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Thursday, September 30, 2010

Ind. Decisions - Yet another Supreme Court opinion: J. Boehm cleaning off desk

In State v. James. S. Hobbs, IV, an 8-page, 3-2 opinion, Justice Boehm writes:

The defendant was arrested at a public restaurant for an unrelated crime. A drug dog called to sniff the defendant’s car in the restaurant’s parking lot indicated narcotics in the car. We hold that the Fourth Amendment does not prohibit a warrantless search of an operational vehicle found in a public place if the police have probable cause to believe the vehicle contains evidence of a crime. We also hold that the search was reasonable and did not violate the Indiana Constitution because the defendant was already under arrest and the dog’s alert gave the officers probable cause to believe the car contained contraband. * * *

The trial court’s finding that the search violated Fourth Amendment and Article I, section 11 of the Indiana Constitution, and its consequent suppression of the fruits of this search are reversed.

Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with separate opinion, which Rucker, J., joins: I respectfully dissent from the Court’s conclusion that the so-called “automobile exception” absolves the police from not obtaining a warrant in this case.

I acknowledge that the cases recite that the automobile exception has two elements – the vehicle in question is “readily mobile” and “operational” – and that those elements are established in this case. But I think the Court reads the precedents too narrowly when it decides the issue on that basis alone. * * *

Exceptions to general rules, especially to constitutional rules like the warrant requirement, should be narrow, not broad. Defendant’s lack of proximity to the automobile at the time of arrest – he was inside his place of employment and the car was parked outside in the lot –should render the automobile exception unavailable. The trial court understood this and granted Defendant’s motion to suppress. I would affirm that determination.

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Ind. Sup.Ct. Decisions

Law - "Dissent Breaks Out Over ABA Fees for Ethics Opinions"

Leigh Jones reports today in The National Law Journal in a story that begins:

The American Bar Association is under fire from attorneys who argue that the organization should stop charging fees for access to its ethics opinions.

An outcry erupted this week among practitioners who said that the ABA has a responsibility to the profession and the public to make all ethics opinions available for free online.

"Let the ABA sell something else," said Carolyn Elefant, a solo practitioner in Washington, D.C.

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to General Law Related

Ind. Decisions - Supreme Court posts several eagerly anticipated opinions

In Thomas P. Donovan v. Grant Victoria Casino & Resort, L.P., a 13-page, 3-1-0 opinion, the Court holds that casinos may exclude card counters. Justice Sullivan writes:

An owner of an Indiana business has long had the absolute right to exclude a visitor or customer, subject only to applicable civil rights laws. This long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a patron for employing strategies designed to give the patron a statistical advantage over the casino. The Riverboat Gambling Act, which gives the Indiana Gaming Commission exclusive authority to set the rules of licensed casino games, does not abrogate this common law right. * * *

Conclusion. We affirm the judgment of the trial court.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion.
Rucker, J., not participating.

Justice Dickson's dissent concludes: I agree with the Court of Appeals conclusion that Grand Victoria should not be allowed to exclude the plaintiff from playing blackjack simply because the casino fears that he may be exceptionally good at it.

In Caesars Riverboat Casino, LLC v. Genevieve M. Kephart, an 11-page, 4-1 opinion, Kephart contended Caesars owed her a common law duty to protect her from its enticements to gamble because it knew she was a pathological gambler. Justice Rucker writes:
A casino sued a patron for unpaid counter checks. The patron, a pathological gambler, countersued for damages because the casino knowingly enticed and encouraged the patron to gamble. We granted transfer to determine if casino patrons have a common law cause of action for damages stemming from the consequences of gambling losses. * * *

[I] In this case, not only does the statutory scheme cover the entire subject of riverboat gambling, but the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space. As the sole regulator of riverboat gambling, the Commission has adopted detailed regulations at the legislature’s direction. * * *

Kephart’s common law claim would hold Caesars to a similar standard regarding known pathological gamblers in absence of the voluntary exclusion program. The existence of the voluntary exclusion program suggests the legislature intended pathological gamblers to take personal responsibility to prevent and protect themselves against compulsive gambling. The legislature did not require casinos to identify and refuse service to pathological gamblers who did not self-identify. Kephart’s claim directly conflicts with the legislature’s choice. To allow Kephart’s claim to go forward under the common law would shift primary responsibility from the gambler to casino. It is apparent that the legislature intended otherwise. Therefore allowing a common law negligence claim addressing behavior essentially the same as prohibited under the statutory scheme irreconcilably conflicts with the intent of the legislature.

In sum it appears to us that by unmistakable implication the Legislature has abrogated any common law claim that casino patrons might otherwise have against casinos for damages resulting from enticing patrons to gamble and lose money at casino establishments. The trial court thus erred in denying Caesars’ motion to dismiss Kephart’s counterclaim under Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. * * *

[II] Although Kephart does not have a common law cause of action against Caesars for damages stemming from the consequences of her gambling losses, nothing in this opinion precludes Kephart from controverting any element of Caesars’ prima facie case or from raising matters outside the scope of Caesars’ prima facie case.

Conclusion. We reverse the judgment of the trial court.

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

Boehm, J., concurs in result with separate opinion. [A sample] This case is, in my view, a good example of how the Webb framework generates more confusion than light, and I am pleased that the Court recognizes that Webb analysis is not always useful. But I do not share the view that it is ever helpful.

Dickson, J., dissents with separate opinion. In my view, the result in this case is particularly disturbing. The Court today holds that a gambling casino may with impunity entice a person the casino knows to be a pathological gambler by offering free transportation from Tennessee to the Indiana casino, providing her with a free hotel room, food, and alcohol, and then extending her credit to gamble at the casino where she not surprisingly suffers $125,000 in casino gambling losses. These facts call for application of the well-established principle of Indiana common law that business owners must use reasonable care to protect their customers while on the business premises. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991). * * *

Separately, I commend Justice Boehm's separate concurrence, which thoughtfully ques-tions the Webb v. Jarvis three-factor framework and urges that we revisit our traditional but re-dundant application of foreseeability to analyze both duty and proximate cause, and I encourage a careful consideration of his law journal article and its recommendations.

In Sheehan Construction Co., Inc., et al. v. Continental Casualty Co., et al, an 18-page, 3-2 opinion, Justice Rucker writes that the main issue in this case is whether a standard commercial general liability (“CGL”) insurance policy covers an insured contractor for the faulty workmanship of its subcontractor:
In this case the trial court entered summary judgment in favor of Insurers on grounds that there was no damage to property “other than to the structural components of the homes themselves” and thus there was no “occurrence” or “property damage.” Appellants App. at 27. On this point the trial court erred. As we have explained faulty workmanship may constitute an accident and thus an occurrence depending on the facts. More specifically, if the defective work of the subcontractors were done intentionally instead of “without intention or design”, then it is not an accident. Otherwise the opposite is true. Here, none of the parties' Trial Rule 56 materials address the question of whether the faulty workmanship was the product of intentional versus unintentional conduct. And accordingly the trial court reached no conclusion on this point.

Conclusion. The judgment of the trial court is reversed. This cause is remanded for further proceedings.

Dickson and Boehm, JJ., concur.

Shepard, C.J., dissents with separate opinion.[that concludes] As the majority recognizes, there is in the country a divide in the case law on the point we decide today. I would put us on the other side of this divide.

Sullivan, J., dissents with separate opinion in which Shepard, C.J., joins. [that begins] My review of the authorities convinces me that an “occurrence” under a CGL policy in the context of these cases is accidental damage caused by an insured (or an insured's subcontrac-tors) to property owned by third parties, but not the costs of repairing defective work performed by an insured (or an insured's subcontractors).

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit issues opinion re Yahoo issue

In Beverly Stayart v. Yahoo! Inc., et al, a 7-page opinion in a case out of Wisconsin, Judeg Manion writes:

Like many, Beverly Stayart was curious about what she would find when she put her name into a search engine. In this case it was Yahoo. To her dismay, the comprehensive search results eventually contained links to websites and advertisements that she found shameful. She then sued Yahoo and the other defendants alleging trademark infringement and a host of state law claims. The district court dismissed her complaint, finding she lacked standing under the Lanham Act to sue for trademark infringement. She appeals, and because we agree that Stayart lacks standing under the Lanham Act, we affirm.

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

Ind. Decisions - Court of Appeals issues 8 today (and 16 NFP)

For publication opinions today (8):

A number of interesting opinions today, including issues involving the portable breathalyzer test, a second iteration of the Papa John case, and questions re the management of Irwin Miller estate.

In William Long v. State of Indiana , an 11-page opinion, the judges split 2-1 about whether defendant's actions re a sales contract: Judge Najam writes:

To prove theft, as charged, the State was required to prove that Long knowingly or intentionally exerted unauthorized control over Wright’s property, namely, miscellaneous items, with the intent to deprive Wright of any part of the use or value of the property. See Ind. Code § 35-43-4-2(a). On appeal, Long challenges the sufficiency of the evidence on the element of “unauthorized control.” Long maintains that he was authorized to control the personal property in the condo pursuant to the terms of his contract with Wright. The State contends, and the trial court found, that Long never intended to make any payments on the contract and that evidence supports his conviction. [The majority opinion holds "that the evidence is sufficient to support Long’s conviction for theft". Judge Kirsch's dissent concludes: "In baseball, ties go to the runner; in criminal procedure, they go to the defendant. I would reverse Long’s conviction."]
In State of Indiana v. James G. Lucas , a 9-page opinion, Judge Vaidik writes:
James G. Lucas was pulled over on suspicion of driving drunk. He failed two portable breath tests in the field. He then failed a B.A.C. Datamaster chemical breath test in jail less than twenty minutes later. Lucas was charged with operating while intoxicated, and he moved in limine to suppress the Datamaster test results. Lucas argued that according to Indiana's chemical breath test regulations, Datamaster results are invalid if any foreign substance is placed in the test subject's mouth within twenty minutes before the test is administered. Lucas claimed that the portable breath test mouthpiece was a “foreign substance” for purposes of the chemical breath test regulations. The trial court granted Lucas's motion to suppress, and the State now appeals. We conclude that a portable breath test mouthpiece is not a foreign substance that will act to invalidate the results of a Datamaster. We reverse and remand.
In Anthony Neukam v. State of Indiana , a 7-page opinion, Judge Mathias concludes:
Aquino’s pre-trial identification of Neukam as the individual who attacked him was not impermissibly suggestive, and the State presented sufficient evidence to support Neukam’s convictions for Class C felony battery resulting in serious bodily injury and Class D felony criminal mischief. Affirmed.
In Robert Hrezo, et al. v. City of Lawrenceburg, et al. , a 23-page opinion, Judge Brown concludes:
For the foregoing reasons, we affirm the trial court's grant of the City's motion for summary judgment on Hrezo's breach of contract claim and reverse the trial court's denial of the City's motion for summary judgment on Hrezo's promissory estoppel claim.
Affirmed and reversed.
In Cincinnati Insurance Company v. Anita G. Adkins and Wayne Adkins , a 7-page opinion, Judge May writes:
Cincinnati Insurance appeals summary judgment for Anita and Wayne Adkins (collectively, “Adkins”). Cincinnati argues the trial court erred in determining Adkins did not breach the terms of her insurance policy when she settled with a tortfeasor without notice to or consent of Cincinnati. We reverse.
In Joshua Konopasek v. State of Indiana , a 7-page opinion, Judge May writes:
Joshua Konopasek was convicted after a bench trial of battery causing serious bodily injury, a Class C felony. He argues on appeal the evidence was insufficient to sustain his conviction or to disprove self-defense, and the trial court should not have admitted testimony about his suspended sentence for a prior offense. While evidence about Konopasek’s criminal record should not have been admitted, any error was harmless, and the State’s evidence was sufficient to prove battery and disprove Konopasek’s claim of self-defense. Therefore, we affirm.
In Thomas Williams and Sanford Kelsey v. Kelly E. Tharp and Papa John's USA, , a 25-page opinion, Judge Crone writes:
Thomas Williams and Sanford Kelsey were handcuffed and detained for over an hour in Williams‘s driveway after Kelly Eugene Tharp, a Papa John‘s pizza delivery driver, told a passerby and a police officer that Kelsey had ―pulled a gun‖ inside the Papa John‘s restaurant where Kelsey and Williams had recently paid for and picked up their pizza. Police searched Williams and Kelsey in full view of their families and neighbors and found no gun. The two men sued Tharp and his employer, Papa John‘s U.S.A., Inc., for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court determined that Tharp‘s statements were covered by a qualified privilege developed to protect those who report suspected criminal activity and entered summary judgment in favor of Tharp and Papa John‘s. Williams and Kelsey appealed.

While the appeal was pending, Tharp pled guilty to falsely reporting that Kelsey had a gun inside the restaurant. As to Williams and Kelsey‘s appeal, the Indiana Court of Appeals ruled in their favor, but the Indiana Supreme Court upheld the trial court‘s judgment in favor of Tharp and Papa John‘s. The supreme court determined that Williams and Kelsey had failed to establish a genuine factual dispute regarding whether Tharp knew that his statements were false and thus abused the qualified privilege. The court also noted that after it held oral argument, Williams and Kelsey petitioned to file a motion for relief from the trial court‘s judgment based on Tharp‘s guilty plea to false reporting. The court denied Williams and Kelsey‘s petition and said that they could file a motion for relief with the trial court, which could consider whether the motion was filed within a reasonable time and should be granted. Williams and Kelsey then filed a motion for relief from judgment with the trial court, which summarily denied it.

Williams and Kelsey ("Appellants") now appeal the trial court‘s denial of their motion for relief from the judgment in favor of Tharp and Papa John‘s ("Appellees"), asserting that their motion was filed within a reasonable time and that Tharp‘s guilty plea creates a genuine factual dispute regarding whether he knew that his statements were false and thus abused the qualified privilege. We agree with Appellants on both counts and reverse and remand for further proceedings consistent with this opinion.

In Power of Attorney of Xenia S. Miller, et al. v. William Irwin Miller and Sarla Kalsi , a 28-page opinion, Chief Judge Baker writes:

What’s past is prologue . . . .

Xenia and Irwin Miller were extraordinary individuals who did everything in their power to enrich their community, support their family, and better society as a whole. After Xenia became incompetent, her attorneys in fact managed her financial resources as she had always done—with priority given to community over self. After a beneficiary of Xenia's estate objected to the way in which the attorneys in fact managed her funds—with an eye towards philanthropy and altruism rather than maintaining and increasing Xenia's own wealth—the trial court concluded that the attorneys in fact had committed no breach of duty and had instead merely endeavored to respect Xenia's wishes and values. We agree.

Appellant-Interested-Party Hugh Th. Miller (Hugh) appeals the trial court's order overruling Hugh's objections to the accountings filed by appellees-attorneys-in-fact William Irwin Miller (Will) and Sarla Kalsi (Sarla) and releasing Will and Sarla from all liability in their roles as Xenia S. Miller's (Xenia) attorneys in fact (AIFs) and co-trustees. Hugh also argues that the trial court erred by denying his request and granting the AIFs' request for attorney fees.

We find that the AIFs acted in Xenia's best interest. And although Hugh has waived the arguments related to the trust, we find that the co-trustees likewise acted within the scope of their fiduciary duties. Finally, we conclude that although the trial court properly denied Hugh's request for attorney fees, it erred by awarding the AIFs' requested fees. Therefore, we affirm in part and reverse in part.

NFP civil opinions today (6):

Paternity of R.B.; K.K. v. R.B. (NFP)

The Osler Institute, Inc. v. Richard Miller, et al. (NFP)

Joseph M. Shortridge v. Alice Shortridge (NFP)

Bonnie E. Rock v. Easterday Construction Co., Inc. (NFP)

Calcar Quarries v. Dennis Bledsoe (NFP)

T.K. v. Review Board and Company (NFP)

NFP criminal opinions today (10):

Leon Williams v. State of Indiana (NFP)

Daniel R. Fuquay, Sr. v. State of Indiana (NFP)

Marc Stults v. State of Indiana (NFP)

Karl J. Griffin v. State of Indiana (NFP)

Carmelita Woods v. State of Indiana (NFP)

Craig Britt v. State of Indiana (NFP)

Jennifer Bealmear v. State of Indiana (NFP)

Jacobo Sanchez-Venegas v. State of Indiana (NFP)

Shawn Davis v. State of Indiana (NFP)

Chad Delphia v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tax Court Semi-Finalists

Here are the seven semi-finalists for the Indiana Tax Court, selected by the Judicial Nominating Commission on Sept. 27, 2010 from 14 applicants.

The Commission will hold a second round of interviews on October 27th, selecting three finalists' names to submit to Governor Mitch Daniels. The Governor will select Indiana's Tax Court Judge within a month thereafter.

The table below provides links both to the application of each semi-finalist, plus, thanks to the Indiana State Bar Ass'n, to the complete 20-minute video of the Sept. 27th interview of each semi-finalist.

(Photos are included for those applicants that provided them to the ILB -- the opportunity is still open. There is also a link to the applicant's biography, if one is available online.)


No photo locatedAngelone, George

Interview #2 -- Held 9:20 am, Sept. 27, 2010

Deputy Director, Legislative Services Agency
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1976    Age: 59

Biographical Link


Dan CarwileCarwile, Dan

Interview #10 -- Held 1:30 pm, Sept, 27, 2010

Sr. Vice President, Old National Wealth Management
Evansville, Vanderburgh County

Link to Candidate's Application

Education: JD, Indiana University-Maurer School of Law 1983    Age: 56

Biographical Link


noneComer, Carol

Interview #11 -- Held 1:50 pm, Sept. 27, 2010

Senior Adm. Law Judge, Ind. Board of Tax Review,
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1996    Age: 44

Biographical Link


Joby JerrellsJerrells, Joby

Interview #8 -- Held 11:50 am, Sept. 27, 2010

Deputy Attorney General, Indiana Attorney General
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 2003    Age: 43

Biographical Link


No photo locatedLove, Karen

Interview #3 -- Held 9:40 am, Sept. 27, 2010

Judge, Hendricks Superior Court 3
Danville, Hendricks County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1986    Age: 53

Biographical Link


Melony SacopulosSacopulos, Melony

Interview #9 -- Held 12:10 pm, Sept. 27, 2010

General Counsel, Indiana State University
Terre Haute, Vigo County

Link to Candidate's Application

Education: JD, Ind. U.-Indianapolis 1987: LLM, Georgetown Law 1989 (taxation)    Age: 48

Biographical Link


Martha WentwoirthWentworth, Martha

Interview #1 -- Held 9:00 am, Sept, 27, 2010

Director, Deloitte Tax LLP
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1990    Age: 62

Biographical Link

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Indiana Courts

Ind. Courts - "Retirement Ceremony to Honor Indiana Supreme Court Justice Theodore R. Boehm"

You can watch it live starting at 10:00 a.m.

See the full press release here.

The links for the live webcast are here.

(Hopefully at some point in the near future we also will be able to watch the interviews to fill Supreme and Appellate court vacancies via live webcast.)

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Indiana Courts

Law - "The Ultimate Power Hobby: Bankers, Lawyers, Executives Jockey to Teach a University Class, Play Professor "

Katherine Rosman reports today in the WSJ about adjunct professors. A few quotes:

In a time of inconspicuous consumption, an adjunct-professorship at a prestigious university is a coveted token of success among finance, law and media professionals.

Adjuncts lead college and graduate-level classes but aren't tenured or tenure-track faculty. The gigs are increasingly tough to land. Film producer Joe Pichirallo ("The Secret Life of Bees"), an adjunct at the American Film Institute in Los Angeles who teaches classes on the business of filmmaking, says agents and studio executives are approaching him in restaurants to ask if they can guest-lecture. "It's definitely become cool," Mr. Pichirallo says. "Who knows if I could get this job today."

At New York University School of Law, "several hundred" attorneys typically apply for the handful of adjunct slots available each year, says Dean Richard L. Revesz. Most offers end up going to judges, attorneys and public officials the Law School has reached out to.

Adjuncts usually earn a four-figure stipend for each class they teach. In contrast, most tenured professors earned between $60,000 and $110,000 last year, according to American Association of University Professors. * * *

Generally, adjuncts fall into one of two classes: The so-called professional or practitioner adjunct brings the experience of a successful career and isn't in it for the money. Academic adjuncts, many of whom have doctorates, teach in hopes of landing a tenure-track job, and for most of them the salary and lack of benefits are a hardship. Reliance on adjuncts is increasing. In 2007, part-time teachers made up 50% of faculty at degree-granting institutions, according to the association of professors, up from 41% in 1995.

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to General Law Related

Ind. Courts - U.S. Senate confirms six U.S. attorneys, including Joseph Hogsett

Andrew Ramonas of Main Justice is reporting:

The Senate confirmed six U.S. Attorneys by voice vote late Wednesday night. They are:

Joseph Hogsett (Southern District of Indiana): President Barack Obama nominated the partner at the law firm of Bingham McHale LLP in Indianapolis and former chairman of the Indiana Democratic Party on July 14 to succeed Susan W. Brooks, who stepped down as U.S. Attorney in 2007. Read more about him here. * * *

The Senate has now confirmed 72 U.S. Attorneys. There are four U.S. Attorney nominees, who are still waiting for consideration by the full Senate. There are 93 U.S. Attorney posts located throughout the nation.

[More] Here is the press release from Senator Bayh's office.

Posted by Marcia Oddi on Thursday, September 30, 2010
Posted to Indiana Courts

Wednesday, September 29, 2010

Sports Law - Still more on: IUPUI Terminates Contract of Women's Basketball Coach [Updated]

Updating this Sept. 25th ILB entry, and not wasting any time, "the IUPUI Athletics Department has announced that Austin Parkinson has been named Head Women’s Basketball Coach, effective immediately." Story via Ed Holdaway, IUPUI Sports Information.

[Updated 10/1/10]
Mark Alesia of the Indianapolis Star reports this afternoon in a story that begins:

It turns out that Austin Parkinson is only an interim head coach for IUPUI’s women’s basketball team, even though the school didn’t introduce him that way.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Indiana Law

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

This ILB entry from July 21, 2010 set out the announcement of the Indiana Judges Association (IJA) requesting nominations for their two annual awards:

The Indiana Judges Association (IJA) wishes to recognize those members of the judiciary who have made special contributions to the judicial profession by their efforts in community relations.

The IJA would also like to recognize those members of the media (newspaper, television, radio) who have made special contributions to the judicial profession by their efforts in responsible reporting of the Indiana Judiciary.

The annual award will be presented at the Indiana Judges Association luncheon in Indianapolis on September 22, 2010.

The awards are now in. Here is the press release:
2010 IJA Commendations for Excellence in Public Information and Education

The Indiana Judges Association has awarded the Commendations for Excellence in Public Information and Education for the last 22 years

The awards recognize members of the media who have made special contributions to the judicial profession by responsible reporting of the Indiana Judiciary, and also recognize a judge each year who has made special contributions to the judicial profession by his or her efforts in community relations (informing/educating the public and enhancing the image of the judiciary)

Since 1991, the Judicial Conference’s Community Relations Committee has solicited the nominations for these awards and selected the award recipients on behalf of the IJA

The recipients of the 2010 awards have raised the bar in educating the public about the judiciary and ensuring fair and accurate media coverage of court activity.

Media Award.

Marianne Holland, Statehouse Bureau Chief for Indiana Public Broadcasting Stations, is being honored for her efforts to provide Indiana residents with fair and responsible journalism covering the Indiana Supreme Court.

Marianne has been with Indiana Public Broadcasting Stations for the past 5 years, first as their statehouse reporter, and now as their statehouse bureau chief. Before that, she worked as the news director of IPBS member station WVPE in Elkhart. Marianne's public radio career began in 1998 and has also taken her to news departments at stations in Vermont, Kansas, Alaska, and New York. She is the recipient of multiple awards from the Associated Press and Society of Professional Journalists.

Marianne was nominated by Roger Rhodes, Executive Director of Indiana Public Broadcasting Stations. In his nomination letter, Mr. Rhodes said the following: “This year the court has had the special occasion of conducting the process of selecting nominees to replace current Supreme Court Justice Theodore Boehm. On behalf of Indiana Public Broadcasting Stations, Marianne Holland has dedicated herself to covering this important process that begins with a judge’s announcement, and will end with the swearing in of a new Supreme Court Justice. Marianne was present for Judge Boehm’s retirement announcement, and has covered the process since that time…. She has covered the hours of public interviews that were conducted by the candidates, providing our member stations across the state and their respective audiences, with tailored, region-specific stories about the candidates being interviewed from their area of the state…. Marianne’s work helps to bring state government and the courts closer to every corner of our state.”

Judiciary Award.

Judge Allen Wheat of Steuben Circuit Court is being honored for his efforts to educate high school students about the judiciary and the process involved in a mock drunk driving trial.

In cooperation with the Ball State University Communications Department, Judge Wheat and his staff created an educational video that staged a drunk-driving arrest, jail-booking, trial and conviction. The video is titled “Think Before You Drive”.

According to Judge Wheat, the making of the video was truly a community effort. The characters in the video were played by local attorneys, deputies from the Sheriff’s Department, city and county officials (including the mayor of Angola), a school principal and local business people. The actors donated several days of their time for the filming of the courtroom scenes. A “world premier” was held last year in Angola to celebrate the release of the video.

The video has been well-received by government and civics teachers across the state. Judge Wheat stated that his goal in producing the video was to educate students about the mechanics of how trials are conducted and prepare them to perform their civic responsibility when called upon to serve on a jury.

The Community Relations Committee thanks Judge Wheat and his “actors” in Angola for showing the inner-workings of trials and jury service. Indiana high school students will benefit from this effort for years to come.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Indiana Courts

Ind. Decisions - Another opinion today from Supreme Court

In James A. Carr v. State of Indiana, an 18-page, 5-0 opinion, Justice Dickson writes:

Appealing his conviction for Murder, the defendant alleges four errors: (1) denial of his motion for discharge under Indiana Criminal Rule 4; (2) admission of his statement to a police detective despite his repeated invocation of his right to counsel; (3) limitations on defense questioning of the police detective; and (4) refusal of tendered instructions regarding lesser included offenses. The Court of Appeals affirmed in a memorandum decision. We granted transfer and now reverse and remand for new trial.

The defendant was convicted following a jury trial for the November 4, 2006, murder of Roy Allen Shaffer at Kewanna, Fulton County, Indiana. The killing occurred when the defendant fired his shotgun directly into the victim's face during an argument between the two men. The defendant then drove to a bar in Monterey, Indiana, and admitted the killing to the bartender, stating, "I shot Allen [Shaffer] . . . he wouldn't tell me the truth and I just, I just shot him," Tr. at 324, and "I pulled the trigger," id. at 326. The defendant, while in police custody, further de-scribed the incident during an ensuing videotaped police interview the day after the crime. * * *

While concluding that the defendant was not entitled to discharge under Criminal Rule 4, we hold that his custodial statements, taken by police in disregard of his invocation of his right to counsel, were erroneously admitted and that such error was not harmless beyond a reasonable doubt, thus requiring a reversal of the conviction and remand for retrial.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Longtime Porter County chief public defender James Tsoutsouris dies"

Bob Kasarda of the NWI Times reports this afternoon:

VALPARAISO | James Tsoutsouris, who has served as Porter County's chief public defender since creating the office in 1970, died early Wednesday, two days after collapsing on his way out of the downtown courthouse.

Tsoutsouris, 74, was remembered by his former legal partner Tony Bertig as a gifted trial attorney, who made a name for himself in 1976 by successfully defending the then-fledgling Fairhaven Independent Baptist Church in a corporal punishment case involving one of its students.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Capital Drywall Supply, Inc. and Old Fort Building Supply Co., Inc. v. Jai Jagdish, Inc. and Ranjan Amin, an 18-page opinion, Judge Najam writes:

Capital Drywall Supply, Inc. (“Capital Drywall”) and Old Fort Building Supply Company, Inc. (“Old Fort”) appeal the trial court's order, following a hearing, that granted the cross-motion for summary judgment filed by Jai Jagdish, Inc. (“JJI”) and Ranjan Amin (“Amin”) on Capital Drywall's and Old Fort's cross-claims to foreclose on mechanic's liens. We consider the following issues for review:
1. Whether the trial court abused its discretion by limiting the admissibility of the Affidavit of Pamela Hartman, which was designated by Old Fort in response to JJI and Amin's cross-motion for summary judgment.
2. Whether the trial court erred when it denied Capital Drywall's and Old Fort's motions for summary judgment and granted JJI and Amin's cross-motion for summary judgment.
We hold that any error in the trial court's ruling that limited the admissibility of the Hartman Affidavit was harmless because the lien claimants did not comply or substantially comply with the mechanic's lien statute. We also hold that the lien claimants did not perfect their liens because they both used an incorrect owner's name in their notices of intent to hold a mechanic's lien. And we hold that the lien claimants did not substantially comply with the mechanic's lien statute when they listed an incorrect owner's name in their lien notices, even if such information was obtained by telephone from the public office designated by statute. We affirm. * * *

MATHIAS, J., concurs.
BAKER, C.J., concurs in result with separate opinion. [that concludes] The majority concludes that because a lien notice must be premised upon an affidavit made upon the personal knowledge of the affiant, it is improper for a claimant to rely upon information gleaned from a telephone conversation with an employee of the county auditor‟s office. I do not think this analysis is necessary because the relevant portion of the statute requires that the lien notice describe the name of the owner as set forth in the latest entry in the transfer books. This language implies that the claimant must review the transfer books in person rather than rely upon information provided by an employee of the auditor‟s office. I believe this to be a Draconian requirement and suspect that it was not what the General Assembly intended in drafting this statute. That said, the language of the statute is plain and must be strictly construed. Therefore, I concur in the result reached by the majority.

NFP civil opinions today (0):

NFP criminal opinions today (7):

Gregory A. Jones v. State of Indiana (NFP)

Phillip Lawton v. State of Indiana (NFP)

Michael O. Branch v. State of Indiana (NFP)

Terry R. Twitty, Sr. v. State of Indiana (NFP)

Rudolph V. Williams v. State of Indiana (NFP)

Lafayette Caldwell v. State of Indiana (NFP)

David Reynolds v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two interesting 7th Circuit opinions today, neither involving Indiana cases

In uBID v. The GoDaddy Group (ND Ill.), a 31-page opinion, Judge Hamilton writes:

Plaintiff uBID, Inc. is a Chicago-based company that auctions the excess inventory of manufacturers and retailers over the Internet. It brought suit in Illinois against The GoDaddy Group, Inc., which operates the well-known domain name registration site GoDaddy.com. In its complaint, uBID alleged that GoDaddy violated the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), by intentionally registering domain names that are confusingly similar to uBID’s trademarks and domain names for the purpose of profiting from uBID’s marks and exploiting web surfers’ confusion by selling advertising for those confusingly similar websites. The district court dismissed the case for lack of personal jurisdiction, holding that GoDaddy, which is headquartered in Arizona, lacked sufficient contacts with Illinois to be sued there. See uBID, Inc. v. GoDaddy Group, Inc., 673 F. Supp. 2d 621 (N.D. Ill. 2009). We reverse. We conclude that due process is not violated when a defendant is called to account for the alleged consequences of its deliberate exploitation of the market in the forum state.
Re another Illinois case, U.S. v. Glosser, Sentencing Law & Policy Blog has an entry headed: "Seventh Circuit finds that sentencing speed kills procedural reasonableness."

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

Ind. Decisions - Supreme Court issues three today, so far -- wait, there is another

In Efren R. Diaz v. State of Indiana, a 10-page, 5-0 opinion, Chief Justice Shepard writes:

As courts continue to deal with questions of language, the issue arises how to determine whether criminal defendants understand what is occurring in the courtroom. Here, a Spanish-speaking drug defendant who pleaded guilty to two felonies seeks post-conviction relief on grounds that he thought he was pleading only to one felony and that his misunderstanding was the product of faulty interpreting. We conclude that the post-conviction court should appoint a certified interpreter to create an official version of the plea hearing. * * *

We recently highlighted the importance of having qualified interpreters, pointing out that the court system is difficult enough for native English speakers. Arrieta v. State, 878 N.E.2d 1238, 1241 (Ind. 2008). Having a capable interpreter is crucial when a defendant is entering a guilty plea and it would act to limit questions of the type that now surround Diaz's plea. * * *

We conclude the evidence before the post-conviction court does not reveal whether Diaz was provided with accurate interpreting.

We therefore direct the trial court to commission its own translation of the plea hearing and the sentencing hearing. It should then rehear such evidence as the parties find pertinent to the question of whether Diaz's plea was voluntary and intelligent.

On this point, the interpreting at the guilty plea hearing is important but not necessarily dispositive. As Justice Douglas wrote for the Court, “The record must show, or there must be an allegation and evidence which show” that an accused waived his rights with intelligence and understanding. Carnley v. Cochran, 369 U.S. 506, 516 (1962). Thus, on the key question of whether Diaz understood he was pleading guilty to two counts in return for forbearance about other offenses, evidence about what occurred during the guilty plea hearing, and during the sentencing hearing, and in his lawyer's office, and in writing, and otherwise, is all probative.

In Matthew A. Baugh v. State of Indiana, a 6-page, 5-0 opinion, Justice Dickson writes:
In this direct appeal, the defendant challenges his two convictions for class B felony Sex-ual Misconduct with a Minor and the determination that he is a sexually violent predator. Ad-dressing the three issues he presented, the Court of Appeals affirmed. Baugh v. State, 926 N.E.2d 497 (Ind. Ct. App. 2010). Seeking transfer on one issue, the defendant urges that the trial court erred by failing to hold a hearing and to receive testimony of two psychologists or psychiatrists before determining that he is a sexually violent predator requiring lifetime registration with the Indiana Sex and Violent Offender Registry. The Court of Appeals determined that this claim was procedurally defaulted due to the defendant's failure to present this argument to the trial court. Id. at 500–01. We granted transfer and now affirm on grounds of invited error.
In
State of Indiana v. Craig Cooper
, a 7-page, 5-0 opinion, Chief Justice Shepard writes:
Craig Cooper pled guilty a decade ago to driving after his driver’s license was suspended for being adjudicated a habitual traffic violator (HTV). In a subsequent post-conviction proceeding, Cooper argued that the factual basis for his plea had been inadequate. The post-conviction court granted relief. We reverse.
In Anne M. Bingley v. Charles B. Bingley, a 13-page, 4-1 opinion, Cheif Justice Shepard writes:
Charles Bingley filed to dissolve his marriage with appellant Anne Bingley. Charles had retired from his employment with Navistar Corp., which paid premiums to a health insurance company on Charles's behalf as part of his pension plan. Anne argued that the premiums constituted property subject to division. The trial court held that the benefits Charles was receiving did not constitute a marital asset.

Because we conclude that employer-provided health insurance benefits do constitute an asset once they have vested in a party to the marriage, we reverse. * * *

We therefore reverse the trial court's division of property and remand for further proceedings on the valuation of Charles's benefits and reconsideration of the division of assets.

Sullivan, Boehm, and Rucker, JJ., concur.

Dickson, J. dissents with separate opinion. [which begins, at p. 11] I dissent, believing that the Court's opinion expands the division of marital property contrary to statute, intrudes upon the legislature's public policy prerogatives, and significantly and harmfully disrupts Indiana marriage dissolution law and practice.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Dueling law profs on Camm trial? [Updated]

The second half of this ILB entry yesterday quoted a LCJ story quoting Thomas Schornhorst, a professor emeritus of the Indiana University School of Law who has followed the Camm case, saying:

It's even more unusual, Schornhorst said, for a man to go on trial three times for the same murders.

“This is an extraordinary situation,” said Schornhorst, adding that he doesn't know of any statistics tracking murder cases that result in repeat trials but that he doesn't recall any in which there were three trials.

A story by Janelle MacDonald of WAVE 3 yesterday afternoon, headed "Camm family murders: 10 years later," states that "David Camm faces trial for a seemingly unbelievable third time." and continues:
University of Louisville criminal law professor Luke Milligan says it's not unprecedented.

"Even in Indiana, we've had cases in the last few years that there's been two mistrials and we move on to a third," Milligan said.

Milligan says this time though, it will be tougher for the prosecution, which has lost key parts of its case. The Indiana Supreme Court has now told prosecutors not to bring up the evidence they say proves Camm's motive -- David Camm's affairs and accusations he molested Jill Camm.

"It does become riskier," Milligan said. "If you think of this evidence, it's sort of a brick. Each evidence is a brick and the jury is asked to stack the bricks up and eventually it gets high enough that a conviction is warranted and so we've got some significant items of evidence that are not going to be considered on this third trial."

After so much time, and so much money, many are growing frustrated with this case that never seems to end but both David and Kim Camm's families won't be satisfied until they find the justice they seek.

"Some people say is it really worth it? Should we do a third round?" Milligan said. "My question to those people is what is the benefit of justice for the people of Floyd County? We have a murder. The state thinks they've got their man. What's it worth to bring justice to this murder?"

Milligan also says the blame for the two mistrials lies with the trial court judges, who allowed that evidence into trials number one and number two.

"It's the trial judges who screwed up and it's a two million dollar price tag for Floyd County," said Milligan. "The moral of the story is you better think twice about who you vote for for trial judge. It just might bankrupt your county."

[Updated at 1:10 p.m.] Another law prof has joined the duel. IU-Indy Law's Joel Schumm writes re Prof. Milligan's comments:
Milligan also says the blame for the two mistrials lies with the trial court judges, who allowed that evidence into trials number one and number two.
"It's the trial judges who screwed up and it's a two million dollar price tag for Floyd County," said Milligan. "The moral of the story is you better think twice about who you vote for for trial judge. It just might bankrupt your county."
But how about the prosecutors who offered the prejudicial information that led to the reversals? They were elected by the voters in Floyd County, and they should have known better. Play with the bull; you (sometimes) get the horns.

The special judge(s), on the other hand, are from somewhere else and in no way accountable to the voters to Floyd County.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Courts in general

Ind. Decisions - More on: "Indiana couple fights to keep child raised since birth"

Updating this ILB entry from Sept. 24th, Lesley Stedman Weidenbener and Ben Zion Hershberg of the Louisville Courier Journal report today in a lengthy story that begins:

A boy at the center of a court battle between an Indiana couple who wants to adopt him and his biological father claiming custody in Ohio left a Floyd County court building Tuesday night in the arms of the father he has known since birth.

There was no clear indication from anyone who attended a 3-1/2 hour hearing on the dispute of where the boy would end up. But a Facebook page maintained by friends of the couple who are tracking the case said the biological father would begin visits with the boy, starting Wednesday in Indiana.

