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Friday, October 29, 2010

Ind. Decisions - Transfer list for week ending October 29, 2010 [Updated]

Here is the Clerk's transfer list for the week ending October 29, 2010. It is one page (and 15 cases) long.

Three transfers were granted for the week ending Oct. 29, 2010:

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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 October 8, 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 Friday, October 29, 2010
Posted to Indiana Transfer Lists

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.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In John Taele and Sarah Taele v. State Farm Mutual Automobile Insurance Co., a 14-page, 2-1 opinion, Judges Barnes writes:

The issue in this case is whether the Taeles's claims of emotional distress caused by witnessing the accident that killed their daughter are a compensable “bodily injury” within the definition of the State Farm policy. State Farm does not deny that the Taeles have adequately stated a claim for negligent infliction of emotional distress (“NIED”) against Figueroa. * * *

Given Jakupko, Elliott, D.L.B., Bush, and Armstrong, we must conclude that the Taeles are not entitled to recover UM benefits under the State Farm policy because they themselves were neither directly impacted nor directly physically injured by the accident that killed their daughter, notwithstanding the fact that they may have a valid NIED claim against Figueroa under Groves, unlike the parents in Bush and Armstrong. It does seem slightly incongruous that persons having NIED claims arising in a Shuamber-type scenario may be entitled to recover UM benefits for “bodily injury,” but those having equally valid NIED claims arising in a Groves-type scenario are not so entitled. Nonetheless, we presume that if our supreme court intended Groves-type claims to be covered under the definition of “bodily injury” for purposes of insurance policy and UM statutory interpretation, it would have mentioned that case at some point in Jakupko, Elliott, D.L.B., or Bush. * * *

The trial court properly granted summary judgment in favor of State Farm. We affirm.

FRIEDLANDER, J., concurs.
CRONE, J., dissents with separate opinion. [that begins, as p. 12 of 14] I commend Judge Barnes on his scholarly survey of our supreme court's NIED jurisprudence, and I agree with his assessment that it seems “slightly incongruous that persons having NIED claims arising in a Shuamber-type scenario may be entitled to recover UM benefits for 'bodily injury,' but those having equally valid NIED claims arising in a Groves-type scenario are not so entitled.” Slip op. at 9.

That said, I respectfully disagree with his conclusion that the Taeles “did not sustain any 'direct impac' in the accident that killed their daughter” and that therefore their NIED claims against Figueroa “arise under the Groves rule, not the Shuamber 'direct impact' test[.]”

In J.M. v. D.A., a 19-page, 2-1 opinion by Judge Brown, Judge Bradford's dissent begins:
While I concur with the majority's conclusion that the trial court's order denying Father's petition to modify his child support obligation was not clearly erroneous, I respectfully dissent from its conclusion that the trial court abused its discretion in finding Father in contempt.
In Sean H. Chiszar v. State of Indiana , a 23-page opinion, Judge Najam writes:
Sean Chiszar appeals his convictions for two counts of Voyeurism, as Class D felonies; three counts of Possession of Child Pornography, Class D felonies; Possession of Paraphernalia, as a Class A misdemeanor; Possession of Marijuana, as a Class A misdemeanor; and Battery, as a Class A misdemeanor, following a bench trial. He presents five issues for our review, which we consolidate and restate as four issues:
1. Whether the voyeurism statute is void for vagueness.
2. Whether the trial court abused its discretion when it admitted evidence obtained during a warrantless search.
3. Whether a subsequent search warrant was supported by sufficient probable cause.
4. Whether the State presented sufficient evidence to support two of his convictions. * * *

Chiszar has not demonstrated that the voyeurism statute is unconstitutionally vague. The trial court did not abuse its discretion when it admitted evidence deputies obtained after Chiszar had consented to the search of his garage. There was probable cause to support the search warrant. And the State presented sufficient evidence to support Chiszar's convictions for one count of voyeurism and battery. Chiszar does not challenge the sufficiency of the evidence with regard to his other convictions. Affirmed.

In Douglas Denzell v. State of Indiana, a 9-page opinion, Judge Najam writes:
Douglas Denzell appeals the trial court’s denial of his motion to dismiss a criminal charge against him. Denzell presents a single issue for review: whether the denial of his motion to dismiss violated his due process rights because, due to his incompetence to stand trial, he had already been confined longer than the maximum sentence the trial court could have imposed following a conviction. We affirm. * * *

We analogize this situation to periods of pretrial confinement pending trial as contemplated by Indiana Rule of Criminal Procedure 4. That rule refers to “a period in aggregate embracing more than” six months or one year, depending on the subsection. See Ind. Cr. R. 4(A), (C). The use of the “aggregate” term shows that Criminal Rule 4 contemplates tacking periods of confinement for purposes of calculating a total period of confinement. Calculating the period of confinement in the present case should be treated similarly. Thus, here, where Denzell has been restored to competency and then decompensated, resulting in more than one period of confinement under a charge, the aggregate period of confinement should be used to determine whether he has satisfied the test for discharge set out in Davis and applied in Habibzadah.

In Y.G. v. Review Board - Y.G. appeals the Review Board’s decision to deny him unemployment benefits. We affirm.

NFP civil opinions today (2):

Term. of Parent-Child Rel. of A.K.; S.K. v. IDCS (NFP)

Peters Broadcast Engineering v. WROI-FM (NFP)

NFP criminal opinions today (7):

In State of Indiana v. Lynn Wilson (NFP), a 10-page opinion, Judge Najam writes:

The State appeals the post-conviction court's grant of Lynn Wilson's petition for post-conviction relief. The State presents a single issue for our review, namely, whether the post-conviction court erred when it granted Wilson's petition despite its conclusion that he could not show the likelihood of a different outcome had his appellate counsel raised an omitted issue on direct appeal. We reverse.
Rebecca Reed-Harrison v. State of Indiana (NFP)

Ivette Haylett v. State of Indiana (NFP)

Charles Huntley v. State of Indiana (NFP)

Joel Williams v. State of Indiana (NFP)

Michael Clay v. State of Indiana (NFP)

Tracy D. Price v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One today from the tax court

In Dale J. Scopelite and James T. Sheehan v. Indiana Dept. of Local Government Finance(NFP), a 19-page opinion, Judge Fisher writes:

On November 7, 2008, the Department of Local Government Finance (DLGF) issued a final determination approving the City of Hammond's (City) budget and tax levy for the 2008 tax year. Dale J. Scopelite and James T. Sheehan (hereinafter, the Petitioners) challenge that final determination. * * *

[Issues] I. Did the DLGF deny the Petitioners due process when it conducted its hearing on the taxpayers' objection statement on October 30, 2008? II. Did the DLGF fail to follow the law when it did not provide written determinations and statements on each of the taxpayers' fifty-nine objections? III. Did the DLGF err in concluding that the City had not exceeded its debt limit? IV. Did the DLGF err in approving the City's budget? * * *

[Conclusion] The Court AFFIRMS the DLGF's final determination in its entirety.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Ind. Tax Ct. Decisions

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

Remember this ILB entry from August 23, 2010 where Delaware County Prosecutor Mark McKinney's attorney, Kevin McGoff, was quoted as arguing before Boone Circuit Court Judge Steven David, appointed by the Supreme Court to hear the disciplinary case re McKinney, argued:

"Sanctioning McKinney would violate the separation of powers doctrine of the United States and Indiana constitutions, which prohibit the judicial branch from invading the discretion of a member of the executive branch."
That led to this ILB entry later the same day, asking: Is a county prosecutor a member of the executive or judicial branch?

As summed up in this August 25, 2010 ILB entry, the consensus was that the county prosecutor is part of the judicial branch.

Newly issued Opinion 2010-4 of the Attorney General, dated Oct. 18, 2010, agrees. See the discussion on pp. 3-4.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Indiana Courts

Courts - More on "Justices can't cite foreign law in death penalty cases but just fine with foreign lethal injection drugs for executions"

Updating yesterday's ILB entry, there is a strong editorial today in the NY Times. A quote:

In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Courts in general

Ind. Courts - Heated election battle for Allen County Superior Court Judge continues

Although this Oct. 26, 2010 story by Rebecca S. Green of the Fort Wayne Journal Gazette describes a civil debate:

FORT WAYNE – The three candidates vying for the Allen Superior Court bench sat together onstage Monday afternoon at IPFW for a debate broadcast live on the local public radio station.

Allen Superior Court Judge Kenneth Scheibenberger is being challenged by local attorneys Wendy Davis and Lewis Griffin.

All three have been campaigning in the waning days before the election, visiting campaign forums and local events.

Scheibenberger has been on the bench for 19 years.

Davis is a full-time partner in the local firm of Beckman Lawson and a part-time Allen County deputy prosecutor.

Lewis Griffin runs his own law practice, handling a variety of cases including family law and criminal defense.

It looks likes the good will may be breaking down. A WANE story today begins:
ALLEN CO, Ind. (WANE) - Candidate for Allen County Superior Court judge Wendy Davis is standing up for herself saying despite what others may speculate she is playing fair.

Questions about her campaign spending surfaced when a group called Friends of Good Government bought air time for a pro-Davis commercial. A candidate for judge is only allowed to spend $10,000 on his or her campaign. One of her opponents has expressed his concern that Davis might be trying to get around campaign finance laws. Although the $2,000 TV ad is not paid for by Davis or her campaign, any involvement with it would put Davis over her spending limit and in breach of campaign finance rules.

"In order for there to be a violation committed by Wendy Davis, she would not only have to know the people there, but she would have to have known about creation of the ad and actually contributed to the making of that ad," explained Andy Downs of the Mike Downs Center for Politics at IPFW.

Davis insists she knew nothing about the ad and is holding herself to the highest ethical standards.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Indiana Courts

Ind. Courts - Another "traffic court judges behaving badly" story

WISH TV 8 had a lengthy story last evening by Deanna Dewberry, headed "Judge put on spot for parking hypocrisy," about Judge Charles Hunter, 87, of the Beech Grove Traffic Court.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Indiana Courts

Ind. Courts - "An auditor hired by the state Department of Toxicology is reviewing all of the department's drug test results from 2007-09 -- including those used for criminal convictions -- because of concerns about accuracy"

So begins the Indianapolis Star story today reported by Mark Alesia and Tim Evans. This comes after numerous earlier stories detailing a large backlog of toxicology text results from the state lab at Indiana University; the suggestion that the "State's toxicology department might be better off on its own than under the administration of IU's medical school;" IU's retaining Scott Newman as a consultant; the appointment of a task force to write legislation to effect the separation, etc. See the complete list here.

Some quotes from today's lengthy story:

Most Indiana law enforcement agencies, including the Indiana State Police, use the lab for blood testing. Marion County, which has its own lab, does not.

Former Marion County Prosecutor Scott Newman, hired in August to fix problems at the troubled agency, stressed that he doesn't know yet whether any results are inaccurate. But he said the situation was such that "a person who is responsible would not feel comfortable and would feel the need to investigate."

Newman said he would be able to announce the first findings of the audit within 30 days.

"If a single case arrives at a point where I have a reasonable certainty either that it's not right or I can't prove that it's right," he said, "I will immediately notify the attorneys in that case." * * *

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors statewide are concerned about how the situation might affect current and past cases. He said it's essential that prosecutors can trust lab results.

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to Indiana Courts | Indiana Government

Law - NPR investigation of ALEC, "the birthplace of a thousand pieces of legislation introduced in statehouses across the county"

The report on Morning Edition this morning begins:

When you walk into the offices of the American Legislative Exchange Council, it's hard to imagine it is the birthplace of a thousand pieces of legislation introduced in statehouses across the county.

Only 28 people work in ALEC's dark, quiet headquarters in Washington, D.C. And Michael Bowman, senior director of policy, explains that the little-known organization's staff is not the ones writing the bills. The real authors are the group's members — a mix of state legislators and some of the biggest corporations in the country.

"Most of the bills are written by outside sources and companies, attorneys, [and legislative] counsels," Bowman says.

Here's how it works: ALEC is a membership organization. State legislators pay $50 a year to belong. Private corporations can join, too. The tobacco company Reynolds American Inc., Exxon Mobil Corp. and drug-maker Pfizer Inc. are among the members. They pay tens of thousands of dollars a year. Tax records show that corporations collectively pay as much as $6 million a year.

With that money, the 28 people in the ALEC offices throw three annual conferences. The companies get to sit around a table and write "model bills" with the state legislators, who then take them home to their states.

One of those bills is now Arizona's controversial new immigration law. It requires police to arrest anyone who cannot prove they entered the country legally when asked. Hundreds of thousands of illegal immigrants could be locked up, and private prison companies stand to make millions.
Arizona state Sen. Russell Pearce speaks during a vote on SB 1070, the immigration bill, in April.
Ross D. Franklin/AP

Arizona state Sen. Russell Pearce speaks in April during a vote on SB 1070, the immigration bill he sponsored. The final version resembled "model legislation" he helped draft during an ALEC conference in Washington, D.C., last year.

The largest prison company in the country, the Corrections Corporation of America, was present when the model immigration legislation was drafted at an ALEC conference last year.

An earlier NPR report was headed "Prison Economics Help Drive Ariz. Immigration Law."

Posted by Marcia Oddi on Friday, October 29, 2010
Posted to General Law Related

Thursday, October 28, 2010

Ind. Decisions - "Homeowners' Sewer Suit Against City Goes Before High Court"

The Supreme Court heard oral argument this morning in the case of The City of Indianapolis, et al. v. Christine Armour, et al. and 6News was there. (See ILB upcoming oral argument summary here.) Some quotes:

The sewer project connected 180 homes. At least 31 homeowners in the Northern Estates subdivision paid the full price for the connection, upfront, but some didn't, and the city says they don't have to.

Bill Main, 70, has lived in his home for 36 years. In 2004, he said he paid the city $9,278 for his sewer connection.

"My next door neighbor ended up paying $638 for the exact same thing that I paid over $9,000 for," Main said.

So far, three courts and five judges have ruled in the homeowners' favor.

"The trial court ruled in our favor, the appeals court ruled unanimously in our favor and the federal district court has considered this same issue and ruled in our favor," said Ronald Waicukauski, the homeowners' attorney.

Even neighbors who paid less support those who filed suit against the city.

"They should have that reimbursed to them," said Ray Burger. "I was going to pay on a monthly basis. I only ended up paying $300 to $600. They paid full price."

But the city said it has an duty to appeal the case.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Upcoming Oral Arguments

Ind. Courts - Plaintiff "claims the fees or 'donations' paid by defendants amount to extortion"

Vince Luecke, editor, Perry County News, has a long story today; here are a few quotes:

PERRY COUNTY – A Perry County woman is challenging in Perry Circuit Court the legality of fees paid by defendants pleading guilty in some criminal cases.

The suit names as defendants County Prosecutor Robert Collins and Perry County, as well as the Perry County Law Enforcement Fund and the Perry County Substance Abuse Committee.

Laura Truelove filed the case through her attorney, Bart Betteau of New Albany.

In the suit, which presents only the plaintiff’s argument, Truelove claims the fees or “donations” paid by defendants amount to extortion.”

Defendants in some criminal cases can make donations to either the substance abuse committee or the law enforcement fund.

The committee returns the money as grants to groups active in drug and alcohol abuse prevention. The law-enforcement fund has been used to purchase equipment for law-enforcement agencies.

According to the suit, Truelove entered into a plea agreement that required her to make a donation to either the Perry County Law Enforcement Fund or the Perry County Substance Abuse Committee. Truelove claims the fees are prohibited by the Indiana Constitution.

“The provision regarding donations to the Perry County Law Enforcement Fund and the Perry County Substance Abuse Fee is contrary to law, as no such fee is authorized by the criminal code, unconscionable and unenforcable,” the suit alleges.

Truelove is seeking class-action status for the suit, which if granted, might allow others who have made similar donations to seek damages.

Here is more about the Perry County fund from today's story:

The Perry County Law Enforcement Fund was created in Octo 2005 by the then board of commissioners, the late Terry Lock, Don Sherry and Jody Fortwendel. Collins said the ordinance was drafted by the county attorney and established the Perry County Law Enforcement Fund.

“The purpose of the fund is to provide money to aid and assist our law enforcement agencies in Perry County so that offenders rather than taxpayers are paying to fight the war on drugs,” he said. “The fund has saved taxpayers over $160,000.”

“Donations to the fund and the Substance Abuse Committee are only used in cases where the criminal defendant agrees to make a donation instead of paying a fine,” Collins added. “The Indiana Court of Appeals in a 1992 case, which has never been overruled, approved this practice. Judge James McEntarfer approved this procedure and Judge Lucy Goffinet has continued the practice. Also, this donation alternative is used in other counties across the State. None of Indiana’s 92 counties has declared this practice improper.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Indiana Courts

Ind. Courts - Howard Superior Court 2 Judge Stephen Jessup retiring

Scott Smith reports today in the Kokomo Tribune - some quotes:

Judge Stephen Jessup, well known for his informal court and unpredictable sentencings, announced this week he plans to leave the bench Jan. 1.

A Kokomo native, Jessup has served in Superior 2 since 1994, and served 17 years as a part-time juvenile court referee before that. * * *

Jessup, well known for his informal court and unpredictable sentencings, announced this week he plans to leave the bench Jan. 1.

A Kokomo native, Jessup has served in Superior 2 since 1994, and served 17 years as a part-time juvenile court referee before that.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Indiana Courts

Environment - "Environmental groups appeal to stop Purdue coal expansion"

Updating an ILB entry from May 11 headed "Purdue's request to expand the Wade Power Plant assailed," Eric Weddle of the Lafayette Journal Courier reported Wednesday:

Two environmental groups have filed an appeal with the U.S. Environmental Protection Agency over Purdue University's air permit.

The Sierra Club and the Hoosier Environmental Council are attempting to revoke or modify a decision made by the Indiana Department of Environmental Management that will allow the university to operate the Wade Power Plant now and after its planned expansion of coal powered boilers.

The Journal Courier provides a link to the 36-page petition objecting to the Title 5 operating permit renewal, filed on Oct. 25th. EPA. It concludes:
For the above reasons, the Permit fails to comply with the Clean Air Act and all applicable requirements, and the Administrator must object. Petitioners have demonstrated that the permit does not include the required compliance monitoring for various sources of PM, PM10, and PM2.5 from multiple sources and for H2SO4 and HCl emissions from Boiler 6. Additionally, Petitioners have demonstrated that IDEM’s netting analysis, which allowed the addition of Boilers 6 and 7 and associated equipment to be a PSD minor modification, was faulty because it did not consider modifications that occurred to Boiler 1 as part of a major life extension project approximately 10 years ago. Purdue failed to include information of this project and related violations of BACT emission limits in its application for the Title V renewal permit, and the Permit accordingly fails to ensure compliance with all applicable limits.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Environment

Courts - "Is Calif. Ban on Violent Video Games Legal?"

Supplementing this entry from earlier today, the WSJ Law Blog has this entry that begins:

In most states, it’s illegal to sell a Playboy magazine to people under the age of 18.

Those sorts of laws were upheld by the U.S. Supreme Court in a 1968 case called Ginsburg v. New York, in which the majority, led by Justice William Brennan, ruled that content that is not obscene may still be harmful to children — and therefore may be regulated.

A question now in front of the Supreme Court — and set to be argued next Tuesday: does the rationale expressed in the Ginsburg opinion extend not just to nudity but to violence?

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Courts in general

Courts - Interesting assessments of court choices by Prof. Tribe leaked

Charilie Savage of the NY Times has the story, headed "Leaked: Obama Mentor’s Blunt Advice on Court Choices."

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Courts in general

Ind. Courts - Don't forget to fill out and send in your ballot for the 2nd District seat on the JNC/JDC

Ballots are due by 4:00 p.m. on November 10, 2010. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 12, 2010.

Here are the five candidates.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)

For publication opinions today (4):

In Robert D. Davis v. State of Indiana , dealing with a motion to amend a motion to correct errors, Judge Riley concludes:

Davis’ abstract of judgment does not allow us to decide whether he was erroneously sentenced without at least looking at the charging information. Davis was convicted under I.C. § 35-45-6-2(2), corrupt business influence, which reads, in pertinent part that a person has a corrupt business influence when he “through a pattern of racketeering activity, knowingly or intentionally acquires or maintains, either directly or indirect, an interest in or control of property or an enterprise[.]” The charging information would explain how Davis would have acquired or maintained the interest or control of property. In that light, it is conceivable that the charging information did not reference the other charges of receiving stolen auto parts, but rather the more general statute of theft, I.C. § 35-43-4-2, and stolen property, I.C. § 35-43-4-2, which are enumerated in I.C. § 35-45-6-1 as activities which can amount to “racketeering activity.” Therefore, we conclude that the trial court properly denied Davis’ motion for leave to amend his motion to correct error.
In Kelvin Heyen v. State of Indiana , a 19-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that: (1) the trial court did not abuse its discretion when it admitted evidence of Heyen‟s arrest; (2) the trial court did not err when it denied his oral motion to reveal the identity of the CI; (3) the evidence was sufficient to convict him of dealing in methamphetamine and to support his habitual offender enhancement; (4) he did not receive ineffective assistance of trial counsel; (5)the trial court did not err by not affording more weight to his health condition; and (6) his sentence is appropriate in light of his character and the nature of his offense.
In Quincy and Shannon Branham v. Rodney and Carol Varble

Quincy and Shannon Branham v. Rodney Varble and Norman Chastain

NFP civil opinions today (1):

Paternity of C.R.; C.W. v. F.R. (NFP)

NFP criminal opinions today (15):

Marvin G. Jerro v. State of Indiana (NFP)

Donald A. Pierce v. State of Indiana (NFP)

Dion Alexander Walker v. State of Indiana (NFP)

Richard D. Stewart v. State of Indiana (NFP)

Joseph Hoskins v. State of Indiana (NFP)

Micah Potter v. State of Indiana (NFP)

Samuel Johnson v. State of Indiana (NFP)

Donald K. Wilburn v. State of Indiana (NFP)

Anthony R. Helton v. State of Indiana (NFP)

Martin A. Stanley v. State of Indiana (NFP)

William Greenwood v. State of Indiana (NFP)

Antoine R. Bird v. State of Indiana (NFP)

Clarence Davis v. State of Indiana (NFP)

Randy A. Cummings v. State of Indiana (NFP)

Walter Archer, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Ind. App.Ct. Decisions

Law - "Law schools are manufacturing more lawyers than America needs, and law students aren't happy about it."

Annie Lowrey's story on Slate, posted yesterday afternoon and reportedly very popular.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to General Law Related

Courts - "High court case on violent games tests limits on speech"

Joan Biskupic of USA TODAY has a long story on the upcoming SCOTUS oral argument. A quote:

On Tuesday, Supreme Court justices will hear arguments in the case, which could have sweeping consequences for consumers and entertainment media. California officials and their defenders say the ban is important to protect children. Publishers and filmmakers argue that if the Supreme Court sides with California, the action could chill creativity in other media.
The ILB has had a number of entries on this upcoming argument.

The 7th Circuit in 2001 threw out an Indianapolis ordinance that regulated violent video games. The case was American Amusement Machine Association v. Kendrick, available here via FindLaw.com.

For background, check these ILB entries:

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Courts in general

Ind. Court - Judge Robb selected as next chief judge

Here is the release:

The Court of Appeals of Indiana has selected Margret G. Robb to succeed John G. Baker as the next Chief Judge of the Court. Chief Judge-Elect Robb's three-year term of office will begin on January 1, 2011. Chief Judge-Elect Robb will be the first woman to serve as the leader of the Court of Appeals of Indiana.

Chief Judge-Elect Robb was appointed to the Court of Appeals of Indiana in July 1998. Prior to her appointment to the Court, Chief Judge-Elect Robb was, for 20 years, engaged in the general practice of law in Lafayette, and she served as a Chapter 11, 12 and a standing Chapter 7 Bankruptcy trustee for the Northern District of Indiana. Most recently, Chief Judge-Elect Robb has been selected as one of the 2010 recipients of the Indiana University Alumni Association President's Award.

Chief Judge Baker, who has served as the Court's Chief Judge since March 1, 2007 and chose not to seek another term, stated that he is "very confident that Chief Judge-Elect Robb will continue the tradition of the Court and will bring new enthusiasm to the position." Chief Judge Baker will work together with Chief Judge-Elect Robb during the next two months until she takes over the mantle of Chief Judge on January 1.

The Court of Appeals of Indiana is the state's second-highest court and hears appeals from the state's trial courts. The 15 judges on the Court of Appeals issue more than 2,500 written opinions each year, sitting in three-judge panels.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Indiana Courts

Ind. Courts - "Vanderburgh County Drug Court becomes model to follow"

Adding to these two recent entries about Vanderburgh County's treatment courts, overseen by Superior Court Judge Wayne Trockman, from Oct. 14th and Oct. 18th, this story today by Mark Wilson in the Evansville Courier & Press is headed: "Vanderburgh County Drug Court becomes model to follow: Program eyed in northern Indiana." The story begins:

Several programs stood out as role models as judicial officials in St. Joseph County began looking at ways to expand the work of its Drug Court to help a wider range of people re-enter society after prison.

High on that list are Vanderburgh County's treatment courts, overseen by Superior Court Judge Wayne Trockman, especially its re-entry court program, said St. Joseph Superior Court Judge Roland Chamblee.

The northern Indiana county, home to the city of South Bend, already had long-running drug court of its own.

"Re-entry seemed like the next step to me," Chamblee said. "Wayne (Trockman) is highly regarded in both drug court and re-entry court venues."

Also today, Carrie Ritchie of the Indianapolis Star has a lengthy story headed "Hamilton County's new drug court targets addiction: Offenders must plead guilty and pay for costs, tests, treatment." It begins:
Hamilton County is starting a program that it hopes will rehabilitate drug addicts and prevent them from constantly getting into trouble with the law.

This month, the county launched a drug court program, which will allow addicts who are convicted of crimes to seek help either instead of or in addition to going through traditional punishment, such as serving a jail sentence.

"Jails just don't work for a lot of people," said Hamilton Superior Court Judge Gail Bardach, who would preside over the drug court docket. "They don't work for people who have multiple quality-of-life issues, and that's what drug addicts have."

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Indiana Courts

About this Blog - More on: A resolution

I've added an update to the end of this post from Oct. 26th.

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to About the Indiana Law Blog

Courts - "Justices can't cite foreign law in death penalty cases but just fine with foreign lethal injection drugs for executions"

Those are attorney and Slate columnist Dahlia Lithwick's words from a tweet. I'm quoting them because some may have exactly the same reaction when hearing or reading this report yesterday from Nina Totenberg of NPR's All Things Considered, headed "Supreme Court OKs Foreign Lethal Injection Drug." Some quotes:

The U.S. Supreme Court has for now cleared the way for states to use foreign sources in obtaining a lethal injection drug used in carrying out the death penalty. * * *

Enter Arizona and the case of Jeffrey Landrigan. Landrigan's lawyers sought to block his execution because state officials would not say where they were getting the drug for the execution, and defense lawyers contended that there was no way to evaluate the safety of the drug without knowing where it came from. Pressed by a federal judge, the state admitted it was using a drug from a foreign country, but wouldn't specify which one. * * *

State officials appealed all the way to the Supreme Court, and late Tuesday, by a 5-to-4 vote, the justices lifted the stay of execution, allowing Landrigan to be put to death.

"There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," wrote the five-justice majority. The court added that "speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.'"

Here is a more detailed story by Andrew Cohen of Politics Daily. A quote:
The legal question in the case was simple and unusual and sparked a great deal of debate among death penalty specialists: Does a condemned prisoner have a right to know where the drugs that will kill him came from and are made of? The Supreme Court's conservative majority answered that question no, at least in the circumstances of this case. In its unsigned order, issued late Tuesday night, the court dissolved the stay of execution as too speculative. "There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe," the justices said. "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect."

State lawyers had argued that providing information about the origins or ingredients of the drug might improperly lead to the identification of the executioners themselves. More credibly, Arizona also claimed that it didn't matter what kind of thiopental it intended to use in executing Landrigan, or where it came from, because the state's injection protocol has enough protections in it to ensure the first drug is properly injected into the inmate before the second and third drugs, the lethal ones, are administered to the inmate. The Supreme Court cited its own precedent in Baze v. Rees, a lethal injection case out of Kentucky, in endorsing Arizona's view. * * *

When U.S. District Judge Roslyn O. Silver blocked the Landrigan execution Monday, she rooted her decision in the language of the Eighth Amendment's "cruel and unusual punishment" clause. She ruled that a nationwide shortage of thiopental raised legitimate questions about whether foreign, non-FDA-approved thiopental would be inserted in Landrigan's veins. And that, in turn, raised legitimate questions about whether those drugs would have side effects or contaminants or deficiencies that would cause Landrigan undue (unconstitutional) pain during his execution.

Because of Arizona's refusal to share relevant information about how it got its thiopental, Judge Silver wrote, the court "is unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug's manufacture or that has no history of contamination in manufacturing the product. Absent such evidence, the Court must accept Plaintiff's factual showing that such drugs are more likely to contain harmful contaminants." This speculation, the Supreme Court subsequently ruled, was not enough to warrant additional delays in Landrigan's execution. * * *

Silver also had unloaded on Arizona officials. "The Court is perplexed by Defendants' behavior in this case," she wrote. "Defendants have never adequately explained their rationale for withholding all evidence regarding the drug, and Defendants have now created a situation where a seemingly simple claim that could have been resolved well in advance of the execution must be resolved in five days -- and now only eighteen hours due to further protractions created only by Defendants -- without the benefit of Plaintiff having the opportunity to present fact-based arguments."

