Group v. Scenic Hills Care Center (NFP)

Indiana Spine Group v. All Seasons Holdings (NFP)

NFP criminal opinions today (3):

Ryan Armstrong v. State of Indiana (NFP)

Roosevelt Williams v. State of Indiana (NFP)

Timothy A. Stevens v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Ind. App.Ct. Decisions

Law - "Justice Department report cites backlog in DNA analyses"

From a story by Ed O'Keefe in today's Washington Post:

Thousands of legal proceedings could face delays because the FBI has more than 3,200 forensic DNA cases backlogged, an issue that agency officials attribute to a lack of money and manpower, according to a new watchdog report. * * *

The laboratory is not meeting its goal of processing cases in 60 days, with some cases waiting as long as 600 days for final results, investigators said. As of March, there were 1,147 missing-persons cases, or 42 percent of the backlog. * * *

The report faults the FBI's delayed seven-year, $10 million effort to develop an electronic tracking system for the backlog. Delays also are caused by the FBI's efforts to help state and local forensic labs cut their backlogs and by federal legislation passed in recent years -- including the USA Patriot Act -- that allows law enforcement officers to collect DNA samples from anyone convicted of a federal offense and from non-U.S. citizens detained in the country, the report said.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to General Law Related

Ind. Courts - Even more on "7th Circuit Judges May Testify in Retrial Over Web Threats"

This ILB entry from March 11, 2010, quoted a NY Law Journal story that began:

The second trial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges, has resulted in a second mistrial.
Today, Mark Fass of the New York Law Journal has a story that begins:
Round three of the United States versus Harold "Hal" Turner, the Internet shock jock charged with threatening to kill three Chicago appeals judges, begins this morning in Brooklyn federal court.

Turner was arrested last June after writing on his blog that three judges on the 7th U.S. Circuit Court of Appeals -- Richard Posner, William Bauer and Frank Easterbrook -- "deserve to be killed" for their opinion in N.R.A. v. Chicago, 08-4241, which upheld handgun bans in Chicago and Oak Park, Ill.

"Their blood will replenish the tree of liberty," Turner wrote in June 2009. "A small price to pay to assure freedom for millions." Turner, who hosted a weekly Webcast from his home in North Bergen, N.J., also posted the judges' photographs, work addresses and phone numbers, and promised to soon add their home addresses.

The U.S. Attorney's Office for the Northern District of Illinois charged Turner with threatening to kill the three judges.

The case, United States v. Turner, 09-cr-00650, was assigned to Judge Donald Walter, who sat on assignment from the U.S. District Court for the Western District of Louisiana. Walter transferred the case to Brooklyn, then came along to hear it.

The first two trials ended in mistrials.

More from the story:
Much has changed in the five months since Turner II.

Minutes after that jury was released, [Michael Orozco] informed the court that he and his co-counsel, Chicago solo practitioner Nishay Kumar Sanan, had been fired. Turner now will be represented by the Brooklyn Federal Defender's office. The office's chief, Peter Kirchheimer, will try the case. Kirchheimer did not return a call for comment.

And in June, the U.S. Supreme Court reversed the decision that spurred Mr. Turner's alleged threats, N.R.A. v. Chicago, and remanded the case to the 7th Circuit.

However, Hogan, the lead prosecutor, said Monday that there have been no major developments since Turner II, and that he expects the three judges to take the stand again as early as Wednesday.
Orozco said he considered the Supreme Court's reversal of N.R.A. v. Chicago a vindication. "Apparently it was Judge Easterbrook that didn't understand the U.S. Constitution," Orozco said. "Their decision was overturned. They got it wrong. Hal Turner was correct. His analysis was correct."

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Indiana Courts

Sports Law - "Ex-players say coach 'did it again' Story unfolding at IUPUI sure sounds familiar to some" [Updated]

Following up on their July 25, 2010 Indianapolis Star investigative report (ILB link here) and their July 28th story (ILB entry here) that IUPUI had launched an investigation into women's basketball program, Mark Alesia, Tim Evans and Heather Gillers had a new front-page story in the Sunday, August 8th Star. It was just made available online today.

Unfortunately, not only did the Star wait two days to post the story, it also appears to be impossible to navigate through all 4 "pages" or to use "print" to see the entire story on one's screen. Perhaps others have had better luck. (I tried using both Firefox and Safari browsers)

BTW, in the event you can access the end of this Sunday's story, the ILB is quoted, elaborating on my statement at the end of the July 28th ILB entry, about the make-up of the three-member investigative panel:

Judge Shields and Dean Roberts are great appointments. One wonders, however, about having the IUPUI associate athletics director investigating her own program at this point.
[Update] The Star story's p. 4 is now accessible, or at least it was for a time. Here is the section about the panel:
Many of those who aired concerns about Hart said they will be keeping a close -- and perhaps skeptical -- eye on IUPUI's in-house investigation.

The skepticism comes from concern about the makeup of a committee that includes not only a law school dean and retired judge, but also an assistant athletics director.

That strikes local attorney Marcia Oddi, who runs the widely read Indiana Law Blog, as something less than an independent investigation.

"What is the responsibility of the athletic director's office," Oddi asked, "if not to keep things like this from happening to the program and to the young players?"

As an Athletic Department administrator, she added, Angie Torain "may be expected to defend what happened" and "keep tabs on the review."

In response to questions from The Star about Torain investigating her co-workers and her boss in a relatively small athletic department, IUPUI issued a statement from the chancellor's office.

Torain, the statement said, is a "person of unquestioned integrity," and the athletics director is not the subject of any allegations.

"Although Torain nominally reports to the athletics director, her higher duty is to the chancellor," the statement said. "The chancellor is confident that she will discharge that duty without any bias."

I continue to maintain that her appointment places Ms. Torain in a very difficult position, and that it was unnecessary.

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to General Law Related

Ind. Gov't. - "Indy's traffic lights will soon be greener"

Francesca Jarosz of the Indianapolis Star reports today on Indianapolis' switch to LED traffic lights. A quote:

The city is replacing incandescent bulbs with more energy-efficient lights, which also throw off more light, at all of its roughly 9,200 traffic signals. Indianapolis will use $1 million from federal stimulus money doled out for conservation efforts to finish a switch of the signals' bulbs that started two years ago with a $500,000 state grant.

It's part of an effort to reduce city energy costs that also includes making buildings owned and operated by the city, such as the City-County Building, more efficient.

The traffic-signal project is expected to be completed this fall. City leaders say the bulbs use about a tenth of the energy of an incandescent bulb, a reduction that's expected to save $250,000 each year. The city paid about $600,000 last year to power the traffic signals.

"It helps with costs savings and also helps improve our local environment," said Kären Haley, the city's director of sustainability. "We're using less energy than with a standard bulb."

The ILB had a long entry on Jan. 3, 2010 headed "LED Signals Seen as Potential Hazard -- Or not."

Posted by Marcia Oddi on Tuesday, August 10, 2010
Posted to Indiana Government

Monday, August 09, 2010

Environment - "Wind turbines can bring financial windfall: Landowners' support necessary for project to move forward

Diane Krieger Spivak reports today in the Gary Post-Tribune on wind turbines; here are some quotes from the lengthy and very informative story:

For more than a year now, [Bryan Berry of Fowler] and 64 other landowners have reaped a harvest of a different sort, leasing their land to the Orion Energy Group for the Benton County Wind Farm.

As Berry puts it, "It's not a get-rich-quick kind of thing. "I'm guaranteed $5,000 a year whether it runs or not." Berry also collects a portion of the profits from the electricity the turbine generates.

Last year Orion cut him two checks totaling $6,900.

"It can be the difference between no vacation and a really nice one," he said. Some have more towers and make more money.

The county stands to benefit even more than individual landowners, however.

"We used to be the poorest county in the state, being agricultural," said Berry, who became a county commissioner a year ago. Now, through a tax abatement agreement with Orion, the county will get $11,000 per year per turbine beginning in 2018.

"There are 495 turbines now," Berry said. "When all is said and done there will be 1,120."

Ka-ching. That's $12,320,000 per year.

You can see the power of the money as you continue to read the story. Fowler is in Benton County:
In Lake County, an hour north of Fowler in Benton County, sit 23,000 acres whose 55 owners stand to cash in on the same type of deal Berry and others have, if the winds in Eagle Creek Township blow just right.

Aussie-based global wind energy development company Windlab has identified the area north of the Kankakee River and just west of the Porter County line as prime wind-generating property. * * *

Windlab recently received permission from the Lake County Board of Zoning Appeals to erect a meteorological tower north of Indiana 2 near Clay Street. The Lake County Plan Commission is expected to issue the permit within days, according to Lake County Planning Director Ned Kovachevich. Flora said Windlab will seek permission to erect several more test towers, which will collect wind data over a period of about three years to verify if the site is viable as a source of wind power.

Before that can happen, however, the company needs a consensus of property owners willing to allow the turbines on their property. The Eagle Creek group formed a committee last week to study the proposal, and Windlab has encouraged landowners to consult with their attorneys, offering to reimburse them for their legal fees.

Dan Blaney is a Morocco lawyer who formed the Indiana Wind Energy Legal Team to assist property owners and local government when the Benton County wind farms were being proposed. * * *

Lake County doesn't yet have a commercial wind ordinance. The Lake County Council on Tuesday will vote on a proposed ordinance Kovachevich wrote for residential wind turbines because of recent requests. * * *

Asked if the turbines have created any problems since the Benton County Wind Farm, run by Orion Energy Group went in in 2004, Steele responded, "It depends on how you look at it. There are things you don't foresee."

Some issues have been nonreplacement of trees that Orion removed from property and 40 turbine blades that the company had to replace because of faulty construction. Maintenance and repair can cause problems in a farmer's field, Steele said.

A crane used to repair or replace turbine parts weighs 986,000 pounds and runs on two tracks, each 4.5 feet wide. A moving crane will compact the soil from 10 to 18 inches. Most drain tiles are 2 feet below the surface and can break within two years, so contracts should reflect language to protect farmers, Steele said.

"We're not against the wind people but we want the best provisions for the farmer and the landowner," Steele said.

One consideration Steele said Lake County should make is the weight of the equipment on roads during construction of a wind farm. In Benton County, which is mostly rural, parts and equipment have been moved mostly through fields.

"I wouldn't want to put one in Lake County," Steele said. "The equipment will pulverize the roads. It takes seven semis to move one crane."

That's what happened in Benton County, Berry said. "Even the school buses couldn't get through. You had to have four-wheel drive." But Orion paid to fix the roads, Berry said. * * *

David Courtney, Windlab's senior manager for projects development in the Midwest, told Lake County landowners no plans have been brought before the county yet because the project can't get off the ground until landowners say they want it.

"This is driven by landowners," he said at last week's informational meeting.

The Benton County Wind farm signed up 65 of the 69 landowners who were approached

"I don't know anybody who leases their land for turbines that doesn't like them," Blaney said. "Wind is not going to solve all the energy problems in North America, but it helps alleviate them, and it certainly helps the agricultural community. In Texas it saved some ranches when some people got behind in their payments.

"In the long-run maybe it can help preserve the family farm."

If you've read this far, then also take a look at this brief item by Jonathan H. Adler in The Volokh Conspiracy, headed "A Coasean Approach to Wind Farms."

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Environmental Issues

Ind. Gov't. - Ominous news, if true

From Sunday's NY Daily News, an article by professors Eileen Norcross and Todd Zywicki that is headed "How public worker pensions are too rich for New York's - and America's - blood" and subheaded "New York's horrible pension habits are a window on a national pension picture that’s looking more disastrous by the day." Mostly about New York, but then, half-way into the story:

Professor Joshua Rauh of Northwestern University projects that even if public sector plans earn 8% on their investments, four states - Illinois, New Jersey, Connecticut and Indiana - will run out of assets to pay retirees by the end of the decade. States and local governments will soon find themselves up against a painful tradeoff: between closing schools and libraries and cutting other essential services or paying inflated pensions to 50-year-old retirees.