Both sides agreed to make no comment. Tom Hectus, a lawyer for Christy and Jason Vaughn, the Sellersburg couple seeking to adopt the nearly 3-year-old boy, Grayson, said “there will be a mediation” but declined to elaborate. The Vaughns have raised Grayson since he was born.

Near the end of the closed hearing before Floyd Circuit Judge J. Terrence Cody, the judge sent out a written statement. “The parties are attempting to resolve this matter in a way that meets the child’s best interest. Both parties have agreed that any further comment to the media would not be in the child’s best interest,” said the statement signed by the Vaughns and Grayson’s biological father, Benjamin Wyrembek.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Indiana Courts

Environment - "Attica pollution lawsuit gains class action status" [More]

The story by Justin L. Mack is in the Lafayette Journal Courier. A few quotes:

ATTICA -- When Rod Andres purchased his Taylor Street home in July 2007, he was unaware that property contamination came at no extra charge.

"I learned about the chemicals about two years after I got the house, and no one made any mention of it to me when I bought it. Not the Realtors, not the company, no one," he said. "I don't know what drives people to do something like that. Is it greed? Is it profit? All I know is I was a little bit bummed.

"I wouldn't have paid 70 grand for the house if I knew contamination might knock the value down to 10."

That's why Andres and 129 other Attica families are gearing up for a Feb. 28 court date to hold a company linked to the contamination responsible.

In March 2009, lawyers for a northeast Attica neighborhood filed a class action lawsuit in U.S. District Court in Indianapolis against Kraft Foods Global Inc.

Homeowners allege that the water and air pollution coming from an inactive factory Kraft acquired through mergers is lowering property values and putting their health at risk.

The suspect chemicals -- tetrachloroethene, or PCE, and trichloroethene, or TCE -- were used as cleaners and degreasers at the now-defunct Radio Materials Corp. factory located off East Summit Street.

On Tuesday, residents and their attorneys held a press conference to announce that a judge has granted class action status to the 130 families affected by the pollution.

They also announced the court's decision to reject Kraft's attempt to have the case dismissed on the basis that the company has been working to clean up the pollutants.

"(The court) didn't say that we were right. They said we can have our day in court to prove our case ... we knew that if we didn't go in together, we didn't have a case," said Naperville, Ill.-based attorney Shawn Collins, whose law firm is representing the families.

[More] the case is Stoll et al v. Kraft Foods Global, Inc. Here is a webpage from the plaintiffs' law firm linking to documents in the case.

Posted by Marcia Oddi on Wednesday, September 29, 2010
Posted to Environment

Tuesday, September 28, 2010

Ind. Decisions - Supreme Court issues one today

In David Hopper v. State of Indiana, a 6-page, 3-2 opinion filed late this afternoon, Justice Boehm writes for the majority:

[W]e exercise our supervisory power to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta, and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case. Such an advisement will require minimal additional time or effort at the initial hearing, and may encourage defendants to accept counsel. The effect of this advice will undoubtedly vary from case to case, but we do not believe it will impose significant burdens on the judicial process. To the extent this additional information causes fewer defendants to proceed pro se, participation of counsel in this process may encourage plea bargains as frequently as it causes delay.

Because we announce a new requirement as an exercise of supervisory powers, we apply it prospectively to hearings in which a defendant expresses a desire to proceed pro se, and affirm the judgment of the trial court.

Sullivan, and Rucker, JJ., concur.

Shepard, C.J., dissents with separate opinion in which Dickson, J., joins [that concludes] If indeed the advisement is likely to be minimal, does it tell offenders anything they didn’t learn from television? How many repeat offenders will avoid the penalties they have otherwise earned because the warning was omitted or was found inadequate with the benefit of hindsight? How many victims will these repeat offenders create?

That society, or even offenders, will be better off is far from clear.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - The attorney members of the Judicial Nominating Commission - Part I

This entry is intended to compile everything I could locate on the subject of the attorney members of the Judicial Nominating Commission (JNC).

Here is the Aug. 3, 2010 ILB entry, that discusses the important role the commissioners play in the selection of our Supreme and Appellate Court justices and judges.

See also this July 26, 2010 ILB entry, focusing on the current members of the JNC, their backgrounds, and their questions of the applicants for the Supreme Court vacancy.

Here is an invaluable Res Gestae article from January 1972 on the "Creation of the First Judicial Nominating Commission," authored by Norman T. Funk, then Executive Secretary of the Judicial Nominating Commission.

Here is a Res Gestae article I wrote, "Analysis of another effort to alter the Indiana judicial selection and retention process," that appeared in the Mar. 2006 issue. Beginning on p. 4, the article discusses the history of changes to the Judicial Nominating Commission membership -- i.e. what has happened since the Funk article.

Here is an exhaustive list compiled by the JNC staff of the JNC membership, from 1972 to 2010. This complete information may not exist elsewhere.

Here is a table of the attorney members of the JNC since 1972. Much may be revealed by looking at this table.

Part II will be analysis. Write me if you can provide any insights.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Indiana Courts

Environment - "Environmentalists hope to make a museum from an Indiana Dunes National Lakeshore house of Herb and Charlotte Read"

Gitte Laasby reports today in the Gary Post-Tribune:

CHESTERTON -- Environmentalists hope to make a museum from an Indiana Dunes National Lakeshore house that's due to be vacated on Thursday.

Environmentalists fear the house, which used to belong to veteran environmentalists Herb and Charlotte Read, could be bulldozed after Friday. The National Park Service purchased the house from the Reads in 1969 and the Reads have until Thursday to vacate the house. Environmentalists have petitioned the keeper of the National Register of the National Park Service to list the house as a historic place.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Environment

Ind. Courts - Dates to keep in mind

Thurs., Sept. 29, 2010 - Retirement Ceremony to Honor Indiana Supreme Court Justice Theodore R. Boehm

Oct. 4, 2010 - ISBA COA retention poll ballots must be turned in.

Remember, the five COA judges up for retention on Nov. 2, 2010 can be reviewed here. Because of early voting, a number of ballots for the Nov. election will be cast in October.

Tue., Oct. 12, 2010 - Ballots and biographies of each candidate for the Judicial Nominating Commission opening will be mailed to all Second District attorneys on October 12, 2010. Ballots are due by 4:00 p.m. on November 10, 2010.

Mon., Oct. 18, 2010 - Steven David to be Sworn in as the 106th Justice of the Indiana Supreme Court

Wed., Oct. 27, 2010 - Judicial Nominating Commission to interview 7 semi-finalists for Tax Court

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Indiana Courts

Courts - SCOTUS to release the audiotape recordings of all of the arguments at the end of each argument week

This is a distinct step forward. See this entry by Lyle Denniston of the SCOTUSblog for discussion of some pros and cons.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Christopher Casady v. State of Indiana , a 19-page opinion, Judge Mathias writes:

Christopher A. Casady (“Casady”) was convicted in Monroe Circuit Court of sixteen counts of Class D felony voyeurism. * * *

The trial court did not err in denying Casady's motion to dismiss because Casady has failed to show how he was harmed by the State's filing of additional charges and subsequent dismissal of the original charges. The evidence is sufficient to support Casady's convictions because his behavior of surreptitiously videotaping men showering and using urinals meets the statutory definition of peeping into an area where the occupants of the area reasonably can be expected to disrobe. The warrants to search Casady's camera and home were properly supported by probable cause, and the trial court did not err in admitting the evidence seized as a result of the execution of these warrants. Casady has waived any argument that the videotapes admitted into evidence were unfairly prejudicial. Lastly, Casady's sentence was not inappropriate. Affirmed.

In Sarah Haag, et al. v. Mark Castro, et al. , an 18-page, 2-1 opinion, Judge Mathias writes:
Appellants Sarah Haag, et al. (collectively "the Team Members"), appeal the trial court’s grant of summary judgment in favor of Appellee Virginia Surety Co., Inc. ("Virginia Surety"). The Team Members raise four issues, which we consolidate and restate as the following issue: Whether the trial court erred by determining that the injuries sustained in a rollover accident by the players of the Carmel Commotion Soccer Team were not covered by the Virginia Surety insurance policy issued to the Indiana Youth Soccer Association ("the IYSA").

Concluding that the trial court properly entered summary judgment in favor of Appellee Virginia Surety, we affirm. * * *

BRADFORD, J., concurs.
RILEY, J., dissents with opinion. [that begins, at p. 13 of 18] I respectfully dissent from the majority’s decision affirming the trial court’s grant of summary judgment in favor of Virginia Surety. Based on the designated evidence before me, I would reverse the trial court because coach Castro was clearly acting in the business of the IYSA to promote soccer for Indiana soccer teams when he drove the Carmel Commotion to the white water rafting activity and this team building activity does not fall within the confines of the exclusionary clause of Virginia Surety’s policy. * * *

In sum, I conclude that coach Castro was acting in the business of the IYSA to promote soccer for Indiana soccer teams when he drove the Carmel Commotion to the white water rafting activity and this team building activity does not fall within the confines of the exclusionary clause of Virginia Surety’s policy.

NFP civil opinions today (2):

Christine Starbuck v. Vigo County Public Library (NFP)

D.C. v. K.C. (NFP)

NFP criminal opinions today (11):

John Pearson v. State of Indiana (NFP)

William Washington v. State of Indiana (NFP)

Adam L. Blake v. State of Indiana (NFP)

Michael Myers v. State of Indiana (NFP)

Timothy L. King v. State of Indiana (NFP)

Joshua Peter Lindsey v. State of Indiana (NFP)

Ronald A. Manley v. State of Indiana (NFP)

Wanda A. Newbry v. State of Indiana (NFP)

Angela M. (Greene) McDonald v. State of Indiana (NFP)

Wanda A. Newbry v. State of Indiana (NFP)

Marvin L. Ervin v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Ind. App.Ct. Decisions

Environment - Wetlands Mapper available from U.S. Fish & Wildlife

Check it out here.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Environment

Courts - "Free Speech to be Tested in Coming Supreme Court Term"

That is the heading to this entry from the WSJ Law Blog. It points to a WSJ story yesterday by Jess Bravin looking at the free speech rights cases on the Court's agenda:

First up on Oct. 6 the justices will weigh whether the First Amendment protects a Kansas church’s campaign to publicize its beliefs by picketing military funerals with vulgar placards and insulting fallen soldiers’ survivors in online screeds.

The father of a fallen Marine is seeking damages for emotional distress from the church, which believes that God is killing American soldiers to punish the U.S. for its tolerance of homosexuality.

Next month, the court will consider whether states can bar minors from buying violent videogames, on the theory that these games cause damage to developing minds.

Both of these cases, WSJ reports, add a digital twist to constitutional doctrine. The church’s Internet posting potentially exposes a large audience to its hurtful attack, while the videogame laws single out computer role-playing as uniquely dangerous to children.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Courts in general

Ind. Courts - "Prosecutor's book deal spurs effort to oust him from David Camm's third trial"

Updating this ILB entry from Sept. 21st, Ben Zion Hershberg reported in the Sept. 26 Louisville Courier Journal - some quotes from the lengthy story:

Camm's attorneys argue that Floyd County (Ind.) Prosecutor Keith Henderson should be removed because of a book deal he made with a New York publisher before the Indiana Supreme Court overturned Camm's second conviction in the slayings of his family at their Georgetown home 10 years ago Tuesday.

Henderson's desire to sell a book could influence how he handles the case, said Stacy Uliana, one of Camm's lawyers, who cites an e-mail Henderson wrote to his publisher as evidence of that.

“The book cannot come out prior to the completion of a potential third trial,” Henderson wrote in a July 30, 2009, e-mail to his agent — while the Indiana Supreme Court was reviewing its decision to overturn the verdict. “It would jeopardize the case, potentially getting me removed from the case due to certain disclosures and opinions we are writing into the book. This cannot happen.”

Uliana — who already has won petitions for a third judge and third location for the trial — acknowledged that “these are rare remedies we are seeking.”

“But this is a rare case,” she said, adding of Henderson, “If he doesn't win, nobody wants his book.”

Henderson, who has said he still wants to write a book about the case, said there's no conflict for him to remain as prosecutor because everyone involved understood that the earlier book deal would become void if the verdict was overturned.

“What's the conflict? That I'm going to prosecute him harder because of the book?” Henderson said.

Uliana obtained the e-mail through pre-trial discovery this summer. She took depositions of the literary agent and the publisher's agent last week.

More from the long story:

Thomas Schornhorst, a professor emeritus of the Indiana University School of Law who has followed the Camm case, said it's rare for a prosecutor to be removed involuntarily from a murder case.

It's even more unusual, Schornhorst said, for a man to go on trial three times for the same murders.

“This is an extraordinary situation,” said Schornhorst, adding that he doesn't know of any statistics tracking murder cases that result in repeat trials but that he doesn't recall any in which there were three trials. * * *

Schornhorst said he believes the Camm case keeps getting sent back because some of the prosecution's most important evidence “is pretty thin stuff.”

That evidence is eight tiny bloodstains on the T-shirt Camm was wearing the night of the murders.

The defense's primary evidence is testimony by a group of men who were playing basketball with Camm the night of the murders.

Prosecution experts say the bloodstains were spattered from the shot that killed Jill. But defense experts say the blood came from some of Jill's hair that touched Camm's shirt as he checked on his children after coming upon the murder scene.

According to a 2009 study by the National Academy of Sciences, “In general the opinions of bloodstain pattern analysts are more subjective than scientific.”

Schornhorst said he thinks prosecutors have “pushed the envelope” of other evidence they can present to the jury because of fear they won't get a conviction if they rely too heavily on the complex bloodstain evidence.

How that evidence will be used in Camm's third trial is “a significant issue,” Uliana said.

See also these LCJ stories from the same day: "Relatives still grieve 10 years after Camm slayings," and "Key dates in the David Camm case."

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to Indiana Courts

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

And I know you've been thinking about it.

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

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

You would be joining MillerMeyerLLP; individual supporter Gary P. Price; the firm of Fillenwarth Dennerline Groth & Towe, LLP; and the Wieneke Law Office, LLC, which sends along this announcement:

Wieneke Law Office, LLC is pleased to announce the hiring of its newest associate, Joel C. Wieneke. Joel will be heading our criminal and civil litigation divisions in the Greencastle metropolitan area. He has not been named a Super Lawyer for 2010. With the addition of Joel, WLO has doubled in size.

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

Or become a Front Page ILB Supporter, like the Indiana State Bar Association (a supporter since July 2007), Doxpop (a supporter since April 2008), and the ISBA Litigation Section (a supporter since July 2010).

If your ISBA section is not listed, urge it to become an ILB Front Page Supporter! If you belong to the Indianapolis Bar Association, or a bar association in another part of the state, ditto.

Posted by Marcia Oddi on Tuesday, September 28, 2010
Posted to About the Indiana Law Blog

Monday, September 27, 2010

Ind. Decisions - More on: Transfer list for week ending September 24, 2010

Re the transfer list posted here today, a reader writes with the same question that puzzled me this morning:

Is there a functional difference btwn a vote to dismiss and a vote to deny?

79A04-0906-CV-354
Wells Fargo Bank, N.A., et al. v. Scatterfield Road Associates
Appellant
Not Granted - Shepard, C.J., and Dickson, J., vote to dismiss the Petition to Transfer. Rucker, J., votes to deny the Petition to Transfer. Sullivan and Boehm, JJ., vote to grant the Petition to Transfer.

[Updated at 5:25 pm] Another reader sends this answer:
Here's the order which might make it make more sense.
And indeed it does.

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Judicial Nominating Commission selects names for second round of interviews

The following have been selected as semi-finalists to fill the vacancy in the Indiana Tax Court after Judge Fisher retires the end of this year:

Here is the list on the Courts site, apparently in the order the successful applicants were interviewed.

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Indiana Courts

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):

Cameron Reed v. State of Indiana (NFP)

Brian P. White v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Ind. App.Ct. Decisions

Law - "Clandestine photo upsets CTA rider: Request to remove image from Web site met with resistance"

Fascinating "What's Your Problem" column by Jon Yates of the Chicago Tribune.

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to General Law Related

Ind. Courts - More on: "Whether to waive boy, age 15, to adult court to stand trial on charges of attempted murder, aggravated battery and battery"

Updating this ILB entry from Sept. 16, which quoted from two good stories by Rebecca S. Green of the Fort Wayne Journal Gazette, Green had this report on Sept. 25th that begins:

FORT WAYNE – The 15-year-old who admitted to trying to kill a fellow Concordia Lutheran High School student will be placed at a Wabash County juvenile treatment facility.

This month, the teen pleaded guilty to the juvenile equivalent of an attempted murder charge in connection with the January attack.

He admitted to taking a military-style knife from his older brother, slipping up behind Will Baker, his band drum section leader, in the school cafeteria and slicing open his neck.

Allen Superior Court Judge Stephen Sims took a few weeks to decide on the best place to send the teen, whom he decided not to waive into adult court after a hearing this month.

The teen’s placement in White’s Residential and Family Services in Wabash will provide the psychiatric and therapeutic care he needs, according to Sims’ order, issued Friday.

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending September 24, 2010

Here is the Clerk's transfer list for the week ending September 24, 2010. It is one page (and 7 cases) long.

Four transfers were granted last week. Three were granted with opinion:

Note: Until recently, the Clerk's transfer list would use the useful term "transferred, with opinion" for cases such as those above.

The fourth transfer last week is:

__________

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, September 27, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Interviews today of 14 applicants to fill upcoming Tax Court Judge Vacancy

Interviews begin this morning at 9:00 a.m. and continue through the day. One applicant, Richard Hoffman, who was scheduled for the final interview, has withdrawn, meaning the interviews will end at about 3:30 p.m. Thereafter, the Judicial Nominating Commission will deliberate in executive session, selecting the semi-finalists -- just how many will not be known until the announcement, expected late this afternoon.

The Commission will hold a second round of interviews on October 27th, selecting three finalists' names to submit to Governor Mitch Daniels. The Governor will select Indiana's Tax Court Judge within a month thereafter.

The ILB will not be attending the initial interviews and reporting on them in real-time, as with the recent Supreme Court interviews. However, the ISBA camera will record all 14 interviews and the ILB has arranged to link to, and perhaps comment on, the videos as soon as they are available. The semi-finalists' interview videos will be posted first.

Here are links to the ILB "quick references" for the panels

Here is the timetable, with links to the applications:

Interview Time

Applicant

Hometown

9:00 a.m. - 9:20 a.m. Ms. Martha Wentworth Greenwood
9:20 a.m. - 9:40 a.m. Mr. George Angelone Indianapolis
9:40 a.m. - 10:00 a.m. Hon. Karen Love Lizton
(Break)    
10:15 a.m. - 10:35 a.m. Mr. Andrew Swain Fishers
10:35 a.m. - 10:55 a.m. Hon. Bruce Kolb Fishers
10:55 a.m. - 11:15 a.m. Ms. Marilyn Meighen Carmel
(Break)    
11:30 a.m. - 11:50 a.m. Mr. Joseph Pearman Carmel
11:50 a.m. - 12:10 p.m. Mr. Joby Jerrells Boomington
12:10 p.m. - 12:30 p.m. Ms. Melony Sacopulos Terre Haute
(Break)    
1:30 p.m. - 1:50 p.m. Mr. Dan Carwile Evansville
1:50 p.m. - 2:10 p.m. Hon. Carol Comer Indianapolis
2:10 p.m. - 2:30 p.m. Mr. Randle Pollard Indianapolis
(Break)    
2:45 p.m. - 3:05 p.m. Ms. Michelle Baldwin Fishers
3:05 p.m. - 3:25 p.m. Mr. Thomas Ewbank Carmel
4:00 p.m. Deliberations in Executive Session followed by public vote to select semi-finalists

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Indiana Courts

Ind. Gov't. - AG Zoeller files brief opposing gay marriage in California

On behalf of the citizens of the State of Indiana, the Indiana Attorney General's office is the lead author on an amicus brief that was, according to this AP story out of Wyoming, submitted Friday to the 9th Circuit U.S. Court of Appeals:

[The brief] said that the Constitution does not require marriage to include same-sex couples. The 39-page brief also said that states, not federal courts, have final say in whether to allow same-sex marriages.

A federal judge ruled last month that California’s Proposition 8, a voter-passed ban on same-sex marriage, was unconstitutional. Judge Vaughn Walker ruled there was no legitimate state interest in preventing same-sex marriages and that “moral disapproval” alone wasn’t sufficient reason to justify banning it.

The ILB has received a copy of the brief of the amici states. Indiana is joined on the brief by the states of (or at least by the attorney generals of the states of) Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming.

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/27/10):

Next week's oral arguments before the Supreme Court (week of 10/4/10):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 9/27/10):

Tuesday, September 28th

Wednesday, September 29th

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

Next Monday, October 4th

Next Tuesday, October 5th

Next Wednesday, October 6th

Next Thursday, October 7th

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

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


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

Posted by Marcia Oddi on Monday, September 27, 2010
Posted to Upcoming Oral Arguments

Saturday, September 25, 2010

Ind. Courts - Last of 5 panels of applicants for the Tax Court vacancy to be interviewed Monday, September 27th, 2010

noneBaldwin, Michelle

Interview #13 -- Set for 2:45 pm, Sept, 27, 2010

Attorney, Baldwin Legal Services, LLC
Fisher, Hamilton County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis School of Law 2000    Age: 37

Biographical Link


Tom EwbankEwbank, Thomas

Interview #14 -- Set for 3:05 pm, Sept. 27, 2010

Attorney, Krieg DeVault, LLP,
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1969    Age: 66

Biographical Link

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

Posted by Marcia Oddi on Saturday, September 25, 2010
Posted to Indiana Courts

Ind. Courts - 4th of 5 panels of applicants for the Tax Court vacancy to be interviewed Monday, September 27th, 2010

Dan CarwileCarwile, Dan

Interview #10 -- Set for 1:30 pm, Sept, 27, 2010

Sr. Vice President, Old National Wealth Management
Evansville, Vanderburgh County

Link to Candidate's Application

Education: JD, Indiana University-Maurer School of Law 1983    Age: 56

Biographical Link


noneComer, Carol

Interview #11 -- Set for 1:50 pm, Sept. 27, 2010

Senior Adm. Law Judge, Ind. Board of Tax Review,
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1996    Age: 44

Biographical Link


Randle PollardPollard, Randle

Interview #12 -- Set for 2:10 pm, Sept. 27, 2010

Associate Professor of Law, Widener University Law
Harrisburg, PA

Link to Candidate's Application

Education: JD, Georgetown Law 1988: LLM, Georgetown Law 1995 (taxation)    Age: 47

Biographical Link

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

Posted by Marcia Oddi on Saturday, September 25, 2010
Posted to Indiana Courts

Sports Law - Still more on: IUPUI Terminates Contract of Women's Basketball Coach

Updating this entry from yesterday, Mark Alesia, Tim Evans and Heather Gillers have an Indianapolis Star story today headed "IUPUI: Paying coach Shann Hart $300,000 beat being sued." A few quotes from the long story:

IUPUI Chancellor Charles Bantz defended his decision to fire women's basketball coach Shann Hart "without cause" -- and pay her about $300,000 -- saying Friday that it was better for the university than fighting a protracted legal battle over whether she violated her contract.

"To establish 'cause' in the legal context of 2010, we would have to go through a whole series of processes," Bantz said. "And then, in sports, what happens is there's typically litigation, and we would have to go through that process.

"None of that would have been good for the student-athletes, our program and our university." * * *

The chancellor reiterated that the university has chosen not to release the investigative committee's report publicly. A school attorney Friday cited two exceptions in public records law -- personnel file information and "deliberative" material -- in a formal response to The Star's request for the document.

The Star filed a complaint with the state's public access counselor.

Bantz said he was unaware of IUPUI ever having released material related to a personnel file without a court order. Of the public nature of Hart's case, Bantz said he "thought about it in that context" but does not think the report should be released because he takes personnel issues "very seriously."

It's possible, though, that IUPUI will be answering questions from legislators. Sen. Luke Kenley, R-Noblesville, said the lack of transparency in Hart's case makes it hard for him and the public to understand the decision to pay Hart $300,000.

Posted by Marcia Oddi on Saturday, September 25, 2010
Posted to Indiana Law

Ind. Gov't. - More on: Fallout from "Consumer group criticizes Indiana regulator's move to Duke Energy"

Supplementing yesterday's ILB entry is a long story today by Lesley Stedman Weidenbener of the Louisville Courier Journal headed "Daniels takes stronger ethics stand in utility case." Some quotes:

Gov. Mitch Daniels has essentially overruled a state ethics panel and sided at least in part with critics who complained last week about a state utility attorney leaving the government to join a company he helped to regulate.

Daniels told the Indiana Utility Regulatory Commission on Friday that the agency should have no contact with its outgoing chief counsel, Scott Storms, for one year to comply with the spirit of state ethics laws. * * *

[I]n a letter to the IURC on Friday [ILB - see letter here], the governor’s top attorney said that while the ethics panel’s decision “may be technically correct, the governor intended the ethics laws to reassure the public that state employees would not trade influence for personal gain.”

“Had Duke seen fit to assign him out of state, this would have been clear to all,” wrote the governor’s general counsel, David Pippen. “To be certain that the spirit of the laws are fully honored, the governor asks that the IURC not entertain communications or have contact with Mr. Storms for the next 12 months.”

The letter also instructed regulators to liberally construe an ethics panel ruling that Storm can’t participate in the cases he had worked on at the commission.

An IURC spokeswoman, Danielle McGrath, said Friday that the “commission will carefully review Counselor Pippen's letter, discuss it thoroughly and respond accordingly.” * * *

But Kerwin Olson, program director for the Citizens Action Coalition that first raised concerns about Storms’ move to Duke, said the governor’s actions don’t fully address the group’s concerns.

Olson said the CAC still has questions about Duke-related orders that Storms issued before he removed himself from the cases.

“It is also highly troubling that the State Ethics Commission ignored those orders and the role that Judge Storms played as general counsel and lead hearing officer at the utility commission on critical cases related to regulating new employer, Duke Energy,” Olson said. “What's the point of the law if the state doesn't enforce it?”

ILB: The CAC question is similar to that I raised at the end of yesterday's entry -- how far, realistically, to move back the line?

Posted by Marcia Oddi on Saturday, September 25, 2010
Posted to Indiana Government

Friday, September 24, 2010

Ind. Gov't. - Fallout from "Consumer group criticizes Indiana regulator's move to Duke Energy" [Updated]

Wednesday the Indianapolis Star had this story in its business section -- it begins:

A consumer group is raising ethical questions over a state regulator's decision to take a job next week at Duke Energy, a utility he has overseen in numerous state hearings, including those regarding construction of the Edwardsport power plant in southwestern Indiana.

Citizens Action Coalition said the company's decision to hire Scott Storms as assistant general counsel, "raises serious concerns about the relationship between those who regulate utilities and the utilities themselves."

Storms currently serves as general counsel to the Indiana Utility Regulatory Commission. In that role, said Citizens Action said, he has "played a critical role and signed many of the (state's) decisions related to Edwardsport." Storms will start his new job at Duke Energy on Monday.

The group pointed to the state's ethics code, which states, in an example of post-employment restrictions for regulators who have made decision on individual public utility companies: "You may not work for this utility company for a year."

"It's disturbing that a required, one-year cooling off period so easily became less than 60 days," said Grant Smith, executive director of the Citizens Action Coalition, in a press release.

The story continues by reporting that Duke Energy said:
[I]n early August, Scott removed himself from Duke Energy-related cases he was working on at the commission to avoid a conflict of interest.

The company also pointed to a ruling from the Indiana state ethics commission issued this month, which said that Storms' employment with Duke Energy would not violate state law.

Now the fallout: Here is a copy of a letter that the ILB has obtained, dated Sept. 23, 2010, from the General Counsel to the Governor to David Lott Hardy, chairman of the IURC. It concludes:
Further, in keeping with the spirit as well as the letter of the Governor's Executive Order on ethics and the ethics statutes, we question whether any issue Duke Energy of Indiana may bring before the IURC in the next three hundred and sixty-five days could be divorced from the particular matter restrictions outlined by the Ethics Commission. Indiana Code 4-2-6-11 specifically considers the "circumstances surrounding the employment" and only issues unrelated to the "particular matters" raised in the next year would be conflict free for Mr. Storms to represent Duke's interests before the IURC. The Governor has asked me to inform you that we don't see any issues unrelated to the "particular matters" which may come up in the next year and as such would expect Mr. Storms not to appear before or assist on matters before the IURC for the three hundred and sixty-five days following his departure.

We are certain the IURC intends to abide by the letter and spirit of the ethics laws and that it shares our view that the formal ethics opinion for Mr. Storms contains significant restrictions on his duties as counsel for Duke Energy of Indiana. Had Duke seen fit to assign him out of state, this would have been clear to all. To be certain that the spirit of the laws are fully honored, the Governor asks that the IURC not entertain communications or have contact with Mr. Storms for the next twelve months.

[Updated Sept. 25th] Today's Star has a long story by Jeff Swiatek headed "Duke vows to play fair with former state lawyer: Firm says it will restrict his work more than ethics rules require." Some quotes:
Responding to conflict-of-interests concerns about its hiring of the general counsel of the state's utility regulatory agency, Duke Energy said Friday it will impose even stricter limits on his work for Duke than Indiana's ethics law requires. * * *

Storms, who was the IURC's general counsel and chief administrative law judge, starts working for Duke on Monday as one of its four regulatory attorneys in Indiana. He left his IURC job Friday. * * *

Duke's surprise announcement that it had hired Storms away from his 10-year state job, where he oversaw regulatory matters pertaining to Duke's controversial $2.9 billion coal gasification power plant in Southern Indiana, also prompted a response from Gov. Mitch Daniels.

In a letter to IURC Chairman David Hardy, the governor's general counsel, David Pippen, said the governor wants it known that the ethics guidelines affecting Storms' future contacts with the IURC are to be interpreted broadly. [ILB - the letter is quoted earlier in this entry]

"The governor intended the ethics laws to reassure the public that state employees would not trade influence for personal gains," says the one-page letter, released Friday by the governor's office.

ILB: The entire story bears reading. For instance:
"Storms was presiding administrative law judge over Duke's biggest capital project ever in Indiana -- and one that will return enormous profits to their shareholders," Olson said. The fact that Storms is now going to work at Duke raises a "red flag," Olson said.

Duke is awaiting word from the IURC on whether it will approve a rate settlement for the coal gasification plant that Duke hammered out with its industrial and other customers.

The hiring of government regulators by utilities isn't uncommon.

Two other attorneys in Duke's Indiana legal department were once on the IURC's staff, Protegere said, and the Indiana president for Duke Energy, Michael Reed, is a former executive director of the IURC.

The story reports that TWO IURC ALJs applied for the Duke job:
It turns out that a second IURC administrative law judge, Aaron Schmoll, also applied for the Duke legal job, which Duke posted in the spring. Schmoll came to the State Ethics Commission in July for legal advice and was told he should stop working on any Duke-related matters once he heard back from Duke about his application.
ILB: Who is to say that the dream of a job at some point in your career with the big utility you are regulating, or the gaming industry you are legislating about, does not have an impact on how you conduct yourself during the entire course of your work?

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Indiana Government

Courts - "Circuit Split Deepens Over 1st Circuit Ruling on Effective Date of Sex Offender Registration Act"

Sheri Qualters reports this afternoon in The National Law Journal, in a story that begins:

The 1st U.S. Circuit Court of Appeals has affirmed a defendant's conviction, ruling that registration requirements under the Sex Offender Registration and Notification Act (SORNA) took effect when the bill was signed, rather than when the U.S. attorney general issued an interim rule.

The 1st Circuit's Sept. 22 ruling in U.S. v. DiTomasso, authored by Senior Judge Bruce Selya with a concurring opinion by Judge Michael Boudin, deepens a circuit split on the law's effective date. The 4th, 7th, 6th and 11th circuits have ruled that SORNA's registration requirements didn't apply to people convicted of sex offenses until the attorney general's interim regulation set up rules for that group of offenders. The 3rd, 8th and 10th circuits -- like the 1st Circuit -- have ruled that SORNA's registration requirements applied to prior offenders as soon as SORNA was enacted.

SORNA was signed into law on July 27, 2006, and the U.S. attorney general issued the interim rule on Feb. 28, 2007.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Courts in general

Courts - It was bad enough when there was one victim

Ryan Haggerty and Jason Stein of the Milwaukee Journal Sentinel report this afternoon in a story that begins:

The state Office of Lawyer Regulation said Friday it will reopen its investigation into Calumet County District Attorney Kenneth R. Kratz.

The Office of Lawyer Regulation, known as OLR, has been under fire since it was revealed last week that it took no action against Kratz after learning last year that he had sent sexually suggestive text messages to a domestic violence victim.

OLR officials had not yet spoken publicly about the case, citing confidentiality rules that usually prevent them from discussing cases in which no discipline is handed down.

Despite those rules, pressure had been building on OLR to explain its decision, with Gov. Jim Doyle, state legislators and victims' advocates demanding to know why Kratz wasn't disciplined.

A letter sent to OLR on Thursday from two victims' rights groups in Wisconsin demanded an explanation, citing a state Supreme Court rule that says OLR's director can issue a statement if there is publicity about a case in which OLR finds that discipline is not warranted.

OLR's director, Keith Sellen, issued a statement Friday, saying that because the office "has received substantial new information, particularly information related to what may be a pattern of conduct, the OLR will investigate all the allegations that have been made against District Attorney Kratz, including the allegations made by the grievant."

More:
OLR closed the case in March without disciplining Kratz, saying in a letter to Van Groll that Kratz's texts were inappropriate but "did not appear to involve possible professional misconduct."

At least three more women have made similar accusations against Kratz since news of his texts to Van Groll was first reported last week
, including a law student who requested Kratz's support for a pardon from a drug conviction and a woman who said Kratz invited her to a crime victim's autopsy.

E-mails between Kratz and state officials show that he also resisted pressure last year to resign as chairman of the state Crime Victims Rights Board.

Kratz resigned from the board in December, but victims' advocates and state officials have since questioned why the board, like OLR, took no action against Kratz.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Courts in general

Law - "Recent developments of potentially great consequence are pushing the question of standing to the forefront in a way that promises to make it one of the hot legal topics of the coming months or even years"

So writes Linda Greenhouse today in her Opinionator column ("exclusive online commentary from the NYT"). It is long and a must-read.

Ashby Jones of the WSJ Law Blog writes:

Greenhouse’s piece isn’t exactly a breezy read. But it’s an interesting one and it raises an interesting question: How will conservative justices on the Supreme Court deal with the standing issue if and when it’s wrapped in the clothing of a challenge to President Obama’s health-care law?

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (2):

Subpoena to Crisis Connection, Inc., State of Indiana v. Ronald Keith Fromme is a 5-page opinion on rehearing re an interlocutory appeal. Judge Crone writes:

We grant Crisis Connection’s petition for the sole purpose of clarifying our holding.

Ronald Keith Fromme has been charged with two counts of class A felony child molesting. Fromme served a subpoena duces tecum on Crisis Connection, seeking all records relating to the alleged victims, M.Y. and D.Y., and their mother. On February 28, 2008, Crisis Connection moved to quash the subpoena, arguing that the records sought are privileged. See Ind. Code § 35-37-6-9 (victim-advocate privilege). The trial court ordered Crisis Connection to produce the records for an in camera review. The order was certified for interlocutory appeal, and we accepted jurisdiction. On appeal, we concluded that an in camera review properly balanced Fromme’s constitutional rights with the victims’ interest in privacy. Therefore, we affirmed the trial court’s order.

On rehearing, Crisis Connection contends that our opinion did not require criminal defendants to make any threshold showing before obtaining an in camera review of the confidential records of a victim advocate. * * *

We disagree that our opinion sends the message that meeting the particularity and materiality requirements will be an easy task in every case; this case simply has not presented us with an occasion to expand upon those parts of the three-step test. Because discovery disputes are almost always fact-sensitive, we decline to elaborate beyond the enunciation of the appropriate standard to be applied. See Cmty. Hosps. of Ind., Inc. v. Estate of North, 661 N.E.2d 1235, 1239 (Ind. Ct. App. 1996) (we do not engage in “prospective and premature determination” of issues not raised in a case), trans. denied. Therefore, we reaffirm our decision.

NFP civil opinions today (4):

B.M., Alleged to be CHINS, IDCS, and Child Advocates, Inc. v. Me.M. and P.M. (NFP)

Term. of Parent-Child Rel. of C.V.; C.V. v. IDCS (NFP)

Mohamed M. Krad v. BP Products, et al. (NFP)

Richard Jandura v. Town of Schererville (NFP)

NFP criminal opinions today (7):

Eric L. Hatcher v. State of Indiana (NFP)

Robert D. Merz v. State of Indiana (NFP)

Ronald R. Lewis v. State of Indiana (NFP)

Sherman E. Fuller v. State of Indiana (NFP)

Julian D. Grady v. State of Indiana (NFP)

Adam O. Brown v. State of Indiana (NFP)

Coy Daniels v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge selection process could use public input"

That is the headline to this letter to the editor today in the Indianapolis Star, written by Jonathan Watson and Mia Reini. The Star indicates that Watson is an attorney in South Bend and Reini is a policy specialist for the University of Notre Dame.

The letter criticizes Indiana's method of selecting appellate judges. A quote:

Of the three basic methods of state judicial selection used in the United States today, the Missouri Plan is the least accountable to voters. In the election system used in many other states, voters elect the members of their state Supreme Court. The federal method, used by several other states, involves some variance on nomination by the governor followed by state Senate confirmation. Although less populist, this method nonetheless involves indirect accountability to the people, through the election of their governor and state senators.

The Missouri Plan used in Indiana departs greatly from these two more democratic methods, in that the Judicial Nominating Commission has no accountability to the people of Indiana. Moreover, justices are subject only to "retention" votes, whereby voters are asked whether a justice should remain on the bench. Few justices in such "retention" states are ever challenged, much less removed.

Commission-selection systems result in courts that are unrepresentative of the population. This is a problem for Indiana, one of two states with no female Supreme Court justices.
A recent article by the American Bar Association discusses gains made by females in the South, where the percentage of women in the judiciary is much higher than in states usually cited as "progressive." Interestingly, these states use judicial selection methods that are either directly or indirectly accountable to the people.

In Indiana, a select few are responsible for deciding who will comprise our Supreme Court. Ultimately, the state legislature will be the agent to change this system, but it will never do so unless we, as citizens, begin the debate.

ILB: The implication is that Indiana's method of selecting its appellate judges is the reason there are no women on the Supreme Court and that even the "federal system" would work better.

Interestingly, one of the letter's "pro-woman justice" writers, Mia Reini, who is the general counsel at Notre Dame, has also argued (in items quickly located via Google) that Elena Kagen is unqualified and that Sonia Sotomayor is a radical -- both products of the federal selection system.