Posted by Marcia Oddi on Thursday, October 28, 2010
Posted to Courts in general

Wednesday, October 27, 2010

Courts - "Corporate campaign ads haven't followed Supreme Court's prediction"

The subhead to this important LA Times story today, reported by David G. Savage, is "Companies and unions have been able to avoid the transparency called for in the court's landmark ruling. Spending on next week's midterm election has been exorbitant.." The story begins:

Reporting from Washington — The Supreme Court sent a wave of corporate and union money flooding into campaign ads this year, but it did so with the promise that the public would know — almost instantly — who was paying for them.

"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions," Justice Anthony M. Kennedy wrote in January. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

But Kennedy and the high court majority were wrong. Because of loopholes in tax laws and a weak enforcement policy at the Federal Election Commission, corporations and wealthy donors have been able to spend huge sums on campaign ads, confident the public will not know who they are, election law experts say.

Corporate donors have been able to hide their contributions despite the opposition of shareholders and customers — the very groups cited by Kennedy.

More:
"The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications," said Karl J. Sandstrom, a former FEC commissioner who advises Democrats on election law.

He called Kennedy's opinion naive and said it reflected a "very uninformed view of how disclosure works."

The WSJ Law Blog picks up the story here.

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Courts in general

Ind. Decisions - One Indana decision today from 7th Circuit

In Parkey v. Sample (ND Ind, Judge Lee), a 6-page opinion, Judge Kanne writes:
James Parkey sued Indiana State Trooper Jason Sample under 42 U.S.C. § 1983, claiming Sample had violated Parkey’s rights under the Fourth Amendment by searching Parkey’s home and seizing Parkey’s property without probable cause. The district court granted Sample’s motion for summary judgment, finding Parkey had not brought forth any evidence to demonstrate a lack of probable cause. We affirm. * * *

Because the record shows no issue of material fact regarding the existence of probable cause, we do not consider whether Sample would be entitled to qualified immunity.

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

Ind. Courts - 2nd Round of Tax Court interviews this morning [Updated]

As noted here yesterday, the final-round of Judicial Nominating Commission interviews is taking place this morning. Commission deliberations begin at 12:20 pm and it is anticipated an announcement will follow shortly thereafter, naming the three candidates whose names will be sent on to the Governor.

[Updated] The three names to be sent to Governor Daniels are: Ms. Martha Wentworth; Hon. Karen Love; and Mr. Joby Jerrells. The Court press release is here. The Governor will have 60 days after officially receiving the names to name a successor to Judge Fisher, who retires at the end of this year.

Here is the Sept. 30 ILB entry detailing the seven semifinalists.

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Indiana Courts

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

For publication opinions today (3):

LaPorte Community School Corporation v. Maria Rosales - 2-1 opinion involving issues re expert witness testimony admissibility, motions for judgment on the evidence on issues of negligence and contributory evidence, and whether the trial court properly instructed the jury regarding negligence.

In Kent and Elizabeth Hizer v. James and Rebecca Holt , a 14-page opinion, Judge Mathias writes:

Kent and Elizabeth Hizer (“the Hizers”) appeal the trial court's grant of summary judgment in favor of James and Rebecca Holt (“the Holts”) on the Hizers' claims for fraud and breach of contract arising from the Hizers' purchase of the Holts' home. Concluding that a genuine issue of material fact exists as to whether the Holts made fraudulent misrepresentations on the Sales Disclosure Form required by statute, we reverse the trial court's entry of summary judgment in favor of the Holts and remand for proceedings consistent with this opinion. * * *

In this case, the Hizers designated evidence to establish a genuine issue of material fact at least as to whether the Holts had actual knowledge of the defects in the basement wall, the water problems in the basement, the inoperable well, and the faulty irrigation system, all of which were listed as “not defective” on the Sales Disclosure Form. Also, there is a genuine issue of material fact as to whether the Holts had actual knowledge of the presence of extensive mold in the attic and therefore fraudulently stated on the Sales Disclosure Form that there was no mold on the property. For all of these reasons, the trial court erred when it entered summary judgment in favor of the Holts, and we reverse and remand for proceedings consistent with this opinion.

Maurice Porter v. State of Indiana - "We affirm one conviction of nonsupport of a dependent child as a Class C felony and we reduce the second conviction of nonsupport of a dependent child to a Class D felony for which the sentence shall be a term of one and one-half years, to be served consecutive to the sentence for the Class C felony. We remand with instructions to enter judgment of conviction and a sentencing order in conformance with this opinion."

NFP civil opinions today (1):

Kwiatkowski Land Management LLC v. Torrenga Engineering Inc., et al. (NFP)

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

NFP criminal opinions today (8):

Joel Moses v. State of Indiana (NFP)

Douglas L. Blair v. State of Indiana (NFP)

Floyd E. Whitlock v. State of Indiana (NFP)

James J. Pierce, Jr. v. State of Indiana (NFP)

Ronald Trent v. State of Indiana (NFP)

David M. Holmquist v. State of Indiana (NFP)

Angel Rivera v. State of Indiana (NFP)

Gene Payton v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "The homicide of Bloomington’s Jill Behrman will be TV feature"

The Bloomington Herald-Times is reporting:

The homicide of Bloomington’s Jill Behrman will be featured in an episode of Investigation Discovery’s series called Main Street Mysteries, which premieres Friday at 10 p.m.

Here is the Main Street Mysteries website. From the site:

Big crimes in small towns can cause fear and panic within tight-knit communities. Follow these small town investigators on mystifying cases to bring closure to the victims and their loved ones.

Here is a long list of earlier ILB entries relating to the Jill Behrman case.

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Ind. App.Ct. Decisions

Courts - "Evil Men in Black Robes"

Attorneys Richard L. Hasen and Dahlia Lithwick have a feature in Slate, dated Oct. 26, on the five worst judicial election campaign ads. Watch them and make your own decision. Here is the description that accompnaies the first video:

In this Michigan Supreme Court ad—scored, no doubt, by the good people who did The Exorcist—we encounter the terrifying prospect of death by oil. Note the ominous oil drills ready to kill us at any time? Note their frightening use of rhetorical questions? The judge in question so desperately loves oil that he voted to dump it in Michigan rivers, barred environmentalists from cleaning it up, then took campaign contributions from big oil companies, and—judging by all the footage of oily birds—rubbed oil all over endangered species. (This is an Internet-only ad produced by Democrats apparently to counter at least $357,000 in Republican support for the incumbent.)
The article itself includes:
Thirty-eight states hold some form of election for their state supreme court justices, and the elections are getting ever nastier and more expensive. Whereas the spending on these races was once infinitesimal and the advertising—to the extent it existed—minimal and usually mild, that's all changing. The reasons are complicated. Judges have been targets in the culture wars, and their elections have attracted the attention of a polarized electorate. But the money behind the campaigns often comes from business, trial lawyers, and labor interests, whose bottom lines are routinely affected by state court rulings.

The United States Supreme Court shares some of the blame too. Thanks to a 2002 Supreme Court ruling that removed some restraints on what judicial candidates can say in election campaigns, plus a series of Supreme Court cases culminating in this year's Citizens United case, which removed the possibility of limits on campaign spending even in judicial elections, judicial election campaigns are looking more and more like other elections: They are more expensive, more professional, and much, much scarier. And this is becoming true even in some states (such as Iowa) that merely use "retention" elections, in which voters just vote "yes" or "no" on whether sitting judges should remain in office for the next term.

In short, these are distinctly frightening times—especially for those of us who believe judicial elections should be different from other elections and that it is important to maintain both the appearance and actuality of impartial justice.

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Courts in general

Ind. Decisions - Interesting Supreme Court disciplinary ruling

In a disciplinary order issued Oct. 25, 2010, In the Matter of Thomas W. Belleperche, the Court details the requirements for conditional reinstatement, at least in cases where those circumstances involve:

On September 27, 2005, this Court approved an agreed six-month suspension from the practice of law for Petitioner, all stayed, subject to probation of at least 24 months.

The Court revoked his probation for violations of its terms by order dated May 3, 2006, and suspended him for six months without automatic reinstatement effective June 12, 2006.

Petitioner filed a petition for reinstatement on January 6, 2010.

In this order granting conditional reinstatement, the Court details a 9-step requirement that must be fulfilled, with the 9th step being:
The petitioner has taken the Multistate Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.
Now that the above has been achieved:
This Court, being duly advised, finds that the recommendation of the Disciplinary Commission should be accepted and that, accordingly, Petitioner should be reinstated as a member of the Indiana bar subject to the following conditions:
(1) The reinstatement shall be subject to successful completion of probation of at least three years on terms to be determined by the Judges and Lawyers Assistance Program ("JLAP") consistent with the hearing officer's recommendations.

(2) Petitioner shall have no violations of the terms set by JLAP, the law, or the Rules of Professional Conduct during his probation.

(3) If Petitioner violates his probation, the Commission may petition the Court to revoke his probation and to re-impose his suspension without automatic reinstatement.

Posted by Marcia Oddi on Wednesday, October 27, 2010
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 26, 2010

Ind. Law - More on: Oft-quoted IU-Indy law professor Henry C. Karlson has died [Updated]

Some details on Professor Karlson's arrangements from IU-LAW:

The family has asked that donations go to the Hoosier Veterans Assistance Foundation or the cancer charity of your choice instead of flowers.

Showing and funeral will be Friday, October 29, 2010 at Crown Hill.

Showing starts at 11:00, followed by the funeral service at 1:00.

Earlier entry here.

[Updated at 8:30 pm] Jon Murray of the Indianapolis Star, who often quoted Professor Karlson in his stories, has this lengthy final story this evening. A great tribute, it is headed "Noted legal analyst Henry Karlson dies." A sample:

"Most people in Indianapolis who practice criminal law learned it from Henry Karlson," said Joel Schumm, who also teaches at the law school.

Karlson often helped state lawmakers draft changes to Indiana's criminal laws, and he participated in the writing of the state courts' evidence rules in the 1990s.

But it was his frequent comments to the media that expanded Karlson's profile beyond the legal profession. Even as he fought leukemia, Karlson took reporters' phone calls in his hospital room, up until a few weeks ago. He said the interviews kept his mind sharp.

His bluntness sometimes put him at odds with police and prosecutors, and he said he never sought a law license in Indiana in part so he could maintain his independence.

"The thing that would make him most angry is injustice. He hated seeing injustice," said his daughter, Liz Karlson, 40, who also became an attorney.

[More] And I just found this wonderful entry by Paul Ogden, posted on Ogden on Politics. A sample:
We students hung out in the gray lounge, often talking about law and politics. All the professors ignored the students, heading directly to their offices after class, shunning any interaction with the students. Professor Karlson was the lone exception, sitting with students in the lounge debating the politics and legal cases of the day. Fiercely opinionated, a conservative in a bastion of liberalism, Professor Karlson debated issues with conservative and liberal students alike, challenging those students to consider other ways of looking at the issues. For many law students, who had for years gotten by simply regurgitating the liberal views of their professors, suddenly being challenged by a politically conservative intellectual threw them for a loop. Prof. Karlson "hammered" open more than a few liberal minds at the IU-Indianapolis law school.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Indiana Law

About this Blog - A resolution to: I am speechless! [Updated]

I have been at a meeting.

Upon my return I found three messages responding to this entry I posted earlier this afternoon that concluded:

When I posted the entry yesterday, I thought shame would work and that the Ferguson firm would either apologize and take down the ILB, or apply to become a supporter. Neither has happened. I don't want to escalate this beyond what I have already done. That leaves the alternative of removing the RSS feed. I'll look into that this weekend. If may be an inconvenience to some, but they will know who to blame.
All three messages in response were variations of "Please don't take down your RSS feed!"

And the resolution. This message has arrived from David Ferguson:

Marcia,

I was just informed about your post on the Indiana Law Blog objecting to our link to your blog from our website.

I will have our tech person take down any links to your site. I am sorry that you were unhappy with your site being linked from ours.

David L. Ferguson
Ferguson & Ferguson, Attorneys at Law
403 East Sixth Street
Bloomington, Indiana 47408
tel 812-332-2113
fax 812-334-3892
www.ferglaw.com
DLF@ferglaw.com

Well, it was certainly more than a "link to my blog", but this achieves the desired result.

[Updated Oct. 28, 2010] And here, as of yesterday, is the website, without the "link." Looks like there is plenty of white space to fill -- maybe with a photo of the Monroe County Courthouse?

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to About the Indiana Law Blog

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

For publication opinions today (2):

In Allstate Ins. Co. v. Timothy Clancy, et al. , a 17-page, 2-1 opinion, Judge Kirsch writes:

In an action alleging it engaged in bad faith settlement practices, Allstate Insurance Company (“Allstate”) brings this interlocutory appeal of the trial court's order granting a motion to compel the production of documents and raises the following restated issue: Whether the trial court abused its discretion by compelling production of documents subject to the attorney-client privilege on the ground that Allstate has implicitly raised an advice of counsel defense, thereby waiving the attorney-client privilege. We reverse. * * *

We hold that the “fairly debatable” defense, absent any other connection to reliance upon advice of counsel, is tantamount to a good faith defense and insufficient in and of itself to waive attorney-client privilege. Accordingly, we reverse the trial court's order compelling discovery of the challenged documents. Reversed.

FRIEDLANDER, J., concurs.
ROBB, J., dissents with separate opinion. [Here is the beginning and end, it begins on p. 14] I respectfully dissent from the majority's opinion as to the issue raised by Allstate.

I agree with the majority's pronouncement of the applicable law, but I disagree with the majority's application of the law to Allstate and would distinguish an affirmative defense that a plaintiff's claim is “fairly debatable” when referring to a factual issue from an affirmative defense that a plaintiff's claim is “fairly debatable” as to a legal issue. * * *

Based on the reasoning above and the facts in the record, I would conclude that Allstate's affirmative defense that Mr. Goad's coverage was “fairly debatable” necessarily referred to advice of counsel, thereby waiving Allstate's attorney-client privilege.

In Nathan Brock v. State of Indiana , a 10-page opinion, Chief Judge Baker writes:
Appellant-defendant Nathan Brock appeals his conviction for Operating a Motor Vehicle After Forfeiture of License for Life, a class C felony. Brock argues that his convictions violate double jeopardy because the trial court granted the State's request for a mistrial at the close of the first trial in the absence of a manifest necessity to do so and then permitted the State to retry Brock, resulting in the convictions at issue herein. Finding that the mistrial and subsequent retrial do not violate double jeopardy, we affirm.
NFP civil opinions today (3):

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

O.P. v. Review Board (NFP)

The Law Offices of Wayne Greeson, PC, and Shammah Investments, LLC v. Steuben County Auditor (NFP)

NFP criminal opinions today (2):

Troy Burge v. State of Indiana (NFP)

Russell A. Timmons v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on Bauer v. Shepard

Updating this ILB entry from Oct. 21st, here is the latest on the status if the petition for a writ of certiorari filed in the SCOTUS.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Ind. (7th Cir.) Decisions | Indiana Courts

About this Blog - Still more on: I am speechless! Any thoughts from readers on how to proceed?

Thanks to all of you who have written about this issue.

No, I have heard nothing from Ferguson & Ferguson. Yes, last I checked the Indiana Law Blog was still the focus of their website.

Many of you are just starting out and asked how you could contribute to the ILB in a small way. Several of you suggested a "tips jar." I appreciate your suggestions. I did try that for a number of years, but only received one contribution. The other problem is that to continue spending the large number of hours I do on this effort, I need some assurance of a steady stream of income. That is why I ask for the one-year pledges and aim my requests at organizations and larger firms. After many years in the profession, the ILB is the way I have chosen to support the legal community and the public with quality information; and my hope still is that some others in the community will step forward and add their support so this effort can continue.

One reader's email began: "I would think that the Ferguson site is doing you a favor." Enough said.

A number of readers sent suggestions for keeping the Ferguson site from appropriating my RSS feed and displaying the Indiana Law Blog entries on their site as their main resource. I provide the feed to allow sophisticated reader to skim through the posts using an individual RSS reader and zero in on the information they want to read in detail. So far I have not discovered a way to do this without cutting off the feed to everyone, although that is an option. The result would be you would have to go to the ILB site to read the blog. This would actually end up as beneficial to the current ILB supporters who want their names seen.

Several of you suggested a DMCA takedown and even provided details for submission. Or cease and desist. Or other legal remedies. Some sent links to articles on dealing with plagiarism.

One of you told me this was "the same guy who 'investigated' Coach Bob Knight's choking incident with the basketball player." Several had other stories.

One reader suggested: "Given the time of the year and the Halloween Season, a good egging, toiletpapering and pumpkin smashing is in order." But I'm certainly not endorsing that!

When I posted the entry yesterday, I thought shame would work and that the Ferguson firm would either apologize and take down the ILB, or apply to become a supporter. Neither has happened. I don't want to escalate this beyond what I have already done. That leaves the alternative of removing the RSS feed. I'll look into that this weekend. If may be an inconvenience to some, but they will know who to blame.

Thanks to all of you for your warm and encouraging notes of support.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to About the Indiana Law Blog

Ind. Law - What's happening with fixing the Indiana Code? Part 3

In Part 3 we will be looking at some of the proposed bill drafts made available to the Code Revision Commission at the September meeting, and the issues they raise. These drafts are on the agenda for the Commission's meeting this Wednesday, Oct. 27, 2010. It is unclear whether additional meetings are planned.

[Here are links to Part 1 and Part 2 of the ILB discussion of "What's happening with fixing the Indiana Code?"]

Introduction. The Commission's 17 bill drafts include:

I began my review of the drafts with Environment [PD 3099], thinking: How much trouble can it be to analyze a 3-page bill covering laws you are already familiar with? But in the case of the Code Commission draft on the environment laws, it took me many hours, plus a long trip to the library.

To help people looking at the bill, the Commission staff prepared for each subject area a "chart" listing in reverse order all the noncode laws from 1985 through 2009.

(1) I found many noncode environmental provisions not listed or dealt with by the draft

The first thing I set about to do was to see if all the live noncode laws on the environment were in the chart. Any live noncode provision not on the chart would not be dealt with. If there was to be a blanket repeal, as in earlier recodifications, of all laws not amended into the Indiana Code or specifically identified as exceptions, then those not on the chart would be unknowingly impacted by the blanket repealer or, if there was not blanket repealer, they would continue to be floating around as live, non-code law.

The problem was, how could I locate all the noncode laws on the environment from the period of 1985-2010? I don't know how anyone checking one of the other subjects has done it -- in my opinion by deciding to go by "subject" rather than by year, the Commission staff has made this task impossible. The very reason we are trying to get a handle on the noncode problem is that right now no one knows ....

Fortunately, however, in the environmental area I was at an advantage. For many years, I have edited and published each year an updated edition of the Indiana Environmental Statutes.

For the past decade or so, each year's volume has included in the back the text of every noncode provision enacted relating to the environmental law, plus a Table of Contents.

Furthermore, when one of these noncode provisions was repealed, or expired by its own terms, it was and is still carried in the collection of noncode environmental provisions. Why? Because otherwise there would be no way to ever find it in the future, unless you knew precisely what you were looking for. Questions often come up in the environmental and I'm certain other areas of the law, such as: When was IDEM supposed to have concluded that study?" "Didn't the General Assembly say this rule was invalid?" "What did the law say when that permit was issued?"

But for this project, I was only interested in the still live noncode provisions. I compared my list to the Commission staff's chart. Many of my "Still live" noncode provisions were not listed on the Commission's chart. A bad sign.

To make sure it was not my mistake, I also compared my list to the only other resource available, the collection of noncode acts on the General Assembly website. I have noted in earlier papers that this collection is not comprehensive, and is unusable for most purposes, but it served a purpose here -- I could check to see whether a noncode provision identified as "live" in the 2010 Environmental Statutes, but not listed on the Commission's chart, was included among the General Assembly's noncode acts.

Note that this part of this difficult exercise, the effort to cross-check with the online noncode listings, would not have been necessary if, as noted in Part 2, the Commission staff had continued to maintain the Session Law Tables. But my results did confirm my initial findings, there remain many noncode environmental provisions that are not listed or dealt with by the Commission's draft.

(2) Secondly, I found that amendments proposed to add noncode provisions to the Indiana Code actually forced the reader to go back and look at the old Acts to understand the change.

Here is an example. A 2008 amendment to the marketable title law is addessed in the Commission's draft bill on "Property."

This amendment is of great interest to environmental lawyers. In addition, and ironically, the 2008 amendment was one of the examples used in my 2008 Res Gestae article, "Can you rely on the Indiana Code? Part I -- Noncode sections," pp. 20-28. It is Example II on p. 24 (p. 5 of the pdf).

This is the noncode language that accompanied the 2008 amendment to IC 32-20-3-2:

(a) IC 32-20-3-2, as amended by this act, applies only to determinations of marketable record title (as defined in IC 32-20-2-2) after June 30, 2008.

(b) Under IC 32-20-3-2, as amended by this act, marketable record title (as defined in IC 32-20-2-2) is subject to all interests of the department of environmental management arising from the recording of a restrictive covenant under IC 13, regardless of whether the recording occurred before July 1, 2008.

The problem: A reader of IC 32-20-2-2 today will have no idea that this language exists, or of what IC 32-20-2-2 looked like before its 2008 amendment.

The amendment was to IC 32-20-3-2(6). The way to address this in 2008 should have been to write subdivision 6 with two parts, the first (with the provision as it existed before the 2008 amendment) beginning: "Before June 30, 2008 * * * " and the second (with the provision as changed the 2008 amendment) beginning "After June 30, 2008 * * *." The same approach should be used today. Instead, the Commission's bill draft provides:

SECTION 11. IC 32-20-3-0.1 IS ADDED TO THE INDIANA 15 CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 0.1. The amendments made to section 2 of this chapter by P.L.18-2008 apply only to determinations of marketable record title after June 30, 2008.
In short, the amendments proposed to add noncode provisions to the Indiana Code actually force the reader to go back and look at the old Acts to understand the change. This is no answer to the problem of noncode laws.

(3) Intervening recodifications of individual titles such as Title 13, environment, make much of the language proposed in the Commission staff's draft completely incomprehensible -- referencing law since repealed and no longer accessible without great effort.

Greatly compounding the already difficult problem discussed in (2) above is the impact of intervening recodifications of individual Indiana Code titles. Remember, it has been 25 years since the noncode provisions were last addressed. During that time many individual Titles have been rearranged and renumbered and reenacted -- this was done with Title 13, Environment.

Unfortunately, these recodifications did not, as they should have, address the relevant noncode provisions that were outstanding at the time. As the noncode provisions were neither incorporated into the new recodifications, or repealed, they remain to this day. (An example, a noncode provision on adverse possession that was not addressed in the 2002 recodification of Title 32, property, is discussed in this Oct. 2008 Res Gestae article on the first page.)

When you put the two problems together, here is what can result. This is from the beginning of the Commission's draft on the environmental laws, SECTION 1. This SECTION adds a new Sec. 0.2 to IC 13-11-2. The new Sec. 0.2 provisions begin:

(a) The amendments made to IC 13-7-8.7-8(a) and IC 13-7-8.7-8(b) (before their repeal, now codified at sections 48 and 81, respectively, of this chapter) by P.L.25-1991 apply to an action for which a final determination of liability is made after June 30, 1991.
What does this "(before their repeal)" mean? Again, twenty-five years have passed since the laws were last recodified. During that period the General Assembly "recodified" the environmental laws and assigned them all new numbers. Here is the "Disposition Table for Title 13" from the General Aseembly's website. Here is the "Deriviation Table." Nothing in the tables tells you WHEN this renumbering happened, but IC 13-12-1-1 makes clear it was 1996.

I did not have time to more than briefly try to trace these two provisions (now IC 13-11-2-48 and 81) through their circuitous route. They were amended in 1991 and the noncode language at issue was part of the 1991 bill. Then they were recodified and renumbered in 1996, but the noncode language was not addressed. And it was not just a simple renumbering -- other provisions were added into the two new sections. Finally, since the recodification and renumbering, the provisions have been amended again.

Hence the conclusion with which I began this third point: Intervening recodifications of individual titles such as Title 13, environment, make much of the language proposed in the Commission staff's draft completely incomprehensible -- referencing law since repealed and no longer accessible without great effort.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Indiana Law

Ind. Courts - 2nd Round of Tax Court interviews tomorrow

The times for tomorrow's interviews have just be released,

Time of Interview

Applicant

Hometown

9:00 a.m. – 9:25 a.m. Mr. Joby Jerrells Bloomington
9:25 a.m. – 9:50 a.m. Mr. George Angelone Indianapolis
9:50 a.m. – 10:15 a.m. Hon. Karen Love Lizton
10:15 a.m. - 10:40 a.m. Ms. Melony Sacopulos Terre Haute
(Break)    
10:55 a.m. – 11:20 a.m. Ms. Martha Wentworth Greenwood
11:20 a.m. – 11:45 a.m. Mr. Dan Carwile Evansville
11:45 a.m. - 12:10 p.m. Hon. Carol Comer Indianapolis
(Break)    
12:20 p.m. Deliberations  

After the Judicial Nominating Commission deliberates in executive session, the Commission will name three nominees during a public vote. The nominees will also be announced shortly after the vote in a news release posted to courts.in.gov. The three nominees will be recommended to Governor Mitch Daniels, who will select Indiana's next Tax Court Judge.

Here are the ILB info sheets on the seven semi-finalists. I apologize that the ILB was not able to obtain photos from all the applicants.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Indiana Courts

Ind. Decisions - "Home for mentally ill wins key court ruling"

The Oct. 15th COA decision in Southlake Community Mental Health Center, Inc., et al. v. Board of Zoning Appeals of the City of Crown Point, Indiana, et al. (ILB summary here) is the subject of a story today in the Gary Post-Tribune, reported by Diane Krieger Spivak.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Ind. App.Ct. Decisions

Courts - Judicial retention races in Illinois and Iowa continue in the news

"No Opponent, But Big Money In Illinois Justice's Race" is the title of a great story this morning by Carrie Johnson of NPR's Morning Edition. Here is the caption from one of the photos:

Even though [Justice] Kilbride is running unopposed, his race to keep his seat on the Illinois Supreme Court has become the second most expensive judicial retention campaign in American history.
This supplements the Oct. 20th ILB entry quoting a long story from the Chicago Tribune on the race.

Another big retention battle is going on in Iowa, as reported in this Oct. 14th ILB entry headed "Retention battle being waged in Iowa re three justices." A story today in the DesMoines Register from Grant Schulte begins:

Both sides of the Iowa Supreme Court retention debate embarked on statewide tours Monday to summon voters for the high-stakes election that could change the way state courts do business.

Advocates for the judges and justices warned that ousting all 74 on the Nov. 2 ballot would overwhelm an already backlogged court system and threaten public safety. Groups that want to remove the three justices on the ballot urged voters to say "no" in response to last year's gay marriage ruling, a decision they say was not the court's to make. * * *

The anti-retention campaign, backed by the National Organization for Marriage and the Family Research Council, left Des Moines in an eye-catching purple bus with all three justices' faces emblazoned on the side, each with the word "No" beneath it.

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Courts in general

Ind. Law - Oft-quoted IU-Indy law professor Henry C. Karlson has died

Henry C. Karlson, Professor of Law Emeritus, Indiana University School of Law - Indianapolis, died yesterday, October 25th.

Indianapolis Star
reporter Jon Murray wrote last evening on Twitter: "Henry Karlson was a great source, a sharp legal mind and always available on deadline. A nice man, too."

More later

Posted by Marcia Oddi on Tuesday, October 26, 2010
Posted to Indiana Law

Monday, October 25, 2010

About this Blog - More on: I am speechless! Any thoughts from readers on how to proceed?

Updating this entry from this morning, thanks to all of you who have sent in your reactions on suggestions. I'll try to bring you all up to date tomorrow.

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Alesa Pack v. Indiana Family and Social Services Administration, a 19-page opinion, Judge Bailey writes:

Alesa Pack (“Pack”) applied for Medicaid benefits on the ground that she suffered from medical conditions that substantially impaired her ability to engage in useful work. She was denied benefits by the Family and Social Services Administration's (“FSSA”) Medical Review Board (“Review Board”) and an Administrative Law Judge (“ALJ”). FSSA affirmed the ALJ and adopted her decision. The trial court affirmed the FSSA's decision. We reverse and remand for further proceedings.

Pack presents two issues for our review, which we restate as:
I. Whether the ALJ erred as a matter of law by failing to address specific items of evidence related to Pack's mental health; and
II. Whether the ALJ's decision was supported by substantial evidence. * * *

In light of the foregoing discussion, we remand this matter to the ALJ. We do so not because the ALJ's decision is unsupported by substantial evidence, but because the ALJ's decision is sufficiently defective in its findings of fact as to make this matter largely unreviewable by this court on the question of substantial evidence. Under the circumstances we, not the ALJ, would be forced to weigh evidence, and this we cannot do. Pickett, 903 N.E.2d at 175. We therefore hold that the ALJ's decision is counter to Indiana Code Section 4-21.5-5-14(d)(4) in that it was issued “without observance of procedure required by law,” namely that the decision fails to reach findings of basic fact, which in turn makes any legal conclusions or findings of ultimate fact defective.