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Indiana Government

Law - Two new practice specialties: Circumcisions and bed bugs

"Atlanta Lawyer Takes on Botched Circumcision Claims Nationwide" is the headline to this article by Katheryn Hayes Tucker in the Fulton County Daily Report, dated July 29, 2010. It begins:

Although the $10.7 million default judgment David J. Llewellyn of Johnson & Ward just scored may be tough to collect, the case is a dramatic statement about the Atlanta attorney's development of an unusual national practice: suing over botched circumcisions.
In the latest case, Llewellyn brought a suit on behalf of a boy and his parents against Mogen Circumcision Instruments, claiming one of its devices severed the head of the boy's penis during a bris, a Jewish ceremony for a male infant. The company failed to answer the suit, and Senior U.S. District Court Judge Jack B. Weinstein of the Eastern District of New York ruled the company owed the eight-figured sum.

"He's the expert in this field," said Llewellyn's New York co-counsel on the Mogen case, John L. Juliano, a personal injury and medical malpractice attorney in East Northport, NY. "I don't know many other people who handle these cases."

Llewellyn said he has sued doctors, hospitals and medical supply makers around the country for circumcision-related malpractice and personal injury during the past 15 years. He has won, lost and settled in the area, which he estimated is about half of his practice, with the other half a broader range of personal injury and malpractice litigation.

Last year he won a $2.3 million verdict in Fulton County against the doctors of a child injured during a circumcision. That was his biggest award before the recent New York case.

"I didn't set out to be a circumcision lawyer; it just sort of happened," said Llewellyn.

From the Aug. 7, 2010 Wall Street Journal, this story that begins:
The bedbugs have been good to Timothy Wenk. Back in '04, when the Manhattan defense lawyer got his first bedbug case, he got a hot tip from an entomologist—bedbugs are gonna be big! Mr. Wenk made it his business to learn about the pests, and it's paid off. These days, he represents hotels accused of harboring the blood-thirsty insects, and collects a nice honorarium delivering bedbug lectures to the hospitality and pest-control industries. "I don't mind being the bedbug lawyer," he says.
Personal note: The article also notes: "Yes, the city [NYC] just declared war on bedbugs, citing a 2,000% rise in complaints since 2005." In this regard, I must admit to being a a ground-breaker (of sorts) in the bedbug lawsuit area. In the late 70s, I was the plaintiff in what is now a much-cited case, Oddi v. Mariner-Denver, Inc. (NDInd.1978) 461 F. Supp. 306).

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Steven L. Fortner v. Janet Fortner (NFP)

NFP criminal opinions today (2):

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

Devin Steele v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Ind. App.Ct. Decisions

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

In Owner-Operator Independent Drivers Ass'n. v. Mayflower Transit (SD Ind., Barker), a 9-page opinion, Chief Judge Easterbrook concludes:

A chargeback for the cost of insurance is not a sale of insurance. The eighth circuit reached the same conclusion in United Van Lines, 556 F.3d at 696–97. No court of appeals has held otherwise.

The judgment with respect to chargebacks is affirmed, and the case is remanded for any further proceedings that may be required by our ruling on the limitations issue.

[Re the limitations issue, the circuit court writes on p. 4] The judge concluded that Congress had changed the numbering of §14704’s subsections and failed to adjust §14705 to match, leaving §14705(b) pointing to the wrong part of §14704. That could be corrected, the judge held, by reading the reference to §14704(b) as if it were a reference to §14704(a)(2). * * *

[On p. 5] Courts sometimes take liberties with texts that seem to be garbled or absurd, on the theory that when there is a choice between sense and nonsense both the legislature and the President prefer sense. But there is nothing absurd about §14705(b) as written. It points to a statute that could do with a period of limitations. Whether a four year period applies to §14704(a)(2) and a two-year period to §14704(b), or the reverse, neither outcome is absurd. * * *

[On p. 6] No matter what one makes of the oddity, it does not imply anything about how long people have to sue under §14704(a)(2).)

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "The Indiana Court of Appeals reversed judges in both Allen and Noble counties [last] week regarding two separate cases involving drunken-driving"

Niki Kelly reports on two COA opinions, Indiana Bureau of Motor Vehicles v. Seth McNeil and State of Indiana v. Jeffrey Brunner, in this story from the Aug. 7, 2010 Fort Wayne Journal Gazette.

Re McNeil, Kelly reports:

Seth McNeil was convicted on June 14, 2006, of operating a vehicle while intoxicated in Allen County. Prior to that, he had been convicted for two driving-related offenses, which included a conviction for operating while intoxicated in 1999 and a conviction for reckless driving in 2003.

The clerk of the Allen Superior Court Misdemeanor and Traffic Division sent the Bureau of Motor Vehicles notice of McNeil’s 2006 conviction the day after it occurred.

But the BMV waited two years to determine that McNeil was a habitual traffic violator, sending him notice in 2008 that his driver’s license would be suspended for 10 years, starting in July 2008.

McNeil appealed the 10-year suspension, arguing the BMV exceeded a two-year statute of limitations to make the determination.

Allen Circuit Court Judge Thomas Felts agreed with McNeil and reinstated his driving privileges.

The BMV appealed the case to the appellate court, which found Thursday that the statute of limitations did not apply to the BMV’s decision.

“While McNeil raises several policy issues in support of a statute of limitations for determinations made by the BMV, we note that this is for the General Assembly to decide and they have not deemed to do so thus far,” the ruling said.

Re Brunner, Kelly writes:
Jeffrey Brunner pleaded guilty in Noble County in 2000 to a felony charge of operating a vehicle while intoxicated. It was his third conviction for drunken driving.

Nine years later, Noble Superior Court Judge Robert Kirsch granted a request from Brunner to reduce his conviction from a felony to a misdemeanor, noting his record had been clean since the last charge and the felony conviction made it difficult to find work and support his family.

The state appealed and the appellate court found this week the judge didn’t have authority to reduce the conviction so long after the case was over. The ruling said a judge’s decision to do so must be made at the time of sentencing or when the original conviction is entered.

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Ind. App.Ct. Decisions

Courts - Ted Olson on Fox News Sunday discussing his recent victory in overturning Proposition 8, which banned same-sex marriages in California

Well worth watching - access it here, via the Wonk Room.

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Courts in general

Ind. Decisions - In the Matter of Curtis E. Shirley

One of the 34 applicants for the Indiana Supreme Court last month, Curtis E. Shirley, had disciplinry charges pending against him at the time of his interview. This matter was disclosed on his application.

Today the Court has posted this order, filed Aug. 5, 2010: In the Matter of Curtis E. Shirley. The 3-page order of Chief Justice Shepard, in which all justices concur except J. Boehm, who did not participate, concludes:

From the beginning of Respondent's involvement with the Corporation, it should have been apparent that AB's personal interests were at very least potentially adverse to those of the Corporation. The actual conflict of interest that arose should have been apparent. Respondent's ethical violations extended over several years to the considerable detriment of the Corporation. The discipline the Court would impose for Respondent's misconduct would be more severe than the parties propose had this matter been submitted without an agreement. See Matter of Colestock, 461 N.E.2d 137 (Ind. 1984) (suspension of one year imposed for representation of conflicting interests). Like the respondent in Colestock, Respondent "has failed to appreciate the obligation of undivided loyalty owed by an attorney to every client for whom he appears and whose interests he must protect." Id. at 140.

Nevertheless, in light of Respondent's extensive history of public service noted above, his lack of any other discipline in nearly 20 years of practice, and the Court's desire to foster agreed resolutions of lawyer disciplinary cases, the Court now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning September 17, 2010. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Reports on Magnus-Stinson investiture ceremony

The Indy Star's weekly column, "Behind Closed Doors," had this item yesterday. Some quotes:

As if to prove that the judges who serve on the U.S. District Court in Indianapolis are a collegial bunch, they engaged in light ribbing Friday of new appointee Jane Magnus-Stinson.

During her investiture ceremony, which includes the oath of office, her colleagues delivered humor-laced tributes inside an ornate courtroom.

Judge William T. Lawrence noted in deadpan style how proud he was that a story about the Mount Prospect, Ill., native's appointment appeared deep inside a suburban Chicago newspaper, next to obituaries and a story about a restaurant closing. [The ILB blogged that story from the Mount Prospect paper, here.]

Taking her turn, Judge Sarah Evans Barker first asked for Chief Judge Richard L. Young's microphone. Seeing a teachable moment, she said: "Jane, we always ask. Instead of grabbing the microphone, we ask."

Barker, for more than two decades the only female federal judge in the Southern District of Indiana, noted the arrival of Magnus-Stinson and another recent appointee, Judge Tanya Walton Pratt.

"I have to admit my concern . . . that my two women colleagues might conspire against me from time to time," she said.

She cited a recent flare-up in California in which Carly Fiorina, the Republican Senate challenger to Democratic Sen. Barbara Boxer, mocked Boxer's hairdo. Barker said some might characterize her hair, which is short and styled conservatively, as "so yesterday."

"Now if that is your view, candor would require me to say that it isn't the only thing about me that is so yesterday," she said, drawing laughter.

Indianapolis attorney Monica Foster, who served as "mistress of ceremonies" -- a title she requested -- corrected Barker later, calling her hairdo "bangin'."

On a more serious note, Foster spoke of the significance of the two recent appointments during her introduction of Sen. Evan Bayh, D-Ind., who shepherded their nominations through the Senate.

"Senator Bayh has done more to make this court look like the people it serves in the state of Indiana than any other person," Foster said, "and for that, we thank you."

Like the C-SPAN camera, in this case the ISBA camera was there. Here are two video clips from the ceremony:The camera pans out over the large audience at several points in the videos. And you can see our other new federal judge, Judge Tanya Walton Pratt, already seated with the other judges - she was sworn in on June 25, 2010.

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending August 6, 2010

Here is the Clerk's transfer list for the week ending August 6, 2010. It is one page (and 20 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.

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

Posted by Marcia Oddi on Monday, August 09, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/9/10):

Next week's oral arguments before the Supreme Court (week of 8/16/10):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/9/10):

Wednesday, August 11th

Next week's oral arguments before the Court of Appeals (week of 8/9/10):

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, August 09, 2010
Posted to Upcoming Oral Arguments

Friday, August 06, 2010

Ind. Gov't. - More on: Encourage CAFOs, penalize small farmers and meat processors?

This ILB entry from March 13, 2010 began:

Doesn't seem right. At my local farmer's market this winter every third stand seems to be selling locally produced meat or poultry. There is great interest in buying from small Indiana farmers and processors. But instead of our state department of agriculture encouraging this, the state administration is cutting back on state meat inspections, without which there can be no sales.
The intro was followed by quotes from the Fort Wayne and Indianapolis papers. The Star wrote:
Indiana's plan to lay off some meat inspectors to save money and reduce the time inspectors spend with small, independent processors has the industry and farmers fearing it could hurt what has been a growing industry.
According to this item in the upcoming August 9th Indiana Legislative Insight [reprinted with permission], the dire predictions have proven correct:
We were first to tell you last year about how state budget cutbacks forced the State Board of Animal Health to trim state meat inspection regimens, and now Gary Truitt, following up for Hoosier Ag Today, explains that "As a result, Indiana meat processors have had to drastically cut their slaughter and production time. Steve Beutler, with Beutler Meats in Lafayette, says they are down to one day a week of inspected slaughter, 'There is just not a lot you can do in one 8 hour period.' This is resulting in less locally produced meat being available at retail stores and farmers' markets."

Truitt continues, "Meat sold at these locations must be state inspected. Products that go back to farmers for their own use or freezer meat business do not need to have state inspection. Beutler says, ironically, the cutback comes at the same time consumer interest in locally produced meats is on the rise [and] until funds can be found to hire more inspectors, the Indiana custom meat processing industry will continue to struggle and consumers will find it hard to locate locally produced meat products."