The ILB also received this morning this message from a DC PR firm:

In case you missed, I wanted to make sure you saw this op-ed posted in the Indy Star today by Jonathan Watson and Mia Reini: Judge selection process could use public input

Judicial selection reform seems to be becoming a bigger issue in Indiana – especially as national figures sizing up Gov. Daniels’ as a potential presidential candidate begin to weight in. (For instance, Gary Marx has a piece about it on NRO’s Bench Memos this week.) Let me know if you decide to post Jonathan’s and Mia’s piece on ILB.

So I took a look at the Marx piece in National Review. It is headed "Mitch's Merit." Some quotes:
For instance, he is an outspoken supporter of Indiana’s version of the Missouri Plan, the so-called “merit” selection system for selecting judges that requires the governor to select from a panel of judicial nominees chosen by a commission dominated by lawyers. (I prefer to call it the “merit deception” plan.) In 2009, after overwhelming majorities of the Indiana General Assembly passed legislation scrapping that system in northern Indiana’s St. Joseph County, Governor Daniels vetoed the legislation. But apparently it wasn’t enough to veto legislation that conservative legislators in other states would have been thrilled to pass. In his veto message, Governor Daniels had to praise the system:
The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.
Interesting talking points. They sound remarkably similar to the talking points the Left’s legal arm — through groups like the ABA and the Soros-funded Justice at Stake — has been using to attack conservatives who support Missouri Plan reforms in other states. If Daniels had been wearing his wonk hat that day, he would have realized that he was praising a form of judicial selection designed by Progressive Era lawyers who wanted “experts” to engineer every aspect of American life. By vetoing that legislation, and using those talking points, he carried water for a dangerous and extremely well-funded coalition of special-interest groups who would like our courts to be captured by liberal judicial activists.
The article goes on to discuss both Judge Moberly and Judge David -- you all will have to read that for yourselves.

Finally, Jim Bopp, Indiana's Republican National Committeeman, a position appointed by the Governor, has within the last month brought a lawsuit challenging how Kansas supreme court justices are appointed. See these ILB entries, including the one from August 29, 2010, which matches up the Kansas and Indiana systems.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Indiana Courts

Law - "Student Loan Relief for Public Defenders and Prosecutors"

Above the Law is reporting:

We have good news on the student loan front. Really good news if you are a public defender or prosecutor. The Blog of the Legal Times reports that the Department of Justice is making $10 million available in loan forgiveness for PDs and prosecutors.
Here is the Legal Times report.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to General Law Related

Ind. Courts - Supreme Court posts rule amendments

The Supreme Court has posted a number of rule amendments, adopted Sept. 21, 2010, and effective January 1, 2011. Access them here.

My thoughts.
Unfortunately, IMHO, the Court did not adopt the change I suggested in the way "Indiana Register" administrative rule documents are cited. It instead retained the language in Appellate Rule 22 re citing them by URL that I had urged be revised.

My suggestion, submitted two years ago, would have been to use the unique Document Identification Number (DIN) assigned to every document as it enters the rulemaking process. These DINs are keyed to the particular version of the proposed rule and thus have significance in themselves, and do not possess the inherent frailties of permanent reliance on a URL.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Indiana Courts

Courts - "Unfinished transcripts put district court reporter behind bars: Wayne Co. judge: Court reporter has stalled cases"

So reads the headline to this lengthy story today by Joe Swickard of the Detroit Free Press. It begins:

Paulette Martin, an official reporter for Detroit's 36th District Court, has gone from writer's block to cell block.

Martin is serving a 30-day contempt sentence in the Wayne County Jail for repeatedly missing deadlines to produce an overdue court proceeding transcript -- the first court reporter to receive such a stiff sentence for failing to complete her duties.

The jail term also covers her allegedly absconding from an earlier sentence by fleeing the Frank Murphy Hall of Justice, where she had been given five days to transcribe the record of a lengthy preliminary examination.

"We just can't tolerate this," said Presiding Wayne County Circuit Judge Timothy Kenny, who locked up Martin.

"And this isn't the first time" Martin has stalled cases, he said.

There are at least three other instances of her being unable to find records of cases, he said.

Defense attorney Leland McRae said his representation of Darious Morris on arson and other charges is hamstrung by a compromised official record: "This breeches the integrity of the process."

More from the story:
Judge David Allen, scheduled to hear the Morris trial, said he is frustrated as McRae and assistant prosecutor Rebecca Camargo try to sort out the situation.

"From time to time, we get a tardy transcript; these are busy courts," Allen said. "I've never had anything like this."

But Martin -- who uses a masked microphone to whisper a running verbatim taped account of the proceeding -- has had three cases where she could not produce transcripts because she said she couldn't find the tape.

The ILB has a list of past entries on similar matters.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Courts in general

Ind. Decisions - "Indiana couple fights to keep child raised since birth"

This order issued by the Supreme Court, dated Sept. 21, 2010, in State of Indiana ex rel. J.V. and C.V. v. The Floyd Circuit Court and the Honorable J. Terrence Cody, as Judge Thereof, gives no indication of the issues behind it.

But this lengthy, don't miss story dated Sept. 23rd in the Louisville Courier Journal, reported by Lesley Stedman Weidenbener, gives the details. Some quotes:

INDIANAPOLIS – A Sellersburg couple is waging court battles in two states to keep a boy they have been trying to adopt for nearly three years.

“The thought of losing Grayson literally rips my heart out,” said Jason Vaughn, a UPS manager who with his wife Christy was chosen by the child’s mother to adopt him.

But Grayson’s biological father is seeking custody in Ohio, where Grayson was born three years ago in October, and a judge there has ordered the boy’s return to that state.

The Vaughns did not meet a noon Wednesday deadline for taking Grayson to Toledo. Instead, they plan to sit tight in their Floyd County home until the adoption and custody cases that are pending in several courts are resolved – or until law enforcement shows up to take him away. * * *

So far, the dispute has reached at least eight different courts, including the federal system.

It started when Drucilla Bocvarov of Toledo chose the Vaughns in 2007 to adopt the baby she was carrying. Bocvarov and her then-husband signed papers terminating their parental rights and allowing the Vaughns to adopt the baby through a private service.

The Indiana couple was present for the birth and when Grayson was delivered, the doctor handed him first to Christy Vaughn. * * *

But within 30 days of Grayson’s birth, [Benjamin Wyrembek, the biological father] signed up with a state registry in Ohio saying that he could be the boy’s father. That entitled him to notification about the adoption and he objected.

So began the saga that has led the families to a situation that could be heart wrenching no matter which side wins.

The dispute has largely focused on the rights of biological fathers in Ohio adoption cases, particularly where they are not legal fathers. Bocvarov, the birth mother, was married to someone else when she conceived Grayson and, under Ohio law, her husband became the legal parent.

In some cases, Ohio law allows the legal parents to proceed with an adoption, even without permission from a biological father. That’s particularly true when the biological father has abandoned the pregnant woman or failed to support the child, which the Vaughn’s attorney, Mike Vorhees of Cincinnati, contends occurred in this case.

Still, Wyrembek was not without all legal rights. So as the adoption was proceeding in the Lucas County (Ohio) Probate Court, he was working to establish paternity in the county’s juvenile court.

Eventually, the latter court determined his paternity and named him the legal parent. The Lucas County Probate Court then halted the adoption, a decision that a divided Ohio Supreme Court upheld in an order issued this summer.

But Vorhees said that throughout the case, the courts have ignored Ohio law and long established state adoption procedures. The recent Ohio Supreme Court ruling – which Vorhees has asked the justices to reconsider – has created “anarchy” in the adoption community, he said. * * *

The Vaughns tried to fight the case in Indiana, where the couple has also filed to complete the adoption. The case went to the Indiana Supreme Court, which decided this week that Indiana had no jurisdiction in the matter. * * *

[T]he Vaughns have now asked courts in both states to require that a transition plan be in place before Grayson is removed, if that eventually happens. Such a plan could allow for Grayson to gradually get to know his birth father in places familiar to the toddler before he is transferred to the Ohio man’s custody.

More on this in a story also dated Sept. 23rd by Matt Thacker of the New Albany News & Tribune:
The Vaughns argued that Indiana should have jurisdiction since according to the Uniform Child Custody Jurisdiction and Enforcement Act, the child’s home state has jurisdiction in intrastate custody matters.

Floyd County Circuit Court Judge J. Terrence Cody reviewed the case on Aug. 18 and determined Indiana does not have jurisdiction. The court ordered the Vaughns to return Grayson in 48 hours, but the Indiana Supreme Court ordered an emergency stay with 29 minutes to spare and a sheriff’s department officer waiting in their driveway, Vaughn said.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Group for gay teens sues over denial of license plate: Nonprofit claims BMV's standards violate Constitution"

The ILB has had a long list of entries on issues relating "specialty license plates," such as "God" plates and "Choose Life" plates.

A story today in the Indianapolis Star written by Vic Ryckaert reports:

Hoosiers can buy specialty license plates supporting breast cancer awareness, juvenile diabetes research and Special Olympics. Now a group that serves gay teens is asking a federal judge to force the Bureau of Motor Vehicles to grant it a special plate.

The Indiana Youth Group -- twice denied in its request for a specialty plate -- says the BMV uses arbitrary and unconstitutional standards to approve or deny plates to nonprofits, according to a lawsuit filed Thursday in U.S. District Court.

"The government needs to be very clear," said Mary Byrne, executive director of the Indianapolis-based organization. "It's that fuzziness that they can just limit license plates, but they don't tell you why."

The group's lawsuit, filed by the American Civil Liberties Union of Indiana, claims the BMV uses no clear standards to evaluate plates, instead giving unilateral discretion to the agency.

Such discretion, the lawsuit states, runs afoul of the First Amendment.

BMV spokesman Dennis Rosebrough said the process is open and fair to all applicants. Although there is some subjectivity when it comes to deciding whether a group's request is in the "public interest," he said, the criteria are clearly laid out.

"The whole manual is on our website," he said. "It's very explicit as to what the criteria are." * * *

However, approval often is contentious. In recent years, the BMV has rejected numerous requests, including those submitted by the Marine Corps League, the Indiana Bicycle Coalition and the Alzheimer's Association.

In 2006, the BMV approved a plate supporting a polarizing issue: Money from the "Choose Life" license plate goes to the Indiana Association of Pregnancy Centers, a group that seeks to persuade pregnant women to choose adoption or other alternatives to abortion.

The ILB hopes to post the complaint.

[More] And here it is, Indiana Youth Group v. BMV, 34 pp., including exhibits.

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Indiana Government

Sports Law - More on: IUPUI Terminates Contract of Women's Basketball Coach

Updating this entry from yesterday afternoon, Mark Alesia, Tim Evans and Heather Gillers of the Indianapolis Star report today:

IUPUI fired women's basketball coach Shann Hart on Thursday after allegations of abuse and NCAA violations reported in The Indianapolis Star and then investigated by a university committee.

But it was unclear what, if anything, university officials think Hart did wrong. Officially, the firing is "without cause," meaning the school will pay Hart the balance of her contract through 2013 -- a total of about $300,000. * * *

Athletic Director Michael Moore conducted a late-afternoon news conference * * *

Why wasn't Hart fired for "just cause," in which case the university would owe only her salary through the end of the month?

Her contract says a firing for "just cause" would include violations of university, conference or NCAA rules.

But whether the university's investigation uncovered anything that might meet that threshold may never be known.

The university continued to stand by its earlier position that it has no intention of making the investigative committee's report public.

Has Indiana University-Purdue University Indianapolis reported any rules violations to the NCAA as a result of the investigation?

Moore would say only that IUPUI has a history of reporting violations to the NCAA; the university admitted major violations unrelated to Hart earlier this year. But Moore declined to comment on what, if anything, the committee's investigation found. * * *

Investigative committee member Gary Roberts, dean of the Indiana University School of Law-Indianapolis, declined to comment on the firing.

Retired Judge Sue Shields, chairwoman of the committee, said the report did not make any recommendations.

"We left it to the university," she said. "They must have thought that it was better for the university, better for coach Hart and better for the team."

But recall this quote from a Sept. 16th Star story by Mark Alesia, writtten before yesterday's termination:
Steve Key, general counsel for the Hoosier State Press Association, said IUPUI is probably within its rights to treat the report as part of a personnel file and thus exempt from public disclosure.

But, he added, the school has a choice whether to make the report public.

If IUPUI takes disciplinary action against Hart, such as termination, demotion or suspension, the report would become a public record, Key said, because "the public has the right to see the factual basis for that level of discipline."

Posted by Marcia Oddi on Friday, September 24, 2010
Posted to Indiana Law

Thursday, September 23, 2010

Sports Law - IUPUI Terminates Contract of Women's Basketball Coach

Here is the news release from the school:

IUPUI Athletic Director Michael Moore today announced that the university has terminated without cause its contract with Women’s Basketball Coach Shann Hart, effective immediately.

Moore said that Hart, who was hired in 2004, will be paid the salary she would have earned during the remainder of her contract, which expires May 31, 2013.

The decision to terminate Coach Hart’s contract was made in the best interests of the program, Moore said.

A report from the Chancellor’s Ad Hoc Advisory Committee on the IUPUI Women’s Basketball Program is not being released because it is deliberative and personnel information.

The IUPUI Athletics Department has taken several steps to re-emphasize or start programs that assist student/athletes in freely raising concerns or complaints. Among them are:

  • Individual Team meetings were held to inform student-athletes about the student-athlete grievance procedure, financial aid policy and appeals process and the IUPUI transfer policy. These meetings were intended to highlight the information located in the IUPUI Student-Athlete Handbook and allow the opportunity for questions.
  • Monthly meetings have been scheduled between the athletics administration and Student-Athlete Advisory Committee officers to discuss issues that may be important to the student-athletes.
Moore said he plans to hire a new women’s basketball coach shortly.
"IUPUI has fired women's basketball coach Shann Hart" is the headline to this brief story the IndyStar has posted online.

For background, start with this Sept. 16, 2010 ILB entry
headed "Sports. Law - Even more on ''Emotional abuse' at IUPUI? 28 have left women's basketball program'".

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to General Law Related | Indiana Government

Ind. Courts - 3rd of 5 panels of applicants for the Tax Court vacancy to be interviewed Monday, September 27th, 2010

No photo locatedPearman, Joseph

Interview #7 -- Set for 11:30 am, Sept, 27, 2010

Attorney, Pearman Law Office
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Valparaiso University School of Law 1993; LLM DePaul Law 1999 (taxation)     Age: 50

Biographical Link


Joby JerrellsJerrells, Joby

Interview #8 -- Set for 11:50 am, Sept. 27, 2010

Deputy Attorney General, Indiana Attorney General
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 2003    Age: 43

Biographical Link


Melony SacopulosSacopulos, Melony

Interview #9 -- Set for 12:10 pm, Sept. 27, 2010

General Counsel, Indiana State University
Terre Haute, Vigo County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1987: LLM, Georgetown Law 1989 (taxation)    Age: 48

Biographical Link

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

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Indiana Courts

Ind. Courts - 2nd of 5 panels of applicants for the Tax Court vacancy to be interviewed Monday, September 27th, 2010

[Unfortunately, so far the ILB is not locating many
photos or biographical links for the Tax Court applicants.]

Andrew SwainSwain, Andrew

Interview #4 -- Set for 10:15 am, Sept, 27, 2010

Chief Counsel, Indiana Attorney General
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1988    Age: 48

Biographical Link


No photo locatedKolb, Bruce

Interview #5 -- Set for 10:35 am, Sept. 27, 2010

Employment - "Please See Appendix C"

Link to Candidate's Application

Education: JD, Valparaiso University School of Law 1990    Age: 45

Biographical Link


No photo locatedMeighen, Marilyn

Interview #6 -- Set for 10:55 am, Sept. 27, 2010

Attorney, Meighen & Associates, P.C.
Carmel, Hamilton County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1977    Age: 57

Biographical Link

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

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Indiana Courts

Environment - More on: Problems at Michigan City sanitary district?

Updating this lengthy ILB entry from June 4, 2010, Gitte Laasby of the Gary Post-Tribune reports today:

MICHIGAN CITY -- In a settlement with the state, the Michigan City Sanitary District agreed Wednesday to pay a former employee and whistleblower $215,000.

The settlement, approved Wednesday, is believed to be the largest amount an employer has paid for violating whistleblower protection laws under state statute in the recent history of the Indiana Department of Labor.

Whistleblower Ron Meer was terminated in April after he made three complaints to the state about workplace safety and health violations.

"It was a pretty egregious violation as I understand it," Indiana Attorney General spokesman Bryan Corbin said. "He tried to go through the official channels to report the wrongdoing and was rebuffed and, in fact, was retaliated against. Indiana's whistleblower protection laws make it quite clear that employers can't do that. This employer did. By agreeing to the settlement, they acknowledge -- whether they say so publicly or not -- by signing the paperwork, they acknowledge that unlawful retaliation occurred."

The district officially denies the claims but settled instead of going to court, the attorney general's office said in a statement.

Indiana Attorney General Greg Zoeller and Labor Commissioner Lori Torres sued the district on June 29 for illegally terminating Meer after he complained to the Indiana Occupational Health and Safety Administration.

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Environment

Law - Forclosure mess is even worse than previously thought

Yesterday a story by Ariana Eunjung Cha in the Washington Post began:

Some of the nation's largest mortgage companies used a single document processor who said he signed off on foreclosures without having read the paperwork - an admission that may open the door for homeowners across the country to challenge foreclosure proceedings.

The legal predicament compelled Ally Financial, the nation's fourth-largest home lender, to halt evictions of homeowners in 23 states this week. Now it appears hundreds of other companies, including mortgage giants Fannie Mae and Freddie Mac, may also be affected because they use Ally to service their loans.

As head of Ally's foreclosure document processing team, 41-year-old Jeffrey Stephan was required to review cases to make sure the proceedings were legally justified and the information was accurate. He was also required to sign the documents in the presence of a notary.

In a sworn deposition, he testified that he did neither.

The reason may be the sheer volume of the documents he had to hand-sign: 10,000 a month. Stephan had been at that job for five years.

How the nation's foreclosure system became reliant on the tedious work of a few corporate bureaucrats is still a matter that mortgage lenders are trying to answer. While the lenders may have had legitimate cause to foreclose, the mishandling of the paperwork has given homeowners ammunition in their fight against foreclosure and has drawn the attention of state law enforcement officials.

In a story today, Ms. Cha and Brady Dennis report:
The nation's overburdened foreclosure system is riddled with faked documents, forged signatures and lenders who take shortcuts reviewing borrower's files, according to court documents and interviews with attorneys, housing advocates and company officials.

The problems, which are so widespread that some judges approving the foreclosures ignore them, are coming to light after Ally Financial, the country's fourth-biggest mortgage lender, halted home evictions in 23 states this week. * * *

In theory, a judge should review the files one more time. But after the crisis produced massive numbers of delinquent homeowners, judges in many cases became overwhelmed.

Some simply took at face value the documents handed over to them by the lenders - who in many cases were not checking the files, either, according to interviews with judges, attorneys and consumer groups.

In some Florida courts, for instance, many judges automatically approve a foreclosure unless a borrower can point to a specific problem. Homeowners are given five minutes for a presentation. Often, they do not bother to show up.

Arthur M. Schack, a Kings County Supreme Court judge in Brooklyn, said it's clear those involved in the foreclosure process are taking the legal requirements too lightly. They forget, he said, that there's a bigger picture to think about: People are losing their homes. * * *

Schack has become infamous among some of the nation's most powerful banks for rejecting foreclosure motions that come across his courtroom - about half of the hundreds of files that he has reviewed over nearly three years. He said Ally's document-processing violations shouldn't be dismissed lightly.

"There are procedures to be followed in order to get a foreclosure, and you either get it right or not. Either you're pregnant or not. There's no in-between," he said.

But Judge Isaac Garb, a retired trial judge in Bucks County, Pa., who has heard many foreclosure cases and still oversees mortgage mediations, had a different view.

He said that because foreclosure files contain standard language, document processors such as Stephan do not need to review every page. He added that the signers are verifying only that the information in the file is "true and correct to the best of his/her knowledge, information and belief."

Often, homeowners are using minor problems in the documents simply to stall the foreclosure process as long as possible, Garb said.

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to General Law Related

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

For publication opinions today (2):

In Commitment of A.L. , a 12-page opinion, Sr. Judge Barteau writes:

Appellant A.L. appeals the trial court’s Order of Temporary Commitment (“the Order”). We affirm.

A.L. raises three issues, which we consolidate and restate as:
I. Whether the trial court committed fundamental error by allowing Appellee Wishard Health Services, Midtown Health Center (“Wishard”) to state one ground for involuntary commitment in a pre-hearing filing and then present an additional ground for involuntary commitment at the final hearing; and
II. Whether the Order is supported by clear and convincing evidence.

In Steven D. Hyche v. State of Indiana , a 9-page opinion, Judge Crone writes:
This is a case of a drug deal gone awry. The defendant and another man attempted to buy drugs, and during the transaction, one of the sellers was shot to death. The State charged the defendant with murder, felony murder, and dealing in a controlled substance. The jury found the defendant not guilty of murder, but guilty of felony murder and dealing.

On appeal, the defendant Steven Hyche claims that he was merely attempting to purchase ecstasy, not to deal in it. As such, he claims that he does not fall within the legislature’s definition of a person who has committed dealing and therefore could not have been guilty of felony murder. We agree and vacate his convictions. * * *

In sum, we agree with Hyche that the State’s interpretation of the dealing statute would “completely blur the distinction between one who possesses a drug and one who distributes it.” Hyche acted only as a purchaser of ecstasy, not as a dealer. To find that his offer to purchase the drug somehow amounts to organizing, financing, or even inducing its delivery, defies logic and cannot reasonably reflect the intent of the General Assembly in enacting these statutes. As such, we hold that the evidence is insufficient to support his dealing conviction. Because his felony murder conviction was based on the commission of the underlying offense of dealing, it too cannot stand. Thus, we vacate both convictions.
Vacated.

NFP civil opinions today (3):

Freudenberg-Nok General Partnership v. Allison Transmission, Inc. (NFP)

Anna Galuoppo v. Richard Galuoppo (NFP)

Buffy L. Heckler v. Gary L. Heckler and Beverly J. Heckler (NFP)

NFP criminal opinions today (1):

Michael Deloney v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Ind. App.Ct. Decisions

Courts - "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

That is a quote from Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors, in this lengthy story today in USA Today, headed "Prosecutors' conduct can tip justice scales," reported by Brad Heath and Kevin McCoy. It is about the U.S. Department of Justice.

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Courts in general

Ind. Courts - 1st of 5 panels of applicants for the Tax Court vacancy to be interviewed Monday, September 27th, 2010

[Unfortunately, so far the ILB is not locating many
photos or biographical links for the Tax Court applicants.]

Martha WentwoirthWentworth, Martha

Interview #1 -- Set for 9:00 am, Sept, 27, 2010

Director, Deloitte Tax LLP
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Mauer 1990    Age: 62

Biographical Link


No photo locatedAngelone, George

Interview #2 -- Set for 9:20 am, Sept. 27, 2010

Deputy Director, Legislative Services Agency
Indianapolis, Marion County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1976    Age: 59

Biographical Link


No photo locatedLove, Karen

Interview #3 -- Set for 9:40 am, Sept. 27, 2010

Judge, Hendricks Superior Court 3
Danville, Hendricks County

Link to Candidate's Application

Education: JD, Indiana University-Indianapolis 1986    Age: 53

Biographical Link

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

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Indiana Courts

Ind. Courts - Supreme Court Vacancy pages finalized

The Indiana Supreme Court Vacancy page, providing an overview of the many ILB entries on the filling of the 2010 vacancy, has now been updated for the final time.

Posted by Marcia Oddi on Thursday, September 23, 2010
Posted to Vacancy on Supreme Ct

Wednesday, September 22, 2010

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

For publication opinions today (2):

In Donte L. Boatner v. State of Indiana , an 8-page opinion, Judge Mathias concludes:

The trial court did not abuse its discretion in admitting A.J.’s statement to the police under the excited utterance exception to the hearsay rule. Boatner did not properly preserve his confrontation claim, but even if he did, the admission of A.J.’s statement to the police did not violate Boatner’s confrontation rights.
In Sunder Upshaw v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Sunder Upshaw appeals following his convictions for Dealing in Cocaine, a class B felony, Possession of Marijuana,2 a class A misdemeanor, and Driving While Suspended with a Prior Misdemeanor Conviction,3 a class A misdemeanor. Upshaw argues that the trial court erred by denying his motion to dismiss for an alleged violation of his right to a speedy trial pursuant to Indiana Criminal Rule 4(B). He also contends that there is insufficient evidence supporting his convictions for dealing in cocaine and driving while suspended with a prior misdemeanor conviction.

The State concedes that there is insufficient evidence supporting Upshaw's conviction for driving while suspended with a prior misdemeanor conviction. Consequently, we reverse that conviction. Finding sufficient evidence supporting the dealing in cocaine conviction and no other error, we affirm in all other respects and remand with instructions to amend the judgment of conviction consistently with this opinion.

NFP civil opinions today (3):

Ronald W. Ritz, et al. v. Town of Brookville (NFP)

Ellen C. Bragg Firn v. Todd D. Bragg (NFP)

Larry Tidmore v. Linn A. Mackey and Ind. Farm Bureau Ins. (NFP)

NFP criminal opinions today (2):

Harold Schuler Owen v. State of Indiana (NFP)

Paul S. Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 22, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two opinions today from the Supreme Court

In Rosalyn West v. Betty Wadlington,et al., a 5-page, 5-0 opinion, Justice Rucker writes:

In this opinion we determine that a trial court with general jurisdiction to adjudicate claims of defamation and invasion of privacy is not ousted of jurisdiction merely because a religious defense to the claims is asserted. * * *

On February 29, 2008, West filed a complaint against Wadlington, Larkins, and the City of Indianapolis as Larkins' employer (“Defendants”) on theories of defamation and invasion of privacy. Larkins and the City filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. They argued that under the First and Fourteenth Amendments to the United States Constitution any adjudication of West's complaint would require excessive entanglement in the Church's politics and doctrine. Attached as an exhibit was an affidavit from Larkins. The trial court granted the motion and dismissed the complaint with prejudice as to all Defendants. On review, addressing the merits of Defendants' excessive entanglement claim, the Court of Appeals reversed the judgment of the trial court. West v. Wadlington, 908 N.E.2d 1157 (Ind. Ct. App. 2009). We now grant transfer thereby vacating the opinion of the Court of Appeals. See Ind. App. R. 58(A). And although we also reverse the judgment of the trial court, we do not reach the parties' constitutional arguments. * * *

[T]his case is not ripe for adjudication employing a summary judgment standard of review. When a Trial Rule 12(B)(6) motion is treated as a motion for summary judgment, the court must grant the parties a reasonable opportunity to present summary judgment materials. See Ind. Trial R. 12(B) (“In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”); Azhar v. Town of Fishers, 744 N.E.2d 947, 950 (Ind. Ct. App. 2001) (“Where a trial court treats a motion to dismiss as one for summary judgment, the court must grant the parties a reasonable opportunity to present T.R. 56 materials.”). In this case even though a matter outside the pleading – the Larkins affidavit – was presented to and apparently not excluded by the trial court, there is nothing before us suggesting the trial court treated this matter as a motion for summary judgment. And thus there is nothing before us to suggest the trial court afforded the parties an opportunity to present Rule 56 materials in support of or in opposition to summary judgment. Instead, because the parties treated the Defendants' motion as one to dismiss for lack of subject matter jurisdiction, the trial court ruled accordingly. As noted above this was error. And on this ground we reverse the judgment of the trial court.

In Virginia Meister v. State of Indiana and the City of Union City, Indiana, a 6-page, 5-0 opinion, Justice Sullivan writes:
Virginia Meister's truck was ordered forfeited after drugs and paraphernalia were discovered in it during a warrantless search following her son's arrest for driving it on a suspended license. The Court of Appeals originally determined that the search did not violate the Fourth Amendment's warrant requirement because it was “incident to a valid arrest.” The United States Supreme Court granted certiorari and remanded the case in light of Arizona v. Gant, 129 S. Ct. 1710 (2009), which concerned vehicle searches accompanying arrests. On remand, the Indiana Court of Appeals agreed that the search was invalid under Gant but held that it was nevertheless valid under the so-called “automobile exception” to the Fourth Amendment's warrant requirement. We agree with the Court of Appeals.
ILB: see this ILB entry from May 4, 2009, headed "Indiana COA decision remanded by SCOTUS today, in light of Arizona v. Gant."

Posted by Marcia Oddi on Wednesday, September 22, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Clerk bypasses board to expand early voting: Election Board earlier rejected satellite locations in 2-1 vote"

Bill Ruthhart reports today in the Indianapolis Star:

Marion County voters will have two new places where they can cast early ballots next month in advance of the November election.

County Clerk Beth White said during an Election Board meeting Tuesday that she would extend early voting to two of her offices outside the City-County Building, infuriating the lone Republican board member.

Each year, White's Downtown office offers early voting, but this year, her offices at the county's traffic and juvenile court buildings also will have voting.

White, a Democrat, offered the additional early voting options after the Election Board voted down a proposal last week that would have allowed satellite voting locations across the county for the Nov. 2 election. * * *

[Republican Patrick Dietrick] argued that state law refers to allowing early voting only at county clerk's "office," a singular term.

Democrats, however, responded by highlighting the decision by the Lake County clerk to allow early voting at multiple offices in 2008, which they said had since been upheld by the Indiana Court of Appeals.

White said afterward that her move was not a political one and would not have been necessary had Dietrick and the GOP agreed to satellite voting centers.

"I'm trying to make voting opportunities available for everyone, and I'm within the state statute to do this, and that is abundantly clear," she said.

"It's not about politics; it's about access to the vote."

The Lake County case was John B. Curley, et al. v. Lake Co. Board of Elections and Registration, et al. See the Oct. 31, 2008 ILB summary here. See this April 14, 2008 ILB entry for the Supreme Court's denial of transfer in Curley.

Posted by Marcia Oddi on Wednesday, September 22, 2010
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Government

Courts - "Why Have Federal Civil Jury Trials Basically Disappeared?"

Ashby Jones of the WSJ Law Blog had this post yesterday. It included nine reasons why the number of federal civil trials have declined.

Posted by Marcia Oddi on Wednesday, September 22, 2010
Posted to Courts in general

Tuesday, September 21, 2010

Ind. Courts - Tax Court applicants

The ILB will be doing brief workups on each candidate, similar to that done for the Supreme Court applicants.

If you are an applicant and have a photo you'd like me to use, please email it to me ASAP. (Otherwise, I'll try to find one online.)

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Indiana Courts

Ind. Decisions - More on today's Supreme Court decision on right to appellate counsel in termination proceedings

For the implications of the Supreme Court decision today in Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS (see ILB summary here) concerning the right to counsel in civil cases, particularly with respect to a parent fighting termination, I contacted Joel Schumm, the IU Indy law professor who wrote the petition to transfer and argued the case before the Supreme Court in June. His response:

This is a wonderful opinion for the hundreds of engaged and involved parents whose rights are involuntarily terminated every year. The Court of Appeals had held these parents had no statutory right to appellate counsel. The Supreme Court disagreed and made clear the right to appointed counsel continues to appeal, where a lawyer's assistance is especially important.

The second part of the opinion provides clear and workable guidance to appointed counsel whose clients do not appear at a termination hearing or cannot be located after the court issues its ruling. Absent direction from the client, a notice of appeal should not be filed.

The ILB has had number of earlier entries about this case, including; (1) the COA opinion summary on 2/17/10; and (2) copies of the petition to transfer, response, and reply. The Appellant's reply brief began:
This case is not simply about the right to appointed appellate counsel for a mother who has shown no recent interest in being a parent. Rather, the breadth of the Court of Appeals’ opinion affects hundreds of termination proceedings litigated around the state every year in which parents are fighting desperately for their right to maintain a relationship with their children. For many years and in many counties, these parents have routinely been appointed counsel for appeal. If the Court of Appeals’ opinion stands, appellate counsel will routinely be denied to many—and potentially all—of those parents, and there will be no appellate review of termination proceedings.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues second opinion today

In Term. of Parent-Child Rel. of I.B.; M.L. v. IDCS, a 10-page, 5-0 opinion, Justice Sullivan writes:

Following termination of an absent mother's parental rights, the juvenile court declined to appoint counsel to appeal the termination. Indiana law requires court-appointed counsel for an indigent parent who appeals the termination of his or her parental rights – but only where the parent himself or herself authorizes the appeal. * * *

As discussed above, the Indiana Code provides parents the right to representation by counsel in termination proceedings, including appeals. This case presents the dilemma counsel faces where, after a client's parental rights have been terminated, the client does not cooperate or communicate his or her instructions with respect to an appeal to the attorney. In an ordinary civil case in tort or contract, an attorney cannot proceed without a client's instruction. In the words of the United States Court of Appeals for the Second Circuit: “[a]n attorney's only ethical obligation is to serve his client loyally and competently . . . . Hence a client's decision not to pursue an appeal is one a lawyer must abide by because such a decision is exclusively that of the client.” Soliman v. Ebasco Servs. Inc., 822 F.2d 320, 323 (2d Cir. 1987) (citing Model Code of Prof'l Responsibility, EC7-7, EC7-8, EC7-9 (as amended, 1980)), cert. denied, 484 U.S. 1020 (1988). But should that be the case in termination cases where so much is at stake for both parent and child? * * *

An appeal of a decision to terminate parental rights, by its very nature, causes delay and prolongs the process of uncertainty for a child. To sanction an appeal as a matter of course would not further the objective of bringing permanency to the child through the prompt resolution of termination proceedings. As such, the policy objective of permanency is consonant with the lawyer's ethical obligations.

If a parent is present at the termination hearing and contests the termination of parental rights order, the parent is entitled to appeal the termination order with the assistance of court-appointed counsel as discussed in part I, supra – although the parent can certainly waive the right to appeal. When the parent does not appear at the termination of parental rights trial, is not present when the termination of parental rights order is issued, or has not had contact with counsel, the parent's trial lawyer has an obligation to contact the client and inform the client of the result of the termination proceeding. See Ind. Prof'l Conduct R. 1.3 and 1.4. At this point, the attorney can receive instructions with respect to an appeal. See id. at 1.2.

In the event that the lawyer does not know the whereabouts of the parent, the lawyer must use due diligence to locate the client during the time period between the entry of the termination of parental rights order and the time that the notice of appeal is due. If a lawyer is unable to locate the client despite due diligence or if the lawyer cannot get clear instructions from the client with respect to an appeal, the lawyer should not file a notice of appeal. * * *

In this case, Mother failed to appear at the termination of parental rights hearing and the hearing regarding the appointment of appellate counsel following the decision to terminate her parental rights. Her whereabouts were unknown. She had not been in contact with her lawyer or the State for many months before it filed the termination action. Due to Mother's own inaction, her counsel could not effectively or ethically represent that she wanted to file an appeal. “[A] child's right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney.” In re Dependency of C.R.B., 814 P.2d 1197, 1202 (Wash. Ct. App. 1991) (citation omitted). Her lawyer asked the court to appoint appellate counsel to appeal the decision. We find that our rules of professional conduct, guidance from other jurisdictions, and the principal policy considerations animating termination of parental rights adjudications all dictate that, on the facts of this case, the lawyer had no basis to file an appeal and the trial court was correct not to appoint appellate counsel for that purpose.

Conclusion. Parents have a statutory right to appellate counsel to appeal an order terminating their parental rights. This right to appeal can be waived. And it is improper for a parent's trial lawyer, after the lawyer has exercised due diligence to determine the parent's wishes with respect to an appeal, to pursue an appeal without the parent's authorization.

The judgment of the juvenile court denying appointment of appellate counsel to represent Mother in an appeal of the involuntary termination of the parent-child relationship order is affirmed.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Here are the Tax Court applicants

The individual applications submitted for the tax court may now be accessed online.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (1):

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

NFP criminal opinions today (1):

Jack Edward Martin v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In Koenig v. State, a 5-page, 5-0 opinion, Chief Justice Shepard writes:

Max Koenig was convicted of dealing in a schedule II controlled substance. Koenig contends the trial court violated his Sixth Amendment right to confrontation when it admitted a laboratory report without giving him the opportunity to confront the person who created the report. The Court of Appeals held the error was harmless, believing there was sufficient evidence to support the conviction without the lab report. We affirm the conviction, not because there was “sufficient evidence” of guilt without the report but rather because its admission was harmless beyond a reasonable doubt under Chapman v. California. * * *

Koenig contends a violation of the Sixth Amendment right to confrontation can never be harmless. He directs us to a footnote in a Court of Appeals opinion that states a harmless error analysis, after Crawford v. Washington, is not applicable to the Sixth Amendment. Jackson v. State, 891 N.E.2d 657, 662 n.5 (Ind. Ct. App. 2008). We conclude otherwise.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Here are the Tax Court applicants

Here are the applicants, listed in the order of their appearance on the interview list. Interviews will be Monday, Sept. 27, 2010. Per the press release: "Applications submitted to the Commission will be placed online by the end of the week," which would be Sept. 24th.

Ms. Martha Wentworth
Mr. George Angelone
Hon. Karen Love

Mr. Andrew Swain
Hon. Bruce Kolb
Ms. Marilyn Meighen

Mr. Joseph Pearman
Mr. Joby Jerrells
Ms. Melony Sacopulos

Mr. Dan Carwile

Hon. Carol Comer

Mr. Randle Pollard

Ms. Michelle Baldwin
Mr. Thomas Ewbank
Mr. Richard Hofmann

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending September 17, 2010

Here is the Clerk's transfer list for the week ending September 17, 2010. It is two pages (and 130 cases) long.

Four 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 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 Tuesday, September 21, 2010
Posted to Indiana Transfer Lists

Courts - "An inmate shouldn't die because of his lawyers' error"

A Washington Post editorial today about the SCOTUS appeal of Cory Maples. A sample:

A judge's order denying the last of Mr. Maples's state appeals was mailed to Mr. Maples's two appellate lawyers in New York, but the letters were sent back unopened and stamped "return to sender" because the lawyers had left the law firm but failed to inform the Alabama court. An Alabama lawyer acting as local counsel received the same letter but disregarded it, assuming that the New York lawyers would continue to take the lead.

The court's clerks office also did nothing. As a result, a deadline for filing a federal challenge passed. Mr. Maples immediately took action when he learned of the series of errors, but the U.S. Court of Appeals for the 11th Circuit denied his request to proceed, essentially concluding that he had to pay the consequences for his lawyers' mistakes.