NFP civil opinions today (5):

In Parr Richey Obremskey & Morton and Kent M. Frandsen v. Biomet, Inc. (NFP), a 14-page opinion, Judge Vaidik writes:

Law firm Parr Richey Obremskey & Morton (“Parr Richey”) and partner Kent M. Frandsen appeal the trial court's grant of partial summary in favor of Biomet, Inc., on Biomet's complaint for legal malpractice. Although Biomet sought partial summary judgment on duty and breach, the trial court entered summary judgment on issues pertaining to liability as well. We affirm the trial court's entry of partial summary judgment on duty and breach, but we remand this case for a trial concerning proximate cause and damages, which is what Biomet actually sought in its motion for partial summary judgment.
Runningman, LLC, v. The Nagsak Company of West Lafayette, Inc., Joshua Nagy and Robert Sak (NFP)

David L. Lind and Edward D. Deters v. New Albany Floyd County Dept. of Parks and Recreation (NFP)

Halifax Financial Group, LP v. Capital Imp. Bd. of Mgrs. of Marion Co. and Marion Co. Convention and Recreational Facilities Authority (NFP)

S.H.P. v. S.P. (NFP)

NFP criminal opinions today (4):

Tyree L. Thomas v. State of Indiana (NFP)

Willie Ferrell v. State of Indiana (NFP)

Duward T. Roby v. State of Indiana (NFP)

Rodrigo Medrano, Jr., v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to Ind. App.Ct. Decisions

About this Blog - I am speechless! Any thoughts from readers on how to proceed?

While I have been struggling to keep the Indiana Law Blog going, trying to encourage readers to become ILB supporters, I learned yesterday that the southern Indiana law firm founded by the wealthy and powerful Stephen L. Ferguson has for years shamelessly benefited from the output from my Indiana Law Blog!

Take a look. The ILB is the focus of its website. The website does not merely reproduce an occasional entry here or there. It lifts every single ILB entry and passes it off as one of its "Resources."

Moreover, the website of Ferguson & Ferguson has featured the output of the Indiana Law Blog as its own, without comment or attribution, and certainly without my permission or knowledge, since 2007, possibly longer!

For proof, here is the Ferguson & Ferguson website as it appeared in 2007, via the WayBack machine (slow loading, be patient).

Thoughts?

[More] Here is a pdf I just made of the Ferguson website, showing this very entry.

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to About the Indiana Law Blog

Law - "Google 'mortified' that Street View cars scarfed up e-mail, passwords; privacy criticism intensifies"

A recent entry from Cecilia Kang's Washington Post Tech blog begins:

It turns out Google’s Street View cars found out more about Internet users than previously acknowledged. Last Friday, the company said the cars, which roam the world taking pictures for its location-based applications, scarfed up e-mail addresses, URLs and passwords from residential Wi-Fi networks they passed by in dozens of countries.

And while Google said it was "mortified" by its discovery, apologized again, and announced some measures to beef up privacy awareness within its ranks, the admission could expose the company to greater global scrutiny, fines and potential lawsuits, experts said.

On a personal note, my house is difficult to see from the street when the trees are fully leafed, so the Google Street View is obscured. I've always thought that was just fine. Apparently Google didn't, because recently when I checked my street address on Google, instead of a "street" view, I saw of photo of my entire backyard, taken by the Google Street Car from the alley, and over an 8-foot privacy fence! Talk about intrusive!

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to General Law Related

Courts - "Effort to open Kentucky judicial records falls flat"

Andrew Wolfson of the Louisville Courier Journal has a lengthy story this morning on the transparency of Kentucky judicial records. Here are some quotes that begin at the bottom of p. 2 of the online version:

In Indiana, the state Supreme Court has a rule spelling out access to court and administrative records in the judicial branch, and it says they are open unless there is a specific law or rule exempting them, said public information officer Kathryn Dolan.

Although Supreme Courts in several states, including Kentucky, have ruled that open-records acts don't apply to the courts, Florida's high court has adopted a rule specifically saying the same principles apply to every judicial branch, including those entities that regulate lawyers and judges.

In Kentucky, the state's OpenDoor site (http://opendoor.ky.gov) details spending by the executive and judicial branch. It shows, for example, that last year the judiciary spent $146,744,173 on salaries, $9,137 to repair its copy machines and $30,989 on robes for judges.

But while the site lists specific executive-branch salaries, none are listed for the judicial branch. A news release issued by the Administrative Office of the Courts on Dec. 21, 2009, said those salaries would be added in the “upcoming months,” but Hiatt said that has been delayed because of a computer-programming issue.

A test of openness

To test the court officials contention that Kentucky's court systems operates “in an open, transparent manner, the newspaper last week requested minutes of the monthly meetings of Jefferson Circuit Court judges; staff salaries for the Kentucky Bar Association and the Kentucky office of Bar Admissions; and records showing how much the KBA had paid an outside lawyer in 2008 to investigate allegations against one of its former presidents, as well as a copy of the lawyer's report.

Denying the newspaper's request for the minutes, chief Jefferson court administrator Carla Kreitman said in an e-mail that the judges discuss legal and personnel issues during the sessions and consider “this deliberative process so critical to the integrity of judicial operations that it demands protection from public disclosure.”

KBA director John Meyers cited the Supreme Court's 1978 decision exempting judicial branch agencies from the Open Records Act in denying the request for KBA payroll information, as well as how much it paid Lexington lawyer Robert F. Houlihan Jr., to investigate allegations against then-bar president Barbara Bonar, as well as a copy of his report.

It looks like some of the Kentucky courts setup is not comparable to the Indiana model. But the new Indiana Transparency Portal allows you to look up state employee salaries. I'll have more on this in a later post.

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to Courts in general

Ind. Courts - Video interviews with 7th Circuit Judges

Appellate Daily ("News and Commentary on the Federal Appellate Courts"), had a post Oct. 19th pointing to a series of video interviews with 7th Circuit judges.

These videos are a project of the Young Lawyers Committee of the Seventh Circuit Bar Association. I have found accessing them to be a little quirky, but once you find them, and figure out the interface, you have hit paydirt! The list of judges who participated is lengthy and includes both Judges Tinder and Hamilton. Judge Hamilton, for instance, has 10 videos, some quite lengthy, discussing in depth topics such as "What makes a trial court brief effective?" and "How should you choose which cases to cite?"

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to Indiana Courts

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

Normally, this ILB entry would be prefaced by a request for supporters, such as:

Please -- you individually, your practice group, your firm, your company or your association -- sign on as an annual ILB supporter, and do it today. Review the Supporter Application for more information. Contact me if you have questions.)
But, for reasons readers will better understand later this morning, I'm losing confidence that my approach will ever succeed.

There were 7 ILB posts over the weekend:

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/25/10):

Thursday, October 28th

Next week's oral arguments before the Supreme Court (week of 11/1/10):

Next Thursday, November 4th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/25/10):

Monday, October 25th

Tuesday, October 26th

Wednesday, October 27th

Thursday, October 28th

Next week's oral arguments before the Court of Appeals (week of 11/1/10):

Next Monday, November 1st

Next Thursday, November 4th

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

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


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

Posted by Marcia Oddi on Monday, October 25, 2010
Posted to Upcoming Oral Arguments

Sunday, October 24, 2010

Ind. Decisions - More on: Transfer list for week ending October 22, 2010

The case details have now been added to the transfer list entry posted Friday.

Posted by Marcia Oddi on Sunday, October 24, 2010
Posted to Indiana Transfer Lists

Courts - Study finds: "A conservative Indiana lawyer engineered the string of legal victories that have enabled corporations and wealthy individuals to channel tens of millions of dollars into this year's midterm elections secretly"

Greg Gordon of McClatchy Newspapers has a lengthy story today headed "The lawyer who argued that money is speech." A few quotes:

James Bopp Jr., a Republican-backed lawyer from Terre Haute, Ind., who has fought campaign finance laws for 30 years, filed the lawsuit that led to last January's Supreme Court decision allowing unlimited corporate and union dollars to bankroll independent election ads.

Bopp said he is now challenging laws in at least a dozen states - California, Florida, Hawaii, Iowa, Maine, Minnesota, Ohio, New York, Rhode Island, Vermont, Washington and Wisconsin - that require disclosure of the names of campaign contributors. * * *

Common Cause and another liberal-leaning group, Public Campaign, commissioned Klein Research Services to conduct the study of Bopp's record, headlined "The Man Behind Our Secret Elections." McClatchy obtained an advance copy.

Reached by telephone, Bopp chuckled at the findings and said: "Oh gosh, this is probably the most credit I've ever gotten. And I already think I get an unwarranted amount of credit, because judges write the opinions."

While the study cited a statement in which he purportedly said he had a 10-year plan to dismantle campaign finance laws, Bopp said that came from a joke he made earlier this year.

"I said I had a 10-year plan in my head," he said. "There's no 10-year plan. There's just things I think about."

Posted by Marcia Oddi on Sunday, October 24, 2010
Posted to Courts in general

Ind. Law - "Meth on the rise in Indiana"

A very long and informative story dated Oct. 23, 2010, by Nick Werner of the AP. From the story:

Welcome to Meth 2.0.

After drawing back a few years ago, the meth tide is gripping Indiana again. More people are cooking meth now than at any time in the state's history, and they are using methods that are more efficient and much more difficult for neighbors and law enforcement to detect.

If Delaware County is any example, this second wave of meth is washing into areas of Indiana that had previously enjoyed relative immunity to the drug. * * *

“There's a variety of ways they (the cooks) are figuring out how to get around the law,” Crawford said.

Meth cooks have essentially outsourced the purchasing of their pseudoephedrine and ephedrine, often to drug addicts, making it more difficult for police to link buys to the actual drug dealers.

The practice is known as smurfing.

At the same time, they have developed a new method known as “shake and bake” or “one-pot.” Cooks have slashed production time and no longer need anhydrous ammonia — the odorous chemical that made meth labs easier for police and neighbors to detect.

“Cooking meth is not as difficult as it once was,” said Jeff Stanley, a drug investigator with the Delaware County Sheriff's Office. “You can do a one-pot in an hour-and-a-half and you can have a finished product of methamphetamine. A few years ago the same amount would have taken you four hours.”

Posted by Marcia Oddi on Sunday, October 24, 2010
Posted to Indiana Law

Ind. Courts - "Warrick Co. police arrest attorney for domestic battery"

So reports Adam Thiele at WFIE.com, in a story that begins:

TELL CITY, IN (WFIE) - A Perry County attorney is charged with domestic battery.

Posted by Marcia Oddi on Sunday, October 24, 2010
Posted to Indiana Courts

Saturday, October 23, 2010

Law - Why our laws and rules must be freely available to everyone

Recalling this ILB entry from Sept. 2, 2008, headed "Indiana building codes, part of the Indiana Administrative Code, are not available online" ...

Take five minutes and watch this video of why our laws and rules must be available to everyone, from Carl Malamud.

Posted by Marcia Oddi on Saturday, October 23, 2010
Posted to General Law Related

Ind. Law - What's happening with fixing the Indiana Code? Part 2

Part 1, posted on Oct. 20th, concluded that after three years there is still no overall plan for successfully handling the outstanding 25-years worth of noncode provisions, once and for all. Although a number of proposed bill drafts were made available to the Code Revision Commission at the September meeting, Commission staff said that the current collection of subject matter bills is not necessarily comprehensive, that there were subjects still not covered.

But even with those bills prepared so far, numerous noncode sections within the subjects covered are not accounted for. Specific examples of these omissions will be detailed in Part 3 of this series.

Is it essential that every section of every law enacted from 1985 to the present be accounted for in the new recodification. As I ended Part 1, as of today:

[T]here is no "key," no comprehensive list of every section of every law enacted since 1985, along with its disposition. Without this, there is no way to assure that a blanket repealer would not have unexpected effects. And, at the same time, without the blanket repeal there is no real recodification, no assurance that the Indiana Code contains all the statute law that is not specifically exempted.
This Res Gestae article from November 2008, "Recodifications, legislative histories and tables," began:
Imagine that you had copies of all the volumes of the Acts of Indiana, going back to the 1852 Revised Statutes, each volume containing the laws passed during one session of the General Assembly. Now imagine that someone had noted in the margins of each page what had happened to each section of each act in the volume – was it repealed and by what law, is it part of the Indiana Code and what is its citation, etc.

That exercise actually was done in creating the original 1971 Indiana Code. Further, those marginal notes were compiled to form a “Session Law Disposition Table” that was published as part of the initial Code edition.

This Table was updated and republished with each subsequent edition of the Indiana Code, up through the 1998 edition, where the “Session Law Disposition Table – Acts 1852-1998” ran from page 273 to 1,347 of the Tables volume.

Shortly after the article was published, a "Session Law Tables 1852-2001" document was added by the LSA staff to the General Assembly's website. This was helpful. But the Table is not being maintained, it stops at 2001. That means it not only does not include statutes enacted after 2001, but the provisions through 2001 listed in the Table do not reflect any post-2001 actions.

Quoted in the Res Gestae article is the prefatory language accompanying the Table back when it was published as part of the Indiana Code. Here is some of it:

The following table lists each section of all laws enacted by the Indiana General Assembly from 1852 through 1982. The sections are displayed chronologically in the left column and the disposition for each in the right column. The disposition will be an Indiana Code citation, a repeal note or a categorization. Code citations are to provisions in the Indiana Code that correspond to the session law provision involved. A repeal note indicates that the session law provision was specifically repealed; for example, “Rep. 1969; 284; 30” indicates that the listed session law provision was repealed by Acts 1969, chapter 234, section 30. Session law provisions with corresponding code citations that have been repealed are listed with the repeal note and the Code citation in parentheses.

A session law provision with no corresponding Code citation indicates that it is neither a permanent law of general application nor current law concerning its subject matter; in such instances, one of the following categorizations explains its omission from the Code: Appropriation; Construction; Effectiveness; Legalizing; Obsolete; Purpose; Repealer; Savings; Severability; Special; Superseded; Temporary; Title Amendment; Unconstitutional.

A session law provision so categorized, although not part of the general and permanent statute law of Indiana, may be in effect despite its omission from the Code; see, for example, IC 1-1-1-2.

These categories themselves should be reconsidered before the post-1985 provisions that might fall under each of them are addressed by the recodification effort. Considerations should include: Finally, how should the current 25-years worth of acts or parts of acts that fall into each of the non-code categories be handled? Questions to ask for each category:
1. Is there an acceptable rationale for not including provisions in this category in the Indiana Code? "Acceptable rationale" should NOT include: (a) we don't want to clutter up the Code with all this; (b) not too many people are interested in this: or (c) this law will only be in effect for a few years; or (d) this will confuse people; or (e) it will make it too expensive to print the Code (How many copies of the Indiana Code are printed each year, how many actually exist outside the Statehouse? I know the public can't buy the printed Code and hasn't been able to for many years.)

2. If no, the current provisions in the category should be amended into the Indiana Code, and in the future provisions in such category should not be enacted as "noncode."

3. If yes, should provisions in this category be covered by the blanket repealer?

4. If no, how should these provisions of the Indiana statute law that are not part of the Indiana Code be treated? Should they continue to exist in a noncode "limbo" as they are now, active law but both unknown and inaccessible to nearly everyone?

"Active law, but both unknown and inaccessible to nearly everyone" seems far worst than "non-transparent." And this problem is aggravated and compunded every session for several reasons.

For one, the physical volume of the statutes passed each year keeps increasing -- compare a one-volume set of the Acts from the 1980s with the mega-volume annual Acts of today.

That is, if you can find the Acts of this decade in a printed form other than in the Statehouse.

And if you do find them, you will quickly discover that they are no longer usable. Until recent years, the Acts of Indiana were valuable reference books, they had a comprehensive index, they had all sorts of tables, etc. But today's sets of volumes are simply bound collections of the session laws, useless for research unless you already know what you are looking for. (Equally useless are the past decade's online versions of the Acts of Indiana - try using them for research.)

A second reason -- the annual or biennial appropriations bill has moved from being just that, the state's budget bill, to a monster document hundreds of pages in length cobbling together, and often hiding, just about everything. Much of it is noncode. After every session, when the legislators have long gone home, the Indiana Law Blog is full of stories of "surprises" found to have been passed in the "budget" bill. There are decades worth of these budget bills outstanding, replete with noncode provisions.

In short, to be noncode in today's times is to be invisible.

In Part 3 we will be looking at the proposed bill drafts made available to the Code Revision Commission at the September meeting, and the issues they raise.

Posted by Marcia Oddi on Saturday, October 23, 2010
Posted to Indiana Government | Indiana Law

Ind. Courts - "Victims who file protective orders will receive text message alerts when those orders are served and when they expire"

Eric Bradner of the Evansville Courier & Press has a story here this morning.

And here are some details from the Court's press release:

Posted by Marcia Oddi on Saturday, October 23, 2010
Posted to Indiana Courts

Friday, October 22, 2010

Ind. Decisions - Transfer list for week ending October 22, 2010

Here is the Clerk's transfer list for the week ending October 22, 2010. It is three pages (and 32 cases) long.

A notable transfer denial today was in the case of Mauricio Martinez v. State, the first case argued before the newly constituted Supreme Court, on Oct 19th.

Six transfers was granted for the week ending Oct. 22, 2010:

__________

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 October 8, 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 Friday, October 22, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "Supreme Court Grants Transfer of Brown County Fire District Case"

The transfer list for the week ending Oct. 22nd isn't available yet, but Tom Lotshaw of the Brown County Democrat is reporting:

The Indiana Supreme Court ordered a transfer of the fire district case Thursday morning, a move requested by the Brown County Board of Commissioners.

The order places the case before the Indiana Supreme Court and at least temporarily vacates an Indiana Court of Appeals ruling that found the board of commissioners improperly disbanded a countywide fire protection district, according to Brown County Attorney Kurt Young. * * *

The Brown County Fire Protection District has been discussed, debated and litigated since 2007, when it was created by the previous Brown County Board of Commissioners.

The district, which was implemented but never fully funded, created a board of fire trustees who would have overseen all of the fire protection operations in Brown County.

Upon taking office in January 2009, the current board of commissioners voted to disband the fire protection district, an action that was challenged in court.

A circuit court ruling upheld the board of commissioners' ability to disband the fire fire protection district.

That circuit court ruling was overturned by the Indiana Court of Appeals in February 2010, a ruling that has now been vacated by the Indiana Supreme Court's transfer order.

The COA decision in Susanne C. Gaudin, Robyn Rosenberg, et al. v. J.W. Austin, Darrell L. Kent, et al., entered Feb. 25, 2010, is discussed in this ILB entry from Feb. 26th.

Posted by Marcia Oddi on Friday, October 22, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "In its prior order, this Court found that these claims were delusional."

In Leadbetter and Teusch v. Parkview Hospital (ND Ind., 10/20/10), a 3-page opinion, Judge Lozano concludes:

It is past time for Michael C. Leadbetter and JoEllen E. Teusch to stop wasting this court’s time with frivolous filings. “Federal courts have both the inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.” In re McDonald, 489 U.S. 180, 185 n. 8 (1989) citing In re Martin-Trigona, 737 F. 2d 1254, 1261 (2nd Cir. 1984). Therefore, if either of them file any more frivolous or malicious papers in this court, they may be fined, sanctioned, or restricted.

Posted by Marcia Oddi on Friday, October 22, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Sweetwater Sound alleged that Audiolines illegally copied Sweetwater’s online content, including product information and specifications, and posted them on the Audiolines website"

From a news release today, Sweetwater won its trademark infringement suit against Audiolines:

On October 21, 2010, the District Court [ND Ind.] entered judgment in favor of Sweetwater and against Audiolines on Sweetwater’s complaint. The Court determined that Audiolines infringed on Sweetwater’s trademark under the Lanham Act and that Sweetwater had sustained “irreparable harm as a result of that infringement”.

The Court ordered Audiolines to pay damages to Sweetwater for its acts of trademark infringement and permanently enjoined Audiolines from the use of the trademark “Sweetwater” on its website or in any other connection with the sale of its products.

The opinion is not yet posted on the ND Ind. website.

Posted by Marcia Oddi on Friday, October 22, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Belle City Amusements, Inc. v. Doorway Promotions, Inc. , a 16-page opinion, Judge Darden writes:

Belle City asserts that the trial court improperly awarded damages to Doorway. Specifically, Belle City argues that the trial court abused its discretion in awarding future damages for the years 2010 through 2013; and in awarding 2009 rent in the amount of $24,000.00. * * *

It is clear that Doorway's purported lost profits arise from its perceived loss of reputation or goodwill, which it claims to be a consequence of its failure to present the 2009 Festival due to Belle City's breach of contract. Such lost profits, however, are not recoverable under Indiana law in an action for breach of contract. Indiana & Mich. Elec. Co., 507 N.E.2d at 607. For the foregoing reasons, we reverse the trial court's award of damages to Doorway in the amount of $17,500.00 for each of the years 2010, 2011, 2012 and 2013. * * *

The rent is not an expense of operation saved by Belle City's breach of the Agreement. Rather, Doorway is obligated under a written contract to pay at least $24,000.00 to the Coliseum's Board of Trustees, despite Belle City's breach. Thus, Doorway does not realize any savings related to the lease of the Coliseum as a result of the breach of the Agreement. Accordingly, the rationale for confining an award to net profits does not apply to this case.

In conclusion, we affirm the trial court's award of $24,000.00 for 2009 rent that Doorway is obligated to pay the Board of Trustees. We, however, find the trial court's award of lost profits for the years 2010, 2011, 2012, and 2013 to be improper and remand for proceedings consistent with this opinion.

In Estate of Jane H. Collins, et al. v. T. William McKinney , a 24-page opinion, Judge Bailey writes:
The Estate of Jane Collins (“Estate” or “Collins Estate”) appeals from summary judgment granted to T. William McKinney (“McKinney”) on his Petition for Specific Performance of an Option and Purchase Agreement, and from the trial court’s determination of damages awarded after a bench trial. * * *

In light of the discussion above, we find no error in the court’s award of summary judgment to McKinney, no error in the court’s determination that Ray Collins breached the Option, and no error in the court’s decision to award equitable compensation in the form of money to McKinney. We do, however, find error in the calculation of that compensation. While the trial court was correct in awarding attorney’s fees to McKinney for some of the litigation, to the extent that the award included attorney’s fees from before summary judgment and the order for specific performance and after the sale of the real estate, it erred in its determination of the scope of the fees for which the Estate would be responsible. Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Mickey L. Armstrong v. State of Indiana (NFP)

Thomas Campbell v. State of Indiana (NFP)

Jeremy L. Neal v. State of Indiana (NFP)

William Sebastian, Jr. v. State of Indiana (NFP)

Asher B. Hill v. State of Indiana (NFP)

Ronnie Hanley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 22, 2010
Posted to Ind. App.Ct. Decisions

Courts - Justice up for retention in Ilinois is the subject of a focused campaign

"Attack ads target Illinois Supreme Court justice: Actors portraying the state's nastiest criminals 'explain' how Thomas Kilbride sided with them over their victims" is the headline to this long story today in the Chicago Tribune, reported by David Kidwell, that concludes:

Records show that since the Feb. 4 decision, JUSTPAC has received nearly $600,000 from doctors, hospitals, insurance companies and corporations. Murnane said all of it will go toward the Kilbride campaign.

The group's largest single contributor this year is the U.S. Chamber of Commerce, which has long argued that runaway jury verdicts drive up consumer prices on everything from health care to groceries.

The makeup of the Supreme Court — currently four Democrats and three Republicans — is crucial to both major political parties and interest groups because the panel rules on everything from the constitutionality of state law to legislative maps that help decide who controls the General Assembly. And the state's wide-open campaign finance rules allow both sides to spend freely in contests for judges who are supposed to remain above politics.

[Justice Thomas L. Kilbride] was a Rock Island labor attorney for 20 years before being elected to the high court in 2000 with the help of nearly $700,000 from the Democratic Party of Illinois, chaired by longtime House Speaker Michael Madigan, of Chicago. The party has given Kilbride $1.2 million in recent months.

Three justices are up for retention, but only Kilbride is the target of such a focused campaign. Observers say his swing district makes him the most vulnerable.

Justices are elected to 10-year terms and then must stand for retention each decade. They win if they receive 60 percent support from those casting a vote on the issue.

Throughout the state's recorded history, a Supreme Court justice has never lost a retention vote, according to court spokesman Joseph Tybor. If it happens, he said, the court would name an interim replacement until 2012.

Posted by Marcia Oddi on Friday, October 22, 2010
Posted to Courts in general

Thursday, October 21, 2010

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

Good news. The ILB has obtained and posted a copy of the 15-page Coach Parkinson employment contract referenced in this ILB entry earlier today quoting the Star story by Mark Alesia.

For comparison purposes, this ILB entry from August 19, 2008, contained links, via the Star, to Coach Crean's 3-page, $18 million "memo of understanding" and the 22-page agreement that replaced it a number of months later. Unfortunately, the Star's links to the contracts no longer are operative.

[Updated at 7:30 pm] More good news. A resourceful reader has just sent me links to both the Coach Crean 3-page "memo of understanding" and the 22-page final agreement.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Government | Indiana Law

Law - "Proposed Law Could Limit Interstate Wine Shipping"

The ILB has blogged before about the federal legislation to regulate interstate wine shipped. See, for example, this ILB entry from May 5, 2010.

In this Oct. 18, 2010 NY Times column, dateline Seattle, Eric Asimov writes about internet wine shippers, calling them "lifelines to the world’s wonderful diversity of wines." He continues:

Yet as welcome as these lifelines are, they may be threatened by a bill introduced earlier this year before the House of Representatives, the Comprehensive Alcohol Regulatory Effectiveness Act of 2010, or H.R. 5034, which has the potential to severely restrict direct interstate shipping of wine by retailers. Direct sales from wineries could be threatened, too, although the current language of the bill appears to focus more directly on retailers. * * *

The heart of the legal issue is the conflict between the 21st Amendment to the Constitution, which repealed Prohibition and gave the states the right to regulate alcohol sales, and the commerce clause of the Constitution, which gives the federal government the power to regulate commerce between the states.

Three fairly recent developments have coalesced to force this arcane and confusing corner of the law into an emotionally charged spotlight.

First is the sheer quantity of fascinating but little-known wines from around the world that are now on the market, and the growing number of Americans who want to drink them. Add to that the rise of Internet commerce, which almost overnight expanded retail choices far beyond local grocery stores and wine shops. Finally, there came a 2005 Supreme Court decision that struck down arbitrary state bans on interstate shipments from wineries to consumers.

These developments threatened the position of wholesale distributors who, in the three-tier system governing the sale of alcoholic beverages, buy from producers and then sell to retailers.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to General Law Related

Ind. Gov't. - "State ends food aid for developmentally disabled"

Charles Wilson of the AP has this story this afternoon. A few quotes from the long story:

Indiana has quietly ended a state grocery benefit paid to hundreds of developmentally disabled people who advocates say have no money of their own to buy food.

The state Family and Social Services Administration withdrew the grocery benefit just weeks after it announced it would no longer reduce the benefit for those who receive food stamps, which a lawsuit claimed was a violation of federal law that prohibits food stamps from being counted against other benefits. * * *

A legislative Medicaid Oversight Committee is scheduled to take up the issue at a meeting Monday at the Statehouse.

The new policy encourages applicants to seek any other government aid for which they might be eligible, including food stamps, welfare, Social Security and Medicaid. The state-funded living allowance is intended to supplement to that other aid, Barlow said.

But John Dickerson, executive director of the advocacy group ARC of Indiana, said eliminating the grocery allowance could mean hardship for people who don't receive food stamps or have trouble getting approved. Most of those who depend on the state program have no means other than state or federal assistance and approval for some programs can take months, he said.

"We've got to have some sort of a way to cover people in the meantime because otherwise this new food policy could leave people without any food budget at all," Dickerson said.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Government

Courts - Even more on: Is the poker game Texas Hold 'em one of skill, or one of chance?

Updating the ILB entry posted just a few minutes ago, Lafayette attorney and blogger Doug Masson sends this note:

That poker game, skill or chance, story out of South Carolina is an almost exact replay of an 1870 Mark Twain short story called Science v. Luck:

Except, Twain's story was set in Kentucky, not South Carolina. The game in question was "seven up" (a/k/a "Old Sledge"). And, he called it a game of "science" instead of "skill.'

The first couple of paragraphs:

At that time, in Kentucky (said the Hon. Mr. Knott M. C.), the law was very strict against what it termed "games of chance." About a dozen of the boys were detected playing "seven-up" or "old sledge" for money, and the grand jury found a true bill against them. Jim Sturgis was retained to defend them when the case came up, of course. The more he studied over the matter and looked into the evidence, the plainer it was that he must lose a case at last -- there was no getting around that painful fact. Those boys had certainly been betting money on a game of chance. Even public sympathy was roused in behalf of Sturgis. People said it was a pity to see him mar his successful career with a big prominent case like this, which must go against him.