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Indiana Government

Courts - More on "GPS and Privacy Rights"

From a Nov. 23, 2009 ILB entry:

From an editorial today in the NY Times:
A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.
A decision in the D.C. case was handed down today. From The Blog of Legal Times, an article today that begins:
A Washington appeals court today struck down a man's conviction and life sentence in a drug case on the grounds the police unlawfully tracked his movement with a GPS device that had been installed without a warrant on his vehicle.

The unanimous three-judge ruling in the U.S. Court of Appeals for the D.C. Circuit said that law enforcement officers must obtain a warrant to use GPS tracking equipment. The appeals court said the government violated the Fourth Amendment and reversed the conviction of the defendant, Antoine Jones, former co-owner of a night club in Washington.

The article concludes:
Prosecutors brought Maynard and Jones to trial in late 2007, and a jury found the men guilty in January 2008. The government’s case was largely built on the GPS evidence—allegedly showing Jones driving to and from a drug stash house in Maryland. Prosecutors did not have any evidence showing Jones was involved in any drug transaction. The government relied heavily on statements from co-conspirators who claimed Jones was a ringleader in a trafficking organization.

Jones's trial counsel, A. Eduardo Balarezo, a solo practitioner in Washington, said, "Mr. Jones always said that all he wanted was for the law to be applied fairly, today he got his wish."

Stephen Leckar of Washington’s Shainis & Peltzman, who argued for Jones in the D.C. Circuit last November, said that requiring investigators to adhere to the “modest requirement” of obtaining a warrant will not burden law enforcement.

“Judge Ginsburg’s eloquently-written opinion recognized the increasing importance in a high-tech age of requiring law enforcement agents to seek the approval of a neutral judge before surreptitiously installing a device that records relentlessly your every movement in time and space,” Leckar said.

Thanks to Mr. Leckar for alerting the ILB to today's 41-page opinion in U.S.A. v. Lawrence Maynard.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Courts in general

Ind. Courts - "Camm’s third trial to be held in Warrick or Spencer counties"

Matt Thacker reports this afternoon in the New Albany News & Tribune, in a story that begins:

Special Judge Jonathan Dartt has denied a motion to change venue from Warrick County for David Camm’s third triple-murder trial, but he ordered jurors be selected from another county.

He also asked both parties to inform the court within 10 days whether they will agree for all future hearings and the trial to be held in adjacent Spencer County where he serves as Circuit Court judge.

“By this Order, it is this Court's intention that due to the publicity and notoriety this case has received in Southern Indiana, the Court will convene in a county to the north outside of the Louisville and Evansville media markets, and select a jury and after the jury is selected for the trial to be held in the county of the Court's location,” the chronological case summary stated.

The court instructed the state and defense, within the next 10 days, to submit to the court a list of at least five counties from which it would prefer to see the jury selected.

The order notes that the court considered the questionnaires sent to potential Warrick County jurors in making its decision.

“This procedure addresses the parties' concerns of selecting a fair and impartial jury while also maintaining the trial in a location that will be more convenient for the families on both sides of this case,” the order states.

A hearing on the motion to appoint a special prosecutor will be held Sept. 24 at 1 p.m. in Warrick County Superior Court No. 2 unless both parties agree to move the case to Spencer County.

[More] Ben Zion Hershberg has this story in the LCJ. Some quotes:
The judge in former Indiana state trooper David Camm’s third trial for the murder of his wife and two children has denied a request by defense lawyers for a new trial location but said he will bring in a jury from another county.

Special Judge Jonathan Dartt also said, in an order issued Friday afternoon, that if the defense and prosecution agree he will hold hearings and the trial in Rockport, in Spencer County, where he sits.

Dartt said that by holding the trial in Warrick County — or, if the two sides agree, in Spencer County — the families and lawyers involved won’t have to travel too far from Floyd County, where the murders occurred in September 2000.

By bringing in jurors from outside the Louisville and Evansville media markets, Dartt says in his decision, publicity about Camm’s two earlier trials won’t affect the jury. The first trial was held in Floyd County, the second in Warrick.

Floyd County Prosecutor Keith Henderson said he is pleased with Dartt’s decision.

His objection to the defense lawyers’ motion for a change of venue was based on his concerns about “traveling a great distance to try this case,” he said.

Henderson also said he will agree to try the case in Spencer County because he believes it’s about as far from Floyd County as Warrick County, where Camm’s second trial was held.

Stacy Uliana, one of Camm’s lawyers, said she also is pleased with the decision and would be comfortable having the trial in Spencer County.

“We just wanted a fair trial,” Uliana said, adding that she believes jurors unbiased by publicity about Camm’s two previous trials can be found, perhaps in the Indianapolis area or beyond. * * *

Dartt was appointed special judge in the case by the Supreme Court. The defense asked for a new judge, arguing that Warrick Superior Court Judge Robert Aylsworth, who presided over the second case, took too long to make a decision on its change of venue motion.

In his order, Dartt said that in 10 days the prosecution and defense must submit lists of at least five counties from which they would prefer to see the jury selected. He also said they must tell him, within 10 days, if they agree for the trial to be held in Spencer County.

He scheduled a hearing Sept. 24 on the defense request for a change of prosecutor, based on Henderson’s negotiations with a publisher to write a book about the case.

The defense has argued that Henderson’s intentions to write a book pose a conflict of interest. Henderson has acknowledged negotiating with a book publisher but said there is no conflict because it was agreed that if the second guilty verdict was overturned the book deal was void.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Indiana Courts

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

For publication opinions today (5):

In James D. Callaway, et al. v. Hannah Callaway, et al., a 20-page opinion, Judge Najam writes:

James Callaway, Jason Callaway, and Greg Callaway (“the Sons”) appeal from a jury verdict upholding the validity of the Last Will and Testament of John L. Callaway, (“Will”). The Sons present the following issues for our review:
1. Whether the Will was published in accordance with Indiana Code Section 29-1-5-3.
2. Whether the Will was executed and witnessed in accordance with Indiana Code Section 29-1-5-3.
3. Whether the trial court abused its discretion when it rejected the Sons' proposed Jury Instruction No. 1.
We conclude that the evidence is sufficient to support the jury's verdict that the Will was properly published, executed, and witnessed. We further conclude that the trial court did not abuse its discretion when it refused the Sons' proposed jury instruction on the presumption of undue influence. Thus, we affirm.
In Rebecca Abbott v. Mainsource Financial Group , a 6-page opinion, Judge Najam writes:
On December 28, 2006, Abbott was working for MainSource as a bank teller when an armed man robbed the bank. The robber held Abbott at gunpoint and threatened to kill her and others before fleeing. The extreme stress of that incident led to Abbott sustaining a heart attack, for which she underwent extensive medical treatment.

On December 29, Dr. Zachary Hodes performed a heart catheterization on Abbott, which revealed that Abbott’s heart attack was caused by a condition called Takotsubo syndrome. * * *

Abbott was hospitalized for two days. After she was discharged, Abbott was prescribed Lipitor and Coreg, among other medications. * * *

To the extent that Dr. Bates prescribed the medications to prevent a future heart attack, the evidence shows that any recurrence would be related to a discrete stressful event and would not stem from the injuries she sustained as a result of the bank robbery. Dr. Bates explained that only an “extreme” stress, like the “death of a loved one,” would likely trigger another heart attack in Abbott’s case. To the extent Abbott contends that her psychological condition since the bank robbery puts her at higher risk of another heart attack, the evidence does not support that assessment. We cannot say that the Board erred when it concluded that MainSource should not be required to pay for Abbott’s prescriptions for Coreg and Lipitor prospectively.

Because we hold that the Board did not err when it found in favor of MainSource, Abbott cannot prevail on her claim that MainSource acted in bad faith in discontinuing benefits to pay for her prescriptions for Coreg and Lipitor.

In State of Indiana v. Jeffrey Brunner , a 12-page opinion, Judge Najam writes:
We hold that Brunner's request, nine years after the trial court's entry of judgment, to reduce the Class D felony to a Class A misdemeanor was a petition for post-conviction relief, from which the State may appeal. We also hold that Indiana Code Section 35-50-2-7(b) does not authorize the relief granted. As such, we reverse and remand with instructions. * * *

Thus, we hold that Brunner's request was a petition for post-conviction relief under Post-Conviction Rule 1(1)(a)(4). Under our post-conviction rules, the State may appeal the post-conviction court's final judgment to this court. P-C.R. 1(7). As such, we likewise hold that the State's appeal in the instant case is authorized by law. * * *

We hold that, in granting authority to our trial courts to reduce Class D felony convictions to Class A misdemeanors, the General Assembly intended to limit the application of that authority to the moment the court first enters its judgment of conviction and before the court announces the defendant's sentence. That intent is made clear in the language of the statute itself, which describes a timeframe after the finding of a Class D felony but before the entry of sentence. See I.C. § 35-50-2-7(b). That intent is also supported by the differences in sentences available to persons convicted of Class D felonies and those convicted of Class A misdemeanors. * * *

[M]ore than nine years after the trial court entered its judgment of conviction against Brunner as a Class D felony, the trial court revisited that issue, vacated the Class D felony conviction, and imposed a Class A misdemeanor conviction. The trial court's reliance on Section 35-50-2-7(b) to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.

Thus, we hold that the trial court erred in granting Brunner's petition for post-conviction relief. We reverse and remand with instructions for the trial court to reinstate the original judgment of conviction.

ILB: Notice, in reading the full opinion, that the court rejects the State's arguments in both issues, prior to finding in favor of the State's positions.

In Raytheon Engineers & Constructors, Inc., et al. v. Ryerson, Inc., et al. , a 13-page opinion, Judge Najam writes:

Raytheon Engineers and Constructors, Inc. (“Raytheon”), the third-party plaintiff in the trial court, appeals the trial court's grant of summary judgment to the third-party defendant, Sargent Electric Company (“Sargent”). Raytheon raises two issues for our review, which we consolidate and restate as whether the trial court erred when it granted Sargent's motion for summary judgment. We hold that Sargent did not breach its duty of care to Raytheon and that Raytheon is not entitled to indemnification from Sargent. Thus, we affirm the trial court's grant of summary judgment.
In Patrick Roberts, et al. v. Robert A. Feitz, et al., a 29-page opinion in the kind of issued-laden dispute a property law professor might use in class, Judge Riley writes:
Appellants-Plaintiffs, Patrick and Christine Roberts appeal the trial court‘s Judgment in favor of Appellees-Defendants‘ Robert and Bob Feitz, counterclaim, determining that the Feitzes are legal owners of the disputed access lane (Disputed Lane). We affirm.

Roberts raise four issues on appeal, which we restate as the following:
(1) Whether the trial court erred when it determined that the Feitzes chain of title was superior to the Roberts;
(2) Whether the trial court erred when it determined that the Roberts and their predecessors in title had not acquired title to the Disputed Lane by adverse possession;
(3) Whether the trial court erred when it determined that the Roberts and their predecessors had not acquired title to the Disputed Lane by prescriptive easement; and
(4) Whether the trial court erred when it determined that the Roberts‘ predecessors had acquiesced to the Feitzes south property line. * * *

Based on the foregoing, we conclude that the trial court properly determined that (1) the Feitzes had a superior title; (2) the Roberts had not acquired the Disputed Lane by adverse possession; (3) the Roberts had not acquired the Disputed Lane by prescriptive easement; and (4) Papczynski had acquiesced to the Feitzes‘ south property line.