SCOTUSblog has the 11th Circuit opinion, the cert petition, and the amicus briefs - scroll about 3/4 down this page of "notable petitions," dated Aug. 25, 2010.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Courts in general

Ind. Courts - " Camm judge delays decision on prosecutor: Defense wants to see copy of Henderson’s book manuscript"

Updating a lengthy list of earlier ILB entries, Matt Thacker has this story today in the Jeffersonville News & Tribune:

FLOYD COUNTY — A hearing on the defense’s motion to remove Floyd County Prosecutor Keith Henderson from the David Camm triple-murder case will be postponed, Special Judge Jonathan Dartt ruled Monday.

The hearing had been scheduled for Friday in Spencer County, but Camm’s attorneys asked for more time for witness depositions.

The defense wants a new prosecutor appointed because of an agreement Henderson had with a publishing company to write a book about the Camm case. A series of motions filed with the court last week shed new light on the book deal.

According to a motion by Camm’s attorneys, a copy of the agreement provided during discovery indicates a contract was entered into by Henderson on March 10, 2006. That was seven days after the jury returned a guilty verdict in Camm’s second trial and prior to sentencing.

Camm attorney Stacy Uliana accused Henderson of misleading the public by saying he never entered into an agreement until after the case was out of his hands.

“I find it all very serious, but it’s also just inconsistent with his representation to the media and to the public,” she said.

Henderson admitted he had an agreement with a literary agent in March of 2006 but said he did not have a contract with a publisher until early in 2009. That contract was terminated after the Indiana Supreme Court overturned Camm’s second conviction.

“I never thought then, nor do I think now, that signing an agreement to write about a case once it was over, that it was a conflict of interest,” Henderson said. * * *

Dartt was appointed to hear the third trial, which will be in Spencer County. A jury will be brought in from another county. Each side presented a list of proposed counties, but no county appeared on both lists. The prosecution chose locations in southwestern Indiana, while the defense selected counties to the north with Marion as the county farthest to the south on their list.

Depositions are scheduled today in a New York City courtroom for Henderson’s former publisher and agent, and transcripts should be available in eight to 10 days. The defense has also secured at least one expert in prosecutorial ethics.

Henderson objected to delaying Friday’s hearing, arguing that the hearing should be “an argument of the law, not a litigation of the facts.” He accused Camm’s attorneys of wasting time and taxpayer money so a new prosecutor without as much knowledge of the case will be appointed.

“They don’t want me to prosecute this case. I take that as a compliment actually,” Henderson said. “This isn’t about any sort of conflict. What do they think? I’m going to prosecute him harder just to sell books?”

Uliana said defendants have the right to a conflict-free prosecutor who will seek justice and she believes each decision Henderson makes is “colored by his desire to sell books.”

“Any time wasted or expense ... lies only at the feet of Prosecutor Henderson,” Uliana said. “There would be no delay nor would there be any expense if he would not have entered into a contract while the trial was still going on.”

Henderson also filed an objection to releasing any manuscript of the book, edited or unedited. He claimed that the document is “irrelevant” to the motion for special prosecutor. Dartt granted Henderson’s request that any manuscript that may be provided to the defense by another party be placed under seal and not disseminated to the public until after a hearing on the matter.

The defense responded by requesting again that Henderson or his representatives be ordered to produce the draft of the book.

In making their argument, they quote from an e-mail reportedly sent by Henderson to his agent, Frank Weimann, and co-author, Damon Dimarco, on July 30, 2009, which states, “The book cannot come out prior to the completion of a potential third trial. It would jeopardize the case, potentially getting me removed from the case due to certain disclosures and opinions we are writing into the book. This cannot happen.”

Camm’s attorneys say they need to know what those disclosures are. They also claim that Henderson wrote in an e-mail the same day that a reversal of Camm’s conviction and a third trial would make the case an even “bigger story” and worthy of more money.

“So profound is the conflict that every action by the prosecutor must be considered in light of his desire to publish this book,” according to the motion.

Henderson said his only concern about the book coming out early was its effect on a potential jury.

“I did not want a book to be published with information that could prejudice a jury,” Henderson said.

Henderson further explained that his comment about a “bigger story” was directed at the writer who had put a lot of work into the book before the deal was canceled. He said there is little money to be made in the book, and he was encouraging the writer to possibly negotiate a better deal if there was an opportunity for a book at a later date.

“I looked at it from the bright side. There’s a possibility there will be more to tell,” Henderson said.

The judge gave parties until Oct. 18 to file briefs and replies on the issue of producing the manuscript. A hearing on all remaining motions will be set after that date.

Posted by Marcia Oddi on Tuesday, September 21, 2010
Posted to Indiana Courts

Monday, September 20, 2010

Courts - "Three years after landmark court decision, Louisville still struggles with school desegregation"

Robert Barnes of the Washington Post has this lengthy report today that begins:

LOUISVILLE - Chief Justice John G. Roberts Jr. made it sound so simple that day in 2007, when he and four other members of the Supreme Court declared that this city's efforts to desegregate its schools violated the Constitution.

"The way to stop discrimination on the basis of race," Roberts wrote, "is to stop discriminating on the basis of race."

But life has been anything but simple for school officials here. They have steadfastly - or stubbornly, depending on the point of view - tried to maintain integrated classrooms despite the court's command that officials not consider race when assigning children to schools.

Consultants were hired, lawyers retained, census data scrubbed, boundaries redrawn, more buses bought, more routes proposed, new school choices offered and more lawsuits defended.

The final product, which integrates schools based on socioeconomic factors rather than on race alone, has proven to be more complex and costly than the previous system. Long bus rides and complaints from a vocal minority of parents have threatened popular support of the plan. The school board has delayed full implementation. The legislature is contemplating whether to guarantee parents a spot in their neighborhood schools.

It has been a long three years for school officials since the court for the first time took away the simplest and most efficient way to integrate classrooms: making decisions based upon a student's race. It was a landmark moment for a court that has long struggled with race-conscious decisions by government: when they are warranted, and when they have outlived their usefulness.

The ruling also marked a key moment in the emerging identity of the court headed by Roberts, who will mark his fifth anniversary as chief justice this month. It showed clearly a new majority of justices willing to move aggressively on social issues that had long divided their predecessors. * * *

Liberals sounded a call to arms, and at the end of the first full term of Roberts and Alito together, Justice Stephen G. Breyer signaled his unease with a comment that summed up the left's point of view on the new court.

"It is not often in the law that so few have so quickly changed so much," Breyer said.

But if the law changes quickly, the real-life implications of a Supreme Court decision can take years to unspool.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Courts in general

Ind. Courts - Coverage of Daniels' Supreme Court appointment

Governor Daniels' selection Friday of Judge Steven David for the Indiana Supreme Court (see the ILB's Friday coverage here, here, and here) led to several press stories over the weekend, including:

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Indiana Courts | Vacancy on Supreme Ct

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

For publication opinions today (1):

In Obed Kalwitz, Jr., et al. v. Eugene Kalwitz, et al. , a 21-page opinion, Judge Vaidik writes:

Obed A. Kalwitz Jr. and his wife Rolene Kalwitz appeal the small claims court‘s order in favor of Obed Jr.‘s siblings Eugene D. Kalwitz and Sharon K. Grieger. Specifically, Obed Jr. and Rolene contend that the small claims court erred by denying their request for a change of judge, determining that their claim is barred by res judicata, and assessing compensatory and punitive damages as well as attorney‘s fees against them. We conclude that there is no error. We also conclude that Eugene and Sharon are entitled to appellate attorney‘s fees and costs for Obed Jr. and Rolene‘s bad faith in bringing this appeal. We therefore affirm and remand to the small claims court for a determination of the amount of appellate attorney‘s fees and costs to which Eugene and Sharon are entitled. * * *

As a final matter, Eugene and Sharon request appellate attorney‘s fees and costs pursuant to Indiana Appellate Rule 66(E), which provides in pertinent part, "The Court may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court‘s discretion and may include attorneys‘ fees. The Court shall remand the case for execution." The Court of Appeals uses extreme restraint in awarding appellate damages because of the potential chilling effect upon the exercise of the right to appeal. In re Estate of Carnes, 866 N.E.2d 260, 267 (Ind. Ct. App. 2007). Nonetheless, this case is an example of when a chilling effect is necessary to put an end to the matter. We conclude that Obed Jr. and Rolene‘s appeal, and indeed the entire lawsuit, was brought in bad faith and for purposes of harassment. We therefore remand to the small claims court for a determination of the amount of appellate attorney‘s fees and costs to which Eugene and Sharon are entitled.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Antionette Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two interesting non-Indiana decisions today from the 7th Circuit

The opinion in Spivey v. Adaptive Marketing, involving an Illinois case, is notable because it was written by "The Œ Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a)." From p. 13 of 17:

The voluntary payment doctrine has long been recognized in common law and accepted by the Illinois courts whose jurisprudence we apply in this diversity action. The doctrine, stated succinctly, maintains that “[a]bsent fraud, coercion or mistake of fact, monies paid under a claim of right to payment but under a mistake of law are not recoverable.”
The second opinion, out of Wisconsin, Guajardo-Palma v. Martinson, involves the issue of prison mail. Some quotes from Judge Posner's 12-page opinion:
This appeal from the dismissal of a suit for failure to state a claim presents the recurrent issue of the constitutional rights of prison inmates regarding “legal mail,” a technical term for mail relating to legal proceedings. Fed R. App. P. 4(c); Fed. R. App. P. 25(a)(2)(C). Almost all civil proceedings by prisoners pit the prisoner against employees of the prison, the prison itself, or a state or federal correctional authority. It is natural for courts to be concerned about the defendants or their agents reading the prisoner’s correspondence with his lawyer, if he has one. It is like a litigant’s eavesdropping on conferences between his opponent and the opponent’s lawyer. The plaintiff claims that his constitutional rights were violated when prison guards, outside his presence, opened legal mail addressed to him. * * *

No legal mail is sacrosanct, however. Prison officials cannot be certain, just from the return address on an envelope, that a letter is from a lawyer (or indeed from a court or agency) rather than from a criminal confederate of the prisoner masquerading as a lawyer, as in Fontroy v. Beard, 559 F.3d 173, 175 (3d Cir. 2009), and State v. Steffes, 659 N.W.2d 445, 448-49 (Wis. App. 2003).

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

Courts - Jury issues in major criminal trials

I read this NY Times "Reporter's Notebook" story Sunday by William Glaberson, headed "In Court, Echoes and Ghosts," about a the nationally-reported jury trial now going on in Connecticut and indeed it did bring back images from earlier horrific cases, such as "In Cold Blood."

This entry from How Appealing yesterday collected together several stories on the trial, including this one from the New Haven Register headlined "Trouble in the jury box: Jurors quitting may put Hayes case at risk." The story begins:

On “Law & Order,” the prosecutor makes grand statements, jurors hang on every word and trials are wrapped up in 45 minutes.

In real life, even in high-drama cases like the Cheshire triple-homicide trial, it’s not that simple or exciting. When juror John Lively was excused last week after complaining about the way the prosecution was proceeding, the so-called “TV effect” may have contributed.

New Haven criminal defense attorney William F. Dow III said Lively might have anticipated “Law & Order” going in, if you take Lively’s comments at face value.

“One of the messages here is that real trials are not like scripted TV — they are detailed, intense, exciting in one moment and boring in the next,” Dow said.

The loss of Lively and three other jurors in the first two days of the triple-homicide trial of Steven J. Hayes may have a more ominous impact. Some in the legal community are anxious about a potential mistrial.

At the outset of the proceedings on Monday, Superior Court Judge Jon C. Blue excused three of the 19 jurors from serving, leaving 12 regulars and four alternates. One panelist said she had heard too much about the case; a second said her work obligations had changed; and a third said, “I don’t think I want to go through” a trial.

Then on Tuesday, Lively of New Haven’s Westville neighborhood, was dismissed after he criticized the way the prosecution was presenting its case. One selected juror was excused prior to the start of the trial.

The panel is now down to 12 regular members and three alternates for a trial estimated to last up to three months. Hayes potentially faces the death penalty. Under state law he is entitled to a trial with 12 jurors, and would have to consent to the jury being any smaller.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Courts in general

Environment - "Opponents warn of dangers of hog industry growth Indiana's hog industry has grown -- but CAFO opponents from North Carolina warn Hoosiers wouldn't want it to reach the level seen in their state"

That is the headline to a major story by Seth Slabaugh in the Sept. 13, 2010 Muncie Star-Press. It begins:

MUNCIE -- Gov. Mitch Daniels' onetime goal of doubling Indiana's pork production hasn't happened. And that's lucky for Indiana residents and waterways, according to an environmental activist from North Carolina, where the result of a much larger inventory of hogs has been devastating.

"In one fish kill alone in three days we lost a billion fish on the Neuse River," Rick Dove of the Waterkeeper Alliance and the Neuse Riverkeeper Foundation told Hoosier CAFO opponents at a recent Indiana CAFO Watch conference in Muncie.

"If you have one or two CAFOs (concentrated animal feeding operations), you will probably have very few problems with the waterways and the air," Dove said. "But when you get to the point where you're producing fecal waste equivalent to 100 million people and dumping it on the ground ... then you've got people getting sick and fish dying."

Indiana hasn't had catastrophic fish kills from hog waste like North Carolina. But the severity of fish kills in East Central Indiana related to hog manure being applied to farm fields is on the rise, including 46,962 dead fish in Randolph County's Little Mississinewa River in 2008.

Much of the expansion in Indiana's pork industry since Daniels took office has occurred in East Central Indiana, with Jay and Randolph counties leading the state in new permits for swine CAFOs. When Daniels took office five years ago, he made a commitment to double pork production in Indiana; that goal has since been changed to 3 percent growth per year.

"If you keep building CAFOs, it (fish kills) will be in the hundreds of thousands and then millions, and then it will be in the billions," Dove said during the conference at the Unitarian Universalist Church.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Environment

Courts - "Missouri Tells Judges Cost of Sentences"

A story dated Sept. 18, in the NY Times, reported by Monica Davey, begins:

ST. LOUIS — When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.

For additiotnal views, see the links and comments at the end of this entry in the Sentencing Law Blog.e

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Courts in general

Ind. Courts - FWJG editorial looks at judicial campaigns

Updating the Sept. 13th ILB entry headed "Campaigning for Allen County bench has rules, spending cap", which quoted from a Sept. 12th story by Rebecca S. Green, the Fort Wayne Journal Gazette on Sept. 17th, ran this lengthy editorial, under the headline "The silenced candidates."

Indiana’s attempts to balance the rights of voters to hear candidates’ views with the need for an unbiased judiciary are, by their nature, works in progress. Legislative changes and higher court First Amendment rulings can shift the landscape surrounding those sometimes-conflicting goals.

The real problem in patchwork rules and laws governing Hoosier judicial campaigns concerns haphazard inconsistencies. The main question Hoosier legislators need to address: Are judges best chosen by voter popularity or by an admittedly imperfect process involving screening by peers and appointment?

With a heated three-person race for Allen Superior Court judge this November, the question is more than simply academic. Rebecca S. Green’s Sunday story [i.e. the Sept. 12th story] explained the rules governing campaigning by Indiana judges. Here’s a look at some questions surrounding the issue:

Why does state law restrict what judicial candidates can say during campaigns? Candidates for all the other offices can pretty much say what they want.

It’s not state law that restricts speech, it is the Indiana Supreme Court, which has wide latitude to govern the conduct of judges – and, apparently, attorneys who are candidates for judge. The court basically has two reasons. One is to maintain the integrity of and trust in the courts by forbidding candidates to disparage other candidates. The other is to prevent candidates from stating views on how they would rule that could be interpreted as predetermining the outcome of a case.

For example, a candidate can promise to start or end a drug court but cannot proclaim “all drug users should go to prison.”

But shouldn’t judicial candidates have the same First Amendment rights as other candidates? Hasn’t the U.S. Supreme Court said so?

That was indeed the high court’s reasoning in 2002, when justices threw out similar rules in Minnesota.

So, doesn’t Indiana have to follow that ruling?

This is where it gets even more complicated. Many Supreme Court rulings lay down new rules to follow, but legal arguments over exactly what those rules mean – especially at the margins – can continue for years. As the U.S. Court of Appeals in Chicago wrote in an August case concerning Indiana’s rules, “The (2002) decision left open myriad questions of implementation.”

In 2008, U.S. District Judge Theresa Springmann of Fort Wayne said the state court cannot enforce rules that would effectively prevent judicial candidates from filling out a questionnaire from Indiana Right to Life. In 2009, the Indiana Supreme Court did indeed relax its rules – somewhat. Last month, the U.S. Court of Appeals upheld the new rules, essentially deciding that because no judicial candidate has been punished under the revised canons of judicial ethics, the lawsuit was premature – “unripe” in legal terms (though the mere existence of the rules doubtlessly casts a chilling effect on any candidate considering filling out such a questionnaire).

The recent ruling discussed the complexity of the issue, noting: “It is not as if Indiana could make everything clear by changing a few words.”

What about the $10,000 campaign spending limit?

That law applies only to Allen County, illustrating the patchwork nature of laws governing Indiana county-level courts. If a candidate were to ever challenge it – and that’s unlikely – it could well be found to be unconstitutional.

The principal inconsistency is how Hoosiers choose county-level judges – no fewer than seven methods exist, including partisan elections, non-partisan elections and merit appointments.

Last year, Gov. Mitch Daniels rightly vetoed a bill that would have, among other steps, changed the method of selecting judges in South Bend and St. Joseph County from appointed to elected.

Should judges be elected or appointed?

Both ways have pros and cons. The bottom line is that even after the law changed Allen County selection of Superior Court judges from appointed to elected in 1982, many retired mid-term, allowing the governor of their choice to make the appointment. Judges Stan Levine, Kenneth Scheibenberger, John Surbeck, Nancy Eshcoff Boyer and David Avery were all appointed to the bench.

The appointment method – with a nominating commission choosing finalists and the governor making the appointment – has worked well both for the county, as well as at the appeals court and state Supreme Court.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Indiana Courts

Environment - "Fort Wayne, state in legal spat over asbestos testing: In lawsuit filed last week, city claims IDEM is misperceiving scope of structure demolitions"

Sarah Janssen reported in the Fort Wayne News-Sentinel Sept. 18th in a story that began:

The city is suing the Indiana Department of Environmental Management, requesting the agency no longer require the city to test single-family dwellings for asbestos before demolition.

In a suit filed in Allen Superior Court last week, the city claims that IDEM is over-reaching its control in the implementation of the federal Clear Air Act, which includes regulating air pollutants like asbestos.

Under the Unsafe Building Law, the city’s Department of Neighborhood Code Enforcement (NCE) orders the demolition of structures considered hazardous or uninhabitable. In a period of one year, NCE orders the demolition of as many as 120 single-family dwellings located throughout the city under the Unsafe Building Law, according to the lawsuit.

Because these demolitions are part of the same planning or scheduling period, IDEM considers them all under the same project and requires asbestos testing and abatement. The city says in the lawsuit that these structures are not usually located near one another and are more likely to be spread throughout the city.

Asbestos testing costs the city about $386 per structure, which amounts to $10,036 for the 26 structures needing testing in a given year, according to the lawsuit. Of the 26, 18 required asbestos removal, costing up to $2,000 per structure, for a total of $36,000. * * *

In the suit, the city is requesting:

♦a statement that asbestos testing and abatement does not apply to single-family dwellings.

♦an injunction preventing IDEM from enforcing the testing and removal.

♦a monetary award for the costs of legal action.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Environment | Indiana Government

Ind. Courts - "Deed covenants argued in Covered Bridge annexation case"

Ben Zion Hershberg reported Sept. 17th in the Louisville Courier Journal in a story that begins:

Lawyers for the town of Sellersburg and residents of the Covered Bridge and Willows of Covered Bridge subdivisions argued Friday about whether the residents can legally fight annexation by the town.

To do so, Sellersburg lawyer Perry McCall said, at least 504 valid signatures from residents of the roughly 1,800-acre area that the Town Council voted to annex in December must be on a petition opposing the annexation.

But McCall said 496 of the 632 signatures gathered by the residents aren’t valid because deeds to their lots include covenants saying the property owners can’t fight annexation by Sellersburg, which provides them sewer service. The annexation also included lots between Sellersburg and Covered Bridge, but that area isn’t as heavily populated as the two subdivisions.

“No attempts to change those covenants” have been made by the property owners, McCall told Special Judge Roger Davis. He asked the judge to dismiss the residents’ petition.

But Andrew Wright, the lawyer for the residents, said state law requires that the agreements between the town and the subdivision’s developer on which the covenants were based to be on file with the county recorder, or the covenants can’t be enforced.

Posted by Marcia Oddi on Monday, September 20, 2010
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/20/10):

Next week's oral arguments before the Supreme Court (week of 9/27/10):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 9/20/10):

Next week's oral arguments before the Court of Appeals (week of 9/27/10):

Next Tuesday, September 28th

Next Wednesday, September 29th

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, September 20, 2010
Posted to Upcoming Oral Arguments

Friday, September 17, 2010

Ind. Courts - Two cases of major interest on CA 7 oral argument Monday

Two cases of major interest on CA 7 oral argument Monday:

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Indiana Courts

Ind. Courts - Even more on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

Updating this most recent (Sept. 10th) ILB entry, this item from the Sept. 20th issue of Indiana Legislative Insight ($$), reprinted with permission:

Some Hoosier attorneys are already receiving letters and even phone calls seeking votes for some of the five applicants for the attorney member of the Judicial Nominating Commission representing the Second District, the 19-county judicial district that includes Indianapolis and much of the central part of the state. Indianapolis attorney John C. Trimble rotates off after completing his three-year term.

The quintet of candidates are

  • Jan M. Carroll of Barnes & Thornburg (and the wife of Judge John Tinder of the U.S. Court of Appeals for the Seventh Circuit);
  • criminal defense attorney David R. Hennessy of Indianapolis;
  • Kathy L. Osborn of Baker & Daniels;
  • Joel Schumm, the law professor at the Indiana University School of Law - Indianapolis whose blogging about the Supreme Court interviews for the Indiana Law Blog helped to elevate the level of attention to the Commission in the legal community; and
  • trial lawyer William E. Winingham of Wilson, Kehoe & Winingham.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Indiana Courts

Law - "Another Lesson in How Not to Handle a Traffic Stop "

This is fun reading. From Above the Law. a story about "Woman allegedly performed model walk, asked for ‘Amanda rights’ during traffic stop." But there is more, links to other true traffic stop stories, such as "Do not try to get out of the ticket by bragging about your job at the prosecutor’s office."

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to General Law Related

Ind. Decisions - More on: "Indiana girl loses 14th Amendment argument to show us her breasts"

Updating yesterday's ILB entry on the NFP opinion in the case of C.T. v. State of Indiana, don't miss fellow-attorney/blogger Doug Masson's comments this morning under the heading "Hoosiers Remain Safe From The Scourge of Bare (Female) Breasts." Samples:

Standing as a thin shield between Hoosiers and a plague of bare (female) breasts, Judge Cale Bradford wrote an opinion rejecting a 16 year old girl’s fourteenth amendment claim that it’s a violation of the Constitution’s equal protection guarantees to outlaw the public display of female breasts while allowing men to flaunt their nipples freely.

But Judge Bradford knew better. He recognized that, in its ultimate wisdom, the Indiana General Assembly recognized that a girl’s chest is a threat to public safety where a man’s chest is not. (I paraphrase). The reason? Men’s nipples are not erogenous zones. So, if you thought otherwise, you now know better:

We do not believe that it can be seriously disputed (and C.T. does not) that Hoosier society, in general, considers the female breast to be an erogenous zone but does not consider the male breast to be one: public display of the former is almost certain to cause offense and unease while public display of the latter is not.
We do not believe that it can be seriously disputed (and C.T. does not) that Hoosier society, in general, considers the female breast to be an erogenous zone but does not consider the male breast to be one: public display of the former is almost certain to cause offense and unease while public display of the latter is not.

Aside from the weirdness of suggesting that erogenous zones have to be covered up — hats over those ears, people! And no sandals for you toe freaks! — there’s a chicken & egg problem here. If female breasts were on display 24/7, I’m pretty sure the offense and unease would disappear.

ILB: Two other interesting points about this decision. It was deemed "Not for Publication"; it is my understanding that designation is made by the writing judge. And, before that, it was decided, presumably by the panel, that there would be no oral argument in the case (much less a video-cast). Hmmm.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In Indiana Patient's Compensation Fund v. Beverly S. Brown, et al. , a 16-page opinion, Judge Crones writes:

Beverly Brown, as executor of the estate of Barbara Frieden, settled a medical malpractice claim for the statutory limit and then petitioned the Indiana Patient's Compensation Fund (“the Fund”) for additional compensation. The trial court awarded $278,377.55, which included compensation for attorney fees, litigation costs, estate administration costs, and loss of services to Frieden's parents. The Fund contends that these damages are not authorized by the Adult Wrongful Death Statute (“AWDS”). We affirm.
ILB: A "must read" on GWDS and AWDS.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of D.B. and A.B.; R.B. v. IDCS (NFP)

NFP criminal opinions today (1):

Gordon Northrup, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court splits on attorney fees disciplinary case

In In the Matter of Kenneth E. Lauter, a 6-page, 3-2 per curiam opinion, the Court writes:

We find that Respondent, Kenneth E. Lauter, engaged in attorney misconduct by failing to communicate adequately the basis of his fee to a client. For this misconduct, we find that Respondent should receive a public reprimand.* * *

In the current case, Respondent and the client agreed at the outset to leave the amount of the additional retainer initially undetermined. We view the problem in this case more as Respondent's failure at the outset to communicate his fee adequately to the client rather than as a later ethical lapse when setting the amount of the additional retainer. If Respondent had made adequate disclosure of his fee at the outset, the safeguards of Rule 1.8(a) would not be necessary to protect the client. Having found that Respondent violated Rule 1.5(b) at the outset, we decline to find that he also violated Rule 1.8(a).

Conclusion. The Court concludes that Respondent violates Indiana Professional Conduct Rules 1.5(b) and 1.5(c) by failing to communicate adequately the basis of his fee to a client. For Respondent's professional misconduct, the Court imposes a public reprimand.

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged. * * *

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

Dickson and Rucker, JJ., dissent, believing that the Commission did not prove a charged violation by clear and convincing evidence and thus that the Hearing Officer correctly found no violation and recommended a finding in favor of the Respondent.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on Judge David's nomination

Mary Beth Schneider writes today:

“I might have used (gender diversity) as a tie-braker. But this was not a tie,” Daniels said. “My task was to find the best person on the merits, and I’m sure I did. Now the state is going to benefit from that for years to come.”
My thoughts: Nineteen women and fifteen men applied for this vacancy. Several of the applicants were, in my opinion and that of a number of others, at least as qualified, if not more so, than the three names sent to the Governor. And they were women.

This year we were all privy to the applications and the interviews. And we had the benefit of Prof. Schumm's research into the work product of most of the final nine. So we saw what the Judicial Nominating Commission saw of the candidates, but we were not privy to its inner deliberations and votes.

Three of the seven members of the Judicial Nominating Commission were appointed by Governor Daniels. Three were elected by the members of the Indiana bar. The seventh member, and chair, is the Chief Justice.

In my opinion, the Nominating Commission did not forward the names of the strongest (on the merits) three applicants to the Governor. If they had, at least two women would have been on the final three. Again, these are my thoughts, based on my analysis. The Nominating Commission weighed the applicants and came to a different conclusion.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Here is everything available right now on the Governor's announcement

From the Governor's press offfice:

Daniels selects Steven David to join Indiana Supreme Court

INDIANAPOLIS (September 17, 2010) – Governor Mitch Daniels today announced he has selected Boone County Circuit Court Judge Steven H. David as the next member of the Indiana Supreme Court. David will replace Justice Theodore R. Boehm, who will retire from the court on September 30.

“In a group of admirable finalists, Judge Steven David stood out first for the breadth and diversity of his experience. In addition to a distinguished 15-year tenure on the bench, he spent years in business, on the receiving end of law and regulation. He compiled a highly decorated military career, during which he was tested in one of the most sensitive and challenging assignments imaginable,” said Daniels.

“Lastly, I heard from Steve David the clearest expression of commitment to proper restraint in jurisprudence, and to deep respect for the boundaries of judicial decision-making. He will be a judge who interprets rather than invents our laws,” said the governor.

Marion Superior Court Judge Robyn L. Moberly and Karl L. Mulvaney, a partner at the Indianapolis law firm of Bingham McHale, were the other two finalists.

David, 53, has an extensive background in private law practice, in the military and in business. Since 1995, he has been a judge in Boone County, handling civil, criminal and all juvenile matters. He is known for his passion and efforts to improve the availability of mental health services for children and has offered his time in the community for many juvenile programs. For example, he has served on the board of directors for the Zionsville and Lebanon Boys and Girls Clubs at various times during his career.

“I look forward to working with the absolute best supreme court in the United States, the absolute best court of appeals, and all the trial judges and every lawyer. Most importantly, I look forward to serving the citizens of the state of Indiana. This was an opportunity to work in a different capacity. I believe my life is about public service. I have the upmost respect for the Constitution of our country and of this state,” said David.

He also is dedicated to military service, and has more than 27 years of commissioned service as with the U.S. Army in active and reserve duty, earning the rank of colonel. David was the chief defense counsel for the Office of the Military Commissions at Guantanamo Bay, Cuba, in 2008. David is highly decorated, having earned the Defense Superior Service Medal, the Meritorious Service Medal with three Oak Leaf clusters and the Army Commendation Medal with three Oak Leaf clusters, among other awards.

David graduated from Columbus North High School, earned his undergraduate degree from Murray State University and his law degree from Indiana University-Indianapolis in 1982. Subsequently, he served as a U.S. Army JAG officer stationed from 1982-1986 in Georgia and at Ft. Benjamin Harrison, in private practice in Columbus from 1986 to 1988, and was Mayflower Transit Corporation’s counsel and senior attorney from 1988 to 1994.

David has testified before state and federal panels about juvenile law and security issues, is a speaker and lecturer on legal matters, and developed Boone County’s continuing legal education program.

A date for David’s robing ceremony will be determined by the Supreme Court.

David’s biography and photo.

Audio from this morning’s announcement.

Video from the announcement will be available this afternoon on the governor’s YouTube channel.

[More] Mary Beth Schneider of the Indianapolis Star reports:
Indiana is one of only two states in the nation that does not have a woman on the Supreme Court. In Indiana’s history, only one woman has served on the court — Myra Selby, who served 1995 to 1999.

Daniels said he would have “liked nothing more” than to name a woman to the court. But, he said, the “breadth and diversity of David’s experience” stood out.

“I might have used (gender diversity) as a tie-braker. But this was not a tie,” Daniels said. “My task was to find the best person on the merits, and I’m sure I did. Now the state is going to benefit from that for years to come.”

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - Still more on: It is today!

Governor Daniels has selected Judge Steven David as the Indiana Supreme Court's, and Indiana's, newest justice.

For more on Judge David, see:

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Vacancy on Supreme Ct

Ind. Courts - More on: It is today!

The smart money today is on Judge David (top left photo).

Here, from the ISBA staff newsletter, is how he spends his weekends:

Catheryne and her husband, Judge Steven David, participated in the Nation's Triathlon in Washington, D.C., over the weekend. The triathlon consisted of a 1.5k swim, 40k bike ride and 10k run. Whew, congrats to both of you! On the agenda for this weekend is the Tennessee v. Florida football game (after UT's spectacular loss to Oregon this past Saturday, they will have to really rally against the Gators)!
Which will leave Indiana still as one of two states with NO WOMEN justices!

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Vacancy on Supreme Ct

Law - More on "Digital Data Makes For A Really Permanent Record"

Supplementing this ILB entry from Nov. 1, 2009, about how "expungement" really has little effect in today's digital world, Michael Booth of the New Jersey Law Journal has an interesting article dated Sept. 16, 2010, headed "Case Tests Whether Circulating News About an Expunged Conviction Is Libel." It begins:

If a criminal conviction is expunged, did it ever exist? That's what the New Jersey Supreme Court is being asked to decide, and its answer will determine whether one who publicizes a conviction after expungement is committing defamation.

The Appellate Division ruled last December that a truthful statement that a person has been convicted of a crime is not actionable, even if the conviction has been expunged. "In our judgment, plaintiff's successful expungement of his record does not make defendants' statements about that record 'false,'" wrote Judge Dorothea Wefing.

The Hudson County Democratic Organization was thus within its First Amendment rights when it circulated the flyers during an election campaign, stating that a former aide to a candidate it opposed had once been convicted of a drug charge, the appeals court said.

But the aide insists in his libel suit G.D. v. Hudson County Democratic Organization, A-85-09, that the court should create the legal fiction that his conviction never existed.

The courts and the Legislature create legal fictions all the time, and without them "the legal system would cease to operate," G.D.'s lawyer, Charles Cohen, told the court on Tuesday.

Justices Barry Albin and Roberto Rivera-Soto asked Cohen to explain how the public record could be swept clean. "You're un-ringing the bell," said Rivera-Soto, adding that there is nothing in the record to suggest the defendants knew the conviction had been expunged.

The expungement, said Cohen, created the legal fiction. "That conviction did not happen," he said.

"You're asking us to just razor [the conviction] out," said Albin.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to General Law Related

Ind. Courts - It is today!

From the Governor's office: "Governor Daniels will announce his selection for the next member of the Indiana Supreme Court today at 10:30 a.m. in his office."

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Vacancy on Supreme Ct

Ind. Gov't - An observation

Interesting how the tables are turning and the traditional media is following stories originated by local bloggers now -- eg. the parking meter contract and CIB financing. And of the traditional media, the one to read now for local reporting is the Indianapolis Business Journal.

Posted by Marcia Oddi on Friday, September 17, 2010
Posted to Indiana Government

Thursday, September 16, 2010

Ind. Decisions - "Indiana girl loses 14th Amendment argument to show us her breasts"

Today's NFP opinion in the case of C.T. v. State of Indiana (NFP) is the subject of a story this afternoon in the Indianapolis Star, compiled by Star breaking news editor Gregg Montgomery. Some quotes:

A girl accused of exposing her breasts on an Indianapolis street cannot argue that the 14th Amendment to the Constitution gives her the freedom to do it, the state's appeals court ruled today.

Indianapolis metropolitan police on June 16, 2009, responded to a report of three females exposing themselves to passing vehicles.

One of the three, a 16-year-old girl who is identified only by initials in court documents, could have been charged with a misdemeanor charge of public nudity if she were 18 or older and classified as an adult.

The 14th Amendment's equal protection clause says no state "shall deny to any person within its jurisdiction the equal protection of the laws."

The girl's appointed public defender, Joel M. Schumm, argued Indiana's nudity law was unfair because it covers the nipples of women, but not men. * * *

Schumm said he was disappointed with the appeals court ruling and its decision not to hear oral arguments in the case. He will discuss with the girl the possibility of moving the case to the Indiana Supreme Court.

The public defender said his written arguments to the appeals court outlined traits shared by both genders' breasts. But, Schumm said, history, stereotypes and public sensitivity appear to be defining Indiana's nudity law.

The girl said the justification of public nudity laws often "appears to be the vague notion of public or moral sensibilities," court documents showed. * * *

In the appeals court decision, Judge Cale Bradford wrote, "In the end, (the girl) would have us declare by judicial fiat that the public display of fully-uncovered female breasts is no different than the public display of male breasts, when the citizens of Indiana, speaking through their elected representatives, say otherwise. This we will not do.

"We conclude that Indiana's public nudity statute furthers the goal of protecting the moral sensibilities of that substantial portion of Hoosiers who do not wish to be exposed to erogenous zones in public."

The appeals court decision, affirmed by all three judges, upheld an earlier ruling in a Marion County juvenile court.

The juvenile court discharged the girl to her mother, court documents said.

Laws in some states and localities -- including ones in Hawaii, Maine, New York, Ohio and Texas -- allow public display of women's breasts, according to law sources.

Here are the briefs:See particularly the two paragraphs beginning "The most common justification for female-nipple regulations appears to be the
vague notion of public or moral 'sensibilities'" on pp. 8-9 of CT's initial brief.

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court clarifies its mandate to City of East Chicago

In Foundations of East Chicago v. City of East Chicago, a 3-page, 5-0 ruling on a petition for rehearing, Chief Justice Shepard writes that in its initial opinion the Court held that:

the flow of funds in support of local economic development was governed by the license issued by the Indiana Gaming Commission and that alteration of this distribution was within the authority, judgment, and supervision of the Commission.
Today's opinion continues:
By way of petition for rehearing, Foundations reports that even before our decision had been certified the City moved the trial court to terminate the escrow account into which the licenseholder’s economic development contributions have been deposited and return the balance in the account to the City of East Chicago. This motion was, of course, premature under the appellate rules. Ind. Appellate Rule 65(E) (“[P]arties shall not take any action in reliance upon the opinion or memorandum decision [by a court on appeal] until the memorandum or decision is certified.”). The trial court rightly denied the City’s request on that ground alone.

Even if timely, however, the request that the trial court order the economic development funds redirected to the City on the basis of its ordinance and the 2007 amendment fell within the core of our decision in this case, and that decision was adverse to the City’s position that it possessed unilateral authority to redirect the funds. Thus, the City’s motion for an order directing that the escrowed funds be transferred to the City should be denied on its merits if timely filed.

We grant rehearing for purposes of this clarification of our mandate, and otherwise leave intact our original opinion.

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Hogsett's hearing set

Updating this ILB entry from Sept. 8, the Senate Judiciary Committee this morning has approved Joseph H. Hogsett's nomination to be United States Attorney for the Southern District of Indiana.

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Adoption of N.W., M.W. v A.W. , a 10-page opinion, Judge Riley writes:

Appellant-Respondent, M.W. (Mother), appeals the trial court's grant of adoption of the minor child, N.W., by A.W. (Stepmother). We reverse.

Mother raises two issues on appeal, which we consolidate and restate as: Whether the trial court erred in concluding that Mother's consent to the adoption of her minor child by Stepmother was not required.

In Matthew B. Ashworth v. Kathryn Ehrgott (Ashworth) , a 25-page opinion, Judge Vaidik writes:
Matthew Banks Ashworth (“Father”) and Kathryn (Ashworth) Ehrgott (“Mother”) have two children and divorced in Tennessee in 2006. Father was ordered to pay alimony and $2500 per month in child support to Mother. Mother later remarried and relocated to Indiana with the children. Father, who now lives in California, unilaterally reduced the child support to Mother. Mother registered the Tennessee child support order in Indiana and sought to obtain the original amount from Father here. Father then filed a motion to modify his child support obligation, and the trial court ordered him to pay $612.10 per week. Father now appeals raising numerous issues.