But after several restless nights an inspired idea flashed upon Sturgis, and he sprang out of bed delighted. He thought he saw his way through. The next day he whispered around a little among his clients and a few friends, and then when the case came up in court he acknowledged the seven-up and the betting, and, as his sole defence, had the astounding effrontery to put in the plea that old sledge was not a game of chance! There was the broadest sort of a smile all over the faces of that sophisticated audience. The judge smiled with the rest. But Sturgis maintained a countenance whose earnestness was even severe. The opposite counsel tried to ridicule him out of his position, and did not succeed. The judge jested in a ponderous judicial way about the thing, but did not move him. The matter was becoming grave. The judge lost a little of his patience, and said the joke had gone far enough. Jim Sturgis said he knew of no joke in the matter -- his clients could not be punished for indulging in what some people chose to consider a game of chance, until it was proven that it was a game of chance.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Courts in general

Ind. Courts - "Knightstown couple who lost home allege document 'robo-signers' aided lenders"

Jeff Swiatek of the Indianapolis Star reports today:

An Indianapolis law firm has filed one of the first suits in the nation seeking class-action status in its case against mortgage lenders and servicers who used questionable tactics in thousands of home foreclosures. * * *

Richard E. Shevitz, a Cohen and Malad attorney, said he's fielding calls from dozens of other lawyers and homeowners asking how they might join the lawsuit or file a similar one.

The lawsuit, filed this week in U.S. District Court in Indianapolis, must be certified as a class action by a court before it can be opened to other plaintiffs. That could take months or even years.

"We'll try to move this case forward as aggressively as we can," Shevitz said.

The plaintiff in the lawsuit is a Knightstown couple, Dwayne and Melisa Davis, who allege that two affidavits filed by their lender in their foreclosure were signed by "robo-signers" known to have scribbled their signatures on hundreds or thousands of foreclosure documents without personally reading them and sometimes using different titles and employer names.

Here is a copy of the 26-page lawsuit filed Oct. 19, 2010 in Davis v. Countrywide Home Loans.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Courts

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

Updating this ILB entry from Sept. 25th, the headline to this Indy Star story today by Mark Alesia is "IUPUI pays for another basketball coach to leave women's program: Women's assistant under Shann Hart gets $40K in resignation agreement." Some quotes:

What is clear is that IUPUI, whose athletic department depends on general university funds and student fees, is paying hundreds of thousands of dollars to put the Hart era behind it.

IUPUI is paying roughly $280,000 to Hart, who was fired last month "without cause" and, as such, is entitled to the balance of her contract.

But even that is not the total tab. In addition to the $320,000 to remove Hart and Spriggs, the university will pay $70,000 for the one-year contract for its new head coach, Austin Parkinson. * * *

IUPUI's recent travails are reflected in the contract, released this week, of its new head coach, Parkinson.

Unlike Hart's contract -- and her extension in 2006 -- there is a specific procedure spelled out for a firing "for just cause" in Parkinson's contract.

The athletic director must deliver reasons in writing for the coach's "suspension pending termination." The coach may appeal to the chancellor with a response.

Parkinson's contract also spells out job responsibilities that were not in Hart's contract.

Those include "Maintain discipline in the basketball program (being fair and protective of the student-athletes while motivating them)" and "Maintain a positive working environment where everyone associated with the basketball program works together pursuing continuous improvement."

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Law

Courts - More on: Is the poker game Texas Hold 'em one of skill, or one of chance?

Updating this ILB entry from Monday, Oct. 18th, Schuyler Kropf of the Charleston Post and Courier reports today at length on Tuesday's oral argument. A sample:

One of the office's top attorneys said infrequent, low-stakes, friendly games of cards are not illegal under South Carolina law, stepping back from the long-held assertion by some officials that betting on any game of chance is considered outlawed across the state.

"It is our position that this statute does not encompass the Friday night poker game or the penny ante" get-together, senior Assistant Attorney General Sonny Jones said.

Occasional games of bridge are also safe, he said.

The admission seemed to stun Chief Justice Jean Toal, who asked Jones where in the state's anti-gambling code of laws is there a distinction outlining the dollar amount of the stakes that can be played per group, or how frequently members can meet per month.

"I am surprised that you made that concession," she said.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Courts in general

Ind. Courts - More on Bauer v. Shepard

Updating this entry from earlier today, here is the complete list of defendants in the case:

  1. Randall T. Shepard,
  2. Stephen L. Williams,
  3. Christine Neck [sic.],
  4. John C. Trimble,
  5. Mark Lubbers,
  6. Michael Gavin,
  7. John Feighner,
  8. Anthony M. Zappia,
  9. Sally Franklin Zweig,
  10. Catherine A. Nestrick,
  11. Corinne R. Finnerty, Fred Austerman,
  12. R. Anthony Prathe
The first seven names would be the Judicial Nominating / Qualifications Commission as it existed in 2009. Names 8 - 12 are five of the nine members of the Disciplinary Commission.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Courts

Law - "So you want to go to law school"

This is a very funny video, although it goes on a little too long:

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to General Law Related

Ind. Courts - Challenge to canons of Indiana Code of Judicial Conduct that restrict speech and/or activities of state judges and judicial candidates is named "petition of the day" by SCOTUSBlog

SCOTUSBlog explains here that it tries to identify petitions that raise questions that have a reasonable chance of being granted. Today's "petition of the day" is the case of Torrey Bauer, David Certo, and Indiana Right to Life, Inc. v. Randall T. Shepard, et al.

For background start with this ILB summary of the August 20, 2010 7th Circuit opinion and its links.

Here is the petition for certiorari.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Ind. (7th Cir.) Decisions | Indiana Courts

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

For publication opinions today (3):

In Hamrick's Diesel Service & Trailer Repair, LLC v. City of Evansville, by and through its Board of Public Works, a 10-page opinion, Judge Bailey writes:

Hamrick raises a single issue on appeal, which we restate as whether the trial court erred as a matter of law when it determined that the City “acted properly and within the bounds of Indiana's public bid laws” in awarding the City's towing contract to another bidder. The issue we address, which is dispositive of the case, is whether Hamrick has a cause of action against the City under the State's public purchasing laws. * * *

Hamrick met all the requirements specified in the bid announcement upon submitting its bid; Tri-State did not. The County selected Hamrick; the City selected Tri-State. Hamrick sued the City for damages, claiming that the City's use of the language from the public works purchasing statute bound the City to select only a bidder meeting all the requirements announced in the bid announcement. The trial court granted summary judgment to the City. This appeal followed.

Hamrick contends that, because the City acted counter to the terms of its bid announcement in awarding the towing contract to Tri-State, the City violated the Public Works Purchasing Act and Hamrick is therefore entitled to damages. While somewhat novel in its approach, we cannot accept Hamrick's argument because Hamrick, having no contract with the City, lacks standing to bring this suit. * * *

Government bodies may use any procedures they deem “appropriate” when contracting for services and “may adopt rules” and “establish policies” to that end. I.C. § 5-22-6-1 & -2. Given the broad discretion afforded to it by the statute, the City was free to disregard the criteria it set forth in the bid announcement when assessing the bids for the towing contract. This is underscored by the existence of the City's reservation of rights, which permitted it to make any changes to its criteria and to make its decision in the best interests of the City in its consideration of submitted bids. * * *

Because Hamrick seeks relief arising from a lost bid on a contract for services, the discretion afforded to government bodies to select vendors for such contracts and Hamrick's failure to claim either taxpayer status or some form of collusion preclude any cause of action under which Hamrick might seek relief. Nor can Hamrick argue under the Public Purchasing Law and Associated Sign & Post that the City's award of the contract to Tri-State was otherwise unlawful. We therefore affirm the trial court's grant of the City's motion for summary judgment.

In Kelly A. Fisher v. Estate of Robert Fisher, et al.. , an 8-page opinion, Sr. Judge Garrard writes:
Appellant, the personal representative of the estate of John D. Fisher (“John’s Estate”), appeals the trial court’s entry of judgment in favor of Appellees, the personal representatives of the estate of Robert P. Fisher (“Robert’s Estate”).

John’s Estate presents one issue for our review which we restate as: whether the refund of the premium paid for an annuity, which Robert Fisher purchased in the name of the family limited partnership and later re-titled in his name, is the property of the family limited partnership. We hold that it is and reverse and remand.

In Brenda Moore v. State of Indiana , a 15-page, 2-1 opinion, Judge Robb writes:
Brenda Moore was convicted following a bench trial of public intoxication, a Class B misdemeanor. Moore appeals her conviction, raising one issue for our review: whether her conviction “violate[s] the spirit and policy behind the public intoxication statute.” Concluding under the circumstances Moore was not in a public place and therefore the evidence is insufficient to support a conviction of public intoxication, we reverse. * * *

Public intoxication is defined by statute as being “in a public place or a place of public resort in a state of intoxication caused by . . . use of alcohol . . . .” Ind. Code § 7.1-5-1-3. A “public place,” for purposes of this statute, “does not mean only a place devoted to the use of the public. It also means a place that is in point of fact public, as distinguished from private – a place that is visited by many persons, and usually accessible to the neighboring public.” Christian v. State, 897 N.E.2d 503, 504-05 (Ind. Ct. App. 2008) (citations and quotations omitted), trans. denied. Our supreme court long ago stated the purpose of the public intoxication statute: “The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition.” State v. Sevier, 117 Ind. 338, 340, 20 N.E. 245, 246 (1889); see also Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002) (“The spirit of the public intoxication statute is to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places.”). * * *

“Public intoxication” then, by its very terms, references behavior. In addition, the policy behind the statute – preventing intoxicated persons from bothering others in a public place – is concerned not with the mere fact of having ingested alcohol but with behaving in a bothersome way because of it. Thus, we do not believe it is inappropriate to consider Moore's behavior – sleeping in the passenger seat of a car – in evaluating the sufficiency of the evidence supporting her conviction of public intoxication.

Under the circumstances of this case, we agree with Moore that she was not intoxicated in a public place or place of public resort within the meaning of Indiana Code section 7.1-5-1-3. The judgment of the trial court is therefore reversed. * * *

MAY, J., concurs.
VAIDIK, J., dissents with opinion. [some quotes] According to our Supreme Court in Miles, the key determination is whether the vehicle is in a public place, and in that case, the defendant was in a parked vehicle three or four feet from the traveled portion of a busy highway. If being inside a vehicle on the side of a road is in a public place, then being inside a vehicle on the road is also in a public place. Moore does not dispute that the vehicle in which she was traveling was in a public place according to our Supreme Court in Miles.

The Indiana General Assembly has made no changes to the public intoxication statute in response to Miles in 1966 or even Atkins in 1983. I believe that this long period of time constitutes legislative acquiescence. That is, given these cases, our legislature has agreed that a vehicle that is either stopped near a public road or traveling on a public road and then stopped is in a public place for purposes of the public intoxication statute. * * *

As much as I may disagree with the public policy of criminalizing the act of riding as a passenger in a private vehicle on a public road in a state of intoxication, this is not our call. Given Miles and the legislature's lack of response to it, I believe that unless and until our legislature makes changes to Indiana Code section 7.1-5-1-3, Moore was in a public place. I therefore would affirm her conviction for public intoxication.

NFP civil opinions today (2):

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

J.H. v. Review Board (NFP)

NFP criminal opinions today (7):

William Howard v. State of Indiana (NFP)

Gary Parsons v. State of Indiana (NFP)

Joseph C. Bannon v. State of Indiana (NFP)

Douglas Griffith v. State of Indiana (NFP)

Kristina Byers-Escobedo v. State of Indiana (NFP)

Stacy Price v. State of Indiana (NFP)

James Merket v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "The practice of ambulance chasing should not have to be codified to be recognized as unsavory, but perhaps this week's action by the Indiana Supreme Court will help shame attorneys into compliance"

From an editorial today in the Richmond Palladium-Item.

For more, see this ILB entry from Oct. 18th.

Posted by Marcia Oddi on Thursday, October 21, 2010
Posted to Indiana Courts

Wednesday, October 20, 2010

Ind. Law - What's happening with fixing the Indiana Code? Part 1

Last Friday (Oct. 15th) I posted a brief entry promising to bring ILB readers up to date on the issue of noncode laws - provisions that are part of the Indiana statute law, but that are not now included in the Indiana Code.

When I first began writing about the issue of noncode laws in 2008 (see the two 2008 articles cited here), many lawyers were very surprised to learn that there were statutes that are the law, but that are not included in the Indiana Code.

The problem was presented to the interim Indiana Code Revision Commission in the fall of 2008. The Commission ultimately decided to approve a bill prepared by the Commission's staff that affected only a few noncode provisions, such as temporary legislative study committees, by amending them into the Indiana Code. The understanding was that this was to be the Phase I of a 2-part project concerning noncode laws. The bill was enacted as PL 16-2009 (SEA 346). See this 2009 article for more discussion of the 2-part approach the Commission elected to take in 2008.

However, Phrase II did not follow. In the fall of 2009 the staff instead proposed, and the Commission approved, another bill, which was enacted as PL 20-2010 (SEA 134). It amended only ten noncode provisions into the Indiana Code.

Thousands of arguably substantive noncode provisions remain to be dealt with. Here is the situation in a nutshell, as outlined at the beginning of this 2009 article:

The Indiana Code was most recently recodified in 1976 and 1989*. Each recodification was accompanied by language repealing all statutes not in the Indiana Code, with certain specific exceptions.

In the 24 years since, however, no such “housekeeping” process has been applied to post-1984 statutory provisions that, for one reason or another, were enacted into law but were not made amendatory of the Indiana Code.

[Additionally, in recent years, for whatever reason, a number of new provisions have been drafted in a manner intended to keep them out of the Indiana Code, compounding the problem.]

Thus, many laws or parts of laws enacted from 1985 forward are not in the Indiana Code, and are inaccessible for all practical purposes to most Indiana citizens, including many lawyers.

This year the Commission staff has produced a number of bill proposals on various subjects, each accompanied by a chart. (They may be accessed here.) But still this year there is no overall plan for handling the current noncode provisions once and for all. There was talk at the first (Sept. 29, 2010) meeting this year of a comprehensive bill adding all the viable noncode language into the Indiana Code, and repealing everything else, unless specifically exempted, via a blanket repealer. This was the process used in the earlier recodifications. The limited lists of specific exemptions from those two efforts are found at IC 1-1-1-2 and and IC 1-1-1-2.1.

But Commission staff also said that the current collection of subject matter bills is not necessarily comprehensive and that there were subjects still not covered.

A problem not raised at the meeting, but one that is crucial and that will be discussed again in detail in this series, is that there is no "key," no comprehensive list of every section of every law enacted since 1985, along with its disposition. Without this, there is no way to assure that a blanket repealer would not have unexpected effects. And, at the same time, without the blanket repeal there is no real recodification, no assurance that the Indiana Code contains all the statute law that is not specifically exempted.
__________
* The 1989 recodification repealed all noncode laws before 1985, leaving a 5-year gap.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Government | Indiana Law

Ind. Courts - More on "Is Dan Coats really a lawyer?"

Jim Shella really should read the ILB. For instance, after Shella wrote a story Oct. 15 about the contentions that Dan Coats had been suspended from Indiana law practice, the ILB did some research and posted this entry on the same day, reporting inter alia (and after crediting Shella) that:

In addition to Dan Coats, Dan Quayle is also listed as "suspended," Marilyn is "inactive in good standing." All three Bayhs are "inactive in good standing," as is Governor Daniels. What is the distinction? On your annual registration form, you may choose "active" or "inactive" status, the latter means you cannot practice law and relieves you of the annual CLEs. You also pay a reduced annual fee. If you don't comply -- i.e. don't pay your fees, don't meet your CLE requirement, etc., you will be deemed "suspended." Or, of course, you may be suspended via a Supreme Court disciplinary ruling.
This afternoon Shella posted this followup to his Oct. 15th story.

[Updated at 8:30 pm]

Fellow blogger and Lafayette attorney Doug Masson sends this note:

I agree that Jim Shella should read the ILB. But, the question is: should the ILB read Jim Shella? :-)

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Courts

Ind Courts - New justice on the bench this morning: How'd he do?

Observations from an astute observer -- Indiana University-Indianapolis Law School Professor Joel Schumm:

Today marked the first day of oral arguments for Justice David, and the first day in nearly eleven years with a new member on the Indiana Supreme Court. After blogging about the Supreme Court selection process, I was interested to see Justice David (and the new Court) in action. Although webcasts are a terrific and convenient resource, watching an oral argument in person offers a fuller perspective. One can see the reaction of every justice to every word uttered and occasionally see reactions of opposing counsel or others in the room. Although questions at oral argument may not be predictive of a justice’s ultimate position in a case, there are a lot of clues. This is not a poker-faced Court; one can usually tell when a justice is buying an answer, confused by it, or put off by it.

The Court heard three arguments this morning: a criminal, juvenile, and civil case. Mauricio Martinez v. State (transfer not yet granted) involved a non-English-speaking defendant’s confession to police, which he challenged as not knowingly or intelligently given. The second case, In the Matter of A.B., was an appeal by the Department of Child Services after a judge declared statutes that give DCS a role in placement decisions and absolute veto over out-of-state placements unconstitutional. The final case, State ex rel. Zoeller v. Aisin USA Mfg., dealt with the State’s ability to collect an erroneous tax refund, which the trial court and Court of Appeals held must be pursued in the Tax Court—not the Jackson Superior Court.

I was interested in the dynamic of adding a new justice as well as Justice David’s individual questions and approach to oral argument. The Indiana Supreme Court has long been a very collegial court, and oral arguments are general a civil, thoughtful, and pretty straightforward discussion of issues with justices who are well prepared, genuinely interested in reaching the correct and just answer, and not prone to demeaning counsel.

Today, as usual, the bench was hot. All of the justices were actively engaged in questioning lawyers in each case. Generally, Justice Sullivan will ask the most and longest (often hypothetical) questions. He was relatively quiet during the Martinez argument and much more active, especially in questioning the Solicitor General, in the DCS case. Justice Rucker asked the first few questions with his typical straightforward focus on the nitty-gritty of the case. Did the defendant testify at the suppression hearing? Why wasn’t the error harmless? Justice Dickson, true to form, turned to the larger impact, asking what should have happened.

Justice David’s first question came about halfway into the State’s argument in Martinez. He started with a factual question about the record (how many times did the defendant say he didn’t understand?) and then turned to the broader impact (is there a difference between a defendant’s statement in response to being told his rights and the defendant asking questions about those rights?). He returned to the point on rebuttal, asking if the defendant ever asked a question of the officer. When counsel referred to Justice David simply as “Judge”—and quickly apologized—Justice David replied, to laughter, that it was okay and he was “used to it.”

The A.B. argument was the most heated (and most surprising) of the morning. Although the Chief Justice and Justice Sullivan are generally the least likely to find a statute unconstitutional, both were plainly the least receptive to the State’s argument. Justice Sullivan took Solicitor General Fisher through a series of questions about when and why the provisions were enacted. Mr. Fisher candidly admitted that the DCS was not happy with the amount of deference given to its views by the appellate courts within the first few months of HB1001 taking effect at the beginning of 2009. This led to the last-minute, stealthy provision in the special session budget on June 30 that gave the Director an absolute veto over out-of-state placements. Chief Justice Shepard schooled Mr. Fisher on the geography of Indiana, observing that most metropolitan areas (with the exception of Indianapolis) are close to other states, and an out-of-state placement will often be closer than many in-state ones. Mr. Fisher’s statement that “the legislature has made the political decision that these decisions are to be made by the executive,” suggesting DCS was an expert in the area, led to a series of unfriendly questions about how the 2009 amendment was enacted. Although Mr. Fisher correctly responded this information was irrelevant to the constitutional issues presented, at least two of the justices were bothered by the process. Justice David’s only question of Mr. Fisher focused on broader concerns, asking if these statutes were constitutional would DCS be able to place a limit on the per diem paid to a placement. Justice Rucker and Justice Dickson seemed largely convinced that the case was about payment, and juvenile judges are still free to place juveniles out of state by getting their counties to pay for it. Thus, Justice David could be the swing vote here.

As previously discussed on this blog and in media stories, Justice David is highly regarded by those lawyers who have appeared before him. He specifically mentioned “humility” during his remarks on Monday. This was certainly borne out during today’s arguments. At one point Justice David and another justice began to ask a question at the same time. Justice David yielded (and never got to ask his question).

Finally, there is a bit of irony in the day. Mr. Fisher, a semi-finalist and strong contender in the view of many, was at the podium (and not exuding humility) while Justice David was on the bench.
ILB: BTW, Joel Schumm, who contributed much to the public and the bar's understanding of the recent Supreme Court selection process, is a candidate for the 2nd District seat on the Judicial Nominating Commission.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Courts

Ind. Gov't. - "Ind. agency paying law firm $5.25M to sue IBM"

Ken Kusmer of the AP has a big story this afternoon (here is the version in the Chicago Tribune) that begins:

INDIANAPOLIS — Indiana's human services agency is paying $5.25 million to a private law firm, including the brother of a key aide to Gov. Mitch Daniels, to represent the state in its fight over a canceled IBM Corp. welfare outsourcing contract.

Barnes & Thornburg of Indianapolis was hired despite several conflicts of interest arising from the fact that it also represents former IBM partners involved in the welfare deal. Bryan Corbin, a spokesman for the state attorney general's office, said in an e-mail to The Associated Press that "hiring this firm was a specific request of the Governor's Office."

Daniels' press secretary, Jane Jankowski, said the hire "made the most sense given the scope and complexity of the case."

Here is a copy of the contract, that I obtained from the State's online contract database.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Government

Ind. Decisions - "Seventh Circuit joins Sixth and Eleventh Circuits in rejecting applicability of FSA to pipeline cases"

So reports the Sentencing Law Blog this afternoon, re the 7th Circuit decision today in U.S. v. Bell.

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

Environment - "The proposed settlement of the General Motors bankruptcy case filed today will provide more than $25 million in an environmental trust to clean up and redevelop eight Old GM manufacturing facilities in Indiana"

See Attorney General Zoeller's detailed news release here, including a list of the eight Indiana sites included in the settlement.

John Kell of the WS Journal has the story here. It begins:

The company that holds the scrapped assets of the former General Motors Corp. reached a $773 million deal Wednesday with the Justice Department that should lead to the cleanup of hazardous waste on properties in several states.

Under the agreement, the old GM, formally known as Motors Liquidation Co., will pay more than $641.4 million in cash and contribute additional non-cash assets worth $120 million for the cleanup of 89 properties and sites, 59 of which are known to have been contaminated with hazardous substances or waste.

More than half of the cleanup funds will be provided for environmental response in New York and Michigan. In New York, the GM Superfund site in Saint Lawrence County will receive about $120.8 million in dedicated cleanup funds. In Michigan, which will have the largest number of properties in the trust, about $160 million is allocated to the cleanup of 36 properties, the Justice Department said.

Other properties are located in Delaware, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Virginia and Wisconsin.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Environment

Ind. Decisions - No Indiana cases decided today by 7th Circuit, but a bankruptcy case of interest

In Redmond, James A. v. Fifth Third Bank. This 17-page opinion by Judge Sykes covers a number of issues, and this one in closing:

As if more were needed, the bankruptcy judge properly held that the state-court forum was appropriate to litigate Redmond’s potential claims. The amount needed to cure a mortgage default is a question of state law; § 1322(e) of the Bankruptcy Code expressly provides that the amount necessary to cure a default is determined “in accordance with the underlying agreement and applicable nonbankruptcy law.” 11 U.S.C. § 1322(e). The state court could therefore adequately entertain Redmond’s challenges to the amounts Pinnacle was claiming.

Redmond argues that he could not bring his claims in state court because bankruptcy courts have exclusive jurisdiction over sanctions under § 362(h) of the Bankruptcy Code. Id. § 362(h). This argument is meritless. For the reasons we have explained, Redmond has no basis for sanctions under bankruptcy law. AFFIRMED.

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

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In James C. Blevins v. Elizabeth Blevins , a 9-page opinion, Judge Vaidik writes:

This is a child custody proceeding involving application of the counselor/client privilege. Mother and Father had a minor son and minor daughter. Mother was awarded physical custody of both children. Son touched Daughter inappropriately and was adjudicated a delinquent for sexual battery. He received counseling thereafter. His counselor frequently noted that he remained at high risk to reoffend. Father sought physical custody of Daughter as a result of the incident. At the custody modification hearing, Father offered into evidence Son’s counseling records. The trial court excluded the records, finding them inadmissible pursuant to the counselor/client privilege. The trial court declined to modify custody, and Father appealed. Indiana Code section 31-32-11-1 abrogates the counselor/client privilege in any judicial proceeding “resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report.” We conclude that this is one such proceeding and that the counselor/client privilege therefore does not apply. Accordingly, we find the trial court erred by excluding Father’s evidence. We reverse and remand.
In Charles R. Wyatt, et al. v. Thomas E. Wheeler, et al. , a 17-page opinion, Sr. Judge Sullivan writes:
This appeal involves the denial of a challenge to a candidacy for the Indiana House of Representatives in the primary election of 2010.

Appellant/Cross-Appellee/Petitioner Charles R. Wyatt appeals from the Marion Superior Court's denial of his verified petition for review of final agency action by the Indiana Elections Commission (IEC) and for preliminary injunctive and declarative relief (verified petition). Appellee/Cross-Appellant/Respondent Susan Ellspermann appeals the denial of her request for attorney's fees. We affirm.

NFP civil opinions today (3):

Adoption of K.A.; R.R. v. N.J., et al. (NFP)

East Valparaiso LLC v. Physicians for Women, et al. (NFP)

Term. of Parent-Child Rel. of A.A. and D.R.; C.A. and J.H. v. IDCS (NFP)

NFP criminal opinions today (6):

Keesha Johnson v. State of Indiana (NFP)

Howard Smallwood v. State of Indiana (NFP)

Mark A. Rode v. State of Indiana (NFP)

Bruce Fivecoat v. State of Indiana (NFP)

Antrooine A. Manning v. State of Indiana (NFP)

Marlet D. Turpin v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Ind. App.Ct. Decisions

Courts - "I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband."

So said Virginia Thomas in a phone message she recently left for Anita Hill. Read more in this story by Charlie Savage in the NY Times, headed "Clarence Thomas’s Wife Asks Anita Hill for Apology," and this WSJ Law Blog entry.

[Updated at 4:40 pm] The WSJ Law Blog stays on the story, with this entry.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Courts in general

Ind Courts - New justice on the bench this morning

Oral argument has just started before the Supreme Court this morning in the first of three cases. The cases are listed in this ILB entry on upcoming oral arguments. This is the first time on the bench for new Justice David. The ILB will have a wrap-up later on today.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Courts

Ind. Courts - "5 appellate judges' fates rest with voters"

Sophia Voravong of the Lafayette Journal Courier reports today on the upcoming retention election for five Court of Appeals judges. She correctly points out that:

Five of the higher court's 15 judges are up for judicial retention this year, though not all five will appear on a county-specific ballot. For instance, only four names will show for Tippecanoe County voters.
This is because Indiana has 3 judicial districts, plus two "at-large" districts. If a judge is in one of first 3 numbered districts, only voters in that district vote have the judge's retention as a ballot question. But for the at-large judges (districts 4 and 5), the question is on ballots statewide. The 2010 Court Judicial Retention page does not really make this clear, but this page explains the districts.

This year three judges are up for retention in the at-large districts, plus one each in the 1st and 2nd districts.

Today's story lists each of the five judges, but goes further and highlights a "local case of interest" for each judge - a case where the judge wrote the opinion.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Courts

Ind. Gov't. - "Ind. Ethics Chief Pursues Case Against Utility's Assistant General Counsel"

That is the heading to this story today by Sue Reisinger of Corporate Counsel. The story has been reported here before, but this one includes a link to the complaint filed Friday, Oct. 14th by the Indiana inspector general. The story includes several other interesting links.

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Indiana Government

Courts - Chief Justice Roberts claims two home towns

Does it depend on where he is speaking? This story today from the Buffalo News by Jay Rey is headed "For chief justice of the U.S., it's a treat to be 'back home'." It begins:

U.S. Chief Justice John G. Roberts Jr. on Tuesday returned to the city where he was born, engaging a Canisius College audience on a variety of Supreme Court topics, from his style as the 17th chief justice to changing technology in the nation's highest courtroom.

The son of a former Bethlehem Steel executive, Roberts, 55, left the area as a second-grader when his father was transferred to Indiana. Tuesday, he thanked the Buffalo community for his warm welcome "back home."

Posted by Marcia Oddi on Wednesday, October 20, 2010
Posted to Courts in general

Tuesday, October 19, 2010

Ind. Courts - Supreme Court appoints J. Jeffrey Edens as pro tempore for Booone Circuit Court

Here is the Court's Order, dated Oct. 14, 2010, but recently posted online. The Order remains effective until the Governor names a successor.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Indiana Courts

Law - "The ABA Is Slowly Coming Around on Law School Transparency"

That is the heading to this entry this morning from Elie Mystal of Above the Law.

[More] See also this post from Ashby Jones of the WSJ Law Blog, that begins:

Do U.S. law schools need to be more transparent with their employment data?

Yes. At least that seems to be the growing consensus among everyone in the world — outside of law school deans — who routinely trot out a litany of reasons why providing such data would be burdensome, inconvenient, impossible, etc.

The rationale behind the sentiment: that schools are loathe to accurately reflect their job-placement rates, and that applicants are being sold false bills of goods.