NFP civil opinions today (2):

Cynthia A. Soames v. Indiana D.N.R., Young Oil Co., et al. (NFP)

Angel Braster v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (7):

Crystal Summerlot v. State of Indiana (NFP)

David L. Green v. State of Indiana (NFP)

Lester Rowe v. State of Indiana (NFP)

Justin A. Heintzelman v. State of Indiana (NFP)

William Phillips v. State of Indiana (NFP)

Julian D. Grady v. State of Indiana (NFP)

Larry Holder, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Karen Sypher stoic, silent as jury convicts her of extorting Rick Pitino"

Here is the wrap-up, from the Louisville Courier Journal, with links to many other stories. Here is a list of earlier ILB entries mentioning Coach Pitino.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Courts in general

Ind. Law - "Indiana seeks to grow health plan once thought doomed"

As I read Ken Kusmer's AP story today, I recalled the great opinion column May 30th, 2010 by Lesley Stedman Weidenbener of the Louisville Courier Journal, which the ILB headed "But I'm convinced that Daniels could make this health care law work for Indiana - even if he hates doing it every step of the way." The column ended:

Daniels has more than two years before he leaves office. It will be interesting to see whether he uses it to put Indiana's next governor in a better position to deal with the upcoming health care changes or just leaves the situation untouched for the next leader to sort out.
Kusmer's long story today may indicate the answer. It begins:
Indiana wants to expand its innovative health plan for low-income adults despite Gov. Mitch Daniels' statements that Medicaid expansion under the federal health care overhaul would kill the state program.

Anne Murphy, secretary of the Indiana Family and Social Services Administration, sent a letter to the federal Centers for Medicare and Medicaid Services saying the Healthy Indiana Plan “provides the natural vehicle to provide coverage to Hoosiers that will become Medicaid eligible” in 2014 under the expansion of the state-federal health care plan for the needy.

Murphy's May 17 letter to CMS Director Cindy Mann, obtained Thursday by The Associated Press, said Indiana invested more than $27 million in creating HIP.

“Common sense dictates that we take advantage of that investment and find a way to work with CMS to expand HIP,” Murphy wrote.

The letter sharply contrasts with Daniels' statements about HIP following passage of the federal health care overhaul in March. The governor, an outspoken critic of the overhaul, froze some enrollment in HIP and ordered Murphy to begin planning a phaseout “of a program whose days are numbered.”

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Indiana Government

Ind. Decisions - "Accused molester can't pull guilty plea in Porter County Circuit Court"

Some quotes from Bob Kasarda's story posted yesterday afternoon on the NWI Times website:

VALPARAISO | Porter Circuit Court Judge Mary Harper has rejected an attempt by an accused child molester to withdraw his guilty plea and proceed to trial.

Harper said that despite arguments to the contrary, Gary Carr "pled guilty in a knowing and informed manner."

She rejected a claim by Carr that he pleaded guilty Feb. 23 without having prior knowledge of the deal. She said while there was conflicting testimony during hearings on the issue, it is clear Carr was advised ahead of time that a plea agreement was possible.

Harper also tossed out Carr's claims that he pleaded guilty without first having a chance to review the agreement. She said evidence shows Carr discussed the proposed agreement ahead of time with his attorney.

She also said Porter Superior Judge David Chidester "carefully and meticulously reviewed the plea agreement with Carr" during the Feb. 23 hearing. Harper is married to Chidester.

As far as Carr's claims he did not have the opportunity to consult with his family before the plea, Harper said it is irrelevant.

"The decision to plea guilty or not guilty is Mr. Carr's decision alone," she said.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Carroll County Judge Jeffrey Smith stepping down"

From the Lafayette Journal Courier:

The first judge in Carroll County's Superior Court announced his retirement this week.

Judge Jeffrey Smith was appointed to the Superior Court post on July 1, 1988. Now, 22 years later, he's stepping down from the bench to end his career as a practicing attorney.

Prior to becoming a judge, Smith practiced law for 16 years. He said he misses his involvement in criminal jury trials.

Smith submitted his resignation, effective Oct. 3, to Gov. Mitch Daniels, who will appoint his successor. Smith plans to volunteer during the transition time period to assist the new judge.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Indiana Courts

Courts - More on: California's Same-sex marriage ban nullified: Proposition 8 cannot be enforced

Updating yesterday's ILB entry on the federal court decision this week striking down California's Prop 8 which banned gay marriage, the WSJ Law Blog today has an entry headed "Politicians, Take on the Gay Marriage Issue at Your Own Peril," which quotes a NYT article today. A snippet from the Times article:

But veterans of the past culture wars say that many people’s attitudes have changed about gays in America. “I think it still enflames part of the right, but I think increasingly it alienates swing voters,” said Robert Shrum, a senior adviser to John Kerry’s presidential campaign in 2004, when same-sex marriage was seen a valuable wedge issue for Republicans.

Mr. Shrum noted that five states and the District of Columbia allowed same-sex marriage — only Massachusetts did in 2004 — and that the danger for some candidates who oppose gay marriage could be the perception that they are intolerant. “People have got comfortable with the idea,” he said of same-sex marriage. “And increasingly uncomfortable with the idea of rank discrimination based on someone’s sexuality.”

Likewise, Murray Clark, chairman of the Indiana Republican Party, said Republicans were acting at their own peril if they suddenly starting focusing on the ruling. A protracted discussion about social issues, he said, could play into Democratic hands. “Can we declare a truce on some of the other issues unrelated to the economy?” Mr. Clark said in an interview in Kansas City, Mo.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Courts in general

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

Updating this ILB entry from June 24, 2010, the NWI Times has a brief report today that begins:

A human -- by design or accident -- likely placed a 20-pound Asian carp in Lake Calumet earlier this summer, sparking neighboring states to renew calls to close Chicago-area locks and prevent the predator from reaching Lake Michigan.

The 34.6-inch bighead carp discovered in the lake June 22 "moved or was transported to Lake Calumet or Lake Michigan during the early portion of its life," says Jim Garvey, director of the Fisheries and Illinois Aquaculture Center at Southern Illinois University at Carbondale.

It "may have been put there by humans, perhaps as a ritual cultural release or through bait bucket transfer," Garvey said.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Environment

Ind. Decisions - More on: Supreme Court posts a number of disciplinary rulings today

Updating this ILB entry from August 4, 2010, two of the disciplinary actions I featured are the subject of a story today in the Fort Wayne Journal Gazette, reported by Rebecca S. Green and headed "Two local lawyers handed suspensions for misdeeds." The lawyers desciplined are Ernest M. Beal Jr. and Samuel L. Bolinger. Some quotes:

Beal, an attorney and licensed minister, was chief operating officer of Your Friends and Neighbors, a company that ran group homes in Indiana and Georgia for the developmentally impaired.

Beal raided the residents’ trust fund, which holds money from the clients’ Social Security checks, paychecks and other income and is meant to pay for expenses and care of the residents. He argued he needed the money to make payroll, but that payroll included salaries of $300,000 each for him and his ex-wife, the company’s chief executive officer.

He said he planned to pay the money back with interest. But the jury disagreed, finding him guilty. Allen Superior Court Judge Fran Gull sentenced Beal to two years in prison.

In Bolinger’s case, he and the disciplinary commission agreed that he asked his secretary to prepare a series of back-dated letters to reflect advice he gave to his client concerning discovery in a civil case.

The court entered a judgment in favor of the other party in the case, because Bolinger’s client hadn’t complied with a request to turn over information.

The client accused Bolinger of failing to respond to the requests for information, and Bolinger ordered the back-dated letters to make it seem as if he had responded to the requests, according to court documents.

Bolinger admitted as part of the discipline proceedings that he violated the code of professional conduct for lawyers by engaging in dishonesty, fraud, deceit or misrepresentation, according to court documents.

The court ordered Bolinger be suspended from the practice of law for 30 days, beginning Sept. 10.

ILB: As reported in the earlier ILB entry, the vote for the 30-day penalty was 3-2, with CJ Shepard and J Boehm dissenting, "believing the discipline to be inadequate." Thirty days with automatic reinstatement for back-dating documents "to make it seem as though he had [timely] responded to the requests, and admittedly "engaging in dishonesty, fraud, deceit or misrepresentation" seems a very lenient result.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Seventh Circuit rejects as-applied Second Amendment challenge to § 922(g)(1), but suggests a non-violent felon might prevail"

So reads the heading to this Sentencing Law Blog entry, about the 7th Circuit's decision yesterday in US v. Williams (ILB summary here). The entry concludes:

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).
[More] See also these comments in The Volokh Conspiracy.

Posted by Marcia Oddi on Friday, August 06, 2010
Posted to Ind. (7th Cir.) Decisions

Thursday, August 05, 2010

Courts - Elena Kagan confirmed to the SCOTUS this afternoon

When it convenes in October, three of the nine members of the SCOTUS will be women.

The SCOTUS has had at least one woman member, and often two, serving continuously since the time of President Reagen.

Indiana's five member Supreme Court is one of two state high courts with no women members. In its entire history, the Indiana Supreme court has had only one woman member, and that was in the last century.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Indiana Courts

Ind. Courts - Three nominees' names submitted to Governor by Chief Justice Shepard

As related in detail in this July 26, 2010 ILB entry on the Judicial Nominating Commission and its responsibilities, IC 33-27-3-2(f) provides:

(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.
The ILB has just received the submission, dated August 5, 2010:
Dear Governor Daniels:

I wish that everyone in Indiana could have witnessed the remarkable array of
talented applicants who appeared before the Indiana Judicial Nominating Commission on
Friday, July 30th, as it met to select nominees for the vacancy on the Indiana Supreme
Court created by the resignation of Justice Theodore R. Boehm. A close viewing of such
a splendid assembly of possible appointees could only bolster public confidence in our
legal system.

On behalf of the Commission, I am transmitting to you the Commission's
nomination of the three most highly qualified candidates from among the applicants:
Judge Steven H. David of the Boone Circuit Court, Judge Robyn L. Moberly of the
Marion Superior Court, and Indianapolis attorney Karl L. Mulvaney.

In making this selection, the Commission considered each applicant's legal
education, writings, reputation in the practice, commitment to the profession and to
public service, financial interests, and other pertinent information it regarded as
important. The Commission members went well beyond review of the applications and
letters of recommendation (helpful as those were) by initiating independent inquiries
about the candidates.

We have forwarded to your office the nominees' complete applications. I offer the
following brief observations about their qualifications.

Boone Circuit Court Judge Steven H. David

Judge David has built a multi-faceted career of private practice, corporate counsel
experience, and stellar service as a military lawyer, in addition to his superb work as a
trial judge.

He graduated magna cum laude from Murray State University and earned his law
degree from Indiana University School of Law at Indianapolis. He thereafter served in
the United States Army Judge Advocate General's Corps, and he has continued to serve
in the Army Reserves ever since, earning the rank of Colonel and holding top secret
security clearance since 1982. As a military officer, he has made significant
contributions to military rules, protocols, and investigative reports and held multiple legal
posts, including that of Chief Defense Counsel for detainees subject to the Military
Commission's proceedings at Guantanamo Bay. His dedication to the military, pro bono
services, and the rule of law earned him a number of military and citizen awards,
including the Defense Superior Service Award, which is the nation's third highest noncombat
medal, and the Frederick Douglas Human Rights Award.

Steve David practiced in law firms in Columbus, where he focused on personal
injury, family law, and civil litigation, and he later became in-house counsel for
Mayflower Transit, Inc.

He became a judge in 1994, and as a judge or lawyer Steve David has tried at least
60 jury trials in civil, criminal, and military proceedings. He has testified before the
Indiana General Assembly and the United States Congress on juvenile law and national
security issues, respectively, and he has collaborated extensively with other agencies on
juvenile law issues. His efforts to improve the availability of mental health services for
children led to his recognition by the Indiana chapter of the National Alliance for the
Mentally Ill. Judge David is a frequent speaker and writer on various legal topics, and he
is an adjunct professor at the University of Indianapolis.

Steve David has proven himself utterly indefatigable in the service and leadership
of his fellow citizens. "We've got a good thing here," he said in speaking about Indiana's
legal system. The Commission regards him as a leading part of the reason that this is so.