Concluding that the trial court abused its discretion in failing to deduct Father's $1500 monthly alimony payment from his weekly gross income because it is a maintenance payment to Mother, that the trial court failed to credit Father for the children's health insurance premium, that the trial court improperly included his daughter's full-time preschool expenses as a work-related child care expense for Mother even though she was not working, and that the record does not support the trial court's order that Father pay for his son's private school tuition as added child support, we reverse and remand on these issues. On all other issues, we affirm.

In Brownsburg Municipal Building Corp. v. R.L. Turner Corp., et al. , an 8-page opinion, Sr. Judge Sharpnack writes:
[W]e conclude that when Sections 4.4.1 and 4.4.5 are read together, they give the Architect final and binding authority for a period of thirty days after a claim has been made. If the Architect fails to make a timely decision, and the Contractor or Owner files suit before a decision is made, the Architect’s post-complaint decision is neither final nor binding. Furthermore, we observe that the cases cited by Brownsburg are inapposite, as they do not involve a provision of limitation such as Section 4.4.1.

In addition to the impact of the contract language on this case, the parties disagree about the timeliness of Turner’s claims and the Architect’s decision. The parties contend that the designated evidence supports their claims. Our review discloses that there is a genuine issue of material fact as whether Turner and/or the Architect timely complied with the provisions of the contract. In short, the trial court did not err in determining that a grant of partial summary judgment was improper.

NFP civil opinions today (3):

Jason Barrett v. Scores, Inc. and Jason English (NFP)

A.E., et al., Alleged to be CHINS; T.E. v. IDCS (NFP)

Richard Wion d/b/a Lothlorien Farms v. Town of North Manchester (NFP)

NFP criminal opinions today (8):

Calvin Sanders v. State of Indiana (NFP)

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

William C. Davis v. State of Indiana (NFP)

James Griffith v. State of Indiana (NFP)

Timothy Manges v. State of Indiana (NFP)

Aaron Spears v. State of Indiana (NFP)

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

Arron Declue v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Whether to waive boy, age 15, to adult court to stand trial on charges of attempted murder, aggravated battery and battery"

That is the subject of two good stories by Rebecca S. Green of the Fort Wayne Journal Gazette. The first was published Sept. 11, 2010, and headed "Judge to rule on juvenile slasher." Some quotes from the lengthy story:

FORT WAYNE – The knife sat, hidden in a sealed white box on the edge of the prosecutor’s table, throughout the daylong hearing in a juvenile courtroom.

But everything about the life of the 15-year-old boy who wielded it in January was laid bare before Allen Superior Court Judge Stephen Sims, who will decide by Tuesday whether to waive the boy to adult court to stand trial on charges of attempted murder, aggravated battery and battery.

A psychiatrist and psychologist discussed his family’s history with severe depression; his reaction to perceived slights at school; the dark, nihilistic music he liked and his struggle to fit in at Concordia High School – all in an attempt to explain why the teen took a military-style knife to the throat of a 17-year-old student in the school’s cafeteria.

Will Baker, now an 18-year-old student at Indiana University, told the court about how he held his hands to his injured neck while being chased through the halls by the younger boy, still laughing and carrying that knife.

Throughout the hearing, the teen sat still and sober between his parents and Robert Gevers, his lawyer. Gevers is arguing that the boy will respond positively to the rehabilitation offered through the state’s juvenile justice system but if locked up with hardened criminals will likely be ruined. * * *

Video taken inside the school that day showed Baker, blood soaking his shirt, fleeing down the hallways toward the nurse’s office with a grim-faced teen behind him, the knife still clutched in his hand and gaining ground on Baker as he ran.

The teen’s brother caught him and removed the knife from his grasp, according to testimony.

The teen had no history of trouble – legally, academically or within his family – according to testimony.

That makes his decision, and plan, to attack Baker even more troublesome, McAlexander said.

“What concerns the state is can this happen again?” he said. “There is clear premeditation here. … Citizens of this community can’t risk he would do it again.”

Despite the heinous nature of the attack and the premeditation involved, Gevers said all the experts agree the teen will respond positively to extensive psychological treatment.

Mental health experts who testified emphasized the importance of a residential center for about a year of treatment.

“You can never prove that something won’t happen again,” Gevers said. “But everyone is saying you have to take a chance.”

Friday’s hearing had been delayed a few times in the past eight months to allow further evaluation by mental health experts. Sims thanked both sides for taking so much time to continue their investigation into the events of Jan. 13 as well as the teen’s history.

“I don’t know that happens in all communities,” he said. “It serves the public well.”

"Adult trial ruled out in school slashing" is the headline to Green's story today that reports:
Allen Superior Court Judge Stephen Sims decided not to send the teen to adult court to stand trial on charges of attempted murder, aggravated battery and battery, stemming from the Jan. 13 attack.

In an order issued Tuesday, Sims said that, although the teen’s actions were “heinous and exacerbated in their severity in that the act was planned,” Allen County prosecutors failed to prove the teen was unable to be rehabilitated in the juvenile justice system. Nor did the state prove that the community’s safety and welfare are best served by putting the teen on trial as an adult, where if he were convicted he could serve more than 45 years in prison, according to court documents.

The decision, announced during a brief hearing Tuesday in the Allen County Juvenile Justice Center, came after months of deliberation and examination by psychologists and psychiatrists. The hearing on whether to waive the teen to adult court officially began in March after the charges were filed.

Although the attack on Baker was premeditated, hinted at in a Facebook posting the night before and carried out in such a gruesome way, the teen has no prior contact with the juvenile courts and has never been in trouble before.

During a lengthy hearing last week, mental health experts who examined the teen said the attack was still largely unexplained, other than as a completely disproportional reaction to a perceived slight by Baker, who had been his drum section leader in the Concordia High School marching band. “He felt targeted in the one thing that was his special gift,” said Dr. Tonya Foreman, a clinical and forensic psychiatrist, during Friday’s hearing. * * *

Prosecutors and the teen’s attorney, Robert W. Gevers, reached an agreement that called for all the charges to be merged into the most serious count of attempted murder. At the outset of Tuesday’s hearing, the teen admitted to the facts outlined in the charges, and Sims found him to be a delinquent, the juvenile equivalent of a guilty plea.

Sims scheduled a hearing this month on where to place the teen. Until then, the teen remains in the Allen County Juvenile Justice Center. The juvenile justice system only has custody over delinquents until they turn 18 and jurisdiction for continued monitoring and treatment until they turn 21, according to testimony.

Allen County Chief Deputy Prosecutor Michael McAlexander said he understood Sims’ decision, particularly because it was so difficult to show the boy was beyond rehabilitation in the juvenile system because he’d never been in trouble before.

He said he remains concerned about the future safety of the community, something he admits is difficult to quantify.

“We certainly respect the judge’s decision and are pleased that the juvenile admitted to the most serious allegations against him,” McAlexander said.

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Ind. Trial Ct. Decisions

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

Updating this ILB entry from Sept. 14th, Mark Alesia reports in today's Indianapolis Star:

IUPUI likely will keep from the public an investigative committee's report on women's basketball coach Shann Hart, a school spokesman said Wednesday.

After previously indicating the report would be released, the spokesman said the school plans to cite exceptions in public records law to keep the document private.

Those exceptions pertain to an employee's personnel file and documents considered "deliberative" in nature. The Indianapolis Star filed a formal public records request for the report Wednesday. * * *

Steve Key, general counsel for the Hoosier State Press Association, said IUPUI is probably within its rights to treat the report as part of a personnel file and thus exempt from public disclosure.

But, he added, the school has a choice whether to make the report public.

If IUPUI takes disciplinary action against Hart, such as termination, demotion or suspension, the report would become a public record, Key said, because "the public has the right to see the factual basis for that level of discipline."

If Hart were to resign, however, the report would stay private, Key said, because "the school could say she wasn't disciplined, she resigned."

Posted by Marcia Oddi on Thursday, September 16, 2010
Posted to Indiana Law

Wednesday, September 15, 2010

Ind. Decisions - Mendenhall Convicted In Beating Of State Rep. Ed Delaney

Updating this list of earlier ILB entries, Indy 6 News is reporting this evening:

Augustus Mendenhall, 39, was convicted Wednesday of attempted murder in an attack last year on a state representative.

Mendenhall donned a disguise in October 2009 when he lured State Rep. Ed DeLaney, D-Indianapolis, into a meeting on a Carmel street, where he wielded a gun as he brutally beat the lawmaker.

"I believe he wanted to kill me," DeLaney said. "I believe he knew what he was doing."

DeLaney suffered a collapsed lung, broken bones and a black eye in the attack in which Mendenhall wore a red wig. * * *

Mendenhall will be sentenced next month. He could face more than 100 years in prison.

Recall this June 22, 2010 ILB entry, re the suspension of Mendenhall's license to practice law in Indiana.

[Updated 9/16/10] "Man found guilty but mentally ill in attack" is the headline to the story in today's Star.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - 7th Circuit's Judge Wood opinion widely quoted

For instance, the ABA Journal blog header is "7th Circuit Blasts Sentencing Judge for Comments on Hitler’s Dog, Illegal Aliens." See this Milwaukee Journal Sentinel blog entry for the most comprehensive coverage.

The opinion is USA v. Jose Figueroa.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Three students offer a completely candid student perspective on every aspect of law school, from classmates to bar review"

The new book, "What the L?: 25 Things We Wish We'd Known Before Going to Law School," is available from Amazon.com. [Via the Law Librarian Blog.]

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to General Law Related

Law - "Voting System Failures: A Database Solution"

The Brennan Center has a new report, "Voting System Failures: A Database Solution," by Lawrence Norden. From the executive summary:

When it comes to system failures, however, voting machines are different from automobiles and airplanes, and other products, in at least one important respect: for the vast majority of voting systems in use today, (1) manufacturers are not required to report malfunctions to any government agency, and (2) there is no agency that either investigates such alleged failures or alerts election officials and the general public to possible problems (let alone requires voting system manufacturers to fix such problems).

As this report demonstrates, the consequence of this lack of oversight is predictable. Voting systems fail in a particular county in one election, and then again later, under similar circumstances, but in a different locale. These repeated failures disenfranchise voters and damage public confidence in the electoral system.

The Brennan Center reviewed hundreds of reports of problems with voting systems in the last eight years, and closely studied fourteen of them. Our study shows that election officials and the public are often completely reliant on the private companies that sell and service this voting equipment and related service contracts to voluntarily keep them aware of potential problems with those systems. As one election official we interviewed noted, “vendors are in the business of selling machines, and often don’t have an incentive” to inform present and future customers of certain problems with their systems.

The core thesis of this report is simple: we need a new and better regulatory structure to ensure that voting system defects are caught early, officials in affected jurisdictions are notified immediately, and action is taken to make certain that they will be corrected for all such systems, wherever they are used in the United States.

See also this story from NPR's Morning Edition.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to General Law Related

Ind. Courts - Justice Boehm retirement ceremony

The retirement ceremony is scheduled for Thursday, Sept. 30, 2010, in the Supreme Court Courtroom, from 10:00- 11:00 a.m. EST. The ceremony will include remarks from Governor Mitch Daniels, Chief Justice Randall T. Shepard, Indiana bar associations and former law clerks. The event will be webcast live at courts.in.gov.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Phyllis Woodsmall, et al. v. Lost Creek Township Conservation Club, Inc. , an 8-page opinion, Judge Baley writes:

[Homeowners] appeal a negative judgment upon their nuisance claim against Lost Creek Township Conservation Club, Inc. (“Lost Creek”). We affirm. * * *

Lost Creek is a not-for-profit organization that operates a shooting range in a rural area of Vigo County, Indiana. The shooting range, which now includes a rifle range and a pistol range, has been operational in some form since 1934. In 1972, a Vigo County trial court issued a decree restricting skeet and trap shooting at Lost Creek premises to certain times and days and banning “any shooting whatsoever” past 10:30 p.m.

Shooting activities at Lost Creek increased after September 11, 2001, when members of Vigo County’s law enforcement lost the use of the shooting range at the nearby federal penitentiary and began to use the ranges at Lost Creek. On July 17, 2007, the Homeowners filed a complaint for injunctive relief to abate a nuisance. Specifically, the Homeowners requested a restriction such that there would be no rifle or pistol fire at Lost Creek or, alternatively, that shooting activities cease pending compliance with all safety recommendations made by Lost Creek’s expert witness.

On December 1 and 2, 2009, a bench trial was conducted. On January 25, 2010, the trial court entered its Findings of Fact, Conclusions of Law and Judgment denying the Homeowners injunctive relief. This appeal ensued. * * *

The Homeowners failed to establish that the evidence is uncontroverted in their favor. As such, they have not demonstrated that the judgment is contrary to law.

In Alexander Gatzimos, M.D. v. Boone County and State of Indiana, a 6-page opinion, Judge Darden concludes:
The State has moved for our dismissal of the appeal, without prejudice, and asks that we remand the matter to the trial court where [Dr. Gatzimos] should be provided an opportunity to present admissible evidence as to whether his charges were dismissed
because: (A) of a mistaken identity;(B) no offense was in fact committed; or (C) there was an absence of probable cause.
State’s Motion, p. 3. Accordingly, the State notes, the appeal “will be unnecessary.” Id.

We find that the State’s motion is well taken, and think it appropriate that Dr. Gatzimos be able to present admissible evidence (including properly certified official records) to establish the basis for the expungement he seeks pursuant to the statute. Therefore, we grant the State’s motion and dismiss, without prejudice, and remand to the trial court for further proceedings consistent with our opinion.

In William Nolan v. City of Indianapolis , a 10-page opinion, Sr. Judge Sharpnack writes:
Nolan presents two issues for our review, which we consolidate into one: whether the holding of this Court, in the appeal of a criminal case, that Nolan’s arrest was lawful precludes Nolan from relitigating that issue in a civil case brought by him for false arrest and false imprisonment. We hold that it does and affirm. * * *

Based upon the foregoing, we conclude that collateral estoppel applies in this case to preclude Nolan from relitigating the lawfulness of his arrest. Accordingly, the trial court properly entered summary judgment for City.

NFP civil opinions today (2):

N.L., Alleged to be CHINS; B.L. v. IDCS (NFP)

Maurits Wiersema v. Lisa (Wiersema) Bauman (NFP)

NFP criminal opinions today (9):

Joshua H. Field v. State of Indiana (NFP)

Kyle Kiplinger v. State of Indiana (NFP)

Michael Hay v. State of Indiana (NFP)

Dennis Roberson v. State of Indiana (NFP)

Quentin A. Spencer v. State of Indiana (NFP)

Neil A. Short v. State of Indiana (NFP)

George D. Harding, II v. State of Indiana (NFP)

Lusako G. Musopole v. State of Indiana (NFP)

Robert Coslet v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Ind. App.Ct. Decisions

Environment - "Carp czar is making the rounds"

So reports this editorial today in the Detroit Free Press. It begins:

Now there's a carp judge and a carp czar -- a definite improvement over where things stood even a few months ago -- but both of them have a lot to prove to skeptical Michiganders.

Court cases generally move more slowly than the Asian carp have been advancing up the Mississippi River system. Still, the fact that a federal judge in Illinois even took the case, after the U.S. Supreme Court twice refused to entertain a request for emergency lock closings, is an improvement. Testimony ended last week, with oral arguments tentatively planned for next month on whether the locks should be closed.

Meanwhile, the carp czar, also named last week, is making the rounds. John Goss is a former director of the Indiana Department of Natural Resources. Hopefully, he can move faster than the courts in assessing the situation and ensuring that every measure short of those tied up in court -- or in interminable U.S. Army Corps of Engineers studies -- is put in place. * * *

Goss can provide the coordination and focus that often seem lacking as various agencies flounder for solutions. He also can lobby his federal peers in various agencies to get proper funding for studies and control measures. It's especially important to make sure that funds designated for other Great Lakes programs don't get raided for controlling the carp -- a threat that virtually everyone saw coming and ignored for years.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to

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

Update this most recent ILB entry from Sept. 13, 2010, Ron Sylvester of the Wichita Eagle reports:

WICHITA — A federal judge has denied a request to stop the way Kansas Supreme Court justices are selected.

U.S. District Judge Monti Belot issued an order today [9/14/10] refusing to grant a temporary restraining order against a nominating committee charged with selecting finalists for a vacancy on the Kansas Supreme Court.

The request to halt the current process was spurred by a lawsuit from four Kansas voters who said the committee denied them a voice in the selection process. The nominating committee, consisting of five attorneys and four citizens, reviews applications, conducts interviews and nominates three finalists to the governor, who makes the final appointment.

Belot said a preliminary injunction to stop the process was not in the public interest, would interrupt a status quo in place since 1958 and would result in no irreparable harm.

The judge also said the parties bringing the suit, represented by Indiana lawyer James Bopp Jr., had not demonstrated they would succeed on their claims at trial.

Belot said a temporary restraining order would prevent the nominating commission from filling the vacancy on the Kansas Supreme Court left by the recent retirement and death of Chief Justice Robert Davis.

Here is the 9-page order denying plaintiffs' motion for a TRO and preliminary injunction.

This ILB entry from Aug. 29, 2010 links to the initial complaint, etc.

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Courts in general

Environment - "Massive fish kill reported in Louisiana"

Incredible "river of death."

Posted by Marcia Oddi on Wednesday, September 15, 2010
Posted to Environment

Tuesday, September 14, 2010

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

Updating this most recent ILB entry from July 28, 2010, Mark Alesia reports this afternoon in an Indianapolis Star story headed "Report on IUPUI coach goes to chancellor." It begins:

An IUPUI investigative committee appointed by the chancellor submitted its report Monday night on women's basketball head coach Shann Hart and her program, committee chairwoman Sue Shields said.

A spokesman for IUPUI chancellor Charles Bantz said Bantz was reviewing the report today but has not indicated when or how he will act on it. The spokesman said a university attorney was also reviewing the report prior to public release, which could come Wednesday.

Posted by Marcia Oddi on Tuesday, September 14, 2010
Posted to Indiana Law

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

For publication opinions today (1):

In Gerald L. Wilkerson v. State of Indiana , a 5-page opinion, Sr. Judge Garrard writes:

In Pirtle, our supreme court determined that a person in custody must be informed of his right to consult with an attorney concerning his consent for police to conduct a search, before a valid consent to search may be given. * * *

Subsequent decisions have held the Pirtle requirement inapplicable in cases where the search consisted of field sobriety tests (Ackerman v. State, 774 N.E.2d 970, 981-82 (Ind. Ct. App. 2002), trans. denied), a chemical breath test (Schmidt v. State, 816 N.E.2d 925, 944 (Ind. Ct. App. 2004), trans.denied), or a chemical blood test (Datzek v. State, 838 N.E.2d 1149, 1159 (Ind. Ct. App. 2005), trans. denied). The rationale for these decisions was that in each instance the searches were non-invasive, took little time to administer, were narrow in scope, and were unlikely to reveal any incriminating evidence other than impairment. * * *

We find the pat down search for weapons to be quite like the sobriety tests conducted in Ackerman and its progeny. The pat down takes little time to administer, is narrow in scope, is non-invasive and is not designed to reveal incriminating evidence other than the presence of weapons. Moreover, probable cause is not a requirement for administering pat down searches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wilson v. State, 745 N.E.2d 789 (Ind. 2001); Williams, id. It is unlike the unlimited general searches, which require probable cause, where the Pirtle rule has been applied. See Ackerman, id.

Thus, we conclude that compliance with the Pirtle requirement was unnecessary, and Wilkerson’s consent to the pat down search was therefore valid. Accordingly, the trial court did not err in denying the motion to suppress.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of M.B., J.B., and T.B.; R.B. v. IDCS (NFP)

Ronald Brooks v. Zores, Inc. (NFP)

NFP criminal opinions today (3):

Quintez D. Motley v. State of Indiana (NFP)

Anthony Fulton v. State of Indiana (NFP)

Mark A. Jenkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - New child support calculator available

From the Court website:

Downloadable Calculator for Windows

The Indiana Supreme Court has approved changes to the Child Support Guidelines effective January 1, 2010. New child support calculators based on the amended guidelines are available below. The calculators previously published to this site are no longer available because they will not calculate support under the new guidelines.

Access it here. Note that you enter the information and the program produce forms for use in court. For more tools and information, see this page.

Posted by Marcia Oddi on Tuesday, September 14, 2010
Posted to Indiana Courts

Ind. Courts - More on "Supreme Court Hears Golf Course Suit at IU Law School"

Updating yesterday's ILB entry on the oral argument before the Supreme Court in the case of Cassie Pfenning v. Joseph Lineman, et al, Laura Lane of the Bloomington Herald-Times has this coverage today ($$), under the headline "Indiana Supreme Court hears golf ball injury case during IU visit." Some quotes:

When an errant golf ball smacked into the mouth of a 16-year-old girl driving a beverage cart at a golf tournament in August 2006, she sued the man who hit the ball, the bar that sponsored the event, the Elks country club that hosted the tournament and her now-deceased grandfather, who invited her to go along that day.

A judge in Grant County, where the golf outing happened, decided in favor of all the defendants before the scheduled trial. The lawyer representing plaintiff Cassie Pfenning argued that a jury should have heard the evidence. She appealed to the Indiana Court of Appeals, which upheld the trial court judge’s rulings.

Monday at noon, four of the five members of Indiana’s Supreme Court sat behind a judicial bench in Indiana University’s Maurer School of Law’s Moot Court Room. They were there to hear arguments in the case to determine if the appeals court ruling will stand.

They took the case under advisement and will issue a ruling later.

* * * In this case, a dissenting appeals court judge wrote that he would not have issued summary judgment in favor of anyone but Joseph Lineman, whom the judge said had no way to know his shot, which traveled 200 yards and hooked to the left, might hit anyone.

So the Supreme Court decided to take on the case. Before a packed courtroom and with law school students spilling over into adjacent rooms, the court heard lawyers from both sides argue about whether a person on a golf course should be responsible for knowing the inherent danger of being struck by a ball while on the course.

The girl did not sign a waiver releasing anyone from responsibility if she was harmed. But since she was there as a volunteer, did she assume the risk?

Shepard said the justices will confer behind closed doors and discuss the merits of the arguments before issuing a ruling.

“This was more or less an accident,” said attorney Kyle Persinger, who represents the estate of the grandfather, Jerry Jones. “There is an inherent risk on a golf course.”

Pfenning was sitting in a golf cart stocked with beverages on a cart path at the 18th hole when the ball came from the 16th tee and struck her. The cart did not have a roof or windshield for protection from wayward balls.

Attorney Christine Marcuccilli, who represents Pfenning, argued that her client was not a participant at the outing and that the organizers had an obligation to warn her of the dangers of being on a golf course.

Pfenning reported losing several teeth, while others were broken. Repairing the damage involves extensive dental bills.

Posted by Marcia Oddi on Tuesday, September 14, 2010
Posted to Indiana Courts

Ind. Decisions - Interesting Illinois case decided today by 7th Circuit

In State of Illinois v. Hemi Group LLC, Judge Kanne writes:

The state of Illinois sued Hemi Group LLC for selling cigarettes to Illinois residents in violation of state laws and for failing to report those sales in violation of federal law. The district court denied Hemi’s motion to dismiss for lack of personal jurisdiction, finding that the Internet transactions sufficed to establish personal jurisdiction over Hemi in Illinois. We affirm. * * *

This case is still at the very earliest stages of litigation, and we conclude only that Illinois has established a prima facie case of personal jurisdiction over Hemi in Illinois. Moving forward, the district court will be able to employ other mechanisms to balance the various competing interests in this litigation.

We note the legitimate concern that “[p]remising personal jurisdiction on the maintenance of a website, without requiring some level of ‘interactivity’ between the defendant and consumers in the forum state, would create almost universal personal jurisdiction because of the virtually unlimited accessibility of websites across the country.” Jennings, 383 F.3d at 550. Courts should be careful in resolving questions about personal jurisdiction involving online contacts to ensure that a defendant is not haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if that site is “interactive.” Here, we affirm the district court’s conclusion that Hemi is subject to personal jurisdiction in Illinois, not merely because it operated several “interactive” websites, but because Hemi had sufficient voluntary contacts with the state of Illinois. See Neogen, 282 F.3d at 890-91. We make no comment on whether Hemi may be subject to personal jurisdiction in any other state.

Posted by Marcia Oddi on Tuesday, September 14, 2010
Posted to Ind. (7th Cir.) Decisions

Monday, September 13, 2010

Ind. Courts - "Supreme Court Hears Golf Course Suit at IU Law School"

As noted in this ILB entry from early this morning, oral argument was held before the Supreme Court at noon today in the case of Cassie Pfenning v. Joseph Lineman, et al. Stan Jastrezebski of Indiana Public Media reports here, in a story with a photo. The photo shows four justices, with Justice Boehm apparently not sitting with the Court. Nothing in the story itself clarifies this.

The docket offers no explanation, the most recent docket entry as of this post is 7/28/10. Perhaps the oral argument itself ... But it is not available, as of this entry at 5:30 pm.

[Update at 5:27 pm] Just heard from Kathryn Dolan:

Hi Marcia,

Unfortunately Justice Boehm was ill today. Chief Justice Shepard told the students he plans on participating in this case, but could not attend oral argument.

We had a very nice time at IU. It was a packed house and the University held a nice reception afterwards where students could meet with the members of the Court. I just uploaded a photo to our twitter account if you are interested. [ILB - here it is]

Kathryn Dolan
Indiana Supreme Court
Public Information Officer

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Indiana Courts

Ind. Decisions - Briefing documents in Akard v. State now available

Earlier today the ILB noted that the Supreme Court had granted transfer in Akard v. State.

Here are links to the:

Here is the Summary of Argument from the PDC brief:

This Court held last March in McCullough v. State 900 N.E.2d 745 (Ind. 2009), that appellate courts have the power to revise sentences upward on appeal, and this is the first case in which the power was exercised. Transfer is appropriate because the Court of Appeals' opinion raises significant and troubling questions about how that power may be exercised in future cases. Ind. Appellate Rule 57(H)(4) & (6).

Although the prosecutor requested a sentence of ninety-three years, the Court of Appeals ordered the sentence increased to 118 years by reciting no legal principle or policy but simply the graphic nature of the facts. This case puts both defense lawyers and trial judges in an untenable, if not impossible, position . In any case with graphic facts, the trial court cannot rely on prosecutor's request for a ninety-three year sentence -- a life sentence when the defendant is facing consecutive federal time for another offense -- but must impose something beyond that to avoid the prospect of second-guessing by the Court of Appeals. Appellate counsel, especially when confronted with a very lengthy sentence requested by the prosecutor, cannot competently advise a client about whether to appeal the sentence because the Court of Appeals seems free to increase a sentence for any reason and with no explanation grounded in principle and precedent.

Transfer is appropriate to reverse the Court of Appeals' sua sponte increase in this case and clarify the standards for increasing a sentence on appeal. Specifically, a sentence requested by the prosecutor should never be found too lenient on appeal. Moreover, an increase should only occur in " the most unusual case," which should be limited to sentences where the trial court has significantly disregarded a sentencing principle in a manner that results in a sentence so low that it shocks the conscience of the reviewing court.

Don't miss the Table on pp. 8-9 of the PDC brief, detailing, in 7 cases: Case and Charge; Reduction %; and Reasons Cited.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Ind. App.Ct. Decisions | Indiana Transfer Lists

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):

Kevin Moncrief v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Burp v Breathalyzer: Kentucky Supreme Court to decide issue in DUI case"

That is the headline to this lengthy story today by Andrew Wolfson of the Louisville Courier Journal. A few quotes:

It is considered crass in most cultures, and hardly a subject of polite conversation. But now the Kentucky Supreme Court must answer a profound legal question about the burp — is one enough to invalidate an alcohol breath test?

A Jefferson District Court judge decided that it is, acquitting an accused drunk driver in January based solely on the judge's recollection — from years earlier, when he was a prosecutor — that a burp could skew the results.

Now, that case is before the state Supreme Court, with ramifications that lawyers on both sides say extend beyond the belch — or even its impact on breath tests. They say the court's decision could determine to what extent judges may rely on their own knowledge and experience in admitting evidence in cases of all kinds. * * *

The prosecution cannot appeal an acquittal. But saying Armstrong's ruling produced a “manifest injustice,” the county attorney's office is asking the Supreme Court to decide whether judges in Kentucky should be allowed to consider facts in evidence that are based on their own knowledge.

Judges routinely take what is called “judicial notice” of facts that are beyond dispute. For example, a judge will note that a crime that took place at “Fourth and Broadway” occurred in Jefferson County, meaning the prosecution doesn't have to prove it.

Only facts that are “not subject to reasonable dispute” can be “judicially noticed.”

Under the rules, two categories of facts qualify: Those generally known in the county where the case is heard, and those that can be readily confirmed by “sources whose accuracy cannot reasonably be questioned.”

But the rules in Kentucky are silent about whether a judge should be able to rely on his own knowledge in making such a declaration.

Assistant County Attorney Ben Wyman, who prosecuted Howlett and is representing his office before the Supreme Court, says they should not –— in part because judges can get things wrong. He said that's what happened in Howlett's case.

“The court went out of its way to find a reason, based on the court's own incorrect personal recollection, to dismiss a DUI case on grounds that were beyond any evidence or argument put forth by the parties,” Wyman said.

He said Howlett's lawyer, Paul Gold, a former district judge, presented no proof or argument that the “alleged burp” would have made any difference in the test, and did not ask Armstrong to take judicial notice of that phenomenon.

Also of interest, a Chicago law blog specializing in DUI.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Courts in general

Courts - "History Through A Supreme Court Justice's Lens"

A fascinating Nina Totenberg story today on NPR's Morning Edition on Justice Breyer's new book, read or listen to it here. The audio is nearly 8 minutes long.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Courts in general

Ind. Law - "Rules keep sex offenders guessing"

Another good story today from Sophia Voravong of the Lafayette Journal Courier. Here are a few quotes from the beginning of the lengthy story:

Lafayette resident Allana Diaz is comforted knowing that no child predators are living nearby when she takes her boys, ages 4 and 7, to play at city-run Murdock Park.

Since July 1, 2006, in Indiana, sex offenders against children have been banned from residing within 1,000 feet of public parks, schools and youth program centers.

"You worry that someone is going to snatch them when you look away for five, 10 seconds. So, yes, I think it's a great law," said Diaz, who was at Murdock with her sons Thursday afternoon.

Protecting children from harm was at the forefront for Hoosier lawmakers when they passed the residency restrictions. That also was the motivation behind Indiana's Sex and Violent Offender Registry, a public database that since 2003 tracks those criminals' home and work addresses and posts them online.

However, the effectiveness of such legal tools is debatable, and shifting interpretations of the laws keep offenders and officials on their toes.

One reason is that some of the statutory language is vague, leaving each county to determine how they'll be enforced.

And both the sex offender registry and the residency restrictions have been challenged on grounds that they violate ex post facto provisions of Indiana's constitution and the U.S. Constitution by imposing punishment retroactively.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Indiana Law

Ind. Courts - "Campaigning for Allen County bench has rules, spending cap"

Rebecca S. Green of the Fort Wayne Journal Gazette had a lengthy story Sunday on Allen County judicial races. Some quotes:

Allen County is the only county in Indiana that restricts the amount of money a candidate for judicial office can spend. Indiana law also limits what judicial candidates can and can't say about their opponents and what they would do in office, if elected.

These factors can make the race for the spot on the bench a hard one to follow, amid the races for other offices, even though a contested race for an Allen County judge seat is almost as unique as a unicorn.

But the non-partisan candidates themselves – incumbent Allen Superior Court Judge Kenneth Scheibenberger, part-time Allen County Deputy Prosecutor and Beckman-Lawson partner Wendy Davis and part-time public defender Lewis Griffin – say the restrictions help keep the race clean and the bench free from appearance of impropriety.

Rules governing judicial campaigns – often called canons – allow candidates to pledge to run their courts in a certain way, such as promising to rule quickly on matters before them or to look at different sentencing options.

But because candidates are prohibited from disparaging or speaking inaccurately about their opponent's record, candidates cannot promise to "restore integrity to the court." Such statements mislead voters unless there is some quantifiable and objective evidence on which those statements are based, according to the canons.

Allen County's race is also non-partisan, with political parties prohibited and keeping the race away from contentious debates. * * *

Even with the rules and prohibitions, it hasn't kept the campaign from getting testy so far.

Scheibenberger's candidacy was unsuccessfully challenged by Davis' supporters, though she says without her knowledge. The complaint argued Scheibenberger's previous disciplinary sanction issued by the Indiana Supreme Court should prevent him from running. On Sept. 2, the Indiana Election Commission decided Scheibenberger should remain on the ballot. * * *

One of the reasons contested judicial races are scarce here is Allen County's own restrictions on the process, which differ from judicial campaign rules elsewhere in the state. Indiana's judicial election rules vary by county, a kind of a patchwork quilt of what you can do and how you can campaign, said Andy Downs, local election expert and director of the Mike Downs Center for Political Science at IPFW.

Some counties have spending limits. Some do not. Some counties have partisan races – Republican versus Democrat. Others, like Allen County's Superior Court races, are non-partisan. Some counties don't vote to elect a judge but rather vote to retain a judge in office.

Superior Court judges in St. Joseph and Lake counties are appointed, much like members of the Indiana Court of Appeals.

The $10,000 campaign [Allen County] spending limit is a pittance compared with the dollars flowing through other area races.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Indiana Courts

Courts - "Perry County Kentucky judge stabbed while eating lunch"

From the AP, a brief story dated Sept. 11th:

HAZARD, Ky. — A man who once stood before Perry County Judge Leigh Anne Stephens in court is in jail charged with attempted murder after authorities arrested him for allegedly stabbing her Friday at a restaurant.

Authorities say Ronnie D. Brock attacked the judge at the Circle T Restaurant in Hazard with a steak knife and stabbed her five times before bystander Victor Gainer shoved Brock through a window, then sat on him until Perry County sheriff's deputies arrived.

Stephens was treated at a local hospital and released. She said she's lucky to be alive.

“I could feel him cutting me, but I didn't realize he had a knife,” Stephens said. “I just kept screaming, hitting and trying to get away.”

Brock appeared in Stephens' court in 2004 on a domestic case.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Courts in general

Law - "The Student Loan Racket: Now in One Easy-to-Understand Graphic "

Above the Law from earlier this month, writes:

Luckily, the people at CollegeScholarships.org are good with pictures. They brilliantly break down the entire student loan racket in one easy to understand graphic.
See it full-page, with comments, here.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to General Law Related

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

Updating earlier ILB entries (the most recent here, from Aug. 29, 2010) re the suit challenging the Kansas method of selecting appellate court judges (that is strikingly similar to Indiana's - see the end of the Aug. 29th entry), Roxana Hegeman of the AP reported Friday:

WICHITA | A federal injunction that would block Kansas from filling a seat on its Supreme Court would cause an indefinite halt to the judicial nomination process in the state, attorneys told a judge Friday as they tried to discredit a lawsuit that challenges how Kansas fills those vacancies.

U.S. District Judge Monti Belot heard arguments as he mulls whether to grant an injunction sought by four Kansas residents who filed a lawsuit against attorney members of the Kansas Supreme Court Nominating Commission. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys — who make up the majority of commission members — and therefore violates the rights of other residents.

The lawsuit seeks to stop the state from filling a vacancy created when Kansas Chief Justice Robert Davis retired on Aug. 3, a day before he died. * * *

The lawsuit in Kansas was filed by Indiana-based attorney James Bopp Jr., who last year represented three Alaska voters who challenged a similar selection process in that state. A federal judge dismissed the lawsuit in a decision that has been appealed.

In recent years, judicial selection has been an important issue mainly for conservative Republicans upset with Kansas Supreme Court decisions on abortion and education funding. They contend a lawyer-dominated selection process results in liberal-leaning justices.

Voters decide every six years whether a Supreme Court justice is retained. Since that process began in 1960, no member of the state's highest court has failed to get a two-thirds majority.

As a practical matter, the state's judicial nomination process is tantamount to a tenured appointment, Belot said Friday.

In a court filing, attorneys for the defendants said the request by end a process in use for half a century "is breathtaking for its audacity" and "inappropriate on its face."

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Courts in general

Ind. Courts - "Woman tried to sabotage her boyfriend's armed robbery trial by pretending that she worked at the Tippecanoe County prosecutor's office"

That is the lede to this Sept. 11th story by Sophia Voravong of the Lafayette Journal Courier. Some quotes:

Sharnetta M. Barnes, 23, of Griffith is suspected of calling two key witnesses the night before a bench trial that began Thursday in Tippecanoe Superior Court 2 and telling them it was rescheduled.

Barnes was seated behind the defense table and her boyfriend, Edward D. Mercer, on Friday afternoon when Dawn Gross, an investigator with the prosecutor's office, asked her to step outside.

She is charged in Tippecanoe Superior Court 5 with attempted obstruction of justice, a Class D felony, and two misdemeanor counts of impersonating a public servant. * * *

According to a probable cause affidavit, Barnes is suspected of buying a service called SpoofCard that allows users to specify what number will show on a caller ID display.

On Wednesday night, robbery victim Courtney Robinson received two calls from someone named "Tammy" who claimed to work at the Tippecanoe County prosecutor's office.

Robinson's cell phone showed that the call was from (765) 423-9305 -- the general number for the prosecutor's office.

"Tammy" told Robinson that he and a second victim, Kyle Bostic, did not need to show up for court Thursday morning.

But the two men from Indianapolis were suspicious and went to the prosecutor's office anyway to ask in person. This prompted an investigation by the Lafayette Police Department.

Unfortunately for "Tammy," detectives were able to subpoena and listen to the actual call to Robinson.

SpoofCard's website explains that calls are recorded "for capturing important information or simply to keep a phone call as a backup for future reference."

Prosecutor Pat Harrington said the case was the first time his office has filed allegations of witness tampering -- although they've long suspected it of occurring.

Posted by Marcia Oddi on Monday, September 13, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending September 10, 2010

Here is the Clerk's transfer list for the week ending September 10, 2010. It is one page (and 11 cases) long.

Three 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 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, September 13, 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 9/13/10):

Monday, September 13th

Thursday, September 16th

Next week's oral arguments before the Supreme Court (week of 9/20/10):

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 9/13/10):

Monday, September 13th

Tuesday, September 14th

Thursday, September 16th

Friday, September 17th

Next week's oral arguments before the Court of Appeals (week of 9/20/10):

Next Monday, September 20th [CANCELLED]

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, September 13, 2010
Posted to Upcoming Oral Arguments

Sunday, September 12, 2010

Courts - Twenty-first century jury issues

Take a look at this post in Sentencing Law & Policy blog, along with its links.