But the push — from blogs and grass-roots organizations, among others — might finally be making some headway.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

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

NFP criminal opinions today (6):

Carla Johnson and Michael Johnson v. State of Indiana (NFP)

The Matter of M.C. v. State of Indiana (NFP)

Robert Martin v. State of Indiana (NFP)

William D. Osborn v. State of Indiana (NFP)

Anthony Williams v. State of Indiana (NFP)

Randal L. Pryor v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "Golf carts now legal in Kouts with a permit"

Phil Wieland reports in the NWI Times in a story that begins:

KOUTS | Frank and Ellie Hlaner were first in line to ask for a permit to drive their golf carts on town streets following passage of an ordinance making it legal Monday.

The Kouts Town Council voted unanimously to approve the ordinance, which was requested by Hlaner. He and his wife have been driving their carts on town streets for some time until Ellie Hlaner was stopped a couple of months ago by police and told it was illegal.

Readers may recall a long list of earlier ILB entries on permitting use of golf carts on local streets.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Indiana Law

Courts - Watch the SCOTUS oral arguments online, almost

First the SCOTUS announced at the beginning of this term that it would release the audio of each oral argument that had occurred during a week at the end of that week. Second, as noted in this Oct. 9th ILB entry, "C-SPAN has taken the most publicized oral argument of the week, Snyder v. Phelps, and put the audio online along with synchronized video showing photos of each speaker." And now Oyez is doing the same for every case argued this term, via an "expanded view" feature.

Oyez is also the place to get "Pocket Justice," an iPhone app that puts the audio from 600 Supreme Court decisions at your fingertips (or earbuds).

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Courts in general

Environment - Asian carp lawsuit wraps up in U.S. District Court in Chicago

Michael Tarm of the AP reported yesterday afternoon in a story that began:

CHICAGO -- The reliability of DNA testing suggesting Asian carp may already be in waterways near Lake Michigan was the focus of final arguments Monday in a lawsuit seeking the closure of Chicago-area shipping locks to halt the spread of the invasive fish.

The issue pits five states asking for the emergency measure - Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin - against the city of Chicago, barge companies and others.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Environment

Ind. Courts - "Choosing the best candidate for Allen Superior Court judge is arguably the hardest decision voters face in this election"

The race for Allen Superior Court judge this year is probably the most hard-fought in the state, as this long list of earlier ILB entries attests.

A balanced editorial today in the Fort Wayne Journal Gazette lays out the case of each of the three candidates. "Rarely does a sitting judge face opposition, but Scheibenberger has two," writes the FWJG. In the end, the piece is really an argument against the current method of judicial selection in Allen County, highlighting:

... [the] imprecise language in an ill-conceived law dating to the 1980s that wrongly changed the selection of Allen County judges from appointment to election.

With luck, voters are informed and make the best choices. But this decision can also rest on perceived party affiliation, voter turnout, the weather, ballot placement and name recognition. Hardly the best way to choose an impartial arbiter of justice with immense power over people’s lives.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Indiana Courts

Ind. Courts - More on: Justice David sworn in this morning

Updating yesterday's ILB entry, here is some of the coverage:

You can watch the archived video of the entire ceremony here on the Court's website.

Posted by Marcia Oddi on Tuesday, October 19, 2010
Posted to Indiana Courts

Monday, October 18, 2010

Law - "You will not survive in a small firm environment if you are not a social creature. This is a big reason small firms generally place less of an emphasis on grades than Biglaw."

This is a great post from Above the Law, headed "Caveat Small Firm Hopeful: Socially Inept Need Not Apply."

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to General Law Related

Courts - Covering a murder trial via Twitter

William Glaaberson of the NY Times reported Oct. 15th in a long story headed "A Grisly Murder Trial, in 140-Character Bits." Some quotes:

Some news organizations have live blogged from news events for years, posting quick reports, updates and commentary. Court reporters in Knoxville, Tenn., Wichita, Kan., and elsewhere have pioneered Twitter trial reporting over the last few years. But after more than a decade of talk about the convergence of old and new media, it seemed to reach a new and furious level in Connecticut during the Cheshire murder trial, reporters and news executives say.

It was a perfect mix of intense local interest and a portable medium that can go where television cameras cannot. There is no doubt it is changing trial reporting and, perhaps, trials themselves by drawing people to courtroom events as they happen and pushing out unvarnished information at the speed of light.

The exact Twitter audience for the trial is difficult to measure: the journalists using the system had several thousand followers among them, but the dispatches could be forwarded and seen on some news organizations’ Web sites and, during the verdict, on television.

The first phase of the case ended with the capital murder conviction of Steven J. Hayes last week. The second phase, over whether he is to be sentenced to death, begins on Monday.

The Twitter reporters will be back. “It has given us an insight into a new way to reach our readers,” said Andrew Julien, a senior editor at The Hartford Courant, which has a columnist, Helen Ubiñas, reporting by Twitter as @NotesFromHeL all day every day from the trial, while another reporter, Alaine Griffin, feeds the newspaper and its Web site while using Twitter only occasionally as @alainegriffin. * * *

Courts nationally are sharply split on whether to allow cellphones and other electronic devices, and judges are watching as the Cheshire trial and others experiment with liberal digital access. Around the country, some judges have banned the use of Twitter as prohibited “broadcasting” that could get information to jurors and witnesses they are not supposed to have.

When the Cheshire trial began in State Superior Court here on Sept. 13, Judge Jon C. Blue said electronic devices would be permitted for text transmissions unless the live-from-the-courtroom coverage became disruptive. Only once, he told reporters that a juror had complained about an unnamed lady in red whose computer clicking drowned out the testimony.

But the Twitter messaging has continued, causing little notable disruption and varying widely in content.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Courts in general

Ind. Gov't. - "Auditor candidates want you to see what state spends"

Mary Beth Schneider writes today in the Indianapolis Star in a story that begins:

No matter which candidate wins the race for state auditor, one thing seems clear: Hoosiers can expect to see more information about state government online.

Incumbent Tim Berry, the Republican seeking re-election, earlier this year unveiled a website, www.transparency.in.gov, on which people can look up state contracts, state employee salaries, budgets and other financial information for local and state governments.

Now he and his two challengers -- Democrat Sam Locke and Libertarian Eric Knipe -- all say they want to put even more information online so Hoosiers can know how their tax dollars are being spent.

ILB: This is good. Maybe this desire for transparency will catch on with the Indianapolis school superintendent, who wouldn't provide the entire detailed budget to the school board members this fall, and maybe it will also catch on with those school board members who have said they don't care. (See this ILB entry from Aug. 28, 2010.)

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Government

Courts - Is the poker game Texas Hold 'em one of skill, or one of chance?

That issue will be argued tomorrow before the South Carolina Supreme Court, according to this story by Schuyler Kropf of the Charleston Post and Courier. a Quote from the long story:

S.C. Attorney General Henry McMaster is challenging a ruling from a Charleston judge last year that declared the popular poker game Texas Hold 'em to be one of skill, not chance.

In doing so, Circuit Judge Markley Dennis said playing that particular game in a private residence does not violate the state's anti- gambling laws.

Hold 'em, Dennis said, is determined more by "the relative skill of the player" than anything else. "A more skilled player will consistently beat a less skilled player, and a player's skill can be improved over time through study and practice," he added.

Because of that skill factor, Dennis said he expected his ruling would survive the court's "dominate factor test" that the justices have relied on when evaluating whether players' ability matters -- versus chance -- in determining the legality of games. Dennis also called the state's anti- gambling laws as applied to the case "unconstitutionally vague and overbroad."

Dennis' opinion tossed out the convictions of five players who had been arrested in the police raid but opted to fight the charges.

McMaster appealed, saying the judge went too far by declaring one gambling game to be more skill-oriented than another.

"In the General Assembly's view, the ills resulting from games played for money does not depend upon the particular game or the nature in which it was played," he said.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Courts in general

Ind. Courts - "Man sent to prison to keep him from girl"

Bob Kasarda of the NWI Times reported on Oct. 13th in a story that begins:

VALPARAISO | Porter Circuit Court Judge Mary Harper sent a 25-year-old Washington Township man to prison Monday, saying it was the only way she knew to keep him from continuing a sexual relationship with a girl who had been underage.

Matthew Mills was sentenced to six years behind bars after pleading guilty to having a sexual relationship with the girl while she was 15 and just three months after being convicted of the same offense with the same girl.

Harper said the second round of the offense took place, at least in part, at the girl's home with the knowledge of the girl's parents.

"It's almost beyond belief to me her parents would let this happen," the judge said.

Defense attorney Ken Elwood said the girl's parents went so far as to provide rides and a cell phone to Mills to allow the relationship to continue following his first conviction.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Courts - The Lake County Prosecutors race

From a story by Bill Dolan of the NWI Times:

CROWN POINT | The Republican candidate for Lake County prosecutor said the public should elect him if they are tired of the county's reputation for public corruption.

Douglas "Doug" Grimes argues that if the county prosecutor was targeting crimes of public integrity, people like former East Chicago Mayor George Pabey would be less likely to break the law.

A federal jury stripped Pabey of his office last month after the U.S. attorney's office in Hammond proved Pabey guilty of conspiracy and stealing government funds to revamp a house he owns in Gary's Miller Beach neighborhood.

Grimes said, "Unfortunately, we have a culture that permits it. There is really no one to step into the breach on a consistent basis to try and prevent it. I abhor corruption."

County Prosecutor Bernard A. Carter, the Democratic nominee who is running for his fifth term in office Nov. 2, said it's a lot easier for Grimes to coin campaign slogans than to explain how this office, which must prosecute scores of murder cases annually, could tackle the manpower-intensive work of taking on the intricate frauds and cover-ups found in public corruption.

"Ask any prosecutor in this state including (Indianapolis') Marion County about public corruption cases. They will tell you, primarily, the U.S. attorney's office is better equipped to bring those kinds of charges. They have the FBI, the IRS and investigators from all those other federal agencies with large federal budgets. If Grimes was a prosecutor and tried, he would hit reality," Carter said.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Courts

Ind. Courts - Interview with Judge Wayne Trockman re drug courts

From the Evansville Courier & Press:

This week on Newsmakers, a weekly public affairs television program co-produced by WNIN-PBS9 and the Courier & Press, Trockman discusses some of the issues surrounding drug abuse and its punishment and treatment with Courier & Press Editor Mizell Stewart III.
Some quotes:
Stewart: Something you said in the past, I think, illustrates how insidious drugs and substance abuse have become. You view it from the bench, and you have seen where over time entire families whose members come in and out of court.

Troutman:
Some for generations.

Stewart: How does that affect your view of literally trying to change the trajectory of some of the people who come through your courtroom?

Trockman: You see the second generation. I've been a judge for 11 years, and I'm starting to see now the second generation. It is very disheartening because these are individuals that don't have a role model in their home, and they end up going down this path. You asked what are some of the causes. Alcohol, for instance.

Most experts will say that alcohol is the best drug known for anxiety. And many of us deal with anxiety on a regular basis.

Other drugs are also used, initially, for self-medicating. Prescription drug abuse (has become) huge in the last five years or more. ...

Mental health issues as basic as minor depression or ADHD are very easily treated with stimulants — methamphetamine. Individuals who suffer from those problems will use those stimulants like cocaine or methamphetamines, and it makes them feel better. Unfortunately, the addiction starts, and then it requires more and more of the drug, and then it requires criminal activity in order to obtain the drug.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Courts

Courts - Iowa lawyer reprimanded for plagiarizing two briefs

Thanks to the Legal Profession Blog for the link to the Supreme Court of Iowa ruling of Oct. 15, 2010. See particularly pp. 6-7. A quote:

We recognize that the term “plagiarism” is something of a scarlet letter that imposes a brand on a wide variety of behaviors. We do not believe our ethical rules were designed to empower the court to play a “gotcha” game with lawyers who merely fail to use adequate citation methods. This case, however, does not involve a mere instance of less than perfect citation, but rather wholesale copying of seventeen pages of material. Such massive, nearly verbatim copying of a published writing without attribution in the main brief, in our view, does amount to a misrepresentation that violates our ethical rules. We note that before this court, Cannon has candidly admitted that his activity represented dishonesty and not negligence or incompetence.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Courts in general

Ind. Courts - NCAA issues sent by 7th Circuit to the Indiana Supreme Court [Updated]

For background, start with this ILB entry from July 21, 2010. The issue: "Does the NCAA's system of distributing Final Four tickets constitutes an illegal lottery?"

From today's per curiam 6-page opinion on a petition for rehearing in Tom George et al v. NCAA (SD Ind., Lawrence):

PER CURIAM. Plaintiffs brought this proposed diversitybased class action against the National Collegiate Athletic Association (“NCAA”) and Ticketmaster, alleging that the defendants’ combined ticket-distribution scheme constituted a lottery in violation of Indiana law. The NCAA moved to dismiss, and the district court dismissed all claims with prejudice. Plaintiffs then appealed. On July 16, 2010, we reversed the judgment of the district court and remanded the case for further proceedings, with Judge Cudahy dissenting. Upon review after the filing of defendants “petition for rehearing and suggestion for rehearing en banc,” we grant the petition for rehearing, vacate our opinion, stay the appeal, and certify three questions to the Indiana Supreme Court. * * *

At this juncture, we believe that affording the Indiana Supreme Court the opportunity to interpret the application of the Indiana statutes involved here appears to be the most prudent course of action. Therefore, to that end, we grant the petition for rehearing, vacate our opinion issued on July 16, 2010, and respectfully certify the following questions to the Indiana Supreme Court:

1. Do the plaintiffs’ allegations about the NCAA’s method for allocating scarce tickets to championship tournaments describe a lottery that would be unlawful under Indiana law?

2. If the plaintiffs’ allegations describe an unlawful lottery, would the NCAA’s method for allocating tickets fall within the Ind. Code § 35-45-5-1(d) exception for “bona fide business transactions that are valid under the law of contracts”?

3. If the plaintiffs’ allegations describe an unlawful lottery, do plaintiffs’ allegations show that their claims are subject to an in pari delecto defense as described in Lesher, 496 N.E.2d at 790 n.1, and Swain v. Bussell, 10 Ind. 438, 442 (1858)? We invite reformulation of the questions presented if necessary, and nothing in this certification should be read to limit the scope of inquiry to be undertaken by the Indiana Supreme Court. Further proceedings in this court are stayed while this matter is under consideration by the Indiana Supreme Court.

[Updated at 2:04 PM] Here is the coverage of Jonathan Stempel of Reuters. It begins:
A federal appeals court halted a lawsuit accusing the National Collegiate Athletic Association of running an illegal lottery in allocating seats to basketball's Final Four and other popular sports tournaments.

Citing potential "far-reaching effects" from a ruling on the distribution of coveted tickets, the 7th U.S. Circuit Court of Appeals in Chicago threw out Monday its July ruling that revived a proposed nationwide class-action lawsuit by fans.

The Seventh Circuit asked the Indiana Supreme Court to assess whether NCAA ticketing constituted an unlawful lottery under that state's law.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending October 15, 2010

Here is the Clerk's transfer list for the week ending October 15, 2010. It is one page (and 12 cases) long.

No transfers were granted last week.

__________

Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that. Check it out. Read the instructions.

[Updated] Note that the search capability is now current through the October 8, 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, October 18, 2010
Posted to Indiana Transfer Lists

Ind. Courts - Justice David sworn in this morning

More later, the event is still underway, but most notable in Gov. Mitch Daniels remarks was his extensive praise of the selection process that brought Judge David to his attention. The "Missouri system," which is under attack in several other states, works well in Indiana.

[More] Justice David's remarks are underway. Watch them when you can, they are not to be missed! For instance, "I'm not a 'D', an 'R', or an 'I'". And the question, posed to retiring Justice Boehm, "Just how smart are you? Let's settle this once and for all ...". "From Cuba to Whitestown to Boone County to the Supreme Court in less than 27 months." Many country music quotes.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Courts

Ind. Courts - "Hoosier lawyers get waiting period before contacting victims"

Say you are in a fender bender. You can count on receiving stacks of mail from attorneys and chiropractors wanting your business. But now the skids have been put on the lawyer contacts in Indiana.

Harold J. Adams of the Louisville Courier Journal reported Oct. 15th in a good story that begins:

Injured in an accident? Need a lawyer? Don’t expect to hear from one right away.

Starting Jan. 1, Indiana attorneys will have to wait 30 days before contacting accident victims or their families under a new state Supreme Court rule announced Friday.

The waiting period is “required by the sensitized state of the potential clients, who may be either injured or grieving over the loss of a family member, and the abuses that experience has shown exist in this type of solicitation,” according to a Supreme Court news release on the rule.

Kentucky already has a 30-day solicitation waiting period.

Here is the press release from the Supreme Court on the rule change. Here is the rule change, effective Jan. 1, 2011.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Courts

Ind. Decisions - "A twist on equality laws: Pittsfield (MASS.) initiative focuses on right to doff shirts"

Updating this ILB entry from Sept. 17th headed "Indiana girl loses 14th Amendment argument to show us her breasts", re the Sept. 16th NFP COA opinion in the case of C.T. v. State of Indiana (NFP), see this story by Brian MacQuarrie in the Oct. 15th Boston Globe. A quote:

[Katherine ] Gundelfinger said she would like to see other states pass laws to allow women to go shirtless wherever men can do the same. In Pittsfield, police Captain John Mullin said, that latitude apparently extends to everywhere outdoors.

Under Massachusetts law, running afoul of the state’s definition of nudity is considered indecent exposure, Mullin said. The infraction, a misdemeanor, would carry a maximum penalty of up to six months in a house of correction and a $200 fine, he said.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Things not to forget

Don't forget to return your ballot for the 2nd District attorney seat on the Judicial Nominating / Judicial Qualifications Commission. More info here.

Don't forget there are five Court of Appeals judges up for retention this year. For more info, check this ILB entry from Oct. 11, 2010 and this one from Oct. 12th.

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Indiana Courts

Ind. Courts - Judge David to become Justice Davd today

There is to be a swearing-in ceremony, but I'm not finding a release on it yet ... [Here it is, from 9/28/10: 10:30 am this morning. Also available for live online viewing, via link available in the right margin of the main Courts page.]

The AP is reporting:

Steven David has been the Boone County circuit court judge for 15 years. Gov. Mitch Daniels is to administer the oath of office to David during a ceremony Monday morning in the Supreme Court's
[More] Maureen Hayden, Statehouse bureau chief for CNHI’s Indiana newspapers, has this story this morning in the Anderson Herald Bulletin. A quote:
In selecting David, Gov. Mitch Daniels cited David’s 27-year military career and described him as a conservative judge “who interprets rather than invents our laws.”

But David drew the ire of the Bush administration in 2008, when he openly disagreed with a Pentagon spokesman who said the military had “gone to great lengths to provide a system that is full, fair and just” for some of most notorious detainees at Guantanamo.

David was critical of the use of water-boarding, a simulated drowning technique used on detainees by military interrogators. He also went on record welcoming the American Civil Liberties Union’s offer to provide a team of top civilian attorneys to aid the defense of Guantanamo’s highest profile prisoners facing conviction and execution.

The “conservative” label doesn’t quite fit David, says Indiana University-Indianapolis law school professor Joel Schumm. “That kind of label doesn’t really work anymore. It’s more accurate to describe him as a defender of the rule of law. Conservative and liberal jurists alike can agree on that.”

Posted by Marcia Oddi on Monday, October 18, 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 10/18/10):

Wednesday, October 20th

Next week's oral arguments before the Supreme Court (week of 10/25/10):

Next Thursday, October 28th

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/18/10):

Tuesday, October 19th

Wednesday, October 20th

Next week's oral arguments before the Court of Appeals (week of 10/25/10):

Next Monday, October 25th

Next Tuesday, October 26th

Next Wednesday, October 27th

Next Thursday, October 28th

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

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


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

Posted by Marcia Oddi on Monday, October 18, 2010
Posted to Upcoming Oral Arguments

Sunday, October 17, 2010

Ind. Courts - More on: Marion County prosecutor race featured today

Updating this ILB entry from 2004. Oct. 15, 2004 to be exact, which referenced the Indianapolis Star:

"Experience matters, but what kind? Marion County prosecutor candidates Carl Brizzi and Melina Kennedy make their case" is the headline to the lead story today in the Indianapolis Star. There is a story about each candidate: Kennedy says success spurring development gives her an edge; Brizzi's [says his] 57% felony conviction rate on par with national average. In addition, the editorial page includes a long Q & A with the candidates.
Sadly, none of the Star stories are still available, but I recall that Kennedy's having taken "inactive status" at one point in her career became an issue in the race, while her position was that the role of the prosecutor was more that of a savvy manager than a day-to-day trier of cases.

I remembered that when I read this Star headline today, four years later, to a story by Bill McCleery: "Would Marion County prosecutor candidates be good managers? Though Curry and Massa talk about fighting crime, the job is actually more nuts-and-bolts." Some quotes from today's story:

"Literally, the bulk of the voters do not know what the prosecutor really does," said Brian Vargus, a political science professor at Indiana University-Purdue University Indianapolis. "They see the prosecutor as a crime fighter, which is indeed a lot of what they do, but essentially the prosecutor is an administrator."

The prosecutor, Vargus said, relies on deputies to prosecute most cases. Nearly 170 deputy prosecutors work in the county office, said Prosecutor Carl Brizzi, who did not seek re-election. The office will spend about $25 million this year.

In campaign messages, Massa and Curry each has laid claim to having the best background for fighting crime in the county. Voters will decide Nov. 2.

Posted by Marcia Oddi on Sunday, October 17, 2010
Posted to Indiana Courts

Ind. Gov't. - More on: "Burns Harbor Town Council approves funds for BZA attorney"

Updating this ILB entry citing the Oct. 14th Chesterton Tribune, Paulene Poparad has a follow-up story in the Oct. 15, 2010 Chesterton Tribune. Some quotes:

During a special meeting Thursday, the Burns Harbor Board of Zoning Appeals hired attorney Brian Hurley of Valparaiso to represent the BZA in pending litigation.

He will defend the board in an appeal brought by the Burns Harbor Town Council and others challenging the BZA’s 3-2 Aug. 24 decision allowing a 250 semi-truck parking lot expansion of CR England’s Midwest regional truck terminal on Tech Drive.

Hurley formerly served as the attorney for both the Porter County Plan Commission and the county Board of Zoning Appeals. He also successfully appealed on behalf of C&C Development when earlier this year a Porter Superior Court overturned the Town of Porter Plan Commission’s 2008 denial of a C&C replat of a portion of Hunters Glen subdivision.

The firm of Harris, Welsh and Lukmann represents the Town of Burns Harbor including the council and BZA but has recused itself from participating in the England appeal.

The Town Council last month hired Ice Miller LLP, one of the most prominent law firms in the state, for the BZA appeal but on Wednesday the council declined to state how much Ice Miller is being paid. The council agreed to appropriate an initial $5,000 for BZA legal fees tied to the appeal.

Thursday, BZA president Terry Swanson said the lawyers he talked to generally quoted an approximately $200 per hour fee, and that Hurley spent more time than others discussing the BZA’s situation with him.

BZA member Gordon McCormick said member Amy Zehner, who was absent, had inquired about hiring Baker & Daniels law firm at a range of $185 to $390 per hour. Also well-known in Indiana, the firm has offices in Indianapolis, Chicago, Washington D.C., Fort Wayne, South Bend and Beijing.

Swanson stressed the BZA has a Monday deadline to show cause why it shouldn’t turn over its record of the England petition to Porter Superior Court Judge Mary Harper for judicial review. BZA secretary Tyler DeMar said he has the documentation ready if directed to provide it.

Swanson said for the BZA’s part the question appears to be, “Did we follow procedure or not follow procedure?”

Ice Miller alleges England should have sought a rezoning, not a special exception. England attorney Terry Hiestand has said no one from the town advised them to do that and the special exception was heard.

Swanson said the BZA needs legal representation now and if at some point the board wishes to engage another attorney, it can be considered at that time.

Posted by Marcia Oddi on Sunday, October 17, 2010
Posted to Indiana Government

Friday, October 15, 2010

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

Updating this Oct. 13th ILB entry, INDY 6 NEWS reports this afternoon:

Once declared inadmissible, the blood-alcohol results of Indianapolis police Officer David Bisard may yet find their way into a courtroom.

An Indiana University law professor said Friday that there is merit to re-filing the test result that indicated Bisard was intoxicated when he struck three motorcyclists while on duty on Aug. 6, killing one of them and injuring the other two.

Alcohol-related charges weren't filed in the case because, Prosecutor Carl Brizzi said, proper protocol was not followed in obtaining the result. Brizzi contends that the test would be thrown out of court anyway.

The question of whether a blood draw taken with someone's full consent can still be considered legal if taken in the wrong place is a conundrum for attorneys and prosecutors, 6News' Jack Rinehart reported. * * *

"Get a court to rule on it. There has never been a court ruling on this particular issue in this case," [Joel Schumm, an IU law professor] said. "If they're not happy in Judge Hawkins' court, then they can go to the Court of Appeals and the Supreme Court to look in on it as well."

It's possible that the admissibility of the blood draw could be decided before trial. If it is not admitted, Schumm said it could be more difficult for prosecutors to prove the most serious charges against Bisard.

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Indiana Courts | Indiana Law

Ind. Laws - "Lost Laws: What We Can’t Find in the United States Code "

In 2008 I published two important articles in Res Gestae:

So what has happened since then? I'll be writing about that all next week. Stay tuned.

This afternoon the respected Legal Theory Blog, in an entry headed "Tress on Valid Federal Laws Missing from the United States Code," is pointing to a new law journal article titled "Lost Laws: What We Can’t Find in the United States Code."

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Indiana Law

Environment - "No Asian carp in e-DNA tests at Indiana ports" [Updated]

One of the concerns about Asian carp and Lake Michigan issues is that it is not only the Chicago River that flows into Lake Michigan, Indiana also has some possible sources. Today this release from the IDNR:

No evidence of Asian carp was found in an environmental DNA (eDNA) sampling of Indiana ports and harbors near Lake Michigan, researchers from the University of Notre Dame who did the study announced Thursday.

The researchers collected 125 samples from five areas in northwest Indiana:

-On Aug. 6, 14 samples were collected from the outflow of Lake George by kayak and by wading into lower reaches of Deep River. All tested negative for bighead and silver carp DNA.

-On Aug. 11, 25 samples were collected from Burns Harbor and 21 from Burns Ditch. All 46 samples tested negative.

-On Aug. 18, 11 samples were collected from the Gary Boat Slip and 54 samples from Indiana Harbor. All 65 samples tested negative.

Bighead and silver carp are two species of Asian carp that are considered a serious risk to the Great Lakes. Both are voracious eaters. They consume plankton - algae and other microscopic organisms - stripping the food web of a key source of food for small and big native fish.

Bighead and silver carp were imported into the southern United States to keep aquaculture facilities clean and to provide fresh fish for fish markets. They escaped into the wild in the 1980s and have been moving northward ever since.

They were first detected in Indiana waters in 1995 and have worked their way up the Wabash River, into the East and West forks of the White River, the Patoka River, and the Ohio River and and some of its tributaries.

But what about, for instance, the Little Calumet River? Was it tested by IDNR? Conservationists "want a federal judge to shut two navigation locks - one on the Chicago River and one on the Little Calumet River," according to this Milwaulkee Journal Sentinel story by Dan Egan, dated Oct. 3rd, that begins:
For thousands of years, the Great Lakes were protected by Niagara Falls on the east and a subcontinental divide on the west, but those barriers to our grandest freshwater system were obliterated over the past century so that oceanic freighters could float in and Chicago sewage could float out.

Unwanted species have been invading with tick-tock regularity ever since.

It is a problem that lacks the graphic horror of the Gulf oil spill, but is more environmentally catastrophic in that it unleashes a pollution that does not decay or disperse - it breeds.

Native fish populations have crashed, freshwater beaches have suffocated under mounds of rotting algae, bird-killing botulism outbreaks have soared and the lakes' invasive species problems have spread down Chicago's canals, into the vast Mississippi basin and across the continent.

Politicians have paid little attention.

Until now. While the lakes have become a biological stew thick with an estimated 185 foreign species, elected officials from both parties in all eight Great Lakes states are demanding that federal agencies muster the will to stop number 186.

They have turned to the courts and to Congress to compel the U.S. Army Corps of Engineers to keep Asian carp from colonizing Lake Michigan by slamming shut the back door to the Great Lakes blasted open by Chicago canal builders more than a century ago.

But what about the front door?

It is still basically business-as-usual on the St. Lawrence Seaway.

Biologists say the artificial shipping link between the Great Lakes and Atlantic Ocean has already wrought more damage than the carp might ever do. And they worry about what might be coming in next, even as the drama to shut the back door plays out in a Chicago federal courtroom and as the Obama administration touts its new Asian carp czar.

[Updated 10/17/10] This Oct. 16th story by Gitte Laasby of the Gary Post Tribune, headed "Researchers: No traces of Asian carp near lake," reports:
Researchers have found no genetic traces of Asian carp in Northwest Indiana close to Lake Michigan, state officials said Friday.

Scientists at the University of Notre Dame sampled five areas for environmental DNA -- the Indiana Harbor, the Gary Boat Slip, Burns Harbor, Burns Ditch, Lake George and Deep River. All 125 samples taken in August tested negative for traces of Asian carp, the Indiana Department of Natural Resources announced Friday.