Marion Superior Court Judge Robyn L. Moberly

Knowledgeable observers of Indiana's courts would all place Judge Moberly on
their short list of people who have the finest record of judicial service and leadership.

She earned her undergraduate degree from Indiana University and graduated cum
laude from I.U. School of Law at Indianapolis. Judge Moberly was in a general legal
practice in Indianapolis that included bankruptcy, criminal, and civil plenary cases. In
1983, she launched her own firm and also developed a mediation practice after becoming
one of Indiana's first certified mediators.

As a lawyer, she participated in about five jury trials. Since taking the bench in
1997, Judge Moberly has conducted more than 300 jury trials, including complex civil
litigation and a wide variety of felony matters (one was a capital case).

Throughout her judicial career, Judge Moberly has demonstrated dedication to
improving the court's own processes on both the criminal and civil side of the docket.
She initiated the Domestic Violence Coordinating Council and brought together various
agencies to improve victim protection. She has been the lead judge for the Marion
County Family Court Project since its inception in 2001. As a member of the Child
Custody and Support Advisory Committee and the Indiana Judicial Conference's
Domestic Relations Committee, Judge Moberly has contributed significantly to
legislation and to court guidelines on child support and parenting time.

Her fellow judges chose Judge Moberly for the Marion Superior Court's
Executive Committee (from 2005 to 2007), where she tackled knotty problems like jail
overcrowding and the need for appropriate medical services at the juvenile detention
center. Judge Moberly has twice received the Indianapolis Bar Association President's
Award, for her work on pro bono (2003) and for the Executive Committee's efforts in
restructuring Marion County's criminal justice system (2006). She has frequently
lectured and written, and has testified effectively before the legislature.

Asked where we need to do better, Judge Moberly offered a new idea for helping
citizens who don't have a lawyer and also spoke convincingly about the need to manage
change in the court system. She has proven her own bona fides on these counts. As a
prominent practitioner wrote to us: "Judge Moberly would bring an exceptional intellect,
a wonderful understanding of the purpose and significance of the law, and great personal
skills and character to our highest Court."

Karl L. Mulvaney, Esq.

Karl Mulvaney is a partner at the Indianapolis law firm of Bingham McHale. He
graduated cum laude from both The Ohio State University and the I.U. School of Law at
Indianapolis. Before beginning his legal career, Mr. Mulvaney served in the United
States Army and received the Commendation Medal for Meritorious Service.

Mr. Mulvaney now has an extensive appellate practice, having argued over 100
cases in the Indiana and federal appellate courts and defended numerous cases in the
United States Supreme Court. He has tried eight attorney discipline matters, represented
parties in many bench trials across the state (including a judicial mandate action), and
worked as a certified mediator. Many in the profession regard him as Indiana's best
appellate practitioner.

Before entering private practice in 1991, Mr. Mulvaney spent thirteen years at the
Supreme Court, including seven years as the Supreme Court Administrator. His duties in
these posts included managing budget and personnel issues for the Court, reviewing
petitions to transfer in civil cases, drafting court orders and bench memoranda, and acting
as the Court's liaison to its various agencies. On the day of his departure, the Court took
the unprecedented step of expanding the Supreme Court Committee on Rules of Practice
and Procedure so that it could appoint him to it. As a member of that committee, which
he ultimately chaired, Mr. Mulvaney engineered significant modernization of Indiana's
court rules.

When people think of Karl Mulvaney, they also think of legal ethics. After
decades of service to the Phi Delta Phi legal fraternity (of which he was formerly
international president), he still visits law schools each year to speak about ethics. His
continuing commitment to promoting ethical conduct and civility in the profession has
earned him a good many awards from state and local bar associations. He frequently
writes for legal publications and teaches continuing legal education courses on ethics and
appellate topics.

Other attorneys seek out Karl Mulvaney for advice on ethics, and they recruit him
to join in representing their clients when something important and challenging is at hand.
He is one of those select few about whom people use the term "a lawyer's lawyer."


I would be pleased to discuss any of these candidates with you in greater detail. I
feel confident you will conclude that all three nominees are of such high caliber that they
would be a lasting credit to the state's highest court and to you.

Sincerely,
Randall T. Shepard
Chief Justice ofIndiana
Chairman, Indiana Judicial Nominating Commission

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Vacancy on Supreme Ct

Ind. Court - A dozen Allen County residents challenge Allen Superior Court Judge Kenneth Scheibenberger’s re-election bid, citing judicial discipline he received in early 2009.

Rebecca S. Green has the story in today's Fort Wayne Journal Gazette. It begins:

A group of Allen County residents filed a challenge with the Indiana Election Commission against Allen Superior Court Judge Kenneth Scheibenberger’s re-election bid, citing judicial discipline he received in early 2009.

Filed Tuesday, the affidavit has the signatures of 12 “concerned Allen County citizens” who believe Scheibenberger should be taken off the ballot because he does not meet the standards under Indiana law. Most of the 12 are Republicans, active in the local conservative scene.

In January 2009, the Indiana Supreme Court issued a judicial disciplinary action against Scheibenberger. It suspended the judge for three days without pay over comments he made to a defendant’s family in another judge’s courtroom in November 2007 while in his robe, an action the court said was that of a grieving parent. [ILB: See this Jan. 21, 2009 ILB entry.]

The high court took action on the complaint filed by the Indiana Commission on Judicial Qualifications, an arm of the Indiana Supreme Court responsible for investigating complaints against judges throughout Indiana. [ILB: You may recognize the names of the members; they are also the Judicial Nominating Commission.]

The Indiana Supreme Court Disciplinary Commission investigates and prosecutes claims of misconduct against lawyers licensed in Indiana.

The group of citizens argues that Indiana law governing the selection of Allen County Superior Court judges prohibits people from running for election if they have had any Indiana Supreme Court Disciplinary Commission action.

But Scheibenberger argues, and other lawyers believe, the discipline issued in January 2009 does not disqualify the judge from seeking re-election.

“They are confusing the (Supreme Court’s) Disciplinary Commission with the Judicial Qualification Commission,” said Dan Sigler, a former county prosecutor who has handled a number of cases involving Indiana election law and spoke generally about this issue.

“Being disciplined as a judge does not prohibit one from being a judge,” Sigler said. “(The legislature is) saying if you’re disciplined as a lawyer you can’t run as a judge. If the legislature intended that to be the death penalty for sitting judges they would have said it.”

ILB: What is the statute at issue? It is IC Title 33 - Courts and court officers; Article 33 - Court system organization in each county; Chapter 2 - Allen County. IC 33-33-2-10 provides:
(a) To qualify as a candidate for Allen superior court judge, a person:
(1) must be a citizen of the United States domiciled in Allen County;
(2) must have at least five (5) years active practice of law, including cases involving matters assigned to the division in which the person would serve as judge;
(3) may not previously have had any disciplinary sanction imposed upon the person by the supreme court disciplinary commission of Indiana or any similar body in another state; and
(4) may not previously have been convicted of any felony.
(b) If a person does not qualify under subsection (a), the person may not be listed on the ballot as a candidate. However, an individual who was a judge of the court on January 1, 1984, does not have to comply with subsection (a)(2).
As added by P.L.98-2004, SEC.12.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Indiana Courts

Ind. Courts - Follow-up on Attorney Annual Registration Statements

Apparently fax numbers were printed incorrectly on the attorney annual registration statements you should have received in the mail this week. But you don't need to worry about it, according to this follow-up press release issued today.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Indiana Courts

Ind. Courts - "Prosecutor accused of misconduct" [Updated]

Editor Vince Luecke of the Perry County News reports today in a long, detailed story that begins:

INDIANAPOLIS - Perry County Prosecutor Robert Collins faces disciplinary action for sexually charged comments he allegedly made to a former deputy in his office. She was later fired, triggering a disciplinary investigation that remained behind closed doors until this week.

A verified complaint was filed Monday by the Disciplinary Commission of the Supreme Court, alleging he committed professional misconduct. In it, Commission Executive Secretary G. Michael Witte outlines the complaints investigated against Collins. They include sexual remarks allegedly made to Lyn Hayse, who joined Collins' staff in April 2007 as his chief deputy prosecutor.

Collins issued a written statement Wednesday indicating he would fight to prove his innocence.

"As an employer, I have had to terminate employees. Firing an employee is not easy and never pleasant and causes resentment. When you fire an attorney and they want to get back at you they can file a complaint," he wrote. "I have trust in the disciplinary process. I will be denying the complaint's allegations and addressing the issues at a hearing."

[Updated at $;57 PM] The Evansville Courier & Press has posted this long story, reported by Mark Wilson. It begins:
TELL CITY, Ind. — Perry County Prosecutor Robert Collins is facing a possible disciplinary action for firing a former chief deputy prosecutor allegedly after she spurned his sexual advances.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Alva Curtis v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:

Here, the defendant is undisputedly mentally ill and mentally disabled to an extent that he is incompetent to stand trial. It is likewise undisputed—and the trial court found—that he will never recover and become competent. Under these circumstances, we find that it was a violation of his right to due process to deny his motion to dismiss the criminal charges pending against him.

Appellant-defendant Alva Curtis brings this interlocutory appeal, arguing that the trial court erroneously denied his motion to dismiss and discharge the criminal proceedings against him. Curtis contends that because he is permanently incompetent to stand trial, the pending criminal charges against him should be dismissed and discharged. We reverse and remand with instructions to dismiss the charging information. * * *

[The opinion includes a nearly 3-page quote from the concurring opinion by Judge Mathias in Habibzadah that concludes]

Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the time of the alleged crime. Perhaps we as a society need to consider the concept of a defendant being unchargeable because of mental illness under Indiana Code section 35-41-3-6, and not just guilty but mentally ill under Indiana Code section 35-36-2-1, et. seq. In either case, the commitment proceedings provided for in Indiana Code section 35-36-2-4 would both protect society and best care for the defendant involved.

Whether such a procedure is promulgated by the Indiana Supreme Court through its rule-making process or by the Indiana General Assembly through statute, it is time for the truly long-term, incompetent criminal defendant to have an earlier and intervening opportunity for a determination of his or her competency at the time of the crime alleged. Such a procedure convened soon after arrest, rather than years later when stale evidence and dim or non-existent memories are all that are left, or never, would best serve society and the defendant.

State of Indiana v. Genaro Luna

Indiana Bureau of Motor Vehicles v. Seth McNeil

NFP civil opinions today (5):

Stephanie Deel v. Conrad Deel (NFP)

Jerimiah Morris v. State of Indiana (NFP)

Ellington Jeffrey, et al. v. Kirsh and Kirsh, et al. (NFP)

R.J. v. Review Board (NFP)

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

NFP criminal opinions today (5):

Agnes Jones v. State of Indiana (NFP)

Edward Broadus, Jr. v. State of Indiana (NFP)

Warren Rodrick Bullock v. State of Indiana (NFP)

Billy D. Taylor v. State of Indiana (NFP)

Myron Rickman v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Ind. App.Ct. Decisions

Environment - 2010 edition of Indiana Environmental Statutes

The 2010 edition of Indiana Environmental Statutes will be available later this month.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Environment

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

In US v. Williams (ND Ind., Moody), a 19-page opinion where the 3-judge panel includes "The Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme Court, sitting by designation," Judge Kanne writes:

Appellant Adam Williams appeals his conviction for illegal possession of a firearm and various drug distribution offenses. He argues that (1) the district court’s failure to inquire into his concerns over his attorney’s performance was an abuse of discretion; (2) the statute dispossessing felons of firearms, 18 U.S.C. § 922(g)(1), is unconstitutional; and (3) the district court’s assessment of the sentencing factors in 18 U.S.C. § 3553(a) was inadequate. We affirm.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - California's Same-sex marriage ban nullified: Proposition 8 cannot be enforced

Lyle Denniston of SCOTUSblog had this post late yesterday, with a link to the 138-page opinion.