Also see this post in the Volokh Conspiracy, headed "Real-Time Googling of Jurors During Voir Dire," which has more on the second item.

Posted by Marcia Oddi on Sunday, September 12, 2010
Posted to Courts in general

Friday, September 10, 2010

Ind. Gov't - Interesting open records PAC opinion released today re Paul Ogden request of the Marshall County Prosecutor's Office

Here are some quotes from the opinion, which is dated Sept. 7, 2010:

Re: Formal Complaint 10-FC-174; Alleged Violation of the Access to Public Records Act by the Marshall County Prosecutor’s Office

* * *

According to your complaint, you recently requested certain records from the Prosecutor. In response, the Prosecutor forwarded you a copy of Form 451495-D (the “Form”), which is titled “Document Request: Non-Discovery.” The Prosecutor informed you that the Form must be filled out in its entirety before the Prosecutor would comply with your request. You allege that the Form violates the APRA by asking why the requester seeks the requested information, by asking for a copy of the requester’s driver’s license, by requiring that the request be signed under oath, and by requiring that the requester identify exceptions to the APRA that would require or allow the public agency to withhold the records. You argue that the Form “creates an onerous and improper burden” and that it should not be used before an agency complies with the APRA. * * *

For the foregoing reasons, it is my opinion that the Form violates the APRA insofar as it denies access to requesters who refuse to state the purpose of their request. Moreover, it is my opinion that the Prosecutor has not met its burden to demonstrate why it is necessary for a requester to enclose a copy of his or her driver’s license and submit the Form under oath. Finally, the burden for nondisclosure of a public record rests with the agency that would deny access to the record and not on the person who requested access to it.

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Indiana Government

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

In Finch v. Bart Peterson (SD Ind., Debra McVicker Lynch, Magistrate Judge, an 11-page opinion, Judge Sykes writes:

This interlocutory appeal arises from a complaint filed against the City of Indianapolis, its law-enforcement Merit Board, and seven city officials alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The plaintiffs— three white police lieutenants—claim they were subjected to reverse discrimination because they were passed over for promotion to the rank of captain despite ranking higher on the Police Department’s promotion eligibility list than three African-American lieutenants who were promoted ahead of them. The individual city officials moved for judgment on the pleadings, claiming qualified immunity based on the terms of a 1978 consent decree entered into by the Indianapolis Police Department and the United States Department of Justice (“DOJ”). They maintained that the consent decree required them to make the promotions at issue here. A magistrate judge disagreed and denied the motion, and the city officials appealed.

We affirm. The 1978 consent decree does not operate to confer qualified immunity on the city officials who were involved in making the challenged promotions. Nothing in that decree required them to take race into consideration in making promotions. To the contrary, specific language in the decree required promotions within the Police Department to be made without regard to race or color.

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. courts - More on: Disciplinary charges filed against Judge William E. Young

Updating this ILB entry from July 16, 2010, the Supreme Court has now appointed masters:

9/08/10: PURSUANT TO INDIANA ADMISSION AND DISCIPLINE RULE 25(VIII) (I), THE COURT APPOINTS THE FOLLOWING MASTERS TO HEAR AND TAKE EVIDENCE CONCERNING ANY CHARGES FILED UNDER THIS CAUSE NUMBER: THE HONORABLE MARY G. WILLIS, JUDGE, HENRY CIRCUIT COURT THE HONORABLE STEVEN M. FLEECE, SENIOR JUDGE FROM CHARLESTOWN, INDIANA; AND THE HONORABLE FRANCES C. GULL, JUDGE, ALLEN SUPERIOR COURT.

JUDGE WILLIS IS DESIGNATED TO SERVE AS THE PRESIDING MASTER.

WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER, THE MASTERS ARE ASKED TO SUBMIT A SCHEDULE THAT ANTICIPATES A HEARING COMPLETION DATE WITHIN THE TIME FRAME REQUIRED BY ADM. DISC. R. 25(VIII)(I) AND THE REPORT OF HEARING DEADLINE REQUIRED BY ADMISSION AND DISCIPLINE RULE 25(VIII)(N).

GIVEN THE DEADLINES LISTED IN RULE 25, THE SCHEDULE SUBMITTED BY THE MASTERS SHOULD RESULT IN SUBMISSION OF THE MASTERS' REPORT OF HEARING TO THIS COURT ON OR BEFORE MONDAY, JANUARY 24, 2011.

THE SCHEDULE SHALL BE SENT TO THE SUPREME COURT ADMINISTRATOR, WHO WILL HAVE IT FILED.

RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR.

(ORDER REC'D 09/09/10 AT 9:19 A.M.) ENTERED ON 09/10/10 KJ

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Indiana Courts

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

For publication opinions today (2):

In Crown Coin Meter Company, et al. v. Park P, LLC , an 11-page opinion, Judge Crone writes:

The new owner of an apartment complex filed a complaint to quiet title and for declaratory judgment against the company that installed and maintained coin-operated laundry equipment in the complex for use of the residents. The laundry equipment company leased the laundry facilities on the property from the prior owner of the apartment complex pursuant to a written lease agreement. Because the ten-year lease agreement was never recorded as required by Indiana statute, the new owner claims that the lease agreement is void as a matter of law. The trial court entered summary judgment in favor of the new owner, Park P, LLC (“Park P”). The laundry equipment company, Crown Coin Meter Company, Commercial Coin Laundry Systems, and American Coin Laundry (collectively “Commercial Coin”) appeals, arguing that the trial court erred when it granted summary judgment declaring the lease agreement void because there is a genuine issue of material fact as to whether Park P had notice of Commercial Coin's leasehold interest in the property prior to its purchase of the apartment complex. Finding that a genuine issue of material fact remains, we reverse the judgment of the trial court and remand for further proceedings. * * *

A genuine issue of material fact exists as to whether Park P was a subsequent purchaser in good faith of the apartment property. Therefore, the trial court erred when it concluded that any lease agreement regarding the Demised Premises was void as a matter of law pursuant to Indiana Code Section 32-31-2-2. We reverse the trial court's entry of summary judgment and remand for further proceedings consistent with this opinion.

In Charles A. Trotter v. State of Indiana , a 16-page opinion, Judge Crone writes:
Charles Adam Trotter brings this interlocutory appeal from the trial court's denial of his motion to suppress evidence regarding observations of police officers obtained upon their warrantless entry into a private residence. The trial court concluded that, although the warrantless entry was unlawful pursuant to both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution, evidence of the officers' observations is nevertheless admissible pursuant to the doctrine of attenuation. By way of cross-appeal, the State challenges the trial court's threshold determination that police officers unlawfully entered the private dwelling. We reverse and remand.

Both Trotter and the State raise issues for our review, which we reframe as follows:

I. Whether the warrantless entry into a private residence violated the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution; and
II. Whether evidence of the officers' observations obtained as a result of the warrantless entry is admissible pursuant to the doctrine of attenuation. * * *

The trial court properly determined that the officers' warrantless entry into the residence was neither justified by exigent circumstances nor supported by probable cause. Accordingly, the officers' warrantless entry violated the Fourth Amendment.

Similarly, we agree with the trial court that the officers' warrantless entry also violated Trotter's rights pursuant to our state constitution. * * *

Although the remedy for unconstitutional intrusion is generally suppression of the evidence obtained, the State maintains that even assuming the illegality of the officers' warrantless entry into the residence, the exclusionary rule should not apply here to suppress evidence of the officers' observations. Specifically, the State argues that Trotter's alleged act of pointing a firearm at officers in response to the unlawful entry was an intervening act that dissipated any taint of the unconstitutional entry. We must disagree. * * *

The proper remedy for the constitutional violation here is the suppression of the evidence obtained as a result of that violation. We reverse the trial court's denial of Trotter's motion to suppress and the trial court's grant of the State's motion to clarify, and we remand for additional proceedings consistent with this opinion.

NFP civil opinions today (4):

Eclipse Consulting, Inc. v. Community Bank (NFP)

Jeanette Haggard v. Brent Boyd (NFP)

Doyle L. Silvers v. Janet Silvers (NFP)

Edna Taylor Living Trusst v. Kokomo/Howard County Plan Comm. (NFP)

NFP criminal opinions today (2):

David Howard v. State of Indiana (NFP)

Chance Ross Carper v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from Supreme Court

In Lyn Leone, et al. v. Commissioner, BMV, a 24-page, 5-0 opinion, Chief Justice Shepard writes:

The Bureau of Motor Vehicles notified almost 200,000 people that their driver’s licenses and identification cards did not match their Social Security records. Within six months, more than three-quarters of these people had somehow corrected the discrepancies. Appellants represent the subset of those remaining whose names did not match, about 15,000 people. They assert that the Bureau has overstepped its statutory authority by redefining the meaning of “legal name” to exclude anything but the name on file with the Social Security Administration. They sought a preliminary injunction, which the trial court denied. The trial court's conclusion that the class has not shown a likelihood of success was not an abuse of discretion, so we affirm. * * *

We affirm the trial court. We dissolve the preliminary injunction entered by the Court of Appeals as a stay pending appeal.

Dickson, Sullivan, and Boehm, JJ., concur. Rucker, J., concurs in result without separate opinion.

In Matter of the Estate of Harry L. Rickert, a 9-page, 5-0 opinion, Justice Boehm writes:
A holder of a power of attorney is a fiduciary and therefore any transaction in which the holder uses a power of attorney to transfer assets to the holder is presumed invalid. The Non-Probate Transfer Act creates a presumption that joint ownership of a bank account is intended to transfer the account to the survivor(s) at the death of an owner. We hold that the Act’s presumption of intent to transfer does not overcome the fiduciary’s duty to prove that the account was properly established as a joint account. The holder in this case used the power to establish joint accounts with herself, and did not overcome the presumption that the accounts were not validly established as joint accounts. * * *

The judgment of the trial court is reversed. This case is remanded to the trial court with directions to order restoration to the Estate of Harry Rickert of bank accounts owned of record by Rickert and Keta Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any supporting documentation indicating participation by Rickert.

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

Updating this ILB entry from yesterday, here is the list of applicants. It is not quite final yet, check back the end of the day to see if there have been any last minute submissions:

Jan M. Carroll, Barnes & Thornburg
David R. Hennessy
Kathy L. Osborn, Baker & Daniels
Joel Schumm, IU Indy Law School
William E. Winingham, Wilson, Kehoe & Winingham

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Indiana Courts

Ind. Gov't. - "Fort Wayne opens books to online scrutiny"

Benjamin Lanka reports today in the Fort Wayne Journal Gazette:

Fort Wayne residents now have the ability to see exactly how city government spends its money.

Mayor Tom Henry on Thursday unveiled the first element of his SmartGov initiative: a website providing anyone the opportunity to search through the city’s checkbook and contracts. * * *

The new website fulfills a City Council requirement to post all city expenses online. Councilman Mitch Harper, R-4th, authored the bill and said the information will be beneficial in many ways.

Most important, he said, it will city residents as well as outsiders a chance to analyze and compare city spending.

“We’ve got a lot of sharp minds in Fort Wayne,” he said.

The website allows people to search through city contracts worth $25,000 or more and all city checks. It provides monthly expense and revenue reports and the city’s annual comprehensive financial report.

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Indiana Government

Courts - Still more on: "Kansas joins case to head off federal carbon regulation"

Supplementing Wednesday's ILB entry on the amicus brief filed by the Indiana AG in Connecticut v. AEP, and yesterday's ILB report that several other appeals are intertwined, the NY Times today has made available the Sept. 3rd amicus brief filed by Indiana Attorney General Zoeller. Access it here.

A story on the NY Times website
posted last evening by Gabriel Nelson begins:

Challenging the appropriateness of using the courts to address climate change, Indiana and 11 other states are urging the Supreme Court to overturn an appeals court decision that would allow greenhouse gas emitters to be sued for their contribution to global warming.

The case, American Electric Power v. Connecticut, is headed to the Supreme Court this fall after the 2nd U.S. Circuit Court of Appeals decided last year that other states, including Connecticut and New York, had standing to sue coal-fired utilities for their share of the damage caused by climate change. * * *

The friend-of-the-court brief filed Friday by Indiana Attorney General Gregory Zoeller (R) neither supports nor opposes greenhouse gas regulations but argues that question should be left to the other two branches of government. With a cap-and-trade program on the table in Congress and U.S. EPA rolling out greenhouse gas regulations under the Clean Air Act, it is especially important that federal courts stay out of the issue, the brief says.

"Reasonable people disagree on many levels over the extent to which greenhouse gas emissions, and especially CO2 emissions, should be regulated. Given that every industry, and indeed every living mammal, constantly emits CO2, such emissions cannot simply be banned outright, no matter what the harm to the environment," Zoeller wrote. "Someone has to make a policy determination as to how much is acceptable and how much is too much. That someone should not be the federal judiciary." * * *

Bryan Corbin, a spokesman for the Indiana attorney general, said his office wanted to weigh in on the case primarily because of the implications for state sovereignty.

"To the extent that this lawsuit would enable a court to cap CO2 emissions that states would permit," the brief says, "allowing some states to seek common-law injunctions against industries in other states would undermine the entire state-federal regulatory scheme."

Posted by Marcia Oddi on Friday, September 10, 2010
Posted to Courts in general | Environment | Indiana Government

Thursday, September 09, 2010

Ind. Courts - More on Perry County Prosecutor accused of misconduct

Updating this ILB entry from Aug. 5, 2010, Editor Vince Luecke of the Perry County News reports today in a long story that begins:

TELL CITY – Perry County Prosecutor Robert Collins has filed a written response to allegations that he sexually harassed a former deputy in his office. In the document, filed Sept. 7 with the Indiana Supreme Court Disciplinary Commission, Collins denies the accusations outlined in a verified complaint for disciplinary action filed last month.

The complaint alleges Collins made sexual advances toward Lyn Hayse and fired her after she complained about his actions. Collins maintains he fired Hayse for cause.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Indiana Courts

Ind. Courts - Monroe County Chief public defender’s salary cut 10% despite high caseload

Laura Lane of the Bloomington Herald-Times has the story today ($$$). A few quotes:

Chief Public Defender Michael Hunt on Wednesday surrendered his position as Monroe County’s highest-paid official when the county council slashed his $125,647 salary by 10 percent for 2011.

Hunt has represented financially struggling clients for more than three decades. He oversees an office that has seen an increasing caseload as more and more indigent defendants are appointed legal representation at the county’s expense.

The deputy public defenders who work for him and handle most of the cases make about $53,000 per year, less than half of their boss’s income and $7,000 less than deputy prosecutors on the other side of the table. * * *

Because Monroe County’s salary ordinance calls for chief deputies to be paid at 75 percent of the department head, chief deputy public defender Michael Spencer’s 2011 salary was reduced to approximately $84,000.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Indiana Courts

Ind. Decisions - One today from the Supreme Court

In Matter of the Estate of Harry L. Rickert, a 9-page, 5-0 opinion, Justice Boehm writes:

A holder of a power of attorney is a fiduciary and therefore any transaction in which the holder uses a power of attorney to transfer assets to the holder is presumed invalid. The Non-Probate Transfer Act creates a presumption that joint ownership of a bank account is intended to transfer the account to the survivor(s) at the death of an owner. We hold that the Act’s presumption of intent to transfer does not overcome the fiduciary’s duty to prove that the account was properly established as a joint account. The holder in this case used the power to establish joint accounts with herself, and did not overcome the presumption that the accounts were not validly established as joint accounts. * * *

The judgment of the trial court is reversed. This case is remanded to the trial court with directions to order restoration to the Estate of Harry Rickert of bank accounts owned of record by Rickert and Keta Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any supporting documentation indicating participation by Rickert.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

Updating this ILB entry from August 3, 2010, nominations for the attorney member who will represent the 2nd District on the Commission for the next three years are due tomorrow, September 10th.

The ILB has sent an inquiry to the Court's public information office as to when the names of the applicants will be available, and is awaiting a response.

Ballots and biographies of each candidate will not be mailed to all Second District attorneys until October 12, 2010, according to the Court Clerk.

Indications I've seen are that there is much more interest in the position this year than has been the case in the past, but we won't know for sure until the names are available.

Recall this ILB entry from Sept. 2, 2010, headed "Court charges for miscellaneous services and the race for the Judicial Nominating Commission," that concluded:

Creating mailing labels is simple using the Roll of Attorneys database. But sending a mailing to thousands of Indiana attorneys is costly, favoring attorneys with deep pockets or those backed by well-funded organizations. If e-mail addresses had been made available to candidates this year when more attorneys than ever seem to be interested in competing, the playing field would have been leveled.
Already this morning in the mail I received a "Dear Colleague" letter from William E. Winingham on Wilson Kehoe & Winingham stationary, concluding: "I ask that you consider voting for me when you receive your ballot."

And rumor has it that one very high ranking spouse of an applicant was already making calls to round up supporters last week.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Indiana Courts

Ind. Decisions - Interesting Wis. wiretap decision today from 7th Circuit

In U.S. v. Szymuszkiewicz, a 13-page decision, Chief Judge Easterbrook writes:

David Szymuszkiewicz was in trouble at work. His driver’s license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers’ homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client. She discovered a “rule” that directed Outlook to forward to Szymuszkiewicz all messages she received. Szymuszkiewicz was convicted under the Wiretap Act for intentionally intercepting an electronic communication. See 18 U.S.C. §2511(1)(a). The district judge denied his motion for a judgment of acquittal. * * *

Affirmed.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Thomas C. Temperly v. State of Indiana , a 16-page opinion, Judge Kirsch writes:

Thomas C. Temperly was convicted after a bench trial of operating while intoxicated1 (“OWI”) as a Class A misdemeanor. He appeals, raising several issues, which we consolidate and restate as: I. Whether the sanctions imposed by Indiana Code section 9-30-7-3 required Temperly to consent to a chemical test in the absence of probable cause; II. Whether Temperly's blood test results obtained under Indiana Code section 9-30-7-3 were admissible in a criminal prosecution under Indiana Code chapter 9-30-5; and III. Whether sufficient evidence was presented to support Temperly's conviction for operating while intoxicated as a Class A misdemeanor. * * *

We conclude that there were no circumstances to indicate that Temperly's consent was not voluntarily given. He was correctly advised of the consequences for refusing a chemical test and was never told that he could not refuse the test. There was no indication that the officer offered any promises, made any physical threats, or engaged in any coercive behavior or that Temperly did not fully understand the choices available to him. We therefore find that Temperly voluntarily consented to the chemical test.

Further, we do not believe the possibility of a fine of up to $10,000 under the Class A infraction caused his consent to be involuntary because Temperly has failed to show that he was aware of the possibility of such a fine when he consented to the chemical test. The stipulated facts only show that he was informed that a refusal to submit to a chemical test would be a Class A infraction if he had prior convictions, but not what the possible fine was for such an infraction. Therefore, because he was not advised of the possible fine, he cannot claim that it somehow influenced his decision to consent to the chemical test. * * *

We next determine whether sufficient evidence was presented to prove that Temperly endangered a person.3 Both our Supreme Court and this court have recently held that the State is required to present evidence beyond mere intoxication in order to prove the element of endangerment and support a conviction of OWI as a Class A misdemeanor. Outlaw v. State, 929 N.E.2d 196, 196 (Ind. 2010) (adopting and incorporating by reference this court's opinion in Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App. 2009)); Dorsett v. State, 921 N.E.2d 529, 533 (Ind. Ct. App. 2010). Here, the stipulated facts established that Temperly was involved in a fatal accident, of which he was not the cause, when Merrick, who had been observed driving erratically, drove his vehicle into the path of Temperly's vehicle. Appellant’s App. at 26. The stipulated facts also showed that Temperly had an odor of alcoholic beverages about his person, admitted that he had consumed beer prior to the accident, and was determined to have a BAC of .244 after a chemical test. Id. at 27-28. No evidence other than Temperly's intoxication was presented to suggest that he operated his vehicle in a manner that endangered himself or any other person. We therefore conclude that insufficient evidence was presented that Temperly operated his vehicle while intoxicated in a manner than endangered a person, and we must reverse his conviction. * * *

To prove that Temperly operated a vehicle with a BAC of .15 or more as a Class A misdemeanor, the State was required to show that he had a BAC of .15 or more at the time he operated a vehicle. Ind. Code § 9-30-5-1(b). The stipulated facts established that Temperly operated a vehicle and had a BAC of .244, and nothing in our decision today affects the trial court's conclusion on this charge. We accordingly remand this to the trial court with instructions that it vacate Temperly's Class A misdemeanor conviction and sentence for OWI and enter judgment and an appropriate sentence for Class A misdemeanor operating with a BAC of .15 or more. See e.g., Dorsett, 921 N.E.2d at 533 (remanding case to trial court for judgment to be entered on previously merged conviction when insufficient evidence found to support conviction for which judgment had been entered).

Affirmed in part, reversed in part, and remanded.

In Robert C. Bergstrom, Jr. v. State of Indiana , a 5-page opinion, Judge Mathias writes:
Here, the trial court held a hearing on Bergstrom’s motion to correct error on November 5, 2009, but did not rule on the motion until ninety-two days later. See Appellant’s App. p. 6. By operation of Trial Rule 53.3(A), Bergstrom’s motion was deemed denied thirty days after the November 5, 2009 hearing, i.e., December 7, 2009.1 Bergstrom was required to file his notice of appeal within thirty days of the date his motion was deemed denied. See T.R. 53.3(A) (“Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.”); Ind. Appellate Rule 9(A)(1) (“if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion, or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first.”). Thus, Bergstrom had to file his notice of appeal by January 6, 2010, which is thirty days from the date his motion to correct error was deemed denied.

Bergstrom did not file his notice of appeal until March 4, 2010, which, while within thirty days from the date the trial court issued an order denying Bergstrom’s motion to correct error, was not within thirty days from the date his motion was deemed denied under Trial Rule 53.3(A). Bergstrom’s notice of appeal was therefore untimely. “In Indiana, timeliness of filing a notice of appeal is of the utmost importance.” Bohlander, 875 N.E.2d at 301. The timely filing of a notice of appeal is a jurisdictional prerequisite, and the failure to conform to the applicable time limits results in forfeiture of an appeal. Id. Because Bergstrom did not timely file his notice of appeal within thirty days of the date his motion to correct error was deemed denied, his appeal is now dismissed as untimely. Dismissed.

Wolverine Mutual Insurance Company v. Jeremy Oliver - "In summary, the small-claims court did not err in, unprompted by Oliver, questioning Wolverine about the applicability of the statute of limitations on the facts of this case, and in
deciding the case on this basis."

In Mark Kinsel v. Robert and Dolores Schoen , a 14-page opinion, Chief Judge Baker writes:

The defendant-neighbor's manmade pond leaked water, flooded the plaintiffs' septic drainage field, and caused the system to fail. Notwithstanding this evidence, the local Board of Health pursued an action against the plaintiffs and compelled them to replace the failed septic system. In light of these circumstances, we hold, among other things, that the trial court properly ordered the defendant to reimburse the plaintiffs-landowners for attorney's fees that they paid to defend themselves in the Board of Health proceedings. We also conclude that the trial court did not abuse its discretion in ordering the defendant to reimburse the plaintiffs for amounts that they paid to an expert hydrologist who conducted various tests on the property in an effort to establish the cause of the septic drainage field flooding.

Appellant-defendant Mark Kinsel appeals the trial court's judgment in favor of plaintiffs-appellees Robert and Delores Schoen (the Schoens) on their claims against him for nuisance, trespass, and negligence. Specifically, Kinsel argues that the trial court erred in not applying the common enemy doctrine, the damage award was improper because the Schoens failed to mitigate their damages, and that the trial court erred in ordering him to pay the Schoens' attorney's fees that they incurred in prior proceedings and the expert witness fees that the Schoens paid in the instant case. Concluding that the trial court's damage award was proper and finding no other error, we affirm.

NFP civil opinions today (1):

M.S., Alleged to be C.H.I.N.S.; J.F. v. I.D.C.S. (NFP)

NFP criminal opinions today (8):

Fred Mott v. Ed Buss, et al. (NFP)

State of Indiana v. Charles Boyle (NFP)

Wilfred V. Rhea, III v. State of Indiana (NFP)

Kevin D. Duncan v. State of Indiana (NFP)

Ricardo A. Telfer v. State of Indiana (NFP)

Davd D. Lewis v. State of Indiana (NFP)

Steve Brown v. State of Indiana (NFP)

Courtney E. Terhune v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on: "Kansas joins case to head off federal carbon regulation"

Supplementing yesterday's ILB entry on the amicus brief filed by the Indiana AG in Connecticut v. AEP, several other appeals are intertwined

Robert M. Stonestreet of Dinsmore & Shohl LLP writes in this comprehensive article dated Aug. 23, 2010 headed "Regulation by litigation: Fourth Circuit weighs in on nuisance suits involving air emissions", focusing on the decision in North Carolina v. Tennessee Valley Authority:

The Fourth Circuit now joins the ranks of other courts that have addressed, with differing results, the propriety of public nuisance suits targeting air emissions. In Connecticut v. American Electric Power Company, Inc., 582 F.3d 309 (2d. Cir. 2009), eight states, three private land trusts, and the City of New York filed suit in federal court in New York against six electricity companies alleging that emissions from the companies’ coal-fired power plants contribute to the “ongoing nuisance” of global warming. The plaintiffs mostly alleged future injuries if the emissions allegedly contributing to global warming were not reduced, such as increased health problems from heat waves and smog, coastal erosion from rising sea levels, and general disruption of ecosystems. The plaintiffs asked the court to set deadlines for future reductions in emissions of “greenhouse gases” - mostly carbon dioxide. The plaintiffs did not seek any monetary damages.

The district court dismissed the case as a “political question” requiring the “identification and balancing of economic, environmental, foreign policy, and national security interests” that are appropriately addressed by the legislative and executive branches of government. On appeal, the Second Circuit reversed and reinstated the claims. The court concluded that the claims did not present a “political question,” but rather each plaintiff had sufficiently alleged legal claims upon which courts may grant relief. The power companies petitioned the United States Supreme Court to review the decision in early August, 2010.

Lyle Denniston of SCOTUSblog posted this entry yesterday, Sept. 8th, headed "Major fight on airborne pollution: The state of North Carolina is pressing the Fourth Circuit Court to reconsider a ruling overturning a mandate for pollution controls on out-of-state power plants."

And on Sept. 8, Dina Fine Maron and Evan Lehman of the NY Times reported "Obama's Climate Image Blurs as He Nears Last Half of Presidential Term." A few quotes:

Questions about Obama's commitment to addressing emissions flared again last month, when the administration weighed in on the landmark climate case American Electric Power Co. v. Connecticut. The Department of Justice submitted a legal brief encouraging the Supreme Court to throw out a decision by the 2nd U.S. Circuit Court of Appeals that affirmed the right to sue a collection of major electric utilities for their contributions to global warming. * * *

The DOJ brief argued that if local lawsuits claiming nuisance were allowed to proceed, there could be legal chaos, with courts deciding these issues on a case-by-case basis, "which is just not the way the court is supposed to work," said Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Environment

Environment - More on "New Asian carp czar John Goss outlines approach"

Updating yesterday's ILB entry, Mary Beth Schneider of the Indianapolis Star reports under the headline: "U.S. 'Asian carp director' is a Hoosier: The former head of Indiana's DNR will report to Washington." Tina Lam of the Detroit Free Press, who authored yesterday's original story, writes today:

No other invasive species has its own White House-level director, the Obama administration said. There hasn't been such a concentrated effort to attack a species since 1955, when the binational Great Lakes Fishery Commission was set up to control sea lamprey.

"The creation of this position further demonstrates that the Asian carp issue is not just a challenge for Illinois but the entire nation," said Marc Miller, director of the Illinois Department of Natural Resource, which has until now, led much of the anti-carp effort, including poisoning various waterways.

One of Goss' challenges will be corralling warring states, which have differing views on lock closures and separating the Great Lakes and Mississippi waters. As Goss' appointment was announced, testimony was continuing in an Illinois court room in a lawsuit filed by five Great Lakes states, including Michigan, seeking permanent lock closures.

"We hope he shows independence from what is essentially a Chicago-based White House, one which protects Illinois' interests over those of the Great Lakes," said John Sellek, spokesman for Michigan Attorney General Mike Cox.

Goss said he's waiting for a study by the Army Corps of Engineers to form his own opinion on whether the watersheds should be permanently separated. That study is not due to be completed until next year.

U.S. Sen. Debbie Stabenow said Wednesday that the speed of the Army Corps' study is one of the items Goss needs to address. "The timetable is way too slow," she said.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Environment

Ind. Decisions - FSSA's most recent order may be “invalid or illegal”

More procedural facts needed to understand this story today by Angela Mapes Turner of the Fort Wayne Journal Gazette. Some quotes:

A local company that runs group homes for adults with developmental disabilities was dealt a break this week by a Marion County judge.

But the state argues that Your Friends and Neighbors has no business serving Medicaid-eligible clients, and a spokesman for Indiana’s social services agency said that argument will be made in court.

Your Friends and Neighbors, which has offices in Fort Wayne, Indianapolis, South Bend and Georgia, faced scandal this year when its former chief operating officer, Ernest Beal, was sentenced to two years in prison for raiding his clients’ trust funds.

The Indiana Family and Social Services Administration moved to transfer clients from the company’s group homes, saying Your Friends and Neighbors would no longer be eligible to receive Medicaid funds.

Your Friends and Neighbors sought the opinion of an administrative law judge, who gave the company a reprieve. But two weeks ago, FSSA said an internal review found the administrative law judge’s decision was in error, concluding that “a government entity may craft its contracts as it deems appropriate to best administer the Medicaid program.”

On Tuesday, Marion County Superior Court Judge John Hanley ruled the state’s most recent order may be “invalid or illegal” and granted a stay on the decision until the court has time to evaluate the matter.

FSSA maintains that Your Friends and Neighbors is no longer eligible to receive Medicaid funds, an assertion that company Chief Executive Officer Justin Beal disputed Wednesday.

Posted by Marcia Oddi on Thursday, September 09, 2010
Posted to Ind. Trial Ct. Decisions

Wednesday, September 08, 2010

Ind. Gov't. - "As Stadiums Vanish, Their Debt Lives On"

An eye-opening story today on the front page of the NY Times. And yes, Indianapolis is mentioned several times.

This large NY Times graphic shows the facts even most -- graphically. The long table going down the right side shows that the "public share" of Lucas Oil Stadium is 87% of $780 million (which comes out to a commitment of $678,600,000). Looking down the table, this appears to be a far larger number than the other stadiums across of the nation. (There is much more to be found in the article and the graphic.)

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Indiana Government

Ind. Decisions - Another interesting 7th Circuit opinion today

This is a 9-page opinion in a Petition for a Writ of Mandamus to the ND Illinois, In re ERICH SPECHT. Chief Judge Easterbrook writes the opinion, which begins:

In 1999 Erich Specht started a home business, which he called Android Data Corporation. It offered website hosting services. Specht registered “Android Data” as a federal trademark for his business, which folded in 2002. Specht allowed his registration for the domain name “androiddata.com” to lapse, and the corporation was dissolved under state law. Specht did not use the mark again until 2009—when,having learned about Google’s Android operating system for mobile phones, he registered the domain name “android-data.com”, attempted to resurrect the corporation by sending backdated reports and fees to the Illinois Secretary of State, and filed suit against Google and 47 other defendants for trademark infringement.
What is most interesting to the ILB is the closing, which deals with documents that Google and AT&T tried to protect as "confidential":
One final subject. Google and AT&T Mobility have asked us to keep confidential the language of their indemnity agreement and some other documents. Other participants in the wireless communication business might be able to obtain some negotiating advantage by knowing the agreement’s terms. Google and AT&T do not contend, however, that the terms are trade secrets. Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality. See, e.g., Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000). Because the motions to seal do not contend that the standards of Baxter and Union Oil have been satisfied, they are denied. If Google and AT&T wanted to keep the documents’ terms secret, they should not have proffered them in response to Specht’s motion.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Hogsett's hearing set

Here is the agenda for the U.S. Senate Judiciary Committee meeting on Sept. 16, 2010. From Item I. Nominations:

Kathleen M. O'Malley, to be United States Circuit Judge for the Federal Circuit

Beryl A. Howell, to be United States District Judge for the District of Columbia

Robert L. Wilkins, to be United States District Judge for the District of Columbia

Michael J. Moore, to be United States Attorney for the Middle District of Georgia

Michael R. Bladel, to be United States Marshal for the Southern District of Iowa

Kenneth J. Runde, to be United States Marshal for the Northern District of Iowa

James E. Clark, to be United States Marshal for the Western District of Kentucky

Joseph H. Hogsett, to be United States Attorney for the Southern District of Indiana

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Indiana Courts

Ind. Gov't. - "Parking Meters Will Be a Cash Register That Never Stops Ringing for the Vendor"

Over the years, the ILB has had a long list of entries on the privatization of parking meters in Chicago.

Now it seems to be Indy's turn ...

"Parking Meters Will Be a Cash Register That Never Stops Ringing for the Vendor" is a quote from an entry in a blog called Urbanophile, by Aaron M. Renn, pointed out this afternoon by this Advance Indiana entry. The headline to the Urbanophile entry, dated Sept. 7, 2010, is "Indy’s 'Son of Chicago' Parking Meter Lease to Be a Disaster for City."

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Indiana Government

Courts - "Ohio's republican justices squawk over website"

From the Columbus Dispatch's "Daily Briefing" blog, see this item posted by statehouse reporter James Nash.

Ohio justices are elected, and this eye-catching website supporting two candidates, is named Vote to End Injustice. It urges voters to elect "Trapp&Brown."

From Nash's blog entry:

A website criticizing decisions of the Ohio Supreme Court brings disrepute on the state's top court and should be taken down, two Republican justices wrote in complaints to the Ohio State Bar Association.

Justice Maureen O'Connor, running for chief justice, and Justice Judith Ann Lanzinger, running for reelection, say the website VoteToEndInjustice.com unfairly maligns the independence and judgment of the court. * * *

O'Connor called on the Ohio State Bar Association to publicly declare the website "false, mischaracterized and misleading." Lanzinger went a step further, calling for the "immediate abolishment" of the site. Last month, Lanzinger pressed opponent Mary Jane Trapp to denounce the website, which Trapp declined to do.

Dennis P. Mulvihill, president of the Ohio Association for Justice, defended the website in an interview today. He said most of the information is simply news articles on court decisions, while any criticisms are protected by the First Amendment.

"We're not undermining confidence in the court, and nor are we building up public confidence in the court," Mulvihill said. "We're simply reporting on what the court has done."

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Courts in general

Environment - 2010 Indiana Environmental Statutes now available

This is the 2010 edition of the annual publication, the Indiana Environmental Statutes, sponsored by the Environmental Law Section of the Indiana State Bar Association, and edited by Marcia J. Oddi.. A convenient desktop resource including Title 13 of the Indiana Code, plus the administrative orders and procedures act (AOPA) and numerous other related Indiana statutes. 602 pp. $30.00. Order here, or use this shortened link.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Environment

Courts - "Kansas joins case to head off federal carbon regulation"

This lengthy story appeared in the Sunday, Sept. 5, 2010 edition of the Wichita Kansas Eagle. Some quotes:

Attorney General Steve Six has joined Kansas with 10 other states in an effort to head off federal regulation of greenhouse gases.

They seek to block federal courts from proceeding with a trial that Six says could lead to more restrictions on carbon emissions by utilities and other industries.

Six announced late last week that he has joined the state to a friend-of-the-court brief filed by Indiana in the case Connecticut v. American Electric Power Co.

The brief asks the U.S. Supreme Court to overturn an appellate decision to allow a trial in a lawsuit in which eight states sued six major power producers, alleging that their emissions of carbon dioxide and other gases were a public nuisance.

Another story appeared yesterday in the Pittsburg Kansas Morning Sun.

The Indiana Attorney General has taken the lead in the challenge to the 2nd Circuit decision. The ILB has not seen any local news or releases about this. The ILB has written in the past about the AG's ability to take a legal position on behalf of the State of Indiana in this manner -- see ILB entries headed "Who should decide Indiana's position on national legal issues? Who should know?", from 7/27/09, 8/7/09, and 10/3/09 (the last of which quoted the AG's public information officer: "Several of you have asked to be notified whenever the Indiana Attorney General files an amicus brief in a cert petition to the U.S. Supreme Court.")

Also interesting: the AG's position here is the same as that of the Obama administration. This August 25th NY Times story by Gabriel Nelson begins:

The Obama administration has urged the Supreme Court to toss out an appeals court decision that would allow lawsuits against major emitters for their contributions to global warming, stunning environmentalists who see the case as a powerful prod on climate change.

In the case, AEP v. Connecticut, the 2nd U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups and New York City. The decision, handed down last year, said they could proceed with a lawsuit that seeks to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions.

The defendants -- American Electric Power Co. Inc., Duke Energy Corp., Southern Co. and Xcel Energy Inc. -- filed a petition for review with the Supreme Court earlier this month, asking the court to reject the argument that greenhouse gas emissions can be addressed through "public nuisance" lawsuits.

In a brief filed yesterday on behalf of the Tennessee Valley Authority, acting Solicitor General Neal Katyal agreed with the defendants, saying that U.S. EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim.

Mother Jones' Kate Sheppard wrote on Aug. 27th:
The biggest problem, argue the plaintiffs, is that these promised EPA regulations aren't yet in place. According to the timeline issued by the agency, the initial rules aren't coming until 2011, and that’s just for the largest and newest sources of pollution. The EPA's initial regulations won't touch existing coal-fired power plants, such as those at the heart of this case, unless there are significant changes made to those facilities. It's not yet clear when, if ever, the EPA would start phasing in rules for all older plants.

The Obama administration didn't have to weigh in on the case at all, which makes its intervention all the more aggravating for environmentalists. "At the very least, they could have stayed out of it," said Jonathan Zasloff, a law professor at UCLA. Letting the case go forward could also create a greater impetus for legislative action on climate change, something the administration has maintained is its preference anyway, and given it more bargaining power over polluters.

Instead, Zasloff notes that the administration is basically giving big emitters an escape route, as utilities (including some of those involved in this case) are expected to challenge and attempt to delay the EPA regulations every step of the way. This will, of course, make it more difficult for the agency to accomplish what it says it will do. By siding with them in this case, Zasloff says, "essentially the Obama administration and the solicitor general appear to have made their own lives a lot more difficult."