"This is the most extensive sampling we've seen on the Indiana side of the border," said Thom Cmar, an attorney with the Natural Resources Defense Council. "It's good news but it's important not to overinterpret the results in light of what we've seen on the Illinois side. There's still a lot of reasons to be concerned."

A 20-pound, 3-feet-long Asian carp was found in Lake Calumet on the south side of Chicago six miles from Lake Michigan on June 22. It was the first time a live carp had been found above the electric barriers intended to keep them out.

A rapid response group has periodically sampled the Little Calumet in Indiana, but not found evidence of Asian carp. The sampling this summer was the most comprehensive testing in Indiana waters. Researchers collected the most samples from the Indiana Harbor, 54, and 46 total from Burns Harbor and Burns Ditch.

"There's a complete vacuum now of effective, real-time data to tell us where these fish are within the waterway system and guide agency decision-making," Cmar said. "The biggest concern is that there's a much bigger problem than we know because the agencies in charge aren't looking for it. This case of the Asian carp invading Lake Michigan has been a case of 'the more you look the more you find.' "

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Southlake Community Mental Health Center, Inc., et al. v. Board of Zoning Appeals of the City of Crown Point, Indiana, et al., a 6-page opinion, Judge Bradford writes:

Appellants/Petitioners Southlake Community Mental Health Center, Inc., (“Southlake”) and Watertower South, Inc., (“Watertower”) appeal from the trial court’s determination that Appellee/Respondent the Board of Zoning Appeals of the City of Crown Point (“the BZA”) correctly concluded that their proposed use of a certain parcel was inappropriate for the parcel’s zoning classification. Concluding that the original appeal of the Crown Point Plan Commission’s decision by Appellees/Intervenors Feather Rock Professional Office Park POA, Inc., and Feather Rock Property Owners Association, Inc. (collectively, “the POAs”) was untimely, we reverse the judgment of the trial court and remand with instructions.
In Ritzert Co., Inc., et al. v. United Fidelity Bank, Tyme Properties, LLC, et al. , a 13-page opinion, Judge Najam writes:
Ritzert Company, Inc., (“Ritzert”); Electrical Maintenance and Construction, Inc., (“EMCI”); O’Daniel Trucking Company, Inc., (“O’Daniel Trucking”); and C.W. Lewis Steel Erection, Inc. (“Lewis Steel”) (collectively, “the Contractors”) appeal the trial court’s grant of summary judgment for United Fidelity Bank, FSB (“United”). The Contractors contend that United was silent when it had a duty to notify them that its borrower’s construction loan had been fully disbursed and that the loan was in default when they worked on a construction project financed by United. The Contractors assert that United was unjustly enriched and is liable to them for the value of their labor and materials. We conclude that United, which made no request, express or implied, to the Contractors for their services did not otherwise owe a duty to the Contractors. Thus, we hold that the trial court properly granted summary judgment for United on the Contractors’ claim for unjust enrichment. * * *

In sum, we hold that the designated evidence shows that United was entitled to judgment as a matter of law. To maintain an action for unjust enrichment, the Contractors were required to demonstrate that United made an express or implied request for their services. They have not done so. United also had a duty to maintain the financial privacy of its customer and not to interfere with its contractual relationships. United therefore did not have a duty to disclose that the loan proceeds had been exhausted or the default status of the construction loan to the Contractors. Neither does the Contractors’ showing of nongratuitous work satisfy the condition precedent that United have requested the work. Accordingly, the trial court properly entered summary judgment for United.NFP civil opinions today (2):

Term. of Parent-Child Rel. of E.Y., et al.; C.Y. and V.Y. v. I.D.C.S. (NFP)

In the Matter of the Mental Health Proceedings of D.J. (NFP)

NFP criminal opinions today (5):

Travis Cordell v. State of Indiana (NFP)

Travis D. Rutherford v. State of Indiana (NFP)

Christopher Rudolph v. State of Indiana (NFP)

Crystal G. Huesman v. State of Indiana (NFP)

Dametrick M. Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "State faces unemployment reckoning"

Dan Carden of the NWI Times reports today:

Indiana businesses and state government will soon begin paying millions of dollars in penalties and interest to the federal government due to the state's severely overdrawn unemployment insurance fund.

The Indiana Department of Workforce Development projects the state will have borrowed $2 billion from the federal government by the end of the year to keep its unemployment fund solvent. Federal provisions forgiving penalties and interest on the borrowing expire in December.

Starting in January, Hoosier businesses will have to pay a penalty of $21 per worker per year and the state will have to fork over up to $80 million in general fund revenue to pay interest on the unemployment loan. The business penalty increases by $21 per worker per year until the loan is nearly paid off.

Indiana's unemployment benefits have exceeded premiums since 2001. State legislators approved an increase in employer-paid premiums in 2009 but voted to delay implementation due to the recession. The state's unemployment trust fund, which stood at $1.6 billion in 2000, was depleted in 2008 and Indiana has been borrowing ever since.

Indiana is not alone, according to Douglas Holmes, president of the National Foundation for Unemployment Compensation and Workers' Compensation. * * * However, Indiana has been borrowing longer than most and is one of three states where government and businesses will be forced to pay penalties and interest in 2011, Holmes said.

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Indiana Government

Ind. Courts - "Is Dan Coats really a lawyer?"

Re this story by WISH TV's Jim Shella, the ILB took at look at some names via the Indiana Roll of Attorneys. Here are the status categories located (possibly there are more)

  • Status: Active in Good Standing

  • Status: Inactive in Good Standing

  • Status: Retired

  • Status: Deceased

  • Status: Active in Good Standing -- Pending Discipline

  • Status: Suspended

  • Status: Resigned
In addition to Dan Coats, Dan Quayle is also listed as "suspended," Marilyn is "inactive in good standing." All three Bayhs are "inactive in good standing," as is Governor Daniels. What is the distinction? On your annual registration form, you may choose "active" or "inactive" status, the latter means you cannot practice law and relieves you of the annual CLEs. You also pay a reduced annual fee. If you don't comply -- i.e. don't pay your fees, don't meet your CLE requirement, etc., you will be deemed "suspended." Or, of course, you may be suspended via a Supreme Court disciplinary ruling.

Shella's story concludes:

Finally, Kathryn Dolan, the spokesperson for the Indiana Supreme Court, says that while Coats has a suspended law license, "that doesn't prohibit him from identifying himself as an attorney."

Posted by Marcia Oddi on Friday, October 15, 2010
Posted to Indiana Courts

Thursday, October 14, 2010

Ind. Gov't. - "Burns Harbor Town Council approves funds for BZA attorney"

Paulene Poparad reports in today's Chesterton Tribune:

Member Mike Perrine said it was the Burns Harbor Town Council that started it and they have an attorney, so the town Board of Zoning Appeals should have one, too.

Voting 4-0 Wednesday with member Louis Bain absent, the [Burns Harbor] Town Council agreed to appropriate up to $5,000 for the BZA to hire an attorney to defend its Aug. 24 decision that the council is appealing in court.

Additional money above the $5,000 would have to be requested by the BZA, which meets in special public session at 6 p.m. tonight regarding pending litigation and likely selection of an attorney. * * *

Oct. 18 is the deadline for the BZA to show cause why the entire record of the CR England trucking petition the board heard Aug. 24 shouldn’t be turned over to Porter Superior Court Judge Mary Harper for judicial review.

The BZA voted 3-2 that night granting a special exception and two variances to England to build a lighted, paved 250 semi-truck parking lot and two guardhouses west of Indiana 149 south of Tech Drive; several conditions, including England fencing the site and installing a new traffic signal at the Tech Drive intersection, were tied to BZA approval.

Harris, Welsh and Lukmann is the town’s law firm but has recused itself from the Burns Harbor litigation citing ethical reasons. The [Burns Harbor] Town Council has retained Ice Miller of Indianapolis to represent it in the appeal. * * *

McGee asked [Charles Parkinson of HW&L] if $5,000 is too high. The attorney said it’s hard for him to comment, however, there “may be all sorts of twists and turns in this litigation.” * * *

The council was asked by the Chesterton Tribune how much Ice Miller is charging the town, and whether a contract has been entered into. The firm was hired Sept. 15 at a special meeting authorizing the appeal.

No hourly/retainer fees were identified, and it wasn’t clear if a contract has been executed. Parkinson referred questions to Ice Miller but said a contract could be considered attorney/client privilege and as such not be public record. Claims for payment would be a public document, he noted.

After the meeting Clerk-treasurer Jane Jordan said no Ice Miller claims have been submitted to-date.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Government

Ind. Gov't. - The Indiana Utility Regulatory Commission Nominating Committee is soliciting applications from persons interested in serving the remainder of a four-year term on the Indiana Utility Regulatory Commission (IURC)

Just released from the Governor's Office:

Applications will be accepted today through close of business on November 5. After the close of the application period, the nominating committee will schedule and conduct a public meeting to interview applicants. The committee will present Governor Mitch Daniels with a list of three qualified candidates from which he will select one to serve the remainder of a four-year term that will expire March 31, 2014.

Members of the nominating committee are committee chair William Stephan, Jennifer Messer, Greg Gibson, Mark Pope, Susan Sandberg and Larry Buell.

Applications for the position may be obtained by contacting Kim Cocke in the governor's office at 317/232-1763. Completed applications should be returned to: William B. Stephan, Chair, IURC Nominating Committee, c/o Office of the Governor, State House, Room 206, Indianapolis, Indiana 46204.

ILB: IC 8-1-1-2 provides that the Utility Regulatory Commission shall consist of 5 members, "at least one (1) of whom shall be an attorney qualified to practice law before the supreme court of Indiana and not more than three (3) of whom belong to the same political party."

So there may be some limits on who can be selected, depending upon the makeup of the four remaining members of the IURC.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Government

Ind. Gov't. - FSSA chief Anne Murphy likely leaving

Charles Wilson of the AP is reporting:

The Family and Social Services Administration secretary told the commission Thursday that she had been offered a job helping Indianapolis-based Community Health Network navigate new regulations expected under the federal health care overhaul.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Government

Ind. Gov't. - "Duke Energy cases to be audited" [Updated]

The Gary Post-Tribune is reporting:

The Indiana Utility Regulatory Commission will conduct an audit of the Duke Energy Indiana cases that former administrative law judge Scott Storms presided over, the IURC announced Thursday.

Storms left in September for a job as an attorney in Duke's regulatory division.

The audit will span from Jan. 1 through Sept. 30 and include transcripts, rulings on motions and technical staff reports, the IURC said in a statement. The audit will involve decisions that Storms made on his own as well as decisions made by the full commission.

"The commission is aggressively acting to determine whether any activity by (administrative law judge) Storms did not follow normal processes or failed to be supported by evidence or another legal basis," the IURC said in a statement.

The commission will issue a public report by the end of the year detailing the results of its investigation. * * *

The IURC's internal audit is separate from the Inspector General's investigation requested by the governor's office. The governor had requested a review of opinions Storms presided over in the Duke case going back to the spring "to ensure no undue influence was exerted."

The IURC said all four IURC commissioners will participate in the Duke case from now on "to ensure the ongoing integrity" of the case."

"Typically, only one commissioner and administrative law judge are assigned to a case. Having all four commissioners participate fully in the case will increase oversight, provide additional scrutiny for interim rulings, and lend further expertise to the process," the IURC stated.

ILB: Two things immediately strike me.
(1) The IURC is auditing itself?

(2) "Typically, only one commissioner and administrative law judge are assigned to a case." -- I didn't know that!

[More] John Russell of the Indianapolis Star now also has posted a story.

[Updated 10-15-1] Here is the Post-Tribune story - Gitte Laasby now has the byline.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Government

Sports Law - "N.C.A.A. Is Investigating Baylor Men’s Program"

Many aspects of this story in today's NY Times, reported by Pete Thamel, will be of great interest Hoosiers.

Not only does it mention Michigan City's private La Lumiere School, where Chief Justice Roberts went, but Scott Drew (son of Valparaiso University's legendary coach Homer Drew, and the brother of Bryce Drew, who became a highlight film in the NCAA finals some years ago). Scott was recruited to rebuild the Baylor team.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to General Law Related

Ind. Courts - Still more on: Responses by candidates to the question: "Why Second District attorneys should vote for you for the Judicial Nominating/Qualifications Commissions"

I received my ballot in today's mail. I've made a copy and am posting here the 4-page "Biographies of Nominees" that accompanies the ballot.

Remember, there is a temporary link to the ILB entry featuring the five candidates in the upper right column of the ILB, so that it is easy to find.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In Town of Culver Board of Zoning Appeals v. Roderick J. Ratcliff and Pamela A. Ratcliff, a 7-page opinion, Judge Najam writes:

The Town of Culver Board of Zoning Appeals (“the Board”) appeals the trial court’s judgment in favor of Roderick J. Ratcliff and Pamela A. Ratcliff on the Ratcliff’s petition for writ of certiorari from an adverse decision of the Board. The Board raises a single issue for our review, namely, whether the placement of storage sheds on a landscaped gravel lot, and supplied with electricity, constituted the placement of a “structure” with “a fixed location and permanent improvements.” We hold that the sheds were not structures within the definition of Culver’s zoning ordinances. Accordingly, we affirm the trial court’s judgment. * * *

The basis for the Board’s argument on appeal is that the five sheds were “structures” within the definition of Section 1.9 because they were in a fixed location and provided with permanent improvements. As support, the Board identifies the undisputed facts that the Ratcliffs wired the sheds with electricity, provided them with a gravel parking area, and landscaped the area near the sheds. The Ratcliffs respond that “the facilities each rest[ed] on skids on a gravel lot” and, therefore, were neither fixed in location nor permanently improved. We agree with the Ratcliffs. * * *

In sum, the evidence, when viewed as a whole, demonstrates that the conclusion reached by the Board was clearly erroneous. The Board erred as a matter of law when it interpreted “structure” under Section 1.9 to apply to the sheds, which are personal property. And the Board’s conclusion that sheds on skids, landscaping, and/or a cleared area are permanent improvements is also contrary to law. See Perkins, 721 N.E.2d at 293. Because the sheds are not structures, they cannot be “accessory buildings” under Section 5.9, and the Board’s application of that section against the Ratcliffs is clearly erroneous. Accordingly, the trial court properly entered judgment for the Ratcliffs, and we affirm the trial court’s judgment. Affirmed.

In Claudette Gee v. Green Tree Servicing, LLC, a 5-page opinion, Judge Najam writes:
Claudette Gee appeals the trial court's denial of her motion to set aside the sheriff's sale of her property. Gee raises a single issue for our review: whether the sheriff sale was procedurally deficient because the sheriff posted notice of the sale not at the permanent county courthouse but at the county's temporary court offices. We hold that the sheriff complied with Indiana Code Section 32-29-7-3(e)'s requirement that such notices be posted “at the door of the courthouse.” Accordingly, we affirm the trial court's denial of Gee's motion to set aside. * * *

The trial court concluded that “[u]nder the circumstances here, the Sheriff's apparent conclusion that a 'courthouse' is the public building in which the Court[s] are housed is reasonable and substantially complied with the statute's dictates.” We agree. Accordingly, the trial court did not err when it applied Section 32-29-7-3(e) and denied Gee's motion to set aside the sheriff's sale. The sale was not procedurally irregular under that section, and, therefore, we affirm the trial court's judgment. Affirmed.

In D.C. v. State of Indiana, an 11-page opinion, Judge Robb writes:
Pursuant to a plea agreement with the State, D.C. admitted he committed an act that would have been burglary, a Class A felony, if committed by an adult, and was adjudicated a delinquent. The juvenile court ordered D.C. committed to the Indiana Department of Correction (“DOC”) for a determinate commitment of 24 months and also ordered an indeterminate commitment to the DOC until he reached the age of twenty-one. D.C. appeals the disposition, raising two issues for our review: 1) whether the juvenile court abused its discretion by committing him to the DOC when there was a less restrictive alternative available; and 2) whether the juvenile court erred by imposing both a determinate and an indeterminate commitment. Concluding the juvenile court did not abuse its discretion in ordering a commitment to the DOC but erroneously ordered both a determinate and an indeterminate commitment where those dispositions are mutually exclusive by statute, we affirm in part and reverse and remand in part.
In In the Matter of the Adoption of K.F. and T.F.; B.F. v. L.F., a 13-page opinion, Judge Najam writes:
B.F. (“Mother”) appeals the trial court’s grant of L.F.’s (“Stepmother’s”) petition for adoption of Mother’s minor children K.F. and T.F. Mother presents a single issue for our review, namely, whether Stepmother presented sufficient evidence to support the trial court’s grant of the adoption petition without Mother’s consent. We affirm. * * *

This court recently reiterated that the purpose of Indiana’s adoption statutes is to protect and promote the welfare of children by providing them with stable family units. In re Adoption of N.W., ---N.E.2d---, 2010 WL 3588050 (Ind. Ct. App. September 16, 2010). On occasion we have observed that the relationship between parent and child is a bundle of human rights of such fundamental importance that adoption statutes, being in derogation of the common law, should be strictly construed in favor of a worthy parent and the preservation of such relationship. Id. However, in evaluating the parent-child relationship, the best interest of the child is paramount and our main concern should lie with the effect of the adoption on the reality of the minor child’s life. Id.

Here, the evidence shows that Mother failed to provide care and support for the children for at least one year and that she is unfit to be a parent. Mother’s drug addiction has persisted for most of the children’s lives, and while Mother has made some strides in her efforts to stay off of drugs, her March 2010 admission that she snorted heroin shows that her struggle with dependency continues. In the meantime, Father and Stepmother have provided a loving and caring home for the children, and they are thriving there. Mother has not demonstrated that any of the trial court’s findings or conclusions are clearly erroneous, which is our standard of review. We will not reweigh the evidence on appeal. The trial court did not err when it granted Stepmother’s adoption petition without Mother’s consent. Affirmed.

In M.R., M.R., F.R., and K.R., Alleged to be CHINS; F.T. v. IDCS, an 8-page opinion, Judge Crone writes:
Four young children were determined to be children in need of services and removed from their mother's care. The juvenile court entered a parental participation decree against an incarcerated man who the mother claims is the father of one of those children. The decree requires the alleged father to participate in that child's care, treatment, placement and/or rehabilitation and also to reimburse the county for the expenses of the child's out-of-home placement. The alleged father appeals, asserting that the juvenile court erred when it entered a parental participation decree against him when his paternity of that child has not been established. He also argues that certain procedural prerequisites for a parental participation decree were not met. Concluding that paternity must first be established and that certain procedural deficiencies deprived the juvenile court of authority to enter the parental participation decree, we vacate the juvenile court's parental participation decree with regard to the alleged father and remand for further proceedings. * * *

Because the proper procedures were not followed here, the juvenile court did not have authority to order F.T.'s parental participation as part of its CHINS disposition.

Without first establishing paternity to determine that F.T. is indeed a “parent” pursuant to the juvenile code, and absent the filing of a proper verified parental participation petition, the juvenile court here was without authority to issue a parental participation decree against F.T. as part of its CHINS disposition. We vacate that portion of the juvenile court's order pertaining to F.T.'s parental participation and remand for further proceedings consistent with this opinion. Vacated in part and remanded.

NFP civil opinions today (1):

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

NFP criminal opinions today (5):

Lisa Flowler v. State of Indiana (NFP)

Jarrod S. Snyder v. State of Indiana (NFP)

Mark Thomas v. State of Indiana (NFP)

Timothy Williams v. State of Indiana (NFP)

Phyllis A. Merriweather v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Talk about a heated prosecutor race!

"Prosecutor candidates throw barbs" is the headline to this long story by Alicia Gallegos in the South Bend Tribune, about the "fiery debate Wednesday night between St. Joseph County Prosecutor Michael Dvorak and his opponent in the Nov. 2 election, Scott Duerring."

[More] A knowledgeable reader writes on Twitter:

Interesting, mostly in what it says about the whole idea of prosecuting attorney's 'batting averages' - IMHO GIGO.
BTW, GIGO = garbage in, garbage out.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Courts

Courts - Retention battle being waged in Iowa re three justices

The DesMoines Register today is reporting this story by Tom Witosky that begins: "A new advocacy group that includes former Iowa Gov. Robert Ray and former Lt. Gov. Art Neu has been formed to campaign in favor of retaining three Iowa Supreme Court justices." More:

The group, Fair Courts for US, plans to stage a direct mail and media advertising campaign as part of a statewide grass-roots answer to several conservative advocacy groups that are urging Iowans to vote against retention of Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.

Retention of the justices and lower-court judges is on the Nov. 2 ballot. * * *

Conservative groups, led mostly by Iowa for Freedom and its chief spokesman, former Republican governor candidate Bob Vander Plaats, are challenging the justices' retention because of the unanimous 2009 Supreme Court decision permitting same-sex marriage in Iowa.

Iowa for Freedom is financed by AFA Action, a conservative family policy group based in Mississippi. That group is not required to disclose contributors.

Here is the American Judicature Society's webpage on judicial selection in Iowa. From the overview:
The Iowa judiciary is composed of two appellate courts--the supreme court and the court of appeals -- and the unified district court. Iowa judges are chosen through merit selection, where a nominating commission identifies a list of highly qualified candidates and the governor appoints a judge from that list. After one year in office, and then at regular intervals, judges stand in retention elections. Since Iowa adopted a merit plan with retention elections, only four judges have not been retained.
A link leads to this 2-page brochure.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Courts in general

Court - WAPO's Robin Givhan comments on SCOTUS attire

"Trial by attire: Supreme Court look should go with everything we believe in" is the heading of this Oct. 9th column by the Washington Post's style columnist, Robin Givhan. Some samples:

Thankfully, the newest member of the Supreme Court, Justice Elena Kagan, declined to mar her elegant black robe with a lace scarf, lady's tie or any other doilylike frippery for the high court's annual class portrait.

When the justices gathered for their historical snapshot Friday, the majority arrived in nearly indistinguishable robes, which is as it should be. Ruth Bader Ginsburg was the lone voice of dissent. She wore -- as is her wont -- a white lace frill that flopped down the front of her chest like a hankie she'd tucked into her collar. Her judicial flourish echoed that of retired justice Sandra Day O'Connor, who also was inclined toward a distinctive neckline, although hers, on many occasions, resembled nothing more closely than a crisply pleated lobster bib. * * *

The gentlemen all had the wisdom not to mimic former chief justice William Rehnquist, who personalized his robe with four gold stripes on each sleeve. He was inspired by a character in a Gilbert and Sullivan operetta.

Today the Post has printed a Letter to the Editor:
I agree, wholeheartedly, that former chief justice William Rehnquist's gold stripes were over the top, but Justice Ginsburg's modest adornment only reflected the spirit of the times when she and her sister in justice, Sandra Day O'Connor, came to serve on this highest of our courts.

The simple neckwear of our two new female justices looks just fine, but certainly there is no need for Justice Ginsburg to change her established style. May she wear it with her usual grace and in good health as long as she sits on the court.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Courts in general

Ind. Law - "Waiting Game for Barnes & Thornburg [Chicago office] Lateral Hires"

So reports Brian Baxter of The American Lawyer today. The story begins:

So just how long will a group of litigators who gave notice at Wildman, Harrold, Allen & Dixon on Oct. 1 have to wait before heading to their new home at Barnes & Thornburg? Maybe not as long as they claim they were initially told.

On Tuesday, the Chicago Tribune reported that Wildman executive committee member H. Roderic Heard and five of his partners from the firm's Chicago office would be forced to wait out a 90-day notice period after the attorneys tendered their resignations.

The story quickly made its way around the legal blogosphere, with some poking fun at Wildman for delaying the move by insisting on enforcing a clause that's commonly found in partnership agreements but rarely raised.

Here is the story from Ameet Sachdev of the Tribune's Chicago Law blog.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Law

Law - "Ask the Old Cog: Fresh young attorneys just getting started at Big Law need answers"

This is fun. "The Snark," a column in the The Fulton County Daily Report, has added a feature called:

"Ask the Old Cog" -- an open, anonymous forum for newbies to pose questions they're afraid to ask their more senior colleagues. Or maybe this is a chance to ask the same question they've been asking and check the candor of the prior responses.
One of the first questions: "I have no work to do! Am I going to get fired?"

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to General Law Related

Ind. Courts - More on: Responses by candidates to the question: "Why Second District attorneys should vote for you for the Judicial Nominating/Qualifications Commissions"

Okay, I did not receive my ballot yesterday in the mail, but hope to see it today. I've added a temporary link to the ILB entry featuring the five candidates to the upper right column of the ILB, so that it is easy to find.

Posted by Marcia Oddi on Thursday, October 14, 2010
Posted to Indiana Courts

Wednesday, October 13, 2010

Ind. Decisions - "Notable Seventh Circuit opinion reversing (on procedural grounds) long drug courier sentence"

Sentencing Law and Policy Blog has quite a lot to quote from today's 7th Circuit opinion in U.S. v. Cruz Saenz (SD Ind., Barker) - ILB summary here.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues one opinion late today

In TRW Vehicle Safety Systems, Inc., and Ford Motor Company v. Sally J. Moore, et al., a 31-page, 4-0 opinion, Justice Dickson writes:

Daniel Moore died when, despite wearing his seatbelt, he was ejected through the sunroof of his Ford Explorer vehicle during a rollover that followed a tire failure as he was driving on Interstate 65 near Edinburgh, Indiana. He was survived by his wife and one minor son. His widow, as personal representative of his estate, brought this wrongful death action. At the conclusion of a fourteen-day trial, the jury found the total damages to be $25,000,000 and allocated fault as follows: decedent Daniel Moore, 33%; defendant Ford Motor Company ("Ford"), 31%; nonparty Goodyear Tire and Rubber Company ("Goodyear"), 31%; and defendant TRW Vehicle Safety Systems, Inc. ("TRW"), 5%. Judgments were entered against Ford in the sum of $7,750,000 and against TRW in the sum of $1,250,000. Appeals were commenced by both defendants, and the plaintiff cross-appealed. Finding the evidence insufficient to support the jury's verdicts against Ford and TRW, the Court of Appeals reversed as to both defendants. Ford Motor Co. v. Moore, 905 N.E.2d 418 (Ind. Ct. App. 2009). We granted transfer and now reverse the judgment as to TRW, reverse the allocation of fault to nonparty Goodyear, reverse the determination of total damages, and remand for retrial to (a) allocate 100% of the fault between the plaintiff and Ford, and (b) redetermine the total damages subject to fault allocation unless the plaintiff accepts remittitur as hereinafter specified. * * *

We reverse the trial court as to (a) its judgment against defendant TRW Vehicle Safety Systems, Inc., (b) its allocation of fault to nonparty Goodyear Tire and Rubber Company, (c) the percentages of comparative fault assigned to Ford Motor Company and the plaintiff's decedent, and (d) the determination of total damages subject to fault allocation. In all other respects, the judgment of the trial court is affirmed. This cause is remanded for: (a) a new trial on the issue of allocation of fault between Ford Motor Company and the plaintiff's decedent; (b) a new trial on the issue of total damages unless the plaintiff accepts a remittitur revising the total damages sub-ject to comparative fault allocation to $15,974,583; and (c) if the fault of the plaintiff's decedent is greater than fifty percent, judgment in favor of Ford, but if the fault of the plaintiff's decedent is not greater than fifty percent, then application of the resulting fault percentages to the total damages and judgment in favor of the plaintiff accordingly.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Still more on: Blood draw law might benefit from another look by the legislature [Updated]

The ILB has had a long list of entries on the Biscard case and the "certified phlebotomist" issue. A reader has sent me this press release today from one of the candidates for Marion County prosecutor, Mark Massa, who argues that:

[T]he law ... doesn't apply in cases where a person consents to having his blood drawn. Our state Supreme Court has never answered this precise question, and it's one I'm prepared to pose if elected. If the facts establish consent, we'll refile the DUI charge and take it to the highest court.
In this ILB entry from Aug. 30, 2010 I wrote:
Take a look at the entire IC 9-30-6-6, including the changes made to subsection (j) earlier this year [in context]. I got lost half way through. The General Assembly should consider redrafting this entire section to clearly state its intent.
Here is the report this afternoon in the Indianapolis Star by Bill McCleery.

[More] Jim Shella of WISH TV writes this afternoon: "The prosecution of IMPD officer David Bisard is now an issue in the race for Marion County Prosecutor."

[Updated 10/14/10] A report today by Bill McCleery and Vic Ryckaert in the Indianapolis Star is headed "Bisard case becomes issue in race for prosecutor: Both candidates say they'd pursue drunken-driving charges." A quote:

Terry Curry disputed Prosecutor Carl Brizzi's opinion that a blood draw from Bisard -- accused in the Aug. 6 crash that killed motorcyclist Eric Wells and seriously injured two others -- can't be used as evidence because it was taken at a facility that doesn't meet Indiana's legal requirements for blood-test evidence.