There has been a lot written on this decision already, including: "Proposition 8 and the Law: Where Do We Go From Here?" from WSJ Law Blog; "The Reasoning Behind Walker's Ruling" from Scott Graham of The Recorder; "Legal Patchwork," a U.S. map showing the 50 states' same-sex marriage status, from the WSJ; "A Brilliant Ruling: Judge Walker's decision to overturn Prop 8 is factual, well-reasoned, and powerful," by Dalhlia Lithwick of Slate.

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Courts in general

Ind. Courts - Photos of last Friday afternoon's semi-finalists, awaiting their interviews

The IN Courts has now made available the photos from the last Friday afternoon, July 30, 2010, interviews -- here are the final three of the nine semi-final candidates. The six morning candidates were pictured in this entry from July 30th.

From left: Judge Robyn L. Moberly; Judge Steven R. Nation; Ms. Kiply S. Drew

Posted by Marcia Oddi on Thursday, August 05, 2010
Posted to Vacancy on Supreme Ct

Wednesday, August 04, 2010

Ind. Decisions - Supreme Court posts a number of disciplinary rulings today

The Supreme Court posted a number of disciplinary rulings today in addition to the Beal suspension order quoted in this ILB entry earlier today.

Three of particular interest:

In the Matter of Ronald D. Gifford - orders that:

Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. The Court notes that Respondent is already under a suspension ordered in Cause Number 50S00-0806-DI-310, effective on November 14, 2008.
For background start with this May 27, 2010 ILB entry headed "Still more on: Criminal charges filed against Plymouth attorney ."

In the Matter of Patrick G. Boulac - orders that:

that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. The Court notes that Respondent is already under a suspension ordered in Cause Number 71S00-0701-DI-45, effective on January 5, 2010.
For background see this April 15, 2010 entry, headed "More on 'Attorney quits practice, leaving clients in lurch.'"

In the Matter of Samuel L. Bolinger, where Respondent:

instructed his secretary to prepare a series of back-dated letters to the client to reflect his earlier advice to the client to respond to the discovery requests. The letters falsely conveyed that they were mailed on prior dates. The letters were sent to the client but never used in any court proceeding.
Respondent receives a suspension of 30 days with automatic reinstatement, with CJ Shepard and J Boehm dissenting, believing the discipline to be inadequate.

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Ind. Sup.Ct. Decisions

Courts - Sexting in the news

The ILB has had a number of earlier entries on sexting. Two new stories:

First Story. "Pennsylvania Latest State to Consider Criminalizing Teen ‘Sexting’" is the heading of this WSJ Law Blog entry from yesterday.

The Indiana General Assembly this year referred the topic of sexting to an interim study committee. The bill was SEA 224-2010, which amended IC 2-5.5-2-5.

However, all of IC 2-5.5-2 was repealed this year by PL 100-2010, SEC. 7 (SEA 81-2010), which created the "Criminal Law and Sentencing Policy Study Committee." The new law does not specifically address sexting.

However, and this will ring a bell with those of you who are aware of the noncode laws issue, I just took a look at NONCODE SECTION 8 of SEA 81. It provides:

(a) In the 2010 interim, the criminal law and sentencing policy study committee, as established by IC 2-5.5-5, as added by this act, shall study and make recommendations regarding:
(1) whether individuals on parole should be eligible to receive credit time to potentially shorten their period of parole; and
(2) the sending of sexually suggestive or sexually explicit material over the Internet or by use of a cellular telephone or similar device by minors, including whether school corporations should adopt policies regarding this topic.
(b) This SECTION expires January 1, 2011.
So this is a temporary provision and is not in the Code, it is only accessible to those who know to look for it. Ironically, however, the Criminal Law and Sentencing Policy Study Committee itself is a temporary study committee, but is in the Indiana Code under IC 2: "ARTICLE 5.5. TEMPORARY LEGISLATIVE STUDY COMMITTEES."

The Criminal Law and Sentencing Policy Study Committee webpage lists August 25, 2010 as its first meeting; "sexting issues" are on the agenda.

Second Story. This is a story from the New York Law Journal which "Highlights Inconsistency Between N.Y. Statutory Rape Laws, Federal Child Porn Laws." It begins:

A federal appeals panel has thrown out a child pornography conviction that was based on explicit photographs texted by a 17-year-old to her field-hockey coach.

The 2nd U.S. Court of Appeals held there was no evidence that defendant Todd Broxmeyer asked 17-year-old "A.W." to take the pictures, and therefore no evidence that he "produced" them as defined by the federal child pornography statutes.

"The facts of this case require us to belabor the obvious: Broxmeyer could only persuade, induce, or entice A.W. to take [the photos] if his persuasion, inducement, or enticement came before she took them," Chief Judge Dennis Jacobs wrote for the majority in yesterday's decision, United States v. Broxmeyer, 09-1457-cr. "The government adduced no evidence on this point. As to [the sequence of events], the government fudged."

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Courts in general

Ind. Courts - ISBA posts some clips of finalists' interviews

Posted this morning on the ISBA Facebook page:

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Vacancy on Supreme Ct

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

Updating this ILB entry from April 21, 2010, re Ernest M. Beal Jr., the Supreme Court on Aug. 2, 2010 issued this "Order of interim suspension upon notice of guilty finding," effective immediately. A quote:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), files a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony. The Court notes that Respondent is already suspended for failure to pay inactive dues, effective on June 8, 2010.

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Indiana Courts

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

For publication opinions today (1):

In Wells Fargo Insurance v. Bruce A. Land, a 17-page opinion, Sr. Judge Sharpnack writes:

We first address Land’s argument that several of Wells Fargo’s arguments are barred by judicial estoppel. Land maintains that Wells Fargo is judicially estopped from claiming that (1) Land’s commissions were not earned until the date that the farmers paid their premiums; (2) Land is not entitled to receive any commissions derived from premiums paid between January 1, 2006 and March 15, 2006; (3) Wells Fargo does not owe Land any compensatory or liquidated damages; and (4) the trial court erred by finding that Land is entitled to commissions in the sum of $27,206.44, less deductions, if any.

Judicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted. Plaza Group Properties, LLC v. Spencer County Plan Com’n, 911 N.E.2d 1264, 1269 (Ind. Ct. App. 2009), reh’g denied, trans. denied (2010). “While a party may properly plead alternative and contradictory theories, he may not repudiate by contrary assertions that which he has averred in his pleadings to be true.” Marquez v. Mayer, 727 N.E.2d 768, 773 (Ind. Ct. App. 2000), trans. denied. [ILB: The court does not find judicial estoppel.] * * *

Based upon the foregoing discussion and authorities, we conclude that the trial court properly entered summary judgment on behalf of Land. However, we further conclude that the unrefuted designated evidence reveals an amount of commissions owed to Land different from that ordered by the trial court. Finally, we conclude that Land is entitled to additional reasonable attorney fees, as well as reasonable appellate attorney fees.

Accordingly, we affirm in part and reverse and remand in part with instructions to the trial court to enter summary judgment for Land in the amount of $4,589.83 for unpaid commissions and $9,179.66 as the statutory penalty pursuant to Ind. Code § 22-2-5-2 for a total of $13,769.49 for commissions and penalties and to conduct a hearing to determine the amount and reasonableness of additional attorney fees and appellate attorney fees on behalf of Land.

NFP civil opinions today (1):

Jason T. Fabini v. Joanne M. Fabini (NFP)

NFP criminal opinions today (4):

Justin Davis v. State of Indiana (NFP)

Aaron D. Ellis v. State of Indiana (NFP)

Edward Ray Kind v. State of Indiana (NFP)

Robert L. Terry v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge Rules Uniontown Porn Store Must Close"

This story today is from the Crothersville Times. The Lion's Den is an adult superstore in Uniontonw, in Jackson County. The ILB had an entry about it two years ago, July 29, 2009, quoting a lengthy story by Francesca Jarosz of the Indianapolis Star on efforts by 24-hour per day protesters "to potentially embarrass anyone who walks into the Lion's Den, an adult sex shop off I-65 in this rural Jackson County town 80 miles south of Indianapolis."

From today's Crothersville Times story:

A special Bartholomew Circuit Court judge has ordered The Lion’s Den adult book at Uniontown to close. But an appeal of Judge Stephen R. Heimann’s ruling is expected, court observers noted.

“Although I’m excited Judge Heimann ruled in our favor, I fully expect they will appeal it,” said Susan Bevers, attorney for Jackson County.

The Ohio-based owners of the store at Exit 41 at I-65 & State Road 250, have 30 days in which to file a notice of plans to file an appeal of the ruling which Heimann submitted this past Friday in Jackson Superior Court I in Seymour.

Although Heimann’s ruling states the business does not exist in the eyes of the county’s ordinances—which were at the heart of the lawsuit—the store likely will remain open if an appeal is filed.

The order focused on four areas:

• Whether ordinances 2005-5 and 2005-6 are zoning or business licensing ordinances.
Heimann said the ordinances don’t reach the point of telling businesses what type of land can be used and agreed they are licensing rather than zoning regulations.

• Whether the store would be grandfathered under the ordinances. Heimann ruled it would not, agreeing the ordinance was adopted before the store opened. Commissioners passed Ordinance 2005-5 Aug. 16, 2005, and The Lion’s Den opened three days later.

• Whether the ordinances are constitutional. Heimann ruled they pass constitutional muster.
Heimann ruled the county’s ordinances are “content neutral” and are “related to undesirable secondary effects and not seeking to ban the content of adult businesses”—that protecting the health, safety and welfare of citizens are the county’s goals—and that there are alternative locations to operate sexually oriented businesses.

• And whether The Lion’s Den counterclaim should keep the county from requesting a summary judgment. Heimann ruled it did not and blocked the store from operating in Uniontown. However, the order does not include a timeline for closing.

The store would be in violation of the order once its attorneys receive notice of the ruling. An appeal could delay enforcement of the order to close, however.

While happy with the judge’s ruling, County attorney Susan Bevers has a concern [about] what the ruling and anticipated appeal will cost the county to the Indiana Court of Appeals.

The Indiana Court of Appeals may not accept the case, Bevers said, indicating that in Heimann’s order he cited an Indiana Supreme Court ruling in the City of Carmel as a precedence for his recent ruling.

In 2007 leaders of the Jackson County Watchdog Group, a group of area citizens protesting the adult book store since it opened, asked the commissioners and county council in April 2007 to allow a county fund to be established where donated money could be used to pursue a law suit to close the store. * * *

"This is the county’s law suit, not the Watchdog group,” Bevers said. “The county is responsible for paying attorney fees. * * * Should there be an appeal, “the cost of paying for an appeal is completely the county’s responsibility,” said Bevers.

ILB: I haven't seen this opinion, but Spencer County's court battles to restrict an adult business, 231 Adult Plaza, may be relevant. Here are some ILB entries.

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to Ind. Trial Ct. Decisions

Law - Are advance sheet services obsolete?

It would seem so, although some law libraries are still using the expensive services. See this post from the Law Librarian Blog.

And this post from Legal Research Plus - a sample:

I remember well when professors would sit in the faculty library, smoke their pipes and read the advance sheets. But those days are long, long gone. Arguably SCOTUSblog.com and its wiki have more up-to-date information than the West advance sheets. And SCOTUS itself does an admirable job of posting opinions.

Posted by Marcia Oddi on Wednesday, August 04, 2010
Posted to General Law Related

Tuesday, August 03, 2010

Courts - Commission on Race and Gender Fairness has hearing in Lafayette

Sophia Voravong reports in the Lafayette Journal Courier:

When David E. Wilson of Lafayette was sentenced a year ago in Tippecanoe Superior Court 2 for stabbing his brother at a downtown apartment, 12 more years were tacked onto his eight-year prison sentence because Wilson was deemed a habitual offender.