And from David Dayen of FireDogLake, also on Aug. 27th, an entry that begins:
The Administration’s argument for trying to shut down a public nuisance lawsuit against the nation’s top greenhouse gas emitters is “an industry argument,” according to the co-lead counsel in the case, and has been contradicted by opinions of past Democratic Administrations.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Courts in general | Environment

Environment - "New Asian carp czar John Goss outlines approach"

Tina Lam of the Detroit Free Press reports:

The White House said today it has chosen John Goss, former director of the Indiana Department of Natural Resources, as its Asian carp czar.

Goss described himself as a fisherman who is very concerned about the possible spread of the voracious fish into the Great Lakes. Goss has also served as executive director of the Indiana Wildlife Federation.

In a call with reporters, Goss was noncommittal about whether there should be a permanent separation between the Mississippi River and the Great Lakes, reversing the flow of the Chicago River. He said he’s awaiting the outcome of a study by the Army Corps of Engineers, which is looking at whether such a reversal is feasible.

“I have not reached a conclusion yet,” he said.

Sen. Debbie Stabenow, D-Mich., said she wants to push for a faster time line of that study. “Their timetable is way too slow,” she said of the study, which is not due to be finished until late next year.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Department of Waterworks v. Community School Corp., So. Hancock, a 21-page, 2-1 opinion (including a colored map on p. 18), Chief Judge Baker writes:

Southern Hancock School Systems (School) is scheduled to open a new intermediate school in August 2011. Pursuant to its plan, the School wants to connect a 2300-foot service pipe from an existing water main to its new facility. The Indianapolis Department of Waterworks (Water Company) denied the School’s request to install a service pipe in lieu of a water main extension because the School’s idea was contrary to the Water Company’s rules and “good engineering practice.” Appellant’s Br. p. 5. This case comes before us following the Indiana Utility Regulatory Commission’s (IURC) determination that the rules do not preclude the School from connecting a service pipe to its new facility from an existing main.
Appellant-respondent Water Company appeals the IURC’s decision in favor of appellee-complainant School, claiming that the IURC’s decision allowing the School to construct its own water service line rather than paying for a water main extension is contrary to law because the new building does not abut an existing main as required by the Water Company’s departmental rules. The Water Company also asserts that the IURC’s factual determinations regarding the economics of the School’s decision to connect to the existing main are not supported by the evidence and that the School failed to refute the Water Company’s engineering plans and water quality analysis. Concluding that the IURC properly determined that the Water Company’s rules do not preclude the School from connecting its new building to an existing water main and finding no other error, we affirm. * * *

MATHIAS, J., concurs.
RILEY, J., dissents with opinion. [that concludes] Under the undisputed facts before us, the new intermediate school is constructed on its own parcel within the school corporation’s campus. As far as I can discern, this new construction is not attached to any existing building but is an independent structure at the far end of the campus. Mindful of the rule and its accompanying definitions, the new school should be considered a “premise,” pursuant to Rule 7(J), and thus it would be appropriate to require the School to pay for a new main extension.

In Gregory Carter v. State of Indiana , a 9-page opinion, Judge May writes:
Gregory Carter appeals his conviction of Class D felony theft1 and Class B felony robbery resulting in bodily injury.2 He raises three issues for our consideration: 1. Did the trial court abuse its discretion when excluding evidence of Wal-Mart's standard operating procedures for detaining shoplifters? 2. Did some of the prosecutor's comments during voir dire rise to the level of misconduct resulting in fundamental error? 3. Did Carter's convictions of theft and robbery subject him to double jeopardy under the Indiana Constitution? * * *

The trial court did not abuse its discretion when excluding certain evidence, and the prosecutor's actions were not misconduct resulting in fundamental error. However, Carter's convictions of theft and robbery based on the same act subjected him to double jeopardy and, accordingly, his conviction of theft must be vacated.

NFP civil opinions today (5):

James Ricketts v. First Horizon Home Loans, et al. (NFP)

Robert Egierski v. Caterina M. Sergio (NFP)

Steven Griggs v. Steve Querry (NFP)

Lambert C. Genetos, et al. v. Andrew J. Kopko (NFP)

Joseph M. Sipe v. Laurie L. Sipe (NFP)

NFP criminal opinions today (4):

Jack M. Estes, II v. State of Indiana (NFP)

Timothy P. Treacy v. State of Indiana (NFP)

Michael Powell v. State of Indiana (NFP)

Gerald M. Mitchell v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Ind. App.Ct. Decisions

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

In Brown v. Automotive Components Holdings (SD Ind., Judge Young), a 15-page opinion, Judge Sykes writes:

Letecia Brown, an assembly-line worker at a Ford Motor Company plant in Indianapolis,was terminated for being absent from work without properly following Ford’s leave policies and procedures. She filed suit for sex discrimination and retaliatory termination under Title VII and interference with her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. The district court dismissed her sex-discrimination claim, and Brown voluntarily dismissed her retaliation claim, leaving only the FMLA claim before the district court. The court initially denied Ford’s motion for summary judgment on this remaining claim, but Ford moved for reconsideration, noting a factual misunderstanding in the court’s summary-judgment decision. The court agreed and reversed itself, entering summary judgment dismissing Brown’s FMLA claim. Brown appealed.

We affirm. Brown’s appeal addresses only the FMLA claim, and summary judgment in favor of Ford on that claim was entirely appropriate. The undisputed facts establish that Brown was absent without leave after failing to give proper FMLA notice for an extension of a previously requested leave period. Specifically, under the FMLA rules then in effect, Brown had two working days in which to give Ford notice that she intended to extend her leave, see 29 C.F.R. § 825.303(a) (2007), and she failed to do so. Further, an employer is entitled to adhere to its own leave policies and procedures when doing so does not otherwise violate the FMLA. Ford’s termination of Brown’s employment based on her noncompliance with its internal leave procedures did not violate the FMLA.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - "Appeals Court in Atlanta Again Rejects Racial Discrimination Claim"

Here are a couple quotes from Adam Liptak's "Sidebar" column in the NY Times of Sept. 6, 2010:

Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”

“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination. * * *

Stephen B. Bright, president of the Southern Center for Human Rights, said the Atlanta appeals court was an outlier among the federal appeals courts, one that is consistently hostile to suits from people claiming racial discrimination.

“There is no such thing as racial discrimination in employment in the 11th Circuit,” Mr. Bright said, adding that the court’s response to the Supreme Court’s ruling in the Hithon case amounted to “outright defiance.”

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Courts in general

Ind. Decisions - "Appeals court sides with lottery losers, says suit can proceed"

Yesterday's COA decision in Jeff Koehlinger, et al. v. State Lottery Commission of Indiana (ILB summary here, 3rd case) is the subject of a story today by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

A class-action lawsuit brought by an Auburn man against the Hoosier Lottery can move forward to trial, the Indiana Court of Appeals ruled Tuesday.

Jeff Koehlinger of Auburn is one of two plaintiffs suing the state lottery for thousands of dollars he lost playing the Cash Blast game in 2005 and 2006. He spent almost $2,500 on the $10 tickets, while a man from Carmel spent $40,000.

The suit – which has now been certified as a class-action lawsuit – contends the lottery misstated the number and amount of prizes available in the game. The men say they were misled by advertising that made the odds of winning and prizes available seem greater than they were.

The game promised seven grand prizes of $250,000 each, plus several lesser prizes of up to $10,000 each. But the lottery, after selling 5 million tickets, abruptly reduced the number and amount of prizes.

In a statement posted on its website, the Hoosier Lottery acknowledged overstating the prizes.

It said half of the game’s 5 million tickets were “potentially defective” because of a printing error and were replaced, but internal lottery reports did not reflect the changes, resulting in the prizes being overstated.

The odds of winning were not compromised, the lottery said.

A Marion County trial judge dismissed part of the case on behalf of the Hoosier Lottery, saying the players couldn’t seek a contractual claim. But the appellate court reinstated that claim.

“There is ample designated evidence that several class members relied on the misinformation on the lottery’s website when deciding to purchase Cash Blast tickets. It is reasonable to infer that many of these players also suffered prejudice as a result,” the ruling said.

The ruling said numerous people contacted the lottery with questions and concerns about the change in the odds and the lottery didn’t direct them to an administrative remedy.

“Simply put, it seems that the Lottery had no mechanism for addressing player concerns of this type at the time,” the ruling said.

Posted by Marcia Oddi on Wednesday, September 08, 2010
Posted to Ind. App.Ct. Decisions

Tuesday, September 07, 2010

Ind. Law - More on: New Indpls Bar Ass'n PAC "insulate attorneys from donating directly to Marion County judicial candidates" [Updated]

Re this ILB entry posted earlier this afternoon, a reader asks:

Instead of giving equally to every judge on the ballot, why not give equally to all judges who poll at least 80% on the IBA survey of lawyers? If a judge/candidate is polling in the 50s, I suspect many of the lawyers who contribute to the pac are probably not fans.
[Updated 9/8/10]

More comments from readers:

Why is this an improvement? The political parties in Marion County have agreed to avoid any contested races for Superior Court Judgeships by never having elections in which the public has a meaningful voice. The only contested races are in the partisan “slating” process, which are conducted out of the public view and without public scrutiny and accountability. Each party slates candidates for half of the positions and agrees not to run candidates against the other party’s candidates. Then each party runs a “Meet the Judges” fundraiser to shake down the law firms in town. What could possibly be more corrupt? How does it clean up the system to use the Indianapolis Bar Association to run the shake down? It’s not the political donations from lawyers to judicial candidates that is the problem. It is the anti-democratic collusion between the political parties that makes those donations meaningless. We need real elections, not backroom slating deals.
Another reader writes:
Why is the IBA PAC paying money to the judges after the primary? Marion County judicial candidates have no race after the primary because any Marion County judicial candidate on the ballot in the general election wins as soon as they get one vote. Judicial candidates have no challengers in the general election under the current system. Also, is it the intention of the PAC to release the names of and donations of donors to the "PAC" to the judicial candidates?

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Indiana Law

Environment - "One of the state of Ohio's solutions -- transporting future manure to farm fields outside the watershed, including fields in Indiana -- has alarmed some Hoosiers in East Central Indiana."

Updating this August 31 ILB entry headed "We don't need Ohio's environmental problems," this August 30th Muncie Star-Press article by Seth Slabaugh included:

"We have a crisis," Ohio Gov. Ted Strickland said in a letter to the U.S. Environmental Protection Agency. "The economic viability of this region is ultimately linked to the health of this natural resource. We have reached a tipping point where the degraded nature of the lake is causing significant loss to local businesses and the total livelihood of the region." * * *

The U.S. Department of Agriculture's Environmental Quality Incentive Program (EQIP) has assisted farmers wanting to transport manure outside of the watershed, the report states.

"However, there are program obstacles when an Ohio farmer makes arrangements for exporting manure to nearby areas in Indiana," the report states. "Therefore, the state ... will request that USDA establish greater flexibility under EQIP cost share to allow for transportation of manure outside of the watershed, including Indiana."

Barbara Sha Cox of Indiana CAFO Watch called the Ohio EPA's recommendation "frightening."

"We must expect IDEM (Indiana Department of Environmental Management) to be very proactive because we have so many CAFOs (Concentrated Animal Feeding Operations) in Indiana that we do not need to take Ohio's manure to clean up their watershed," Cox said. "I don't think we have the proper regulations, and we already have so much manure brought over from Ohio."

Given the location of Grand Lake St. Marys, Cox would expect Ohio to increase manure transportation to Adams, Blackford, Delaware, Henry, Jay, Randolph and Wayne counties in Indiana.

"Manure is a valuable fertilizer if used correctly," Cox said, "but when it becomes a waste product that they're trying to get rid of, that's the problem."

When Indiana CAFO Watch proposed regulations requiring a two-mile manure-application setback around Indiana lakes and reservoirs, "we were laughed out of the Legislature," Cox said. "Now maybe the legislation will have a better chance."

She scoffed at the prospect of Jay County taking more manure from Ohio. Jay County has its own 42 confined feeding operations (CFOs) and 44 CAFOs permitted to house 265,583 swine, 6,600 dairy cattle, 1,351 beef cattle and more than 4.2 million chickens.

IDEM spokesman Barry Sneed noted that manure was not the only source contributing to blue-green algal blooms in Grand Lake St. Marys. Other sources include home septic systems, residential lawn fertilizer and commercial fertilizer applied to corn and soybean fields.

"IDEM has no authority to dictate where the (Ohio) manure can go," Sneed said. "If the manure goes to an Indiana CFO/CAFO, the receiving farm would still have to follow the manure management guidelines in their permit. If the manure goes to a farm that is not a CFO/CAFO, IDEM has no authority to govern it unless it is a threat to human health and the environment."

The state chemist is working on a rule to regulate land application of manure regardless of the source.

According to this story today in the Richmond Pal-Item:
Manure application rules have become the province of the Indiana state chemist.
And this issue has been pointed out before. See this Feb. 14, 2010 ILB entry, quoting from a story in the FWJG:
While the Indiana Department of Environmental Management is responsible for protecting water quality, the Office of the Indiana State Chemist regulates the storage and use of fertilizers. And last year, legislators passed a law expanding the state chemist authority over fertilizer to include manure, further expanding the state chemist’s responsibility to regulate substances posing environmental threats.
The FWJG story was about the State Chemist rejecting a Steuben County effort to protect its lakes from pollution....

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Environment

Courts - "Barring Hunters From Jury Panel Violates 'Batson,' N.Y. Judge Finds" What about Indiana?

Daniel Wise writes today in the New York Law Journal in a story that begins:

The same U.S. Supreme Court precedent that bars discrimination against potential jurors due to their race, gender or ethnic background can be used to protect the right of hunters to serve on juries, an upstate New York judge has suggested.

Sullivan County Judge Frank LaBuda called a halt to the trial of a Long Island hunter charged with assault for shooting another hunter after the defense attorney issued peremptory challenges to six of 35 potential jurors who had identified themselves as hunters.

LaBuda concluded that the challenges amounted to a "systematic exclusion" of hunters that ran afoul of the Supreme Court's 1988 ruling in Batson v. Kentucky, 476 U.S. 79, to which he repeatedly referred in his oral ruling ordering a mistrial in the case.

What about Indiana? IU Law Professor Joel Schumm's response:
"I suspect the Indiana Supreme Court would not agree." He cites a 2006 Supreme Court opinion by Justice Boehm, Highler v. State, that begins:
"We hold that the use of a peremptory challenge to strike a juror because of the juror’s race, gender or religious affiliation violates the juror’s right to equal protection of the laws. The juror’s affiliation is to be distinguished from religious beliefs that prevent the juror from following the law. The juror’s occupation, to the extent it may indicate a predisposition and is not a pretext, is a permissible ground for a peremptory strike."

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Courts in general

Ind. Law - New Indpls Bar Ass'n PAC "insulate attorneys from donating directly to Marion County judicial candidates"

So reports Jon Murray in this Indianapolis Star story today. It begins:

Most judges hate asking lawyers who practice in their courts for campaign donations -- just about as much as attorneys feel uncomfortable writing the checks that are a large chunk of contributions.

"It puts everybody in a bad spot," said Indianapolis attorney Bob Hammerle, a reluctant giver who applauds the creation of a new option meant to insulate attorneys from donating directly to Marion County judicial candidates.

The Indianapolis Bar Association is forming a political action committee that will accept attorneys' voluntary donations. The PAC then will distribute the money equally to all candidates from both parties who qualify for the general election ballot for the Circuit and Superior courts, starting in 2012. * * *

Some judges are embracing the "blind trust" approach, too, and it's attracting notice outside Indiana. But the plan has its critics -- including Marion County's party leaders, who are skeptical the PAC will raise enough to make a difference.

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Indiana Law

Sports Law - "As NCAA Investigations Increase, Lawyers Find New Opportunities"

Karen Sloan of The National Law Journal has this long and interesting story today. Some samples:

"The process has gotten lawyered-up significantly over the past 10 years," said Gene Marsh, of counsel to Lightfoot, Franklin & White in Birmingham, Ala., and a member of the NCAA's Committee on Infractions for nine years until 2008. "It used to be that sometimes you would see institutions hire outside counsel, but a lot of times the coach would be in there by himself or herself. There are so many more lawyers involved now, and they are showing up earlier than ever in these investigations." * * *

According to a number of attorneys in the field, ever higher revenues generated by certain sports teams is driving more universities to hire outside counsel in NCAA enforcement matters. Major infractions and harsh sanctions can cost a university a lot of money -- sportswriters have estimated that USC could lose millions of dollars as a result of sitting out two bowl games. Universities can also lose prestige and alumni support if their sports teams are crippled by NCAA violations and sanctions.

"Schools more and more are using outside counsel, and I think it's because the stakes are higher and higher with TV coverage and other forms of revenue. They're increasing with no end in sight," said Lightfoot Franklin partner William King, who is in the college sports practice with Marsh. The firm represents the University of Michigan in an ongoing inquiry into the number of coaches and off-seasons workouts it held last season.

"The process has become far more complex over the years, and with that has come more counsel," said Michael Glazier, a partner at Syracuse N.Y.-based Bond, Schoeneck & King who started the country's first collegiate sports practice in 1986 with Mike Slive, now the commissioner of the Southeastern Conference. "Back in the 1980s, schools would use local counsel, who would have to get up to speed on the rules. There was no added expertise."

The field is still relatively small. Bond Schoeneck, Lightfoot Franklin and Indianapolis-based Ice Miller are the only firms with formal NCAA practices. A handful of individual attorneys at law firms have built up NCAA expertise but don't have dedicated practices, while in-house university attorneys sometimes handle cases. The practice typically is not seen as a top money generator because universities have fewer financial resources than corporate clients, and legal bills for public universities are public records often reported by the media.

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to General Law Related

Environment - Yet more on: Superfund used to justify $28,000 bill to fight fire at couple's home

Updating yesterday's ILB entry, which quoted the NYT story:

After adopting such programs, some jurisdictions — including Radnor Township, Pa. — later backed off in response to complaints from residents and visitors, news reports and lobbying by the insurance industry. In recent years 10 states have prohibited such collections, according to the property casualty association: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and Tennessee. But some of those prevent only the police, as opposed to fire departments, from charging fees.
and then asked:
(1) Can anyone direct me to the Indiana law referenced above?
Attorney Kevin R. Patmore of Santa Claus IN responded this morning:
Concerning the restriction on police service charges, see IC 9-29-11.5-3.
It is a 2008 law. Take a look.

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In David Hatter, et al. v. Pierce Manufacturing, Inc. , a 26-page opinion, Judge Robb writes:

While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck’s rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. (“Pierce”), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals. Hatter presents for our review the following restated issues: 1) whether the trial court abused its discretion by failing to strike two jurors for cause; 2) whether the trial court abused its discretion in the giving of two jury instructions; 3) whether the trial court abused its discretion by excluding certain evidence; 4) whether the trial court erred by denying Hatter’s motion for judgment on the evidence as to the fault of two non-parties; and 5) whether the trial court erred by dismissing Kristina’s loss of consortium claim as a sanction for a discovery violation. Regarding Hatter’s jury selection issue, we conclude Hatter failed to exhaust one of his peremptory challenges and has failed to show that both of his challenges for cause were improperly denied. Further concluding the trial court did not abuse its discretion in its instruction of the jury or in excluding evidence, and finding no other error, we affirm.
In Rod L. Avery, et al. v. Trina Avery , a 7-page opinion, Judge Najam writes:
Rod Avery and Marshall Avery (“the Averys”) appeal from the trial court’s entry of default judgment against them in this will contest initiated by Trina Avery (“Trina”). The Averys present a single issue for our review, namely, whether the trial court erred when it entered default judgment against them for their failure to file an answer to Trina’s verified complaint. We hold that a will contest is a civil action and that a defendant in a will contest is required to file an answer or otherwise plead to a complaint as provided in the trial rules. Accordingly, we affirm the default judgment entered by the trial court. * * *

Again, a will contest is a freestanding cause of action separate and distinct from the administration of an estate, and the trial rules generally apply to will contests. See Robinson, 587 N.E.2d at 685. We hold that the Averys were required to file a timely answer to Trina’s complaint. They failed to do so. The trial court did not err when it entered default judgment against the Averys.

In Jeff Koehlinger, et al. v. State Lottery Commission of Indiana , a 19-page, 2-1 opinion, Judge Bradford writes:
Appellants/Plaintiffs Jeff Koehlinger and Jeff Frazier, as individuals and as class representatives of all others similarly situated (“Appellants”), appeal from the trial court's grant of summary judgment in favor of Appellee/Defendant the State Lottery Commission of Indiana (“the Lottery”). The Lottery contends that the trial court should have entered summary judgment in its favor on the ground that the Appellants did not exhaust their administrative remedies. Appellants contend that the trial court erred in concluding that the Lottery was entitled to summary judgment on their claims of contract rescission, false advertising, negligence, negligent misrepresentation, unjust enrichment, restitution, and money had and received. Concluding that the trial court erred in granting summary judgment in favor of the Lottery on Appellants' contract claim, we reverse and remand. * * *

I. Whether the Trial Court Erred in Failing to Grant the Lottery
Summary Judgment on the Basis that the Plaintiffs had Failed to
Exhaust Their Administrative Remedies

Both sides acknowledge that the Lottery and claims against it are subject to the Administrative Orders and Procedures Act (“AOPA”). The Lottery contends that the Appellants did not exhaust the administrative remedies available to them while the Appellants argue that they should be excused from the exhaustion requirement because no adequate remedy existed at the time their claims became ripe.* * *

The designated evidence contains myriad examples of persons attempting to contact the Lottery regarding the website error, and there is no indication that any of these contacts was successful in initiating any kind of administrative process. Simply put, it seems that the Lottery had no mechanism for addressing player concerns of this type at the time, leaving us in grave doubt as to the availability of an administrative remedy.

Moreover, we cannot agree that the Lottery's losing-ticket redemption program qualifies as an administrative remedy that needed to be exhausted for purposes of AOPA, as it did not exist when the Plaintiffs' claims became ripe. * * *

II. Contract Rescission * * *

If a player can prove to the trial court that he or she relied on the Lottery's misinformation to his or her detriment, that player will be entitled to rescission.

III. DCSA * * *

The trial court properly granted the Lottery summary judgment on Appellant's DCSA claim. * * *

IV. Negligence and Negligent Misrepresentation

Appellants contend that the trial court erred in concluding that the Lottery enjoys immunity under the DCSA. The Lottery contends that it is immune from the DCSA because its advertising activities are required or expressly permitted by state law. * * *

The trial court properly granted summary judgment in favor of the Lottery on Appellants' tort claims.

V. Quasi-Contractual Claims

Finally, Appellants contend that the trial court erred in dismissing its quasi-contractual claims for unjust enrichment, money had and received, and restitution. * * *

The trial court did not err in granting summary judgment in favor of the Lottery on Appellants' quasi-contractual claims.

Conclusion. The trial court correctly refused to grant the Lottery summary judgment on its claim that Appellants had failed to exhaust their administrative remedies. The trial court correctly granted summary judgment in favor of the Lottery on Appellants' tort, DCSA, and quasi-contractual claims. The trial court, however, erred in granting summary judgment in favor of the Lottery on Appellants' contract rescission claim, and we therefore remand for further proceedings not inconsistent with this opinion, up to and including bench trial, if necessary.

MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents with separate opinion. [that begins, on p. 16 of 19] I respectfully disagree with the majority's opinion in the resolution of this case. While I concur with the majority on the denial of the Lottery's claim that Appellants had failed to exhaust their administrative remedies and its decision on Appellants' DCSA and quasi-contractual claims, I concur in result with respect to Appellants' contract rescission claim, and dissent on the majority's handling of Appellants' negligence claim.

In Larry Rodts v. Heart City Automotive, Inc. , a 12-page opinion, Judge Najam writes:
Larry Rodts appeals the trial court's grant of summary judgment for Heart City Automotive, Inc. (“Heart City”). Rodts raises the following two issues for our review: 1. Whether his oral contract for employment with Heart City is unenforceable under Indiana's Statute of Frauds.
2. Whether a deferred compensation scheme constituted “wages” under Indiana law.

We hold that no genuine issues of material fact precluded the entry of summary judgment for Heart City. Rodts' oral contract is unenforceable and his deferred compensation was not a wage. As such, we affirm the trial court's entry of summary judgment for Heart City.

In Gregory Johnson v. State of Indiana , an 8-page opinion, Judge Najam writes:
Gregory Johnson appeals his conviction for Refusal to Identify Self, a Class C misdemeanor, following a bench trial. He presents two issues for our review: 1. Whether the State presented sufficient evidence to support his conviction. 2. Whether his misdemeanor conviction violates Article I, Section 16 of the Indiana Constitution. We affirm. * * *

In essence, Johnson asks that we create an exception to the statute where a defendant has a reasonable fear for his safety which prevents his compliance. Further, Johnson contends that because the Beech Grove police officer ultimately retrieved his driver’s license from the cab of his truck, he did, in fact, comply with the statute. We cannot agree. * * *

Here, Officer Payne asked Johnson to provide his driver’s license, which was in his possession, at least four times, and Johnson refused each request. Johnson did not ever “physically hand over” his driver’s license. See id. Instead, only after his arrest did Johnson instruct the Beech Grove officer where to find his driver’s license. We hold that the State presented sufficient evidence to support his conviction. To the extent that Johnson contends that his fear for his safety prevented him from complying with the statute, Johnson asks us to reweigh the evidence and to create an exception to the statute, which we will not do.

NFP civil opinions today (5):

Umarex Sportwaffen GMBH, et al. v. Toyriffic, LLC (NFP)

Mark Hendrickson, et al. v. Joseph Potetz, et al. (NFP)

James D. Schregardus, et al. v. OH Retail, LL, LLC (NFP)

Salaheddin A. Alfaqeer v. LOR Corporation (NFP)

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

NFP criminal opinions today (5):

Haneef S. Jackson-Bey v. State of Indiana (NFP)

Theodore Ebeyer v. State of Indiana (NFP)

Phillip J. Camp v. State of Indiana (NFP)

Dewan D. Burnett v. State of Indiana (NFP)

John Chupp v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 3, 2010

Here is the Clerk's transfer list for the week ending September 3, 2010. It is one page (and 21 cases) long.

Three transfers were granted last week. Two were granted with opinion:

The third is:

__________

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 Tuesday, September 07, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "Court backs wind turbine: Case could set precedent in state, nation"

The COA August 31st ruling in the case of Timothy Hamby, et al. v. Board of Zoning Appeals (see ILB summary here) is the subject of this story reported by Mark Wilson, dated Sept. 6, 2010, in the Evansville Courier & Press. Some quotes:

The Indiana Court of Appeals has published a potentially precedent-setting decision upholding a Warrick County resident's right to build a wind turbine on his property. The three-judge panel unanimously affirmed an earlier decision by Warrick Superior Court Judge Keith Meier.

In its ruling, the state appeals court said not allowing wind turbines in a residential area would prevent property owners from benefiting from public policies encouraging alternative energy development.

The ruling is significant because as a published opinion, rather than just a case-specific memorandum, it can be cited by attorneys arguing similar cases in other communities, said Morrie Doll, attorney for the Warrick County Board of Zoning Appeals. He said it could set precedent not only in Indiana but nationally.

"You can count on two hands all of the cases in the country dealing with this," he said.

Attorney Les Shively, representing objecting neighbors, said the court did not address a portion of Meier's decision holding David Johnson to a limit of 40 feet for the wind turbine, effectively addressing the neighbors' concern.

But he said the homeowners would likely ask the appeals court for a rehearing and could also ask the Indiana Supreme Court to consider it.* * *

The question under consideration was whether such a wind turbine — which would generate electricity for household use — could be considered an appropriate accessory structure to a residential property and not an entirely separate structure that should be considered separately under the zoning ordinance.

In 2008, neighbors in the Huntington Creek Subdivision near Newburgh objected when Johnson sought a variance from the county's Board of Zoning Appeals to build a 60-foot high wind turbine, which would be 20 feet taller than the maximum height allowed in the county's zoning classification for single-family dwellings. He sought the variance so the turbine high would stand above trees in the area.

At the time, the question was not whether the turbine was permitted, Doll said, but whether the height variance was appropriate.

But in challenging the wind turbine, the residents objecting to it argued not only against the height variance but also as to whether it was allowable under the wording used in the zoning ordinance.

The ruling hinged on interpreting phrasing in the county's zoning ordinance saying that such accessory structures should be "customary in connection with" the principal building or use of the property. However, the ordinance does not define what is considered an accessory or what customary means.

Posted by Marcia Oddi on Tuesday, September 07, 2010
Posted to Ind. App.Ct. Decisions

Monday, September 06, 2010

Courts - "Jefferson County court-video failures cause trials, hearings to be lost"

The ISBA Appellate Section held a CLE on Oct. 28, 2008 titled "Welcome to the 21st Century: An Appellate Perspective." One session was on the impact of digital records on appellate review. The Honorable Sara Walters Combs, Chief Judge of the Kentucky Court of Appeals, made a presentation on the Kentucky record on review. The records on appeal in Kentucky included "everything filed with the clerk of the trial court, together with the official (at that time) videotape recordings." Unless otherwise ordered by the court, no transcript of court proceedings was to be made a part of the record on appeal.

Apparently some of the Kentucky trial courts have now moved to CD/DVDs (digital video recordings), rather than videotapes. Jason Riley of the Louisville Courier Journal reported Sept. 3, 2010 in a long story:

Nearly three months after defense attorneys and prosecutors held a suppression hearing in the Cecil New murder case, they had to do the whole thing all over again recently — calling in the same detective, asking her the same questions and spending more than an hour re-creating the record.

The reason?

Jefferson Circuit Court's digital audio recording equipment failed to properly record the first hearing in Judge Judith McDonald-Burkman's courtroom, capturing video, but no sound.

In fact, the Jefferson Audio Video System, or JAVS, has failed to record audio in several courtrooms, meaning dozens, and perhaps hundreds, of hearings have been silently recorded, with no way for attorneys, defendants or victims to review exactly what was said.

In McDonald-Burkman's courtroom, the audio went unrecorded for more than two weeks in May without anyone knowing.

In Judge Charles Cunningham's courtroom, about a month of proceedings were recorded without audio last fall, and is being cited as grounds for an appeal of a jury conviction in an assault and unlawful imprisonment trial.

In another instance, Judge Susan Schultz Gibson declared a mistrial in a 2008 robbery case when she learned the audio of the testimony had not been recorded.

And Judge James Shake said he faced a possible retrial after an entire criminal trial was lost in the last year.

“It's ridiculous,” Shake said. “The record is crucial. It's the most crucial aspect of what we do.”

Some judges are fuming about the many problems with the digital system.

“This is a nightmare,” McDonald-Burkman said during a hearing after the testimony was lost in the high-profile New case, in which the defendant is accused of killing 4-year-old César Ivan Aguilar-Cano. “… It's been an issue with every court.”

Despite the judges' frustration, the Administrative Office of the Courts, which runs Kentucky's court systems, said recently that it did not know of any recording problems in Jefferson Circuit Court, other than the New case.

The ILB has had a number of entries on missing or unfinished court transcripts. Start here for those. But nothing like the Kentucky failure.

Another issue, discussed at the end of this April 22, 2007 ILB entry and this April 3, 2007 entry, looked at "Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?"

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Courts in general

Environment - Still more on: Superfund used to justify $28,000 bill to fight fire at couple's home

Remember this ILB entry from March 23, 2010? The ILB may have missed some more recent news on the issues raised in the entry, but was reminded of the problems when reading this lengthy Sept. 3, 2010 NY Times story by Christopher Jensen. Some quotes:

In 2008, the city’s [Salina, Kan.] fire department received permission to start billing people involved in accidents to help cover costs, said Mayor Aaron Peck.

In about two years the department has sent out bills for 63 accidents, averaging about $390 each. He said the city sent about $10,000 a year in bills and received payments amounting to about half that much. The rest of the money is lost to the city because some people refuse to pay and some of the money goes to a billing agency.

The billing services make money by taking a portion of the funds they collect. “The average is 10 percent, and if they don’t get paid, we don’t get paid,” said Ms. Moore of Cost Recovery.

Rick Benner, chief financial officer for Fire Recovery, said that for his company about 20 percent would be “a fair representation.”

Billing agencies like these have made it easier for fire departments to charge for services, and that has the effect of encouraging more departments to send bills to motorists involved in crashes, said Mr. Johnson of the fire chiefs’ association.

The insurance industry argues that billing companies trying to drum up new business are a main reason the practice has been spreading.

But Mr. Benner says Fire Recovery is simply trying to help departments avoid service cuts.

Typically, departments send billing firms copies of accident reports and information on how many people and how much equipment responded. On average, the bill is about $200 for police and $600 to $800 for fire departments, Ms. Moore said. * * *

After adopting such programs, some jurisdictions — including Radnor Township, Pa. — later backed off in response to complaints from residents and visitors, news reports and lobbying by the insurance industry. In recent years 10 states have prohibited such collections, according to the property casualty association: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Missouri, Oklahoma, Pennsylvania and Tennessee. But some of those prevent only the police, as opposed to fire departments, from charging fees.

ILB: (1) Can anyone direct me to the Indiana law referenced above? (2) There is nothing in the NYT story equivalent to the $28,000 billed by the fire department to a New Castle family that lost their home to fire (reported by 6News in February) . I've not seen an update on this story.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Environment

Environment - "Unsolved Coal Ash Problem" [Updated]

Here is an editorial from the Sept. 5, 2010 NY Times - a quote:

Last Monday, the E.P.A. held the first in a series of regional hearings on two quite different proposals governing how coal-fired power plants dispose of waste.

One proposal, favored by public-interest groups and by agency scientists, would replace a patchwork of uneven — and in many cases weak — state regulations with new national standards. It would formally designate coal ash as a hazardous waste under federal law, require industry to phase out porous sludge ponds, replace them with sturdy, leak-proof facilities, and take other protective steps.

The competing proposal would establish federal guidelines for disposal but leave enforcement to the states. It would also preserve coal ash’s status as a nonhazardous substance. Though the proposal barely improves on the status quo, the Office of Management and Budget — after heavy lobbying by the coal industry — agreed to give it equal billing in the public hearings.

[Updated 9/8/10] "New coal ash rules could affect Gibson Generating Station" is the headline of a long story by Bill Staub in the Evansville Courier & Press.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Environment

Ind. Decisions - "Union ordered to pay taxes on banquet hall"

6787 Steelworkers Hall, Inc. v. John R. Scott, Assessor of Porter County, a decision issued by the Indiana Tax Court on Sept. 2, 2010 (ILB summary here), is the subject of a story in the Sept. 4th Gary Post-Tribune, reported by Teresa Auch Schultz. Some quotes:

A United Steelworkers local lost its property tax appeal and will have to pay taxes on its banquet hall, according to a state ruling.

The Indiana Tax Court said in its order that Local 6787 had not proven that the facility, which is connected to its union hall at 1100 Indiana 149, was mainly used for educational and charitable reasons.

The banquet hall was finished in 2005, several years after the main union hall was completed. The union had asked that the entire property -- valued at $3.5 million -- be tax exempt and Porter County granted most of the request.

It kept the banquet hall out of the agreement, though, signaling that the union would still have to pay property taxes for that building.

According to the Tax Court order, officials with the union argued that although they rented the banquet hall for weddings and other events, they also used it for Ivy Tech Community College cooking classes for union members and let other not-for-profit groups use it for free.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Law - "New law costing county police: Sheriffs, lawmakers disagree on correct interpretation"

That is the headline to this story today by Erin Blasko of the South Bend Tribune. Some quotes:

Between January and July of this year, the St. Joseph County Police Department paid about $100,000 to local hospitals based on the questionable interpretation of a state law regarding medical care for people detained in the county and suspected of a crime.

Public Law 80, enacted July 1, 2009, establishes rates at which counties in the state must reimburse health care providers for services provided to "a person who is subject to lawful detention by a county sheriff."

According to Assistant Chief Bill Redman, county attorney Pete Agostino has interpreted that phrase — "subject to lawful detention by a county sheriff" — to mean all people detained in the county and suspected of a crime, regardless of the agency involved.

Agostino explained: "There is a different statute in the state that obligates the sheriff to take into detention subjects detained by other agencies ... so if you read that in conjunction with the language in (Public Law 80), in my opinion, it doesn't seem to be referring only to subjects arrested by the sheriff."

As a result, for the past 20 months, whenever a police agency in the county — South Bend, Mishawaka, Roseland, etc. — detains a person who needs medical care but cannot pay, the county police department picks up the tab as prescribed under the law — either 104 percent of the Medicare reimbursement rate or 65 percent of cost. * * *

But not everyone agrees on the correct interpretation of the law, and even its author, state Rep. Sandy Blanton, D-Orange County, admits the language in it is not entirely clear with regard to the definition of "lawful detention."

"The intent was to save taxpayers money," Blanton said, explaining the reimbursement rates laid out in the law represent a savings for most county police departments. "However, it's my understanding that some counties have interpreted 'lawful detention' as picked up (by police), and some have interpreted it as booked into a facility."

Similarly, state Sen. Jim Arnold, D-LaPorte, said, "I suppose different people interpret it (the law) differently, but I can say that when the law was conceived, it was meant to reduce sheriffs' costs." A former LaPorte County sheriff, Arnold co-sponsored the law.

Blanton said she is considering proposing an amendment to the law during the upcoming January session "to tweak the language and make it a little more clear."

Here is the legislation at issue, HEA 1182 (PL 80) from the 2009 session of the General Assembly.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law

Ind. Law - Obituary of attorney Rabb Emison, 85, of Vincennes

From the Sept. 5, 2010 Indianapolis Star, the obituary of Rabb Emison 85 of Vincennes, Indiana.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law

Courts - "Florida has set up foreclosure-only courts to reduce a huge backlog, but borrowers’ lawyers are critical of the process"

Although about Florida, this long NY Times article reported by Gretcheen Morgenson and Geraldine Fabrikant recounts the various horrors of the legal process, judges' errors, paperwork failures, and the like, many of which are likely occurring everywhere.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Courts in general

Ind. Law - More on "Democratic nominee for Lake County assessor soon may learn the outcome of a state investigation into whether she violated state law by holding driver's licenses in both Indiana and Michigan"

Updating this ILB entry from June 6, 2010, the Gary Post-Tribune published an opinion piece on Sept. 5th that began:

Lake County assessor candidate Carol Ann Seaton has run afoul of bureau of motor vehicle regulations in Indiana and Michigan. She held driver's licenses in both states simultaneously, something that isn't allowed. In Indiana, she gave her address as being in the 2300 block of Adams Street, Gary, while in Michigan she gave her address as a Union Pier rental house owned by a Chicago couple. Her Ford sedan has Michigan plates tied to the same address. Michigan has revoked her driver's license.