"We have confirmed ourselves that the facility does indeed have a written protocol under the responsibility of a physician," Curry said. He also said certification requirements cited by Brizzi are not mandated under Indiana law.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Indiana Law

Ind. Courts - "Avon teen, 16, critical after 3-story fall from Hendricks Co. courthouse"

Josh Duke's report in the Indianapolis Star begins:

DANVILLE — An Avon 16-year-old is in critical condition this morning after jumping over a railing and falling three stories to the floor of the Hendricks County Courthouse rotunda.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Indiana Courts

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

In U.S. v. Cruz Saenz (SD Ind., Barker), an 18-page opinion, Judge Williams writes:

Cruz Saenz received a whopping 293-month sentence for transporting drug money on one single occasion. The district court seemed to think that Saenz was involved in the conspiracy beyond this single incident and denied Saenz’s request for a minor participant reduction as a result. Finding no evidence in the record of any involvement beyond the single transport of money, we remand for the district court to reconsider whether Saenz should receive the minor role adjustment. Saenz also argues that the twenty-month delay between his indictment and trial violated his constitutional right to a speedy trial. Because nearly all of the delay is attributable to continuance requests by Saenz or his co-defendants, we reject the speedy trial challenge. Finally, we find no error in the district court’s imposition of an obstruction of justice enhancement, as it was justified in concluding that Saenz willfully lied at trial about whether he knew the money he was transporting was drug money.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In State of Indiana v. Eric Booher, et al., a 14-page opinion, Judge Brown writes:

The State appeals the trial court's grant of the request for interest filed by Eric and Julie Booher and the court's grant of the request for interest filed by Nortra, Inc. The State raises one issue, which we revise and restate as whether the trial court erred by awarding pre-judgment and post-judgment interest to the Boohers and Nortra, Inc. (collectively, the “Landowners”). We reverse and remand. * * *

In summary, we conclude that the Booher Judgment was unambiguous in that the Boohers were to receive $7,500.00 and all accrued interest earned on the appropriation money already paid by the State. Likewise, we conclude that the Nortra Judgment was unambiguous in that Nortra, Inc. was to receive $24,000 plus all interest accrued on the amount of the appraisers' award. Based upon the language in the settlement agreements, we conclude that the agreements did not contemplate any pre-judgment interest other than that accrued on the amounts previously deposited by the State. * * *

[W]e remand to the trial court to determine whether the State immediately paid the remaining amount of $2,331 as ordered in the Booher Judgment. If the State failed to pay the clerk the entire balance of $2,331, then post-judgment interest should be calculated under Ind. Code § 24-4.6-1-101 based upon the unpaid principal amount over the time period between the entry of the Booher Judgment and the date the State paid the amount in full.

In Fabian Morgan v. State of Indiana , a 13-page opinion, Judge Friedlander writes:
Fabian Morgan appeals his conviction of Unlawful Possession of a Firearm by a Serious Violent Felon a class B felony, and the resulting sentence. Morgan presents the following restated issues for review: 1. Was the evidence sufficient to prove beyond a reasonable doubt that Morgan qualified as a serious violent felon? 2. Did the trial court commit fundamental error when it stated to the jury that defense attorney’s characterization of certain evidence was “misleading” and “not the evidence?” 3. Is the fifteen-year sentence imposed inappropriate in light of Morgan’s character and the nature of this offense? We affirm.
NFP civil opinions today (1):

Willard Bolton v. Nanette Bolton (NFP)

NFP criminal opinions today (10):

Larry E. Hyatt v. State of Indiana (NFP)

Clarence T. Hunt v. State of Indiana (NFP)

Jason Akemon v. State of Indiana (NFP)

Shavaughn C. Wilson v. State of Indiana (NFP)

Ronald B. Blake v. State of Indiana (NFP)

Christopher James Hovious v. State of Indiana (NFP)

Kevin Andrew Kohler v. State of Indiana (NFP)

Sabrina Wright v. State of Indiana (NFP)

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

Jessica Haylett v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "E-mails show clubby IURC, Duke"

Updating this ILB entry from yesterday, the Indianapolis Star has an editorial today headed "Ethics are no laughing matter."

The Indiana Daily Student has a commentary by Celia Grundman headed "Jamming revolving doors."

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to Indiana Government

Law - "Attorneys general to initiate foreclosure probe" [Updated]

Ariana Eunjung Cha and Dina Elboghdady report in the Washington Post:

Attorneys general from dozens of states are set to announce Wednesday a joint investigation into the nation's biggest lenders, but will stop short of calling for a moratorium on foreclosures in their jurisdictions, officials said.

The multistate investigation, which includes Maryland, Virginia, California, Indiana, and Ohio, among others, will initially focus on whether Bank of America, J.P. Morgan Chase, Ally Financial and other large mortgage companies made misleading or fraudulent statements to evict struggling borrowers from their homes.

Indiana Attorney General Greg Zoeller said investigators initially will focus on whether industry employees - "robo-signers" - signed off on thousands of foreclosures every month without reviewing the files as legally required. Homeowner attorneys also allege that lenders forged signatures and improperly notarized documents. * * *

The companies could face more serious consequences if the attorneys general find criminal acts or that high-level industry executives knew what the robo-signers were doing. About two dozen states have joined the effort, though more are expected to sign up in the coming weeks, officials said.

Here is a very long list of ILB entries referencing "foreclosure."

[Updated at 1:10 PM] Make that all 50 states.

Stephanie Armour of USA TODAY reports this afternoon in a story that begins:

Attorneys General from all 50 states on Wednesday announced a joint investigation into whether major U.S. banks used faulty or fraudulent documents to foreclose upon delinquent homeowners.

The group will investigate whether companies misrepresented that they had reviewed and verified affidavits and documents used in foreclosures.

The goal of the Mortgage Foreclosure Multistate Group will be to stop improper foreclosure practices, review past practices, and to establish a potential financial settlement. The group may also seek to establish a new independent monitoring system to oversee future foreclosure processes.

The multi-state effort is being led by Iowa Attorney General Tom Miller, and also includes a number of state banking and mortgage regulators.

Alabama initially did not sign on to the investigation. It reversed course after the joint statement was released.

Posted by Marcia Oddi on Wednesday, October 13, 2010
Posted to General Law Related

Tuesday, October 12, 2010

Ind. Gov't. - "E-mails show clubby IURC, Duke"

"Clubby" may understate it. John Russell of the Indianapolis Star has a lengthy, amazing story today, based on e-mails obtained by the Star:

A series of e-mails, obtained by The Indianapolis Star under a public-records request, offer a peek behind the scenes of a looming ethics controversy that began last month with Storms' hiring by Duke and erupted last week with Gov. Mitch Daniels' firing of IURC Chairman David Lott Hardy. They also show the close relationships between Duke and state regulators and how dismissive state regulators were of a state ethics review.
The Star also provides a link to the 58 pages of e-mails between Scott Storms, then-general counsel of the Indiana Utility Regulatory Commission; Michael W. Reed, Indiana president of Duke Energy (and himself a former IURC executive director); and David Lott Hardy, then-chairman of the IURC (and formerly an attorney for Duke's predecessor, PSI). What struck me as much as anything was the intertwining of discussion of regulatory business and the hire - see e.g. pp, 53-57.

[More] Something else from the story even more troubling to me:

Angeline Protogere, a spokeswoman for Duke Energy Indiana, said Monday that the company first contacted Storms and several others in April, asking informally whether they were interested in the open position or could recommend a suitable candidate.
So some big issues are coming up before the IURC, and then this job opening is tangled before the ALJs?

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Indiana Government

Ind. Decisions - "Duke Energy Wins Verdict Reversal in EPA Lawsuit Over Indiana Power Plants"

As reported in the ILB earlier today, the 7th Circuit has reversed one aspect of the Cinergy case - for background, start with this ILB entry from June 10, 2009. Late this afternoon, Andrew M. Harris of Bloomberg has posted this story.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Ind. (7th Cir.) Decisions

Ind, Decisions - 7th Circuit decides a Cinergy case today

In USA v. Cinergy Corporation (SD Ind., McKinney), a 12-page opinion, Judge Posner notes:

After we decided the interlocutory appeal, the case resumed in the district court and went to trial before a jury—although a case of such complexity, rife with technical issues, is not an ideal one for a jury to decide. The jury’s verdict was mixed. Fourteen modification projects at three plants were at issue; the jury found liability with respect to four of the projects, all at Cinergy’s plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant’s annual emissions of sulphur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit. (Actually the jury’s finding is limited to three of the generating units at the Wabash plant, but for simplicity we’ll treat the plant as the unit of analysis.)
Posner reverses the district court in this appeal:
Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn’t contest Cinergy’s claim that if the testimony of the government’s experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant’s emissions of sulphur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Dwight Murdock v. Estate of Sharron K. Murdock, an 8-page opinion, Judge Bailey writes:

Pursuant to Indiana Appellate Rule 14(A), Dwight Murdock (“Dwight”) appeals an interlocutory order of the Lake Superior Court, Probate Division, declaring that an enforceable contract was created by a property settlement document drafted in a dissolution action between Dwight and Sharron Murdock (“Sharron”), which action was pending at the time of Sharron’s death. We reverse and remand.

Dwight presents the single issue of whether the probate court erred by recognizing the property settlement document as a contract enforceable in probate proceedings. * * *

[W]e reverse the order for enforcement of the marital property settlement document, including its provision that the issue of abandonment is moot, and remand for further proceedings on the issue of Dwight’s alleged forfeiture of the right to inherit from Sharron’s estate.

In Deere & Company v. Travis Hostetler & New Hollan Rochester , a 7-page opinion, Chief Judge Baker writes:
Here, a business had a perfected security interest in farm equipment. The debtor traded the equipment to a second business, which was aware of the liens but relied upon statements made by third parties that the liens had been satisfied. Rather than relying on the statements of third parties, the second business should have contacted the lienholder directly. The lienholder filed a claim for replevin and we conclude that the trial court erred by denying its request for prejudgment possession of the equipment.

Appellant-plaintiff Deere & Company (Deere) appeals the trial court’s interlocutory order denying Deere’s motion for prejudgment possession of certain farm equipment that is currently being held by appellee-defendant New Holland Rochester, Inc. (New Holland). Deere argues that it is entitled to the equipment as a matter of law, and we agree. Therefore, we reverse and remand with instructions to enter an order granting Deere prejudgment possession of the equipment and for further proceedings.

NFP civil opinions today (2):

In Re the Guardianship of A.M.N.; M.N. and E.N. v. B.C. (NFP)

Kenneth Pairsh v. Annette Pairsh (NFP)

NFP criminal opinions today (5):

Emmanuel T. Williams v. State of Indiana (NFP)

Anthony Williams v. State of Indiana (NFP)

Luther J. Gant v. State of Indiana (NFP)

Ronnie Drane v. State of Indiana (NFP)

Michelle Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Results of ISBA poll re appellate judges up for retention

The ISBA has this afternoon announced the results of its electronic poll of members re the appellate judges up for retention this November:

INDIANAPOLIS (Oct. 12, 2010) - The Indiana State Bar Association (ISBA) has completed its compilation of the 2010 Judicial Retention Poll responses. Results indicate strong support, by ISBA members, of the five judges on the Indiana Court of Appeals seeking retention. The State Bar is the only organization conducting a statewide poll in this regard.

ISBA members were surveyed electronically, casting a total of 1,078 ballots. “Armed with these results and the valuable information at the Indiana Courts retention website, the voters of Indiana can make an informed decision on Election Day,” observed ISBA President Roderick H. Morgan.

The yes/no retention results are as follows:

ISBA 2010 Retention Poll

Judge YES Votes NO votes
L. Mark Bailey 86.7% 13.3%
Cale J. Bradford 83.2% 16.8%
Elaine B. Brown 74.9% 25.1%
Melissa S. May 82.7% 17.3%
Margret G. Robb 83.1% 16.9%

The members of the Court of Appeals represent five districts. Judge Bailey will stand for retention in the 1st district, which encompasses the southern third of the state. Judge Bradford will stand for retention in the 2nd district, which encompasses the middle third of the state. Judge May, 4th district, and Judges Brown and Robb, 5th district, will stand for retention statewide.

Appellate court judges face an approval vote in the first general election that occurs at least two years after their appointment, and every 10 years thereafter. Indiana voters will have an opportunity to cast their ballot concerning the judges' retention Nov. 2.

I'm told 9,065 members received electronic ballots and 1,078 responded, giving a 12% response rate.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Indiana Courts

Courts - "Ruling Proves to Be Primer on E-Discovery Enforcement: Judge Paul Grimm's recent opinion both a road map and commentary on spoliation, sanctions"

The ILB has had a number of entries on the admissibility of electronic evidence, including discussions of the widely-cited May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md).

Judge Grimm seems to have done it again, according to two recent articles on his Sept. 9, 2010 opinion in Victor Stanley Inc. v. Creative Pipe Inc. Leonard Deutchman of The Legal Intelligencer wrote the lengthy Oct. 12th article whose headline heads this entry. It begins:

A federal judge's most recent opinion in an ongoing matter provides remarkable insight into several issues that arise frequently in e-discovery.

Magistrate Judge Paul Grimm's lengthy opinion in Victor Stanley Inc. v. Creative Pipe Inc., filed Sept. 9, is worth the read if only for its review and distillation of the case law regarding spoliation and remedies. But the opinion is newsworthy because it sets out a harsh remedy for the defendant whom he found had destroyed evidence, lied to the court and dragged out proceedings -- civil contempt, with the defendant facing severe costs and fines or a two-year prison sentence if he fails to pay that fine.

The court's focus upon and analysis of the costs -- in time, money, effort, and expertise -- of spoliation and dilatory tactics to the justice system is both spot on and timely. The lessons drawn from the reality underlying the court's analysis, however, are discouraging. * * *

Victor Stanley took the money and time to fight. Many, many parties requesting e-discovery simply cannot afford to fight so long a battle -- they cannot wait for a verdict to recoup the loss which led them to court to begin with, cannot afford the costly motions and cannot engage experts.

Moreover, Victor Stanley got lucky -- it found itself before a judge who understood e-discovery.

For each such lucky requesting party, countless more find themselves before courts who are confused, indifferent to or hostile to all of that "computer stuff." Reading the opinion in Victor Stanley, the defendants' actions correctly appear to have been egregious, but the facts in that opinion were anything but obvious: experts took hundreds of hours to gather and analyze the evidence and the court took hundreds more to assimilate it. Unlike a gory murder scene, a computer crime scene doesn't jump out at you.

So, the bad news is that there are many more Victor Stanley scenarios that go undetected than those that come to the surface, that the cost of bringing them to the surface makes doing so all but prohibitive, and that when such uncovering of evidence does take place, it is at a cost to all of the other litigants whose cases must sit. One can only hope that the good news of the contempt citation may persuade future parties from acting with the same disrespect for the legal process as did defendants here.

A second article, headed "Blow Out: Judge Grimm artfully deflates an obnoxious litigant," by Craig Ball of Law Technology News, is dated Oct. 1 and is available here.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Courts in general

Ind. Courts - Current 2nd District attorney on JNC writes letter to Indy Star

Outgoing 2nd District attorney member of the Judicial Nominating Commission, John C. Trimble of Lewis Wagner LLP, Indianapolis, had this letter to the editor published in the Star's Oct. 5, 2010 issue. He responded to a prior letter published in the Star that:

... suggested that Indiana's procedure for selecting Indiana Supreme Court justices lacks public input and independence. Respectfully, those statements are untrue, and the Missouri Plan method for selecting appellate judges serves the citizens of Indiana very well.

The recent selection process that resulted in the appointment of Judge Steven D. David to the Indiana Supreme Court exceeded all prior precedent for direct public access and input. For the first time, candidate applications were posted online, which allowed the press and the public to review every detail of applicant information. In addition, the public had access to the candidates' writing samples, letters of recommendation and academic transcripts.

Journalists from across the state attended the interviews. Photography was allowed, with some photos viewed as many as 700 times. Bloggers were permitted to observe and report on the questions posed by the commissioners and the answers of the candidates, and citizen observers were also present.

As a commissioner, I can attest that our members received input on the candidates from legislators, other elected officials, appellate judges, trial judges, academia, business interests, citizens and friends and foes of the candidates.

Indiana is one of a solid majority of states that select appellate judges through some form of appointment.

By adhering to an appointment process, Indiana avoids the ugly spectacle of the runaway spending that occurs in states that hold contested elections for appellate judges.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Indiana Courts

Ind. Courts - Responses by candidates to the question: "Why Second District attorneys should vote for you for the Judicial Nominating/Qualifications Commissions"

The ILB several weeks ago extended the opportunity to all five candidates for the upcoming 2nd District vacancy on the Judicial Nominating / Judicial Qualifications Commission to submit for publication in the ILB a photo and a 350-word statement of "why lawyers in the 2nd district should vote for them." All five candidates responded before the deadline of COB Monday, Oct 4.

Today, Oct. 12, is the day the Clerk of the Courts is mailing out ballots to attorneys in the 2nd District. The ILB urges you to open your envelope and vote yet this week, while the candidates are fresh in your mind. In past elections the response has been abysmal, one report says a 25% return.

In this entry from Sept. 28, I promised an analysis of the attorney members of the Commission over time. I haven't done that. But I can tell you that for its first 18 years, the Commission's attorney members were elected for six-year terms and the terms were not staggered. As a result, for the years from 1972 to 1978, the same three lawyers, and they appear to have been mainly plaintiffs attorneys, served together on the Commission. The same held true for the next half-dozen years, and the six years that followed.

This chart gives the overview. (The shaded names are those of attorneys who have served more than one term on the Commission.)

In 1986 the General Assembly reduced the six-year terms for attorney commissioners to three-year terms. At the time the change went into effect, the three attorney commissioners were serving terms that began on January 1, 1984, and would expire December 31, 1989. A transitional section of the law provided that the attorney commissioners elected for terms to begin on January 1, 1990 had terms of one, two, and three years, depending upon the district. Thereafter, the terms were three-years. Again, the results can be seen in the chart.

Why the change? I can't determine. PL 184-1986 (HEA 1428) was authored by Rep. Robert F. Hellman (D) of Terre Haute, and sponsored by Senators William L. Soards (R), Indianapolis, and William D. McCarty (D), Anderson. It passed the House 95-4 and the Senate 47-0. All attorneys. After leaving state government, Sen. Hellman worked as a lobbyist for the Indiana Trial Lawyers Association.

In 2007, in the most recent race for the 2nd District, there were two candidates. The same for the First District in 2009. Three candidates competed for the Third District spot in 2008.

This year there are five candidates for the 2nd District spot. This may be a record, spurred on by the high interest in the recent Supreme Court interviews, but we may never know, because in the past the records of these elections have been retained by the Court for only three years.

The five this year include two attorneys from the Indy Big 3 law firms and one solo practitioner; two women and three men; civil defense and criminal defense attorneys; a plaintiff's attorney and a law professor; trial litigators and appellate practitioners; several attorneys who mainly represent business, one who represents individuals injured by other individuals or big companies, and one who defends the indigent.

Here are their responses, arranged in the order received.



No photo locatedDavid Hennessy

Attorney, Indianapolis
Marion County

Why Second District attorneys should vote for me for the Judicial Nominating/Qualifications Commissions

The Judicial Nominating Commission and Judicial Qualifications Commission can benefit from a wide variety of perspectives. Since their inception in 1970 they have not had the benefit of the perspective of a small time, sole practitioner concentrating in criminal defense. That lawyer is before one judge or another nearly every day. I am that lawyer.

With regard to the JQC, I have been practicing criminal defense for 28 years and have seen many judges come and go. I have noticed a decline in timeliness in starting court sessions and civility towards lawyers, litigants and citizens. Many lawyers and most citizens have no idea that they can file a complaint against a judge much less how to do so. The availability of that process needs greater exposure and the process itself needs greater transparency. I would also like to see increased sensitivity to the manifestations of the deleterious effects of stress on judges and early intervention.

With regard to the JNC, the recent Supreme Court vacancy attracted a multitude of highly qualified candidates and was very transparent. I want that to continue and extend to all actions of the JNC. The composition of the bench should be reflective of the composition of the community. Efforts for reflectivity should be made in identifying candidates and motivating them to apply. However, the goal of diversity should not consume the process or dictate an outcome.

I am sincere and have no personal agenda. I have no firm and my practice needs no boost and cannot benefit from the position. My candidacy offers an alternative never previously available.



No photo locatedKathy Osborn

Attorney, Indianapolis
Marion County

Why Second District attorneys should vote for me for the Judicial Nominating/Qualifications Commissions

My professional background and knowledge of Indiana’s judicial system make me uniquely qualified to represent 2nd District attorneys. I have appeared in a variety of courts and know first-hand the importance of having an effective judiciary. My practice ranges from pro bono representation of indigent parties to representation of multi-national corporations. I have been a member of two Inns of Court and currently chair the IBA's Appellate Practice Section. As such, I've worked outside the courtroom with judges and litigators, both civil and criminal, and am familiar with courtroom operations and the broad cross-section of people who lead and practice in our trial and appellate courts.

Before practicing law, I provided training on topics such as organizational change to improve community access for people with disabilities. I have both the maturity and skills needed to work with Commission members and be a force toward productive group dynamics.

As an appellate practitioner and close court observer (I have been one of the appellate decision columnists for Res Gestae since 2000), I desire to contribute to the judicial selection process by recommending candidates who will seek to do justice and are not beholden to special interest groups. This is essential because the Commissions make decisions that go to the core interests of all citizens, be they individuals, large corporations, small businesses, governmental entities or non-profit organizations.

I believe the Commissions can best fulfill their missions if their members are diverse and bring a variety of viewpoints to the table. Unfortunately, the attorney elections historically have been cast as plaintiff's versus defense bar races. This perspective does a disservice to Indiana citizens, all of whom deserve appellate judges who have the desire and ability to evaluate the law objectively. Moreover, there never has been a female attorney elected to the Commissions.

Learn more about me at my campaign Facebook page.

I am not solely a plaintiff's lawyer, nor am I solely a defense lawyer. I will bring a balanced perspective and an open mind to the Commissions, and I will be a true representative and public servant.



No photo locatedWilliam E. Winingham

Attorney, Indianapolis
Marion County

Why Second District attorneys should vote for me for the Judicial Nominating/Qualifications Commissions

I have been actively engaged in trial practice throughout Indiana for 31 years. My background includes 6 years in the criminal justice system, with 3 years as a deputy prosecutor in Marion County and then 3 years as an assistant U.S. attorney for the southern district of Indiana. For the last 25 years I have worked in the civil justice system, representing persons and small businesses harmed by the misconduct of others. During my career I have tried over 100 cases. This experience has provided me with a broad perspective on the importance of having fair and impartial judges. I have seen the effect of appellate and Supreme Court decisions on our clients, and recognize the importance of those decisions consituting legal precedent and therefore affecting lawyers and litigants throughout Indiana. I am seeking a position on this Commission because I believe my litigation background and experience would provide an important perspective on the Commission.

Now that our four children are out of high school and either off to college or have graduated from college, I have more time available to give back to the legal community. Devoting time to the JNC would be one way to do that. One thing that has always been important to me has been maintaining relationships with lawyers in all areas of practice throughout Indiana. I enjoy the interaction with other attorneys, and have tried to promote civility and respect for one another. I feel that I can speak for and represent all lawyers from different firms and counties on this Commission.



No photo locatedJoel Schumm

Attorney, Indianapolis
Marion County

Why Second District attorneys should vote for me for the Judicial Nominating/Qualifications Commissions

I would bring hard work, sound judgment, high expectations, innovative ideas, and a proven ability to work well with others to the Qualifications and Nominating Commissions.

If you are a regular ILB reader, you know my work. This summer I attended and blogged from the 34 preliminary and 9 semifinal Indiana Supreme Court interviews. I researched and wrote about several different aspects of the applicants and the process, including detailed posts about reversal rates of the trial judge semifinalists. If elected to the Commission, I’d bring this same diligence and the same probing questions and analysis directly to the process.

My posts highlighted important considerations in selecting judges. My candidacy is not being backed by a group of plaintiff’s or defense lawyers. I simply want to select smart, engaged, grounded, respectful, and impartial judges. My gender or practice background would not dictate my decisions; indeed, I wrote about the importance of a woman on the Court and the need for a justice who understands complex civil litigation.

The quality of our judges is essential to the functioning of our system of justice, and I would bring high expectations to both the selection and discipline process. I am fortunate to place students with many wonderful judges through the law school’s Court Externship Program. Unfortunately, there are occasional aberrations. I know how difficult it is for a lawyer to file a complaint against a judge, and I would give careful consideration to each complaint filed.

Finally, being one of seven member of the commission requires an ability to work with others, listen, engage, and persuade. I’ve honed those skills while serving with lawyers, judges, citizens, and even a former Governor on various committees. A broad topic worth further discussion is public accessibility. On nomination side, this could include webcasting interviews. The important work of qualifications commission might warrant more than a few pages in an annual report or an opinion or two each year. More specifically, the nominating commission could require semifinalists to write a judicial opinion, as the Governor’s office required of the three finalists.



No photo locatedJan M. Carroll

Attorney, Indianapolis
Marion County

Why Second District attorneys should vote for me for the Judicial Nominating/Qualifications Commissions

Experience matters – in life and in the practice of law. Twenty-five years of practicing in Indiana courts have given me extensive exposure to the state’s trial and appellate judges. My cases have taken me to trial courts from Lawrenceburg to Crown Point, Vincennes to Angola, Richmond to Terre Haute, and New Albany to South Bend, including most of the counties in the Second District. I have handled nearly fifty appeals, and have argued cases before both the Indiana Supreme Court and Court of Appeals. That first-hand experience has given me a keen appreciation of the attributes that we all look for in a judge: fairness, intelligence, diligence, patience, an even temperament, and respect for the rule of law.

The breadth of my practice extends to many substantive areas of the law: business disputes; land use and real estate litigation; First Amendment, defamation, and public access litigation; personal injury and product liability; marital dissolutions; and representation of licensed professionals. I have represented individuals and businesses, plaintiffs and defendants. I have been honored by the opportunity to speak to the Indiana Judicial Conference on public access to judicial records and court proceedings, and on issues of news coverage of the courts. Since 1991, as a member of the Indiana Supreme Court Committee on Character and Fitness of Attorneys, I have interviewed nearly 200 bar applicants about their knowledge of the Rules of Professional Conduct.

My interest in the Judicial Nominating Commission and the Commission on Judicial Qualifications dates back to my years as the Indiana Statehouse correspondent for The Associated Press. As a reporter, I covered both commissions’ activities, including the work that led to the appointment of Justices Shepard and Dickson to the Indiana Supreme Court. When I left The AP and joined Barnes & Thornburg, I expressed a desire to run for the Commission, but concluded that I lacked the experience and gravitas to make an effective contribution. Now, with the perspective of twenty-five years of practice, and the lessons learned in countless courtrooms around Indiana, I am prepared for the challenges that face each member of these important commissions.

Posted by Marcia Oddi on Tuesday, October 12, 2010
Posted to Indiana Courts

Monday, October 11, 2010

Law - "New blog examining the 'intersection between criminal law and emerging technology'"

So reports Sentencing Law Blog here.

Posted by Marcia Oddi on Monday, October 11, 2010
Posted to General Law Related

Courts - "Facebooking in Court: Coping With Socially Networked Jurors"

Check out the Law.com article by Harry A. Valetk here. A useful article, it concludes:

[E]nforcing court rules on the way jurors behave during trial goes beyond what formal jury instructions can do. Trial judges, counsel and even fellow jurors have a role to play. Here are a few suggestions that lawyers should consider incorporating into modern-day trial practice:

Probe jurors during voir dire on Facebook and Twitter use. Establish frequency of use and a juror's ability to refrain from using social networking tools during trial.

Monitor juror Facebook and Twitter activity during trial. Tools like Social Mention allow you to search blogs, microblogs, networks, videos and much more. This engine also allows you to create alerts for your search terms that you can have e-mailed to you daily.

Ask the trial judge to remind jurors that they may come forward to report a fellow juror's misconduct. The judge should also remind jurors about the fines and other potential consequences for failing to follow the court's ban on communicating with others about the case.

Warn jurors before and after every jury break about the court's ban on communicating with others about the case during trial, including the use of Facebook, Twitter and other web-based tools.

Explain the logic behind the presumption of juror prejudice. Jurors today may be more receptive to complying with court-ordered bans on communicating with others during trial if they understand the logic behind the ban.

Posted by Marcia Oddi on Monday, October 11, 2010
Posted to Courts in general

Courts - "2nd Circuit Overturns Religious License Plate Restriction"

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

Today Mark Hamblett of the New York Law Journal reports in a long story that begins:

A state law that prohibits vanity license plates containing religious messages violates the Free Speech Clause of the First Amendment, the 2nd U.S. Circuit Court of Appeals ruled Friday.

The 2nd Circuit said a Vermont statute that barred a driver from obtaining a vanity plate referring to the Biblical verse John 3:16, "impermissibly restricts expression from a religious viewpoint."

Judges Amalya L. Kearse, Reena Raggi and Debra Ann Livingston said the Vermont law was fatally flawed because it distinguished between people who sought to express secular and religious views "on the same subject" in Byrne v. Rutledge, 07-4375-cv.

[More] How Appealing has just posted a link to this column in Politics Daily by Andrew Cohen, headlined "Vanity Plates, the First Amendment, and a Judge on the Rise." A sample:
Judge Livingston then delivered the coup de grace. "The infirmities in Vermont's application of its own statute are amply demonstrated by the case at bar. Byrne applied for the plate JN36TN, which the state refused to issue because Byrne's supplied meaning indicated his intent to refer to the biblical passage John 3:16. However, as Byrne argues, and the record supports, Vermont would have approved that very same combination had Byrne supplied a secular meaning for it – e.g., `[M]y name is John, I am 36, [and] I was born in Tennessee.'"