The habitual offender enhancement -- aimed, as the name implies, at punishment defendants with two or more felony convictions -- was fitting for Wilson, an African-American male whose history includes convictions in Arkansas for rape, aggravated battery and arson.

But is the charge, which can add up to 30 more years in prison, equally applied?

That was one of several questions raised Monday night at the YWCA Greater Lafayette during a community forum organized by the Indiana Supreme Court's Commission on Race and Gender Fairness.

"Is the enhancement being used differently -- or more -- for certain races?" asked Tippecanoe County Magistrate Norris Wang. * * *

The goal of Monday's meeting was to again gather information on race and gender issues in Indiana's judicial system to see what changes should be made, according to commission chairwoman Myra C. Selby.

In 1995, Selby, an Indianapolis attorney, became the first African-American and the first female to sit on the Indiana Supreme Court. She's now back in private practice.

"We really respond very closely to the idea that people have to have confidence in the system -- in the system of justice -- in order for the system to work the way it's intended," Selby told the group.

"If confidence has eroded, then that's an important area to pay attention to."

Participants included Judge Randy Williams of Tippecanoe Superior Court 1; Judge Loretta Rush of Tippecanoe Superior Court 3; Judge Gregory Donat of Tippecanoe Superior Court 4; and Prosecutor Pat Harrington. * * *

Participants were broken into three groups to discuss what they perceived to be gender and racial issues in Tippecanoe County.

Concerns that were raised included the effects of illegal immigration in the courts and for law enforcement; diversity among jurors; and financial divides among races and how that affects access to justice.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Indiana Courts

Ind. Courts - Nominations open for the 2nd District attorney member of the Judicial Nominating Commission [Updated]

Today I, along with all the other members of the Indiana bar in the 2nd Judicial District who are in good standing, received this "Notice of Election" from the Clerk of the Indiana Courts.

Essentially it says that nominations are now open for the attorney member who will represent the 2nd District on the Commission for the next three years. Nominations, including a petition signed by 30 attorneys who reside in the 2nd Judicial District, are due by Sept. 10, 2010.

More:

Ballots and biographies of each candidate will be mailed to all Second District attorneys on October 12, 2010. Ballots are due by 4:00 p.m. on November 10, 2010. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 12, 2010.
The elections for the three districts are staggered, terms are three years, and an attorney may not serve successive terms.

I, for one, have not paid much attention to this process in the past, but I will from now on, having seen the important role the commissioners play in the selection of our Supreme and Appellate Court justices and judges.

The three names the Commission decides on and sends to the Governor are THE three names -- unlike in some other states, our Governor may not reject the panel and call for a new one. In Indiana, if the Governor does not make a selection within 60 days, the Chief Justice must pick the nominee, from the same three names. (Ind. Const. Art. 7, sec.10)

In addition, it is the Commission that, every five years, selects the Chief Justice from the members of the Supreme Court. (Ind. Const. Art. 7, sec.3)

Here is the notice that was posted on the Court website in December of 2006:

NOTICE OF PUBLIC MEETING AND PUBLIC NOTICE OF CANDIDATE FOR APPOINTMENT TO CHIEF JUSTICE OF INDIANA

The Indiana Judicial Nominating Commission issues this Public Notice pursuant to IC 5-14-1.5-5, IC 33-27-3-2, and IC 33-27-3-6. Chief Justice Randall T. Shepard has filed for re-appointment as Chief Justice of Indiana and has consented to public disclosure of pertinent candidate information within the parameters of IC 33-27-3-2(b), (d), and (g). On Wednesday, December 13, 2006, the Nominating Commission will convene at approximately 10:30 a.m. in Room 319, State House, Indianapolis, Indiana, in an open meeting, for the purpose of interviewing Chief Justice Randall T. Shepard.

The candidate's application and any attributable communications concerning the candidate will be available for public inspection and copying pursuant to IC 33-27-3-2(d) and IC 33-27-3-6(e).

For more, see this entire ILB entry from Dec. 12, 2006.

Currently, I am seeking information about prior attorney commissioners, going back to 1970.

[More] Jon Laramore of Baker & Daniels rightly reminds me:

Re judicial nominating commission, note that the commission also is the Judicial Qualifications Commission, which means that the commission investigates and prosecutes disciplinary complaints against judges. This is actually what the commission spends the bulk of its time on, and it’s also of vital importance.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

Ind. Courts - "Deserved 'crowing' from IU-Indy Law School"

Posted today by IU's IndyLaw:

The Next Justice Appointed to the Indiana Supreme Court will be an Alumnus of IU School of Law-Indianapolis.

On Friday, July 30, the seven-member Indiana Judicial Nominating Commission selected Boone Circuit Judge Steven David, ’82, Marion Superior Judge Robyn Moberly, ’78, and Indianapolis attorney Karl Mulvaney, ’77, as finalists for the upcoming opening on the Indiana Supreme Court. The three finalists all share our law school as their alma mater.

Indiana Governor Mitch Daniels will make the decision regarding who will be the next Indiana Supreme Court justice. This will be Governor Daniels’ first appointment to the state’s highest court, the first new justice since 1999, and he or she will succeed Justice Theodore R. Boehm following his retirement on September 30.

Governor Mitch Daniels also attended the IU School of Law-Indianapolis during the 1970s. He received his law degree from the Georgetown University Law Center in 1979.

BTW, I'm told that all three attorney members of the judicial nominating commission are IU-Indy alums, too. (None of this appears to have made a difference to Newsweek.)

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Indiana Courts

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

For publication opinions today (2):

In Ron Droscha v. Scott Shepherd and Fort Wayne Area Association of Realtors, a 14-page opinion, Judge Bradford writes:

Appellant-Plaintiff Ron Droscha appeals the trial court’s granting Indiana Trial Rule 12(B)(6) motions to dismiss in favor of Appellees-Defendants Scott Shepherd and the Fort Wayne Area Association of Realtors (“Association”) following Droscha’s action against them to vacate Shepherd’s arbitration award. Upon appeal, Droscha argues that his allegations state a claim upon which relief can be granted against each party. We affirm. * * *

The Association argues that the trial court properly dismissed Droscha’s action against it because it has arbitral immunity. In support of this proposition the Association points to federal authority recognizing such immunity, including Olson v. Nat. Ass’n of Sec. Dealers, 85 F.3d 381 (8th Cir. 1996). In recognizing arbitral immunity for both arbitrators and organizations which sponsor arbitrations, the Olson court observed that an arbitrator’s role is “functionally equivalent to a judge’s role,” and that federal courts of appeals have uniformly extended judicial and quasi-judicial immunity to arbitrators. * * *

While judicial and/or quasi-judicial immunity in Indiana has not previously been extended to arbitrators and their sponsors, we see no reason why it should not be. * * *

Given the decision-making function at issue and the availability of alternative means of redress, we conclude that Droscha’s claim is akin to an attack on a decision-making body’s judicial or quasi-judicial function, for which Indiana law traditionally recognizes immunity. Accordingly, we follow Olson in observing arbitral immunity in the instant case. The trial court did not err in dismissing Droscha’s claim against the Association on Rule 12(B)(6) grounds.

In F.B. Boushehry v. City of Indianapolis, et al. , a 10-page opinion, Judge Bradford writes:
On appeal, Appellant/Plaintiff F.B. Boushehry argues that the trial court erred in granting summary judgment in favor of Appellant/Defendant City of Indianapolis (“City”). Concluding that summary judgment was proper, we affirm. * * *

In light of the language employed in Boushehry's notice and his amended complaint, coupled with his concession before the trial court that the claims included in his amended complaint were not based upon the claim mentioned in his notice, we conclude that there are no means by which Boushehry's notice may be construed to include claims for tortious interference with business contracts or slander of title. The claims as stated in the notice regard the issuance of unrelated stop-work orders. Therefore, we conclude that Boushehry's notice was insufficient to notify the City that it needed to defend itself against the claims ultimately raised in Boushehry's Amended Complaint. See Lukowiak, 810 N.E.2d at 383-84.1 In order to bring the instant claims, Boushehry would have needed to provide the City with notice of them pursuant to the Act, which he failed to do. Having concluded that the trial court's order granting summary judgment was proper because Boushehry's notice did not substantially comply with the Act, we need not consider whether the grant of summary judgment would have been proper for any of the alternative reasons challenged by Boushehry on appeal. See Kumar, 903 N.E.2d at 115 (providing that we may affirm the trial court's grant of summary judgment upon any basis supported by the record).

NFP civil opinions today (2):

Yul Anderson and Rachel Anderson v. Ronald E. Weldy (NFP)

Janell Peery v. I.D.C.S. (NFP)

NFP criminal opinions today (4):

James Chenoweth v. State of Indiana (NFP)

John W. Sawyer v. State of Indiana (NFP)

Ashley Smith v. State of Indiana (NFP)

William G. McLaughlin v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Ind. App.Ct. Decisions

Law - "State laws on posthumous birth—or the birth of a child after the death of a parent—vary widely"

"Reproductive Technology Advances, but the Law Struggles to Keep Up" is the heading to this new WSJ Law Blog entry, tied to a story today in the WSJ headlined "Fertility's New Legal Front: In Many States, a Baby Conceived After a Father Dies Can't Get Survivor Benefits."

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to General Law Related

Courts - "A federal judge on Monday ruled that the state of Virginia’s court challenge to the health care refrom plan may go forward"

The Aug. 2, 2010 opinion in the case, Virginia v. Sebelious, out of the ED Virginia, is here. SCOTUSBlog's Lyle Denniston has a thorough analysis of the opinion here.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Courts in general

Courts - "Former U.S. prosecutor practiced on suspended law license"

Here is a story from yesterday, posted by WRAL.com in Raleigh, NC. It begins:

Raleigh, N.C. — The validity of some federal cases tried in North Carolina could be in question because a former assistant U.S. attorney assigned to them didn't have a law license.

David Folmar didn't turn in his dues and paperwork to keep his law license in November 2003, yet he continued to prosecute hundreds of drug cases across the federal court's Middle District, which includes Durham and Hoke counties in the central part of the state, as well as Guilford, Forsyth and Cabarrus counties.

According to the North Carolina State Bar, Folmar lied about his suspended license and hid it from the U.S. attorney and the courts for more than five years.

Raleigh defense attorney Karl Knudsen believes the license lapse could lead to a technical challenge for Folmar's cases.

"I would be arguing on behalf of anyone who was convicted as a result of that indictment, that the indictment was fatally defective because there was no authority to submit it in the first place," Knudsen said.

This is reminiscent of a disciplinary case pending in Indiana, involving the Newton County prosecutor -- see this June 5, 2010 ILB entry. Here is a quote from Sophia Voravong's story in the Lafayette Journal Courier of that date:
During the April 9 hearing, [Newton County Prosecutor J. Edward Barce] testified that he did not realize choosing "inactive" on documents for annual registration fees for Indiana attorneys meant he could no longer prosecute cases.

In 2005, Barce had switched from a part-time to full-time prosecutor and closed his Kentland-based civil law practice.

Barce, a three-term elected prosecutor, submitted paperwork indicating "inactive" status again in 2006, 2007 and 2008.

In his recommendation to the Supreme Court, Busch noted that the affidavits signed by Barce were confusing because the forms tried to accomplish three things: an attorney's activity status, related collection fees and whether the attorney was required to participate in the Interest on Lawyers' Trust Accounts program.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Courts in general

Environment - "Wind Drives Growing Use of Batteries"

Here is a really interesting NY Times article from July 27, 2010, reported by Matthew L. Wald. Some quotes:

The rapid growth of wind farms, whose output is hard to schedule reliably or even predict, has the nation’s electricity providers scrambling to develop energy storage to ensure stability and improve profits.

As the wind installations multiply, companies have found themselves dumping energy late at night, adjusting the blades so they do not catch the wind, because there is no demand for the power. And grid operators, accustomed to meeting demand by adjusting supplies, are now struggling to maintain stability as supplies fluctuate.