Now the Indiana Bureau of Motor Vehicles wants her to prove she's an Indiana resident. It has suspended her driving privileges for a year, a ruling she plans to appeal.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Law

Ind. Courts - "State orders disbarred attorney to pay its costs"

Updating this list of earlier ILB entries, Jeff Parrott of the South Bend Tribune reported Sept. 5th - here are some quotes from the long story:

The Indiana Supreme Court has ordered a disbarred South Bend attorney to repay the state more than $17,000 it spent to investigate misconduct charges against him.

Rod Sniadecki must reimburse the state for more than $12,000 it paid a hearing officer and court reporter who worked on the case, according to court records filed this week. He also must pay nearly $5,000 it cost the Supreme Court's Attorney Disciplinary Commission to investigate and prosecute the case.

The Supreme Court in April disbarred Sniadecki for attorney misconduct. * * *

[M]any of his former clients say he still owes them money they paid for services he never delivered.

About 80 people have inquired about receiving payments from the Indiana State Bar Association's Client's Financial Assistance Fund, and 25 of them have followed through with applications, said ISBA spokeswoman Carissa Long. The fund is composed of money that member lawyers pay as part of their annual dues.

"This is not a government program, but rather, just a bunch of lawyers doing the right thing," said Long, noting that Sniadecki was not an ISBA member. "There is no claim of right to money."

The 25 applications thus far is a record-high for the fund, Long said. Because the fund's rules say no more than $50,000 can be paid out to all clients of a particular attorney, the fund's board has decided to wait until Sept. 30 to start reviewing the claims.

Those 25 people, combined, already have claimed to be owed more than the $50,000 maximum, Long said.

"We know there are more people out there," Long said. "In order for us to evenly distribute this money, we have to know exactly how many claims we have."

Long noted that if many more applications come in, the Sept. 30 deadline might be extended.

Posted by Marcia Oddi on Monday, September 06, 2010
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, September 9th

Next week's oral arguments before the Supreme Court (week of 9/13/10):

Next Monday, September 13th

Next Thursday, September 16th

Webcasts of Supreme Court oral arguments are available here.



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

Wednesday, September 8th

Thursday, September 9th

Next week's oral arguments before the Court of Appeals (week of 9/13/10):

Next Monday, September 13th

Next Tuesday, September 14th

Next Thursday, September 16th

Next Friday, September 17th

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, September 06, 2010
Posted to Upcoming Oral Arguments

Friday, September 03, 2010

Ind. Courts - The "capitalization argument" and the "Bid to pull judge from ballot "

Updating this ILB entry from yesterday and this long list of earlier ILB entries on Allen County Judge Scheibenberger and the effort to take him off of this year's ballot, I'd like to comment, NOT on the question of the judge's qualifications, but rather on the argument that his name should not be on the ballot because of a capitalization issue.

The argument is set out in full in this ILB entry from August 5th. To summarize, the argument is that because IC 33-33-2-10 provides:

(a) To qualify as a candidate for Allen superior court judge, a person: * * * (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;
the phrase "supreme court disciplinary commission of Indiana" means not only the "supreme court disciplinary commission," but "the commission on judicial qualifications."

Why? Because, the argument goes, "supreme court disciplinary commission" is not capitalized.

Really.

Here is the way one of the proponents of the argument put it in a letter that was in the Fort Wayne News-Sentinel on about August 16th. Unfortunately, the paper's link to the letter is no longer is operative:

Does the statute refer to the Supreme Court Disciplinary Committee only, or does it refer to all disciplinary committee embodied by the State Supreme Court?

Perhaps the statute may be of some assistance. If someone wants to refer to a specific thing, such as Pearl Buck’s book “The Good Earth,” they capitalize the letters in the name, such as, “I truly enjoy ‘The Good Earth.’ ” If they want to refer to something in general, they use lower case, such as, “I truly enjoy the good earth.”

So which does the statute use, upper or lower case? Unfortunately for the Scheibenites, it explicitly uses lower case.

Hence, it appears to us that the statute includes the Commission on Judicial Qualifications, which metes out discipline on behalf of the Supreme Court.

Here is the problem with the "captialization" argument. NOTHING in the Ind Code is in caps unless it is "Indiana" or "Lake County", or the like. See the capitalization rule on pp. 14-16 of the Form and Style Manual for Legislative Measures of the Indiana General Assembly, available here.

Specifically, from pp. 15-16 of the Style Manual:

Do not capitalize the following: * * * (f) Official titles of state, county, or municipal officers, agencies, commissions, committees, or funds.

Examples: clerk of the circuit court; board of county commissioners; public employees'
retirement fund; commission on the aging and aged; legislative services agency; state general fund

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides suit challenging to Wisconsin’s gasoline pricing regulations

The case is Flying J v. Wis. AG. Here is AP coverage by Ryan J. Foley that begins:

MADISON, Wis. (AP) -- A federal appeals court on Friday reinstated Wisconsin's 71-year-old minimum markup law on gasoline, a decision that could limit competition among retailers and drive up gas prices.

Siding with an association representing small gas station owners, the 7th Circuit Court of Appeals ruled the law that requires retailers to sell gas above cost does not encourage illegal price-fixing.

The court lifted an order imposed last year that put enforcement of the law on hold after U.S. District Judge Rudolph Randa concluded it violated federal antitrust law and increased the price at the pump.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues one disciplinary opinion today

In the Matter of Anonymous is a 5-page, per curiam opinion. Some quotes:

The Court approves the agreement and finds that Respondent engaged in attorney misconduct by assisting in the unauthorized practice of law in this state. For this misconduct, we find that Respondent should receive a private reprimand. * * *

A Kentucky resident who was injured in a fall at a restaurant in Indiana sought legal assistance from a Kentucky lawyer, John Redelberger. Respondent agreed to serve as local Indiana counsel. Redelberger did not seek temporary admission to practice law in Indiana. Nevertheless, Redelberger and Respondent signed and filed an appearance for the client in an action filed in an Indiana trial court. Without Respondent, Redelberger signed and served answers to interrogatories and took depositions of witnesses in Indiana. After Redelberger appeared in court for the client, the judge informed Respondent that Redelberger was not admitted to practice in Indiana. Respondent told Redelberger that he must seek temporary admission and sent him a copy of the applicable rule. Neither Respondent nor Redelberger, however, followed through in obtaining temporary admission for Redelberger. * * *

The participation of Indiana co-counsel in the temporary admission process is of vital importance to this Court's ability to supervise out-of-state attorneys practicing in this state. This is no minor or perfunctory duty. Not all attorneys seeking temporary admission will be granted the privilege of practicing in Indiana. See Matter of Fieger, 887 N.E.2d 87 (Ind. 2008) (two-year bar on applying for temporary admission imposed for misrepresentations in petition for temporary admission). * * *

The failure of out-of-state attorneys and their Indiana co-counsel to comply with the rule governing temporary admission is neither trivial nor rare. Thus far in 2010, the Clerk has issued over 600 notices of automatic exclusion from practice, and this Court has entered orders granting relief from automatic exclusion to over 140 out-of-state attorneys. The need for this would be nearly eliminated if all Indiana co-counsel complied with their ethical duty to ensure that attorneys granted temporary admission in Indiana comply with Admission and Discipline Rule 3(2).

The Court will approve the parties' suggestion that Respondent receive a private reprimand under the circumstances of this case. However, Indiana attorneys serving as local counsel for out-of-state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Unsupervised Estate of Judith E. Phillips v. Rainer Assmann (NFP)

Daniel E. Hoagland, et al. v. Dorothy H. Mosier, et al. (NFP)

NFP criminal opinions today (1):

Ahmed Bellamy v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - “Three Influential Seventh Circuit Judges Debate the Usefulness of Expert Testimony to Prove Foreign Law”

Yesterday's 7th Circuit opinion in the case of Bodum USA, Inc. v. La Cafetiere, Inc. (ND Ill.) is the subject of an entry today by Prof. Eugene Volokh, who writes in the Volokh Conspiracy:

How Appealing links to this Seventh Circuit decision, which includes very interesting opinions by Judges Easterbrook, Posner, and Wood (all among the most respected federal appellate judges in the nation, and all former University of Chicago law professors). * * *

The question is: How are courts to determine what foreign law is, especially when it’s in a foreign language? The Federal Rules of Civil Procedure allow courts to rely on statements by experts in foreign law. But Judges Easterbrook and Posner argue that, for the law of many prominent countries (such as the French law involved in this dispute), reliance on experts is bad practice — it’s better for judges to consult English-language translations and treatises, which will be largely relatively objective, rather than the statements of experts hired by each party. * * *

Judge Wood disagrees, arguing that judges are too likely err in interpreting foreign law, again especially when it is in a foreign language.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Ind. (7th Cir.) Decisions

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

In Chapin v. Ford-Rohr Motors (ND Ind., Springmann), a 17-page opinion, Judge Williams writes:

Trent L. Chapin was employed by the Bob Rohrman Auto Group as a car salesman. Following his termination at one Rohrman-owned dealership, Chapin filed a complaint with the Equal Employment Opportunity Commission, alleging that the manager discriminated against white Christians in favor of Pakistani Muslims. His new employer, a second Rohrman-owned dealership, heard about this and threatened to fire Chapin unless the complaint was withdrawn. After this threat was made, Chapin left work and never returned, despite Fort-Rohr Motors, Inc.’s (“Fort-Rohr”) repeated efforts to have him return.

Chapin sued both dealerships, alleging discrimination because of his race and retaliation under Title VII of the Civil Rights Act of 1964. After a jury trial, the jury returned a favorable verdict on Chapin’s retaliation claim. Fort-Rohr appeals, arguing that it was entitled to judgment as a matter of law because Chapin failed to show that Fort-Rohr actually or constructively discharged Chapin in retaliation for his complaint. We agree that Fort-Rohr was entitled to judgment as a matter of law because Chapin did not produce sufficient evidence to support an actual or constructive discharge. Therefore, we reverse the judgment of the district court.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Indianapolis Archdiocese ends priest abuse lawsuit with first cash settlement"

Updating this ILB entry from May 12, 2010, Robert King of the Indianapolis Star has another story today, reporting on Joe Doe RG's settlement of a lawsuit against the Archdiocese of Indianapolis. A quote from today's story:

Now, almost five years after filing the lawsuit that started it all, John Doe RG has reached a financial agreement with the Archdiocese of Indianapolis that compensates him for medical treatment associated with his abuse and covers the legal fees associated with his lawsuit.

The exact amount of the settlement wasn't disclosed, but archdiocesan attorney Jay Mercer said it was less than the $199,000 the church paid in May to settle another lawsuit associated with Monroe.

The May 12th Star story, involving a different "John Doe," was similar:
In a move unprecedented for the Roman Catholic Archdiocese of Indianapolis, the church has agreed to a cash settlement with someone who has brought a lawsuit alleging sexual abuse by a priest -- adding Indianapolis' name to the list of American dioceses to take a financial hit in the ongoing scandal.

The $199,000 settlement is small compared with some of the multimillion-dollar deals reached elsewhere around the country. But the agreement with a 48-year-old Indianapolis man involves a former priest who is still the subject of 12 pending lawsuits by other alleged victims.

In this case, a plaintiff known in court papers only as John Doe CT claimed that when he was 14 then-priest Harry Monroe repeatedly abused him sexually while both were at St. Catherine Catholic Church on the city's Southside. St. Catherine merged with another parish in 1993 to form what is now Good Shepherd.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Indiana Courts

Ind. Courts - "Roanoke attorney charged with fund thefts"

Rebecca S. Green reports today in the Fort Wayne Journal Gazette in a long story that begins:

A prominent local attorney and non-profit board member has been arrested and charged with corrupt business influence and theft amid allegations he took more than $100,000 from his clients’ trust fund accounts.

Arrested Thursday, Daniel E. Serban, 53, of the 10000 block of Cygnet Cove in Roanoke, is accused of failing to distribute money paid into Serban Law Office’s Trust Account to the appropriate clients or to those entitled by court order to receive it. According to court documents, the behavior continued from January 2006 until Tuesday.

Both charges are felonies, and if convicted, Serban could serve two or more years in prison.

Attorneys are required to keep escrow-type accounts where money either coming from or going to their clients will be kept. Those accounts are to be treated with extreme fiduciary care and attorneys have a strong ethical responsibility to protect that money, according to the Allen County Prosecutor’s Office.

Much of the money misappropriated, according to prosecutors, came from a civil case filed in 2003. In that case, Serban represented R. Bruce Dye in a dispute with former business partners over money.

Posted by Marcia Oddi on Friday, September 03, 2010
Posted to Indiana Courts

Thursday, September 02, 2010

Ind. Courts - More on "Bid to pull judge from ballot advances" [Updated]

Updating this ILB entry from August 11, 2010, Niki Kelly of the Fort Wayne Journal Gazette reports late this afternoon:

The four-person Indiana Election Commission voted Thursday to deny a challenge against Allen Superior Judge Kenneth Scheibenberger, which means he remains on the fall ballot.
More details tomorrow.

[Updated 9/3/10] Here is Kelly's updated story.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Courts

Ind. Courts - More on: Court charges for miscellaneous services and the race for the Judicial Nominating Commission

In this April 29, 2010 entry the ILB noted and commented upon the "Order governing fees charged by clerk of courts for miscellaneous services" that had been issued April 26, 2010 by the Supreme Court. ILB reader attention was directed to the $1.00/page change for copies of documents, an amount that is not acceptable in the other governmental branches. In addition, the April 29th entry continued:

Another item that caught my attention was this: $150.00 -- CD containing Roll of Attorneys database.
As those of you who are attorneys are no doubt aware, the most recent annual registration mailing from the Clerk of the Courts for the first time requested attorneys' e-mail addresses in addition to the other information. I naturally wondered whether the submitted e-mail addresses would be available via the Roll of Attorneys, as addresses and phone numbers currently are.

"No", I was told, when I contacted the Clerk of the Courts on August 25. And neither would they be available on the CD containing the Roll of Attorneys database.

Seemingly re-emphasizing that point, on August 27th the Supreme Court reissued the "Order governing fees charged by clerk of courts for miscellaneous services," including this change:

$150.00 -- CD containing Roll of Attorneys database (except that the CD shall not include attorney electronic mail addresses, nor shall it contain attorney home addresses unless the home address is the only address listed for the attorney in the Roll of Attorneys)
My thoughts: E-mail addresses are apparently thought to be more sensitive than telephone numbers or street addresses. My biggest issue with this is that it favors some attorneys who may choose to run for positions such as the Judicial Nominating Commission.

Creating mailing labels is simple using the Roll of Attorneys database. But sending a mailing to thousands of Indiana attorneys is costly, favoring attorneys with deep pockets or those backed by well-funded organizations. If e-mail addresses had been made available to candidates this year when more attorneys than ever seem to be interested in competing, the playing field would have been leveled.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Courts

Ind. Courts - Tax Court issues one opinion today

In 6787 Steelworkers Hall, Inc. v. John R. Scott, Assessor of Porter County, an 11-page opinion, Judge Fisher writes:

6787 Steelworkers Hall, Inc. (hereinafter, “Local 6787”) appeals the final determination of the Indiana Board of Tax Review (Indiana Board) denying its application for an educational/charitable purposes property tax exemption for the 2006 tax year (the year at issue). Local 6787’s appeal presents a single issue for this Court’s review: whether the Indiana Board’s denial of Local 6787’s exemption application is supported by substantial evidence.

* * * During the year at issue, Local 6787 owned and operated a banquet facility and a union hall in Portage, Indiana (Portage Township). * * *

The evaluation of whether property is used for educational/charitable purposes is a fact-sensitive inquiry; there are no bright-line tests. See Jamestown Homes, 914 N.E.2d at 15 (citation omitted). Here, the Indiana Board’s final determination indicates that it assigned minimal weight to Local 6787’s arguments because they were not supported by substantial evidence. As the fact finder, it was well within the purview of the Indiana Board to make that determination. See French Lick Twp. Tr. Assessor v. Kimball Int’l, Inc., 865 N.E.2d 732, 739 (Ind. Tax Ct. 2007) (explaining the taxpayer bears the burden of making the Indiana Board understand its evidence).

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Ind. Tax Ct. Decisions

Courts - More on "Bursting Pipes Lead to a Legal Battle "

Following up on this Feb. 12, 2010 ILB entry, JM Eagle issued a press release yesterday headed "Indiana joins California, Florida, Massachusetts and the Federal Government in Declining to Intervene in So-Called 'Whistleblower' Complaint Against World's Largest Plastic Pipe Maker."

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Courts in general

Ind. Courts - More on "John Walker Lindh seeks Indiana prison prayer ruling "

Updating yesterday's ILB entry, the ILB has now obtained copies of John Walker Lindh's motion for summary judgment and the supporting memorandum, both filed in the SD Ind. on August 26, 2010.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Courts

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

In U.S. v. Ivan Rea and Jose L. Medina (SD Ind., McKinney), a 25-page opinion, Judge Kanne writes:

This is the consolidated appeal of drug dealers Ivan Rea and Jose Medina. A jury convicted both Defendants and they now appeal various aspects of their convictions and sentences. * * *

For the foregoing reasons, we VACATE Rea’s conspiracy conviction and sentence, and we AFFIRM Rea’s CCE conviction and sentence. We also AFFIRM Medina’s conspiracy conviction and sentence.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (2):

Conwell Construction v. Abbey Road Development, LLC, et al. (NFP)

City of Gary, Indiana, et al. v. Hazel L. Osborne (NFP)

NFP criminal opinions today (3):

Johnny Mack Watts, Jr. v. State of Indiana (NFP)

Melvin A. Sykes v. State of Indiana (NFP)

Jeffrey Jinks v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Ind. App.Ct. Decisions

Environment - Proposed wood-fired boiler rule is preliminarily adopted by APCB

Here is a list of five years of ILB entries on the topic of wood fired boilers and their regulation.

Here is the agenda from yesterday's meeting of the APCB. Item #8 is the proposed Outdoor Hydronic Heater Rule - LSA#05-332. Here is the Fact Sheet and here is the Draft Rule.

Niki Kelly of the Fort Wayne Journal Gazette reports today on the Air Board's preliminary adoption of the proposal yesterday.

Gitte Laasby of the Gary Post Tribune reports:

Another public comment period will be necessary before officials can adopt rules for use of outdoor wood-fired boilers. That means Indiana's first state-wide rules may not be adopted until February.

The Indiana Air Pollution Control Board voted unanimously Wednesday to preliminarily adopt Indiana's first state-wide rules. But so many changes have been made since the last draft that a new comment period will be needed. * * *

The rulemaking has been underway since 2005. IDEM spokeswoman Amy Hartsock said a third [written] public comment period is tentatively scheduled for October. She said a public hearing followed by another vote of the Air Pollution Control Board [i.e. "final adoption"] could happen in February 2011.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Environment

Ind. Law - Still more on: "Can you rely on the Indiana Code?"

The ILB has written much about this, including this entry from August 23, 2008 which began:

Yesterday afternoon several of us, members of the Environmental Law Section of the Indiana State Bar Association, buttressed in the audience by other bar members and a number of professional law librarians, had the opportunity to testify before the highly-regarded legislative Commission on Courts. The topic was our concerns about the Indiana Register and Indiana Administrative Code, which as of July 2006 are only available online, and our concerns about the fact that not all the statute law in Indiana is compiled in the Indiana Code.
Those highlighted words were in my mind today when I read this story by Rosalind S. Helderman and Anita Kumar in the Washington Post, headlined "Crash of Va. computer network has implications for tech world, state politics." Some quotes from today's story:
RICHMOND -- The data storage unit that failed in a warehouse outside of Richmond last week, wreaking havoc in the computer networks of a number of Virginia agencies for more than a week, is a ubiquitous bit of technology used by virtually every major company and government in the country.

The crash -- still baffling to state officials -- exposes the vulnerability of modern, massively complex interconnected computer networks, and is being closely watched by information technology professionals across the country.

"People in the industry are watching in horrified fascination as this unfolds," said Robin Harris, an Arizona technology analyst who writes a blog on computer storage systems. "There's a lot of 'there but for the grace of God go I' kind of thinking."

Here some of the resulting problems are detailed:
More than a week after the initial hardware crash, state officials said operations would be fully restored at Virginia's 74 Department of Motor Vehicles offices Thursday. They estimate that as many as 45,000 people have been unable to renew their driver's licenses while computers have been down, and the agency will extend its hours in coming days and weekends to process the backlog. Officials reported Wednesday that the state's Department of Taxation was able to access taxpayer accounts and issue refunds and liens for the first time in seven days.

Employees throughout state government worked long hours for days to restore computer functions. At the Department of Social Services, local and state staffers had to work through the weekend to ensure that food stamps and welfare checks due to 380,000 residents were not delayed. The Department of Juvenile Justice was unable to release inmates. The Department of Veterans Services, which manages two long-term care centers and two cemeteries, couldn't pay its bills. In all, computers at 26 of the state's 89 agencies were affected.

Read the story for details of all the assurances "that this stuff never goes down."

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Law

Ind. Courts - "Defense lawyers in East Chicago sidewalk scandal must repay city $453K"

Bill Dolan reports today in the NWI Times in a story that begins:

CROWN POINT | A judge is ordering lawyers who defended three East Chicago city officials convicted in the Sidewalk Six case to repay that city $453,282 in legal fees.

Lake Superior Court Judge John Pera ruled Wednesday that former East Chicago City Controller Edwardo Maldonado illegally paid four law firms that amount in 2004 for their services in defending Maldonado and former City Councilmen Frank Kollintzas and Joe De La Cruz against federal public corruption charges.

Pera ordered attorney Kevin Milner of Merrillville to repay $47,250; Tsoutsouris & Bertig of Valparaiso to repay $51,444; Cotsirilos Tighe & Streicker Ltd. to repay $63,923; and Mayer Brown Rowe & Maw LLP to repay $290,665.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Courts

Environment - "Environmental groups hail selenium ruling as 'game changer'"

So reads the headline to a story in the Charleston West Virigina Gazette, reported by Ken Ward Jr. Some quotes from the long story:

A federal judge's ruling that Patriot Coal must clean up toxic selenium pollution violations at two mines in Southern West Virginia is a "game changer" that could force the mining industry to bear far more of the full costs of its operations, environmental groups said Wednesday.

If eventually applied across dozens of other mining operations and hundreds of water pollution outlets, the treatment required by the court decision could easily cost the industry hundreds of millions of dollars.

"This court order is a game changer in our fight to protect streams and communities in West Virginia and to hold coal mining companies accountable for their pollution," said Ed Hopkins, senior Washington, D.C., director of the Sierra Club.

Patriot Coal blasted the court decision as unnecessary and said the coal industry needs to focus on efforts to rewrite West Virginia's water quality rules to weaken the state's selenium limits.

"Looking forward, Patriot is assessing its position in these cases and will determine its actions after the written judgment has been received," Patriot President Richard M. Whiting said in a news release.

On Tuesday, U.S. District Judge Robert C. Chambers ruled against Patriot in two combined cases involving repeated selenium violations at the company's Ruffner Mine in Logan County and its Hobet 21 complex along the Boone-Lincoln County border.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Environment

Ind. Courts - Ass't. U.S. Attorney charges Huang "used a 'patient and calculated' plan to 'drain' [Dow Agrosciences] of technology that took 20 years to develop"

An AP story reported yesterday by Charles Wilson began:

INDIANAPOLIS — A former Indiana scientist accused of illegally sending trade secrets worth $300 million to China and Germany was ordered detained Tuesday on rare charges of economic espionage.

A federal indictment unsealed in Indianapolis alleges that 45-year-old Kexue Huang, who was born in China, passed on proprietary information about the development of organic pesticides to Hunan Normal University while he worked as a researcher for Dow AgroSciences in Indiana from 2003 to 2008.

Dow Agrosciences is a subsidiary of Midland, Mich.,-based Dow Chemical Co.

Assistant U.S. Attorney Cynthia Ridgeway said Huang, a Canadian citizen with permanent U.S. resident status, used a "patient and calculated" plan to "drain" the Indianapolis-based company of technology that took 20 years to develop.

More:
The gallery in federal court was occupied by about a dozen of Huang's neighbors from his former home in the affluent Indianapolis suburb of Carmel and his current home in Westborough, Mass. Huang, clad in a jail uniform with gray and white stripes, was silent during the two-hour hearing.

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Indiana Courts

Ind. Court - Update on the Governor's Supreme Court selection process progress

Here is the word this morning from Governor Daniels' General Counsel, David Pippen:

"Interviewed Mr. Mulvaney and Judge David yesterday. Has Judge Moberly in today."

Posted by Marcia Oddi on Thursday, September 02, 2010
Posted to Vacancy on Supreme Ct

Wednesday, September 01, 2010

Ind. Courts - "John Walker Lindh seeks Indiana prison prayer ruling "

Charles Wilson of the AP has a long story this afternoon that begins:

INDIANAPOLIS (AP) -- American-born Taliban fighter John Walker Lindh and another Muslim inmate have asked a judge to order a federal prison to allow them and other Muslims in their highly restricted cell block to pray as a group, in accordance with their beliefs.

The American Civil Liberties Union last Thursday filed a motion in U.S. District Court in Indianapolis for summary judgment on behalf of Lindh, 29, and Enaam Arnaout, 47, who claim that the prison's policy restricting group prayer in the Communications Management Unit violates their religious rights. The ACLU contends there are no disputes over the facts of the case and that the law is on the inmates' side, and asks the judge to rule in their favor.

Lindh, who is serving a 20-year sentence at the Terre Haute prison for aiding Afghanistan's now-defunct Taliban government, wrote in a legal declaration that his religion requires him to pray five times a day, preferably in a group. "This is one of the primary obligations of Islam," he wrote.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Indiana Courts

Ind. Law - Services set for attorney Mary Jane Frisby, 44

Updating earlier ILB entries on the death of former Barnes & Thornburg attorney Mary Jane Frisby, the Indianapolis Star has today posted this obituary.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Indiana Law

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

For publication opinions today (4):

In Paul E. Armstrong, Jr. v. State of Indiana, a 15-page opinion involving a pro se appellant, Judge Riley concludes:

Based on the foregoing, we conclude that: (1) the post-conviction court did not err by finding that Armstrong received effective assistance of counsel; (2) Armstrong's plea of guilty was voluntary; (3) the State established a sufficient factual basis; and (4) any error that stemmed from Armstrong not being represented by counsel at the sentencing hearing is harmless beyond a reasonable doubt.
In Mickey Sloan v. Town Council of the Town of Patoka, a 7-page opinion, Judge Riley writes:
Appellant-Plaintiff, Mickey Sloan (Sloan), appeals the trial court’s decision in favor of Appellee-Defendant, the Town Council of the Town of Patoka (Town of Patoka), denying Sloan’s claim of inverse condemnation of a certain part of his real estate by the Town of Patoka. We reverse and remand for further proceedings.
In Stuart A. Clampitt v. State of Indiana, a 5-page opinion involving a pro se appellant, Judge Riley writes:
Appellant-Defendant, Stuart A. Clampitt (Clampitt), appeals the trial court’s Order denying his motion to remove his status as a sexually violent predator (SVP). We reverse and remand with instructions.

Clampitt raises five issues for our review, one of which we find dispositive and which we restate as follows: Whether the trial court has jurisdiction to rule on his motion to remove his SVP status. * * *

Clampitt argues, and the State concedes, that the trial court erred when it denied his motion to remove his name from Indiana’s sex offender registry. Specifically, Clampitt contends that pursuant to the amendment of Indiana Code section 11-8-8-22, the Indiana General Assembly provides trial courts with jurisdiction and guidance on the appropriate procedures to follow when a person challenges his status as a SVP.

In Clampitt’s previous appeal in Marion County, we addressed the same issue and advised him to file his petition in the county in which he resides. Additionally, we advised the trial court in the county where he filed an amended petition to follow the procedures set forth in I.C. § 11-8-8-22. However, after filing his revised petition, the trial court now denied Clampitt’s motion based on its perceived lack of jurisdiction over the Montgomery County Sherriff’s Department, the Indiana Sherriff’s Association, and the Department of Correction. We now direct the trial court to I.C. § 11-8-8-22(e): * * *

The procedures set forth in the amended statute allow the trial court, and this court on appeal, to be fully informed of a sex offender’s circumstances, including the offender’s full criminal history, dates of offenses, and reason for being required to register. Further, I.C. § 11-8-8-22(e) allows the trial court to provide notice of the proceedings to all interested parties and then set a hearing. For these reasons, we direct the trial court in the county where he filed his amended petition to consider the petition in light of I.C. § 11-8-8-22(e). Reversed and remanded with instructions.

In Alrita Morehead v. Duane Deitrich, a 14-page opinion involving a mail carrier and a pit bull, Judge Darden concludes:
We agree that it is reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger on a sidewalk, may bite that stranger. We, however, cannot say that it is reasonably foreseeable that that dog indeed will escape its confinement. It is not the dog's mere presence on leased property that causes harm. Rather, it is the owner's failure to adequately confine that dog. Thus, we do not conclude that there is a high degree of foreseeability that leasing property to the owners of vicious dogs will result in injury to third parties.

As to public policy, Morehead argues that it would be served “by discouraging the harboring of known vicious animals in residential neighborhoods.” * * *

We agree that society has an interest in preventing dog attacks against innocent parties, and therefore in keeping vicious dogs adequately confined. It would be unreasonable, however, to impose a duty on landlords to regulate tenants' animals, where the owners clearly are in the best position to do so.

We find no reasonable basis to impose a duty upon Deitrich, and as a matter of law, where no duty exists. We therefore find no error in granting Deitrich's motion for summary judgment.Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

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

Kenneth W. Rhymer, Jr. v. State of Indiana (NFP)

Robert Browning v. State of Indiana (NFP)

James N. Hamilton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Eads and Atterholt v. Community Hospital, a 9-page, 5-0 opinion, Justice Boehm writes:

A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey’s Account Statute. * * *

The trial court’s grant of summary judgment is reversed.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Marion attorney accused of smuggling drugs into a federal prison [Updated]

So reports WSIL TV 3, Marion. Some quotes:

Robert Drew is now in custody at an Indiana jail. Drew, 68, of Marion, is charged with possession of a controlled substance, and intent to distribute a controlled substance.

Officials say they found a package of marijuana and 52 grams of heroin taped to his body. They claim Drew was headed to a federal prison in Terre Haute, Indiana, this past Saturday to deliver the drugs. * * *

Drew told police in Vigo County, Indiana, this past weekend that he was delivering marijuana and heroin to a federal inmate because he and his family had been threatened. That inmate is Benjamin Kramer, a king pin in a 1980s drug ring that trafficked several tons of marijuana into the U.S. through shipping ports, netting Kramer more than $60 million.

Before an Indiana judge Monday, Drew said he hid the drugs in his Mercedes, and drove to Evansville with his wife, where they spent the night at a casino. He then drove to Terre Haute Saturday morning, and stopped at a gas station so he could tape the drugs to his body.

He hid the 52 grams of heroin in two condoms. Drew said other packages had been mailed to him in the past. He then smuggled those drugs into the prison, following orders he received from anonymous callers.

Drew told News 3 recently he is retired, but still representing a few clients in ongoing court cases.

The ILB does not find his name (Robert Drew, Marion) on the Indiana Roll of Attorneys.

[Updated on 9/2/10 at 4:08 PM] Perhaps that is because he is from Marion ILLINOIS, according to this brief AP story today.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Indiana Courts

Courts - Still more on "Justices Take Case on Video Game Law"

Updating earlier ILB entries, Tony Mauro and Carrie Levine report today in a very long story the National Law Journal:

Representatives of the video game industry, with $10 billion in annual sales nationwide, have been in contact with state AGs to persuade them to support the industry by filing a brief in the case, set for argument on Nov. 2. At issue: whether California's 2005 law banning sale or rental of violent video games to minors violated the First Amendment.

"It's our understanding that there's a pretty intense lobbying effort" against the law, said California Supervising Deputy Attorney General Zackery Morazzini, who will argue in defense of California's law before the high court in the case, titled Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association.

One sign that the industry is making inroads is that only 11 states signed onto an amicus curiae or friend-of-the-court brief supporting the California law filed on July 19, an unusually low number in a case involving a law aimed at protecting children. In a typical state-law enforcement case, 40 states or more may join briefs supporting their counterparts before the Supreme Court. The justices often cite state amicus briefs, so having states on the industry's side could be an important tactic in countering California's defense of the law.

Here is the SCOTUSblog WIKI page on the case, including the brief of 11 states (not including Indiana) supporting petitioners.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Courts in general

Environment - "Neighbors sue City of Jeffersonville over asphalt plant"

Connie Leonard reports for WAVE 3:

JEFFERSONVILLE, IN (WAVE) – People living next to an asphalt plant in Jeffersonville, IN are suing the city after a five year zoning dispute. Now, they want the construction company that put the plant up to take it down.

The plant's next door neighbors say for the past couple of years, they've had to put up with noise, odors and dirt that has caused them discomfort and health problems.

The suit filed in Clark Circuit Court claims the city of Jeffersonville and its planning and zoning department went around state law to allow MAC Construction approval for the plant so the company could produce asphalt on its property. It also finds the Jeffersonville's own city ordinance does not support the existence of an asphalt plant in that location.

The city claims former Mayor Rob Waiz and his planning and zoning director gave permission for the plant in 2005. City Attorney Larry Wilder says the former director found a provision in the Indiana code that allowed them to grant zoning without a hearing.

Interesting. The ILB would like to post the Ind. Code provision ...

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Environment

Ind. Courts - "Jill Behrman’s bicycle, other evidence to be available to new murder defense team"

Keith Rhoades reported yesterday in the Bloomington Herald-Times ($$$) on the post-conviction relief motion of John Myers II - here are some quotes from the long story:

MARTINSVILLE — Morgan County Superior Court I Judge G. Thomas Gray told both the state and defense attorneys for John Myers II that the court will give the defense attorneys access to all evidence collected in the murder case, including the bicycle Jill Behrman was riding the day she disappeared.

Myers was convicted in October 2006 in Morgan County Superior Court II in the death of the IU student and Bloomington native in 2000. In December 2006, Judge Christopher Burnham sentenced Myers to 65 years in prison.

A hearing was held Monday morning on a defense request to have access to the bicycle Behrman was riding when she disappeared. The bicycle was found within two miles of Myers’ home. Her remains were found in a wooded area near Paragon in March 2003.

Myers had appealed his case up to the Indiana Supreme Court, but his conviction was upheld. Now he has filed for post-conviction relief. His case was in Superior Court II, but Myers requested it be reassigned and after a random draw, the case went to Judge Gray in Superior Court I.

Two public defenders, Anne Murray Burgess and Joanna Green, have been appointed to represent Myers.

While the defense had wanted to take the bicycle to have it examined, a discussion among the defense attorneys and Morgan County Prosecutor Steve Sonnega resulted in a compromise.

Sonnega told Judge Gray the state is willing to allow the defense, and the company they have hired, to inspect the bicycle while it is under the control of the court. The agreement allows the company to photograph and take measurements of the bicycle, but they will not, at this time, be allowed to touch it. The company will not be allowed to take paint samples or otherwise do anything to the bicycle.

Sonnega said, “I’m not sure what they hope to find. There’s not much damage to it and there will be no harm for the defense to examine and photograph it.”

Sonnega was adamant that the chain of custody for the bicycle must remain unbroken, which means the bicycle has to stay in the possession of the court. He said there must be a representative from the state present while the inspection is performed.

All evidence that was used in the trial is still under control of Judge Burnham in Superior Court II.

Judge Gray said at this time, the evidence had not been transferred to his court, but he said there is no reason to deny the defense request.

“Now it’s my case, nothing will be kept hidden from the defense,” Gray said. * * *

Burgess said they will need access to all the evidence collected during the six-year investigation. Sonnega said the state has a lot of evidence from the trial, but they did not get everything from all the agencies that took part in the investigation.

Judge Gray said all evidence collected during the investigation, from when it began in 2000, will be available to the defense. That includes evidence from the Indiana State Police, Bloomington Police Department and the Federal Bureau of Investigation, which also assisted with the investigation.

The judge said, if needed, he would sign orders making that evidence available to the defense.

Myers is being held at the state prison in Michigan City. He did not attend his hearing. Behrman’s father did attend the hearing.

The Herald-Times has made archived stories, photos and documents on the case available on a special page (it appears the page is available, but the stories themselves are restricted to subscribers to the paper).

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Indiana Courts

Environment - Indiana walnut trees at risk

From the AP, via the Indy Star:

INDIANAPOLIS -- Indiana's wildlife agency has issued an emergency rule banning walnut products from nine western states and Tennessee from being shipped into Indiana.

The rule took effect Monday and is intended to prevent a tree disease that afflicts black walnut trees and other walnut species, including butternut, from reaching Indiana.
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Officials with the state Department of Natural Resources say Thousand Cankers Disease is a major threat to the state's black walnut trees.

The new rule applies to walnut products from Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Tennessee, Utah and Washington.

It bans walnut nursery stock and a variety of unprocessed products such as firewood and mulch from being shipped into Indiana.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Environment

Courts - "Judicial Reform: How to Cut Down on Hung Juries"

A long story dated Aug. 31, 2010 on the Time website quotes Chief Justice Shepard extensively on hung juries, such as in the federal Blagojevich trial, including:

Mistrials are rare in federal court, but some argue they might be rarer still if the federal courts had adopted a string of reforms that have revamped state court juries in the past 20 years, upending centuries of tradition. By some counts, the reforms have halved the hung jury rates in state criminal trials. The aim, said one of the nation's leading reformers, is to prevent the kind of outcome that happened in Chicago: a mistrial that leaves no one happy. "Much of the elements of jury reform has reflected on the phenomenon of hung juries," says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville."And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn't happen in a great many places today.

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Courts in general

Ind. Gov't. - "Carmel redevelopment no issue"

Chris Sikich reports in the Indianapolis Star:

CARMEL, Ind. —Attorney General Greg Zoeller [8/31/10] has issued a nonbinding legal opinion that finds no fault with the Carmel Redevelopment Commission’s authority to pay for the city’s massive redevelopment. * * *

The concern stems from a $45 million in installment purchase contracts which the Redevelopment Commission approved for payment to contractors in 2008 when money from the original $80 million bond for the arts center's construction was running out.

The council was never asked to approve the $45 million, despite the fact that state law requires such approval for debts of more than $3 million. Mayor Jim Brainard had maintained the installment purchase contracts do not require council approval under state law.

Here is Official Opinion 2010-3 [not posted yet]

Posted by Marcia Oddi on Wednesday, September 01, 2010
Posted to Indiana Government