On the cutting edge of a potential solution is Hawaii, where state officials want 70 percent of energy needs to be met by renewable sources like the wind, sun or biomass by 2030. A major problem is that it is impossible for generators on the islands to export surpluses to neighboring companies or to import power when the wind towers are becalmed.

On Maui, for example, wind generating capacity over all will soon be equal to one-fourth of the island’s peak demand. But peak wind and peak demand times do not coincide, raising questions about how Hawaii can reach its 70 percent goal. For now, the best option seems to be storage batteries.

Here are some other strategies:
At a pumped hydro plant, off-peak electricity is used to pump water from a reservoir at a low elevation to one at a higher one. At hours of peak demand the water flows back down through a turbine, creating electricity.

Electric companies are using other strategies for storage and frequency regulation. In Stephentown, N.Y., near Albany, a Massachusetts company, Beacon Power, is building a bank of 200 one-ton flywheels that will store energy from the grid on a moment-to-moment basis to keep the alternating current system at a strict 60 cycles.

Atop each flywheel is a device that can be a motor at one moment and a generator the next, either taking energy and storing it in the flywheel or vice versa. The Energy Department provided a $43 million loan guarantee to assist in the $69 million project.

The Energy Department is also supporting storage projects that rely on compressed air. Surplus electricity is used to pump air into an underground cavity; when the electricity is needed, the air is injected into a gas turbine generator. In effect, it acts as a turbocharger that runs on wind energy captured the previous night, instead of natural gas burned at a peak hour.

Here is a collection of some other NYTimes wind turbine stories.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Environment

Courts - "A Mailroom Mix-Up That Could Cost a Life" - Should a client be blamed for a mistake he did not commit?

From Adam Liptak's NY Tmes "Sidebar" column today:

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm [of Sullivan & Cromwell] agreed to represent him without charge. But the assistance he got may turn out to be lethal.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened.

One envelope had “Return to Sender — Left Firm” written across the front along with a stamp that said “Return to Sender — Attempted Not Known.” The other was stamped with slightly different language: “Return to Sender — Attempted Unknown.”

Two associates handling Mr. Maples’s case had indeed left the firm, but it seems that no one bothered to tell the court or the mailroom that new lawyers there had stepped in. By the time Mr. Maples’s mother called, her son’s time to appeal had run out.

The firm’s name did not appear on the papers it had submitted in Alabama. The reason for that is not clear, but it may have been to avoid offending corporate clients. It certainly added to the confusion in the mailroom.

Sullivan & Cromwell has worked hard to undo the damage, but it has so far failed to persuade the courts to waive the deadline for filing an appeal. After losing in the federal appeals court in Atlanta, the firm persuaded a former United States solicitor general, Gregory G. Garre, to represent Mr. Maples in the Supreme Court.

Last month, Mr. Garre asked the justices to hear the case. The core of his argument — one that might convince a schoolchild if not a federal judge — is that Mr. Maples should not be blamed for a mistake he did not commit.

Variations on Mr. Garre’s argument arrive at the Supreme Court all the time. For the most part, they are rejected, on a theory that is as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

Mr. Maples’s case “is a textbook illustration of why the doctrine of imputing responsibility to the client for a lawyer’s mistake is so out of touch with reality,” said Deborah L. Rhode, an authority on indigent defense and legal ethics at Stanford.

Posted by Marcia Oddi on Tuesday, August 03, 2010
Posted to Courts in general

Monday, August 02, 2010

Ind. Courts - Governor Daniels appoints Marion Superior Court judge

From a press release just issued:

INDIANAPOLIS (August 2, 2010) – Governor Mitch Daniels today announced the appointment of Barbra L. Cook Crawford as judge of the Marion Superior Court. She succeeds Judge Tanya Walton Pratt, who was appointed to the U.S. Southern District Court.

Cook Crawford has served much of the last two decades in the Marion County Prosecutor’s Office, most recently as deputy prosecutor overseeing the criminal charging division. She has previously worked in the Office of the Indiana Attorney General and the Marion County Public Defender’s Office.

Since 1998, Cook Crawford has served as adjunct instructor at the Indiana University School of Law-Indianapolis, teaching courses in trial advocacy.

She received her undergraduate degree from Bowling Green State University and her law degree from Indiana University School of Law-Indianapolis.

Her appointment is effective Aug. 3.

Here is the list of the nine who applied.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Indiana Courts

Ind. Courts - Judicial Nominating Commissioner's report to the Governor is to be public

When the Commission officially submits the three names selected Friday to the Governor, they will be accompanied by a report which by law will be a public document, pursuant to IC 33-27-3-2, which 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.
For more, see this ILB entry from July 26th, and this one from June 2, 2010.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Vacancy on Supreme Ct

Courts - "Volunteer federal prosecutors: They Work Hard — For No Money"

Main Justice has the story by Channing Turner. It begins:

Some U.S. Attorney’s offices have added “special” prosecutor positions that offer all the glamor of putting the nation’s lawbreakers behind bars — at no pay.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Courts in general

Ind. Courts - Photos of Friday afternoon's semifinalists being questioned

Last Friday I was able to access photos of the six semi-finalists questioned in the morning and I posted them here.

Later this afternoon I hope to receive access to similar photos of the three semi-finalists who were questioned Friday afternoon - Judge Moberly, Judge Nation, and Ms. Drew.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Vacancy on Supreme Ct

Ind. Decisions - Transfer list for week ending July 30, 2010

Here is the Clerk's transfer list for the week ending July 30, 2010. It is two pages (and 35 cases) long.

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

The dismissal was Saul I. Ruman, et al. v. Denise Benjamin, a NFP opinion from Dec. 17, 2009.

Here are the three transfers:

__________

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.

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

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Indiana Transfer Lists

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

David Hopper v. State of Indiana (NFP)

Sean Rich v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - No Indiana cases from 7th Circuit, but a bankruptcy ruling

In In re Meyers, a 13-page opinion, Judge Wood writes:

This case involves a recurring question under the bankruptcy laws: what belongs in the bankruptcy estate? In general, assets that were acquired before the time when the bankruptcy petition is filed—so-called pre-petition assets—are available to satisfy pre-petition debts. Overgeneralizing, one can say that post-petition assets belong to the debtor and are not encumbered by any liabilities that were discharged in bankruptcy. By the same token, any liabilities incurred by the debtor post-petition may not be discharged in the bankruptcy proceeding, nor should the bankruptcy process compel the pre-petition creditors to bear any burden as a result of these post-petition obligations.

Allocating assets and liabilities to the correct side of the pre- and post-petition line is usually a straightforward task, but occasionally the job becomes challenging. Debtor Andrea Meyers’s case falls in the latter category. The question we must resolve in her appeal is how best to allocate post-petition tax refunds when the debtor filed her bankruptcy petition in the middle of the tax year. The bankruptcy court used a mechanical system known as the “pro rata by days” method to calculate the proportion of the refunds that belonged to the prepetition asset pool. Meyers filed her petition approximately 73% of the way through the tax year, and accordingly, using that method, 73% of her tax refund qualified as a pre-petition asset. In taking that approach, the bankruptcy court followed a well-trodden path. Meyers, however, thought that it was the wrong path and took an appeal to the district court. That court affirmed the bankruptcy court, and now Meyers is before this court seeking to persuade us that the estate received too much. While we recognize that the pro rata method may not be appropriate for all cases, we find that the bankruptcy court properly applied it here, and so we affirm.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Ind. (7th Cir.) Decisions

Law - Read this for chuckles

"Thinking Like a Lawyer: The Case of the Broken Copier" from Above the Law.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to General Law Related

Ind. Law - "Enforcement lax for Indiana's ban on teen texting while driving"

Lesley Stedman Weidenbener of the Louisville Courier Journal has a long story dated August 1st, that begins:

INDIANAPOLIS — More than a year after Indiana banned young drivers from using cell phones and other mobile devices while behind the wheel, police have issued almost no tickets for the offense, and some teens say their friends are texting unchecked.

Indiana State Police ticketed only one driver for violating the cell phone ban, and a state agency that tracks infractions for 160 police departments could find just two other citations under the law that took effect July 1, 2009.

“There’s really not a police agency that can dedicate someone just to looking for young-looking drivers,” said state police First Sgt. Dave Bursten. “Maybe in a small police agency where everybody knows everybody, they’ll see Mary Jo Thompson driving with a phone and know that she just got her license two months ago. But for other agencies, there are a lot of complexities, so it’s just not a top-tier item.”

Indiana’s law — like one that took affect [sic.] in Kentucky on July 15 — bans cell phone use for drivers under 18.

But to issue a citation — punishable by a fine up to $500 — police have to witness a driver who looks under age 18 using a mobile device. After a stop, the officer must then establish when the driver received his or her license — before or after the law took effect.

That determines whether the law applies to the driver, although that issue will go away this year as all teen drivers receive their licenses under the new law.

“It’s kind of complicated,” Bursten said.

And teens can be sneaky about using cell phones.

There was a similar story in January about a South Bend ordinance banning cell phones in school zones. From a Jan. 13, 2010 ILB entry:
The South Bend Tribune had a story Jan. 6, 2010 headlined "Cell phone ban in South Bend brings few tickets: Enforcement spotty in school zones."

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Indiana Law

Courts - Wrapping up week one of Karen Sypher trial

Updating our most recent link to a Rick Pitino trial story, from July 29th, here are two more:

BTW, a reader wrote the ILB last week: "The case has an Indiana law connection -- Assistant US District Attorney Marisa Ford is a 1985 Maurer grad."

Here is a USA Today story from July 28 describing Ms. Ford's questioning of Pitino.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to Courts in general

Law - "Plagiarism Lines Blur for Students in Digital Age"

Trip Gabriel has a story today in the NY Times on a subject I consider to be very important - confusion over what is plagiarism. Some quotes:

At Rhode Island College, a freshman copied and pasted from a Web site’s frequently asked questions page about homelessness — and did not think he needed to credit a source in his assignment because the page did not include author information.

At DePaul University, the tip-off to one student’s copying was the purple shade of several paragraphs he had lifted from the Web; when confronted by a writing tutor his professor had sent him to, he was not defensive — he just wanted to know how to change purple text to black.

And at the University of Maryland, a student reprimanded for copying from Wikipedia in a paper on the Great Depression said he thought its entries — unsigned and collectively written — did not need to be credited since they counted, essentially, as common knowledge.

Professors used to deal with plagiarism by admonishing students to give credit to others and to follow the style guide for citations, and pretty much left it at that.

But these cases — typical ones, according to writing tutors and officials responsible for discipline at the three schools who described the plagiarism — suggest that many students simply do not grasp that using words they did not write is a serious misdeed.

That is just the start of the long article.

Posted by Marcia Oddi on Monday, August 02, 2010
Posted to General Law Related

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 is no longer updated on weekends or holidays because of financial issues.

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 association -- sign on as an annual ILB supporter, and do it today.

Review the Supporter Application for more information. Contact me if you have questions.

BTW, in case you are wondering, last week the ILB did get two new annual supporters! I am pleased to welcome a new individual member, lasted here as "Anonymous individual supporter," and a new front-page supporter, the ISBA Litigation Section. Thanks so much to both!

That is a start. Now how about you individually, your practice group, your firm, your company, your association, your state or local bar association or section?

As for the past weekend, here are several stories published over the weekend or earlier that I normally would have focused on:

Posted by Marcia Oddi on Monday, August 02, 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 8/2/10):

Next week's oral arguments before the Supreme Court (week of 8/9/10):

Webcasts of Supreme Court oral arguments are available here.

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

Wednesday, August 4th

Next week's oral arguments before the Court of Appeals (week of 8/9/10):

Wednesday, August 11th

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, August 02, 2010
Posted to Upcoming Oral Arguments