Posted by Marcia Oddi on Monday, October 11, 2010
Posted to Courts in general

Ind. Gov't. - Editorials on IURC firing

Updating this Oct. 6, 2010 entry on the IURC firing, here are two editorials published Sunday, Oct. 10th:

Fort Wayne Journal Gazette - "Match action to standards." A quote:

Action is necessary following the governor’s firing of David Hardy, the chairman of the Indiana Utility Regulatory Commission. Hardy failed to enforce ethical standards involving the IURC attorney. As State Reps. Win Moses and Pat Bauer suggested last week, this could be the tip of the iceberg of ethical problems in the agency.

Because most public utilities enjoy monopoly status, the IURC is vitally important to Hoosiers. Regulators must balance the interests of utilities to receive a fair return and consumers to pay a fair price. When regulators are too closely tied to the utilities, the balance can easily be tipped. The governor should not be able to appoint all members of the commission.

Indianapolis Star - "Too close for comfort: Regulating the regulators." Here is the entire editorial:

Checking the influence of energy companies and other powerful special interests in state government is a monumental challenge.

They spend millions on election campaigns and lobbying. They tempt administrators and elected officials with choice jobs, even top positions. They generously offer their minions to the agencies that are supposed to regulate them.

What are a governor and legislature to do?

More than Indiana's leaders have done, recently or historically. The controversy over Scott Storms is far from the first exposure of weakness in state ethics vigilance.

Gov. Mitch Daniels is to be commended for taking action after it was revealed that Storms, while general counsel and chief administrative law judge for the Indiana Utility Regulatory Commission, was engaged in matters involving Duke Energy and was talking with Duke about the job he has since taken with the company.

Daniels fired IURC Chairman David Lott Hardy and ordered a review of decisions regarding Duke's Edwardsport coal gasification plant. He assigned Inspector General David Thomas to look into possible conflicts of interest and false reporting to the Indiana Ethics Commission. Duke, doing its PR part, put Storms and its Indiana president, Mike Reed (a former IURC executive director), on paid leave.

Unfortunately, the governor seems inclined to let the affair end there. He replaced Hardy as chairman with Commissioner Jim Atterholt, a former AT&T lobbyist. He says he's confident the rulings on the costly Edwardsport generator are correct. Most disappointingly, he sees no systemic problems with the IURC or Ethics Commission.

Yet both panels, all of whose members are appointed by the governor, inexcusably dropped the ball in the Storms case. The debacle was yanked into the light by outsiders, led by the Citizens Action Coalition, who have been pressing the point for years that state regulation of utility rates, environmental quality and other consumer concerns has been dominated by the regulated industries themselves.

Given the now-well-known revolving door between Duke and the IURC, along with other examples of coziness between government and business, the watchdogs make a compelling case for imposing a measure of independence. Calls from Democrats for a federal probe are premature, but the time is ripe for reform.

State Rep. Edward DeLaney, D-Indianapolis, plans to submit legislation to require approval by the legislature of IURC appointments, as is the law in more than 30 states. Daniels is cool, but not closed, to the idea.

Legislative review is no panacea, but at least it would subject appointments to this crucial governmental body to public airing and debate. Ties to regulated industries could be challenged, to the extent that a legislature that has shown little passion over such issues cares to raise a fuss.

DeLaney's idea is more workable than that of state Rep. Scott Pelath, D-Michigan City, who wants IURC members elected. Big money would play a direct role in such a process and unaffiliated candidates might well be marginalized.

DeLaney says he hopes to start a conversation about the whole range of state commissions, agencies and departments where compromise is a danger, including the Department of Environmental Management, Department of Transportation and the Ethics Commission.

The discussion is long overdue. Under intense media pressure, the legislative and executive branches have made progress in putting distance between themselves and their would-be manipulators in the private sector. The one-year cooling-off rule for switching from public to private employment is an example. As the failure of the IURC and Ethics Commission showed in the Storms episode, however, laws and rules are only as effective as the people who enforce them. Those people take their cue from the surrounding culture. At the Statehouse, conflict between special interests and the people's interest never has been the automatic red flag it ought to be. The good old boys are presumed innocent until the watchdogs bark. The burden of proof needs to be transferred to those who would profit and those who are sworn to police them.

Posted by Marcia Oddi on Monday, October 11, 2010
Posted to Indiana Government

Ind. Courts - "Five appellate judges up for election, no campaigning"

The Terre Haute Tribune-Star ran this story by Maureen Haydeen (CNHI) yesterday, and the Gary Post-Tribune has the same story today (crediting the Anderson Herald Bulletin).

Early voting has been going on here in Marion County for a week already, but the story is still relevant for those who haven't voted yet.

Some quotes:

The candidates are five judges on the 15-member Indiana Court of Appeals up for a retention vote in the Nov. 2 general election. Like their colleagues in the state’s appellate courts — including the Indiana Supreme Court — they were appointed to their positions but must earn the support of voters to stay there.

But you won’t see bumper stickers or yard signs soliciting votes for L. Mark Bailey, Cale J. Bradford, Elaine B. Brown, Melissa S. May or Margret G. Robb — the five Court of Appeals judges up for retention.

According to state law, judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.

Unlike in some states — including Illinois, Iowa and Colorado where appellate-level judges up for retention this November are targets of well-financed campaigns to oust them — no organized opposition has emerged so far in Indiana.

It likely won’t, predicts court observer Joel Schumm, a clinical professor of law at Indiana University School of Law-Indianapolis and director of its Judicial Externship Program.

“I think most voters in Indiana assume they’re doing a good job and will vote to retain them,” Schumm said.

That’s been the trend. There’s been no election since a 1970 voter-approved constitutional amendment ushered in the appointment/retention system in which an Indiana appellate judge lost his or her seat. * * *

The candidates are five judges on the 15-member Indiana Court of Appeals up for a retention vote in the Nov. 2 general election. Like their colleagues in the state’s appellate courts — including the Indiana Supreme Court — they were appointed to their positions but must earn the support of voters to stay there.

But you won’t see bumper stickers or yard signs soliciting votes for L. Mark Bailey, Cale J. Bradford, Elaine B. Brown, Melissa S. May or Margret G. Robb — the five Court of Appeals judges up for retention.

According to state law, judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.

Unlike in some states — including Illinois, Iowa and Colorado where appellate-level judges up for retention this November are targets of well-financed campaigns to oust them — no organized opposition has emerged so far in Indiana.

It likely won’t, predicts court observer Joel Schumm, a clinical professor of law at Indiana University School of Law-Indianapolis and director of its Judicial Externship Program.

“I think most voters in Indiana assume they’re doing a good job and will vote to retain them,” Schumm said.

That’s been the trend. There’s been no election since a 1970 voter-approved constitutional amendment ushered in the appointment/retention system in which an Indiana appellate judge lost his or her seat.

In response to a push in 2007 by Indiana Senate President Pro Tem David Long, R-Fort Wayne, to give voters more information about the retention process, the Division of State Court Administration created a website, courts.IN.gov/retention.

The website offers biographical information on each judge, as well as links to their court decisions, and video clips of selected oral arguments over which the judges presided.

ILB: Not to appear unduly testy, but the ILB believes it paved the way.

Some background: In 2005 I published an article ("Voting to Retain or Reject Indiana Judges and Justices," 49 Res Gestae 3 (Oct. 2005), pp. 21-23) that caused something of a stir in the Statehouse. Here are some quotes:

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

Although I disagree with Senator Young’s proposed amendment, I believe there is merit in his contention that voters need information about judges’ records in order to make informed decisions. I can attest, albeit via anecdotal evidence, that this is not for lack of trying on the part of some citizens.

In last November's election, Judge John T. Sharpnack was up for another 10-year term. In the week before the election, the hits to the Indiana Law Blog tripled. Interested to find out why, I looked at my site's statistics. Almost all the extra hits were the result of search engine inquiries for various variations of the name "Judge Sharpnack." My interpretation: These were voters who wanted to find out more about the Judge so that they could cast intelligent votes.

My own experience is that locating information, even on when an Indiana judge or justice will be on the ballot, is time-consuming. The generally excellent Indiana Courts site has information, in the judges’ and justices’ biographies, about when they were initially appointed. But after that, people apparently are on their own. * * *

Back to the question of how is a voter to acquire information to help in deciding whether a judge or justice should be retained? Without such information, all would agree, the retention process is meaningless.

In September of 2006 the ILB created and posted the first Judicial Retention Website in Indiana, which has served as a model for those that followed. (Note: The link to the ILB's 2006 Retention Website is no longer active.)

Posted by Marcia Oddi on Monday, October 11, 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 10/11/10):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 10/18/10):

Next Wednesday, October 20th

  • 9:00 AM - Mauricio Martinez v. State of Indiana (49A02-0910-CR-948) - The Marion Superior Court admitted Martinez's confession into evidence, and a jury found him guilty of murder. The Court of Appeals rejected Martinez's argument that his confession had not been voluntary, and affirmed the conviction in an unpublished memorandum decision, Martinez v. State, No. 49A02-0910-CR-946, slip op. (Ind. Ct. App. May 17, 2010), trans. pending. Arguing that he misapprehended his Miranda rights, which had been given to him in Spanish, Martinez has petitioned the Supreme Court to accept jurisdiction over the appeal.

  • 9:45 AM - In re: the matter of A.B., a Child Alleged to be a Delinquent (71S00-1002-JV-156) - The St. Joseph Probate Court entered an order modifying the disposition in this juvenile delinquency case, placing the juvenile in an out-of-state program, and requiring the Indiana Department of Child Services ("DCS") to pay for the placement. In doing so, the court found that DCS's recommendations for in-state placement were unreasonable and not in A.B.'s best interests and that several statutes giving DCS a role in the placement of juveniles are unconstitutional. DCS appeals directly to the Supreme Court.

    ILB: This case involves the issue of the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs. The ILB has had a long list of entries on this issue. See particuarly this Oct. 16, 2009 entry.

  • 10:30 AM - State of Indiana ex rel. Gregory F. Zoeller v. Aisin USA Manufacturing, Inc. (36S01-1009-CV-469) - The State sued to recover money sent to a corporate taxpayer as an erroneous tax refund, but the Jackson Superior Court ruled that it lacked subject matter jurisdiction to hear the case and dismissed. The Court of Appeals affirmed. State ex rel. Gregory F. Zoeller v. Aisin USA Mfg., Inc., 926 N.E.2d 83 (Ind. Ct. App. April 27, 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: The April 27, 2010 COA opinion is summarized in this ILB entry. The issue is whether the tax court, rather than the Jackson Superior Court, had exclusive jurisdiction over the subject matter of the State's claims.

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 10/11/10):

  • No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 10/18/10):

Next Tuesday, October 19th

  • 10:30 AM - R.H. v. State of Indiana (71A03-1003-JV-206) - Whether the juvenile court abused its discretion by awarding custody of R.H. to the Department of Correction. The Scheduled Panel Members are: Chief Judge Baker, Judges Vaidik and Najam. [Where: Supreme Court Courtroom (WEBCAST)]

  • 1:00 PM - Jamarr Da-Juan Williams v. State of Indiana ( 45A03-1001-CR-39) - Jamarr Da-Juan Williams was convicted following a jury trial of voluntary manslaughter, battery, and attempted battery, and sentenced to thirty years. On appeal, Williams argues the trial court committed fundamental error in refusing to instruct the jury regarding the lesser-included offense of involuntary manslaughter. He also argues the evidence was insufficient to rebut his claim of self-defense. The Scheduled Panel Members are: Judges Kirsch, Robb and Mathias. [Where: Valparaiso High School, 2727 Campbell Street, Valparaiso, Indiana ]

Next Wednesday, October 20th

  • 10:30 AM - David A. Lanham v. State of Indiana (60A01-1003-CR-114 ) - David Lanham was convicted of Possession of Marijuana and Possession of Paraphernalia. On appeal, he claims that the trial court abused its discretion by admitting evidence gained during a search of his residence. More specifically, Lanham contends that the search warrant rested solely upon uncorroborated hearsay from a juvenile informant and thus was not supported by probable cause as required by the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The Scheduled Panel Members are: Judges Darden, Bailey, and Sr. Judge Barteau. [Where: Oakland City University, 405 I Street, Bedford, Indiana ]

  • 1:30 PM - Town of Avon v. West Central Conservancy District, et al (32A05-1003-PL-149) - Appellant is appealing the trial court's granting of Summary Judgment as to whether a municipality has the authority to regulate the withdrawal of groundwater when the scarcity of the water supply has been documented by experts. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]

  • ??? - Charles E. Green v. State of Indiana (49A05-1001-CR-37) - NO OTHER INFO POSTED

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, October 11, 2010
Posted to Upcoming Oral Arguments

Sunday, October 10, 2010

Ind. Gov't. - Fort Wayne Senator's "Indy house is a reclaimed beauty"

The Indianapolis Star's "Homefinder" magazine section today features on the cover and inside a much-illustrated story headed "@Home in Meridian Park with Sen. Tom Wyss." Some quotes:

The historic house is just steps away from the home of their daughter, son-in-law and granddaughters -- and that was enough to inspire them to buy and lovingly restore it.

As a bonus, the house is near Tom's work. He is a senator for Indiana's 15th district in Fort Wayne, so the Indianapolis address is convenient in that it puts him close to the Indiana Statehouse. * * *

The Wysses purchased the house in 2005, but didn't move in until February 2007.

No word on whether the home is his "primary residence" for property tax homeowner's exemption purposes.

Today's "Political Notebook" column in the Fort Wayne Journal Gazette, by reporters Niki Kelly and Benjamin Lanka, has this item:

The Indianapolis Star recently featured Fort Wayne Republican state Sen. Tom Wyss’ home on its website and Sunday print edition.

The only problem? The pictorial is about his Indianapolis home.

Wyss and his late wife, Shirley, moved into the Indianapolis house in 2005 and restored the 1911 home.

The Star piece refers to the house as Wyss’ second residence, saying his primary home is still in Fort Wayne. [ILB: Actually, I don't see that in the Star article.] It notes that Wyss stays in the Indianapolis home when visiting his daughter, who lives across the street, and during the legislative session.

Interesting timing, to say the least, that voters are reminded during an election contest about Wyss’ ties to another city.

And Wyss’ Democratic opponent, Jack Morris, wasted no time in issuing a statement on the issue. He offered to drive to Indianapolis to debate Wyss, who has declined other debate requests.

Posted by Marcia Oddi on Sunday, October 10, 2010
Posted to Indiana Government

Saturday, October 09, 2010

Environment - "Vreba-Hoff dairies foreclosure in federal court"

Dennis Pelham of the Adrian Michigan Daily Telegram is reporting this afternoon, Oct. 9, 2010, in a long story:

HUDSON, Mich. — A mortgage company has filed a foreclosure action against Vreba-Hoff dairies near Hudson and in Fulton County [Ohio]. A federal judge is to hear an emergency motion Oct. 19 on a request to appoint a receiver to take over the dairies.

Delaware-based Rabo Agrifinance filed a complaint Oct. 5 to foreclose on $55 million in loans in federal court in Grand Rapids.

The dairy company has defaulted on loan payments and allowed property taxes to go unpaid, and the dairy property is being devalued by state government action over environmental law violations, Rabo Agrifinance stated in its complaint. * * *

The foreclosure action follows a state court decision last month that the two Vreba-Hoff dairies south of Hudson had violated consent agreements regarding the operation of manure treatment systems ordered built several years ago. The Michigan Department of Natural Resources and Environment is asking a circuit court judge to order the dairies to remove 600 cows a month until the treatment facilities achieve mandated results.

A $580,000 lien was ordered on the two dairies and an Oct. 18 hearing was scheduled to decide on herd reductions and other penalties.

Posted by Marcia Oddi on Saturday, October 09, 2010
Posted to Environment

Courts - Protest during military funerals oral argument

The SCOTUS recently announced that this term it would make audio tapes of oral arguments available at the end of each week, rather than waiting until the end of the term. Taking advantage of that after the first week of this term, C-SPAN has taken the most publicized oral argument of the week, Snyder v. Phelps, and put the audio online along with synchronized video showing photos of each speaker. Access it here. Here is the description:

One of the first cases of the new Supreme Court term questions the constitutionality of holding protests during military funerals. The case, Snyder vs. Phelps, involves members of the Westboro Baptist Church who held a protest to express the belief that the deaths of U.S. soldiers in Afghanistan and Iraq are punishment for the country’s tolerance of homosexuality and abortion. Justice Ginsburg said that this is a case of exploiting a family’s grief and doubted that the church members’ actions are protected by the First Amendment.
Combine this with SCOTUSblog's Snyder v. Phelps case page and you have the opinion below, all the briefs, and the SCOTUSblog coverage. Plus this link will give you all of the SCOTUSblog's "round-up" pages which link to newspaper coverage and other commentary mentioning the case.

Posted by Marcia Oddi on Saturday, October 09, 2010
Posted to Courts in general

Courts - The Rise of the Specialized Supreme Court Bar [Updated]

Long, fascinating article today by the NY Times Adam Liptak.

[Updated 10/11/10]
For more on this, see this entry by Orin Kerr in The Volokh Conspiracy, along with the long list of comments.

Posted by Marcia Oddi on Saturday, October 09, 2010
Posted to Courts in general

Friday, October 08, 2010

Ind. Courts - "Hogsett marks first day on the job"

See WISH TV 8 report here.

Posted by Marcia Oddi on Friday, October 08, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 8, 2010 [Updated]

Here is the Clerk's transfer list for the week ending October 8, 2010. It is one page (and 2 cases) long.

Two transfers were granted last week, both were granted with opinion:

__________

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.

[Updated] Note that the search capability is now current through the October 8, 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 Friday, October 08, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - "State workers still owed back pay, but not as much" [Updated]

The COA decision earlier today in Richmond State Hospital, et al. v. Paula Brittain, et al. (ILB summary here) is the subject of this story by the Indianapolis Star reporter, Jon Murray. Some quotes:

The Indiana Court of Appeals today upheld a Marion County judge’s ruling that the state owes millions in back pay to state workers, but the decision reduced the $42.4 million judgment by about half.

Filed by current and former state workers, the lawsuit contended that as many as 15,000 employees worked 40-hour weeks from 1973 to 1993, yet received the same pay as others in similar jobs who logged only 37.5 hours.

But while the trial court had granted back pay to all affected employees for 20 years, the Court of Appeals today ruled that some of the affect employees, who worked for various agencies, should only receive about two months’ back pay based on their employment classification.

This is because they were governed by "merit" rules that required any grievance over working conditions to be filed within 10 days — meaning, the Court of Appeals ruled, that they can only receive back pay starting 10 days before the lawsuit was filed in July 1993. The state changed the unequal work week policy in September 1993. * * *

The class of "non-merit" employees will still receive about $18.7 million, depending upon each member’s work history. But the Court of Appeals has ordered the trial court to recalculate how much the merit employee group is entitled to; they now could receive just a fraction of their previous $23.7 million share of damages.

[Update at 4:30 pm] The Star's Murray has now interviewed John Kautzman, the lead attorney for the plaintiffs:
[Kautzman said he] was gratified that the Court of Appeals upheld the finding of liability against the state.

But he added: "We are reviewing our options as to whether we are going to seek clarification from the court as to the methodology of selecting the proper starting date for the damages calculation." He said his view is that even if some of the employees fall under the 10-day notice restriction, the state was aware of the problem earlier than 1993.

The AG's spokeperson "called the court's reduction of the judgment significant but said the office was still reviewing the decision to decide whether to continue appealing," according to the Star story.

Posted by Marcia Oddi on Friday, October 08, 2010
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (4):

Richmond State Hospital, et al. v. Paula Brittain, et al. is the state employees' back pay suit where plaintiffs were awarded $42 million in trial court - see list of ILB entries here. Judge Crone writes at p. 39 of the 54-page opinion:

The trial court found that the class period extended from at least September 19, 1973 (an early benchmark for the existence of split classes), until September 19, 1993, when the State abolished the split class system by moving all employees to a 37.5-hour work week. Thus, the State's monetary liability was based on the back pay owed to the Employees over this twenty-year period. However, the State argues that the merit Employees' back pay is limited to the period beginning ten days before the filing of the complaint, filed July 19, 1993, and ending September 12, 1993.
The opinion concludes:
We reverse the trial court's finding that the merit Employees, represented by Veregge and Strong, are entitled to twenty years of back pay and remand with instructions to recalculate the merit Employees' back pay based on the time period beginning ten days before the July 29, 1993, complaint was filed and ending when the State abolished the split class system. On remand, we instruct the trial court to determine whether the State abolished the split class system on September 12 or September 19, 1993. We affirm the trial court's judgment in all other respects.
In Earl Budd v. State of Indiana , a 16-page opinion in a pro se case, Judge Vaidik writes:
Earl Budd appeals the post-conviction court’s denial of his successive petition for post-conviction relief. He challenges Indiana Code section 35-50-6-3.3(h)(2)(B), which provides that educational credit time is subtracted from the period of imprisonment imposed by the sentencing court if a person completes a degree before July 1, 1999, and has been convicted of criminal deviate conduct. Budd argues that the post-conviction court erred by finding that this provision does not violate the United States and Indiana Constitutions as a bill of attainder, an ex post facto law, and a denial of equal protection. Concluding that the post-conviction court did not err by finding that Section 35-50-6-3.3(h)(2)(B) does not constitute a bill of attainder, an ex post facto law, or a denial of equal protection, we affirm.
R.R.F. v. L.L.F. - child support issues.

In Victor J. Bandini v. Joann M. Bandini , a 22-page opinion, Judge Robb writes:

We conclude the parties’ settlement agreement contemplates an equal division of Husband’s gross military retirement pay, but pursuant to federal law, amounts previously waived by Husband as deductions from gross retirement pay were not properly divisible in the dissolution decree. We further hold that, consistent with Indiana and federal law, a military spouse may not, by a post-decree waiver of retirement pay in favor of disability benefits or CRSC, unilaterally and voluntarily reduce the benefits awarded the former spouse in a dissolution decree. Thus, Husband must compensate Wife for the reduction in her amount of retirement pay caused by Husband’s post-decree waiver and election of CRSC. Finally, we conclude the trial court did not abuse its discretion by finding Husband in contempt nor in its award of attorney fees to Wife. Accordingly, we affirm in part, reverse in part, and remand.
NFP civil opinions today (2):

Fraternal Order of Police, Evansville Lodge No. 73 v. City of Evansville, IN. (NFP)

Indiana Parole Board v. Martin De La Torre (NFP)

NFP criminal opinions today (5):

Ronald J. McGary v. State of Indiana (NFP)

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

Steven A. Reynolds v. State of Indiana (NFP)

Jeremy M. Frantzreb v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, October 08, 2010
Posted to Ind. App.Ct. Decisions

Environment - "White House 'Asian Carp Czar' Outlines His Strategy For Eradicating Species"

NPR yesterday afternoon on "All Things Considered" ran this nearly 5 minute story on Indiana's John Goss:

Almost a month ago, the Obama administration appointed an "Asian carp czar." John Goss, who reports to an office in the White House, oversees the government-led effort to eradicate the species.

In an interview with NPR's Robert Siegel, he detailed his game plan, which includes "removal of carp from the Chicago area, strengthening the electric fish barrier system — also on the South Side of Chicago, and a number of research projects into long-term solutions."

Posted by Marcia Oddi on Friday, October 08, 2010
Posted to Environment

Thursday, October 07, 2010

Ind. Gov't. - "Governor accepts BMV Commissioner's resignation"

From a press release just issued:

This afternoon, Andy Miller resigned effective immediately as the Commissioner of the Bureau of Motor Vehicles. The governor has named R. Scott Waddell, the BMV's chief of staff, as the new commissioner. Governor Daniels issued this statement about Andy Miller:

"Andy Miller has been an exceptional public servant. Indiana farmers, flood victims, motorists and taxpayers in general all have benefited from his hard work and leadership in three important capacities. I also know him to be a devoted father to three children, including one saved from cancer by Riley Children’s Hospital, for which Andy in turn has raised substantial funds in gratitude. If things are as reported, the law must be respected, but either way this is just an extremely sad situation."

Waddell joined the BMV in March 2009 as deputy commissioner for policy. He later was named chief of staff for finance and administration. He owned and was president of Standard Locknut, Inc., a precision component manufacturing company in Westfield from 1977 to 2007, when he sold the company.
For background, see this ILB entry from late yesterday.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Government

Ind. Decisions - More on: Not everyone is happy with our Supreme Court's unauthorized practice decision

Updating this ILB entry from April 22, 2010, in fact United Financial Systems was so unhappy with the decision in the case of State ex Rel. Indiana State Bar Association v. United Financial Systems Corporation, et al. (ILB summary here) that it appealed to the Supreme Court of the United States.

On Oct. 4th, the SCOTUS denied cert.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "After Client Adoption Files Blow Into Public View, Court Reprimands Attorney" [Updated]

The Indiana Supreme Court disciplinary ruling in In the Matter of Steven C. Litz (ILB summary here, 2nd case) is the subject of a story this afternoon by Leigh Jones of The National Law Journal. Some quotes:

An Indiana adoption lawyer whose client files were scattered in the wind after his adult children left boxes of them beside a recycling bin has received a public reprimand.

The Indiana Supreme Court on Sept. 30 issued the reprimand against Steven Litz, whose Monrovia, Ind., practice focuses on adoption and criminal law. The court noted that it was the third time Litz had received a public reprimand.

Litz directed his two children to take about 14 boxes of client files he wanted to discard to a local recycling bin, according to the decision. Finding that the bins were full, they left the boxes on the ground beside the bins and did not tell Litz. The wind later blew the tops off the boxes and sent some of the papers flying into public view. After someone notified Litz of the situation, he and his children retrieved the documents. * * *

In 2008, the Indiana Supreme Court issued a public reprimand against Litz for directly communicating with another lawyer's client. In 1999, the court reprimanded him for writing a letter to local newspapers about his client's innocence during a retrial. The court in that case found that his conduct violated Indiana's ethics rules forbidding attorneys from making extrajudicial statements that may prejudice a court proceeding.

Litz handles surrogacy and adoption cases, in addition to drunk driving and general criminal matters.

[Updated 10/11/10] The Indianapolis Star now has a story on the reprimand.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Mongomery County renames building after its Circuit Court Judge

The Paper 24-7 ("of Montgomery County online") has a report today by Frank Phillips that begins:

Circuit Court Judge Thomas Milligan was honored Wednesday when the Montgomery County Commissioners unanimously passed a resolution that the Montgomery County Court Services Building at 307 Binford St. shall be renamed the Thomas K. Milligan Justice Center.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Courts

Ind. Courts - SD Ind. has opening for another magistrate judge

Applications are due Nov. 3, 2010. Application.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Courts

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

Updating this ILB entry from Sept. 29 and this one from Sept. 24, the Toledo Blade is reporting this afternoon:

COLUMBUS — The Ohio Supreme Court said Thursday it will not reconsider an earlier decision that allowed a Swanton man to have custody of his biological son.

The ruling appears to pave the way for Benjamin Wyrembek to be united with his nearly 3-year-old son, who has been raised since birth by an Indiana couple who were attempting to adopt the child.

Mr. Wyrembek's attorney, Alan Lehenbauer, contended that his client had followed all the appropriate legal procedures to obtain custody of his son after learning a former girlfriend was pregnant with his child. Mr. Wyrembek registered with Ohio's Putative Father Registry and filed a petition in juvenile court to establish paternity and obtain custody of the child.

Still, nearly three years have elapsed while he battled in court with his son's adoptive parents, Jason and Christy Vaughn of Sellersburg, Ind.

Here is the Ohio Supreme Court's 5-page denial of the motion for consideration.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Courts

Ind. Decisions - 7th Circuit ruling on fast track sentencing [Updated]

In USA v. Jaime Reyes-Hernandez, a 36-page opinion in two cases out of Illinois, Judge Kanne writes:

The Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), taken together with other recent cases, has rekindled debate about whether sentencing disparities created by fasttrack programs can be considered by district court judges in non-fast-track districts when crafting individual sentences. We address that issue today. Because both cases present the same issue on appeal, we consolidate them for the purpose of our review.

In the first case, Jaime Reyes-Hernandez pled guilty for illegally re-entering the United States after he had been removed twice following a conviction for the aggravated felony of robbery. The district court sentenced him to forty-one months’ imprisonment, the most lenient sentence available under the applicable guideline range for his offense level and criminal history category. In the second case, Pedro Sanchez-Gonzalez pled guilty to illegally re-entering the United States after being removed following a conviction for the aggravated felony of domestic battery. The district court sentenced him to seventy-seven months’ imprisonment, which was at the lowest end of the guidelines range for his offense level and criminal history category.

In both cases, the district court refused to even consider imposing below-guidelines sentences, thereby refuting defendants’ claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in “fast-track” districts. Both defendants ask us on appeal to abandon our precedent and provide district courts with the latitude to consider fast-track-type sentences as part of their 18 U.S.C. § 3553(a) analyses. For reasons stated below, we grant their requests. We therefore vacate both sentences and remand to the district court for resentencing. * * *

We hold that § 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. Because the judges in the district courts were precluded by our prior precedent from considering the defendants’ fast-track arguments, we do not determine today whether the appellants would have in fact been eligible for such consideration, nor do we opine on the reasonableness of their sentences. The sentences of Reyes-Hernandez’s and Sanchez-Gonzalez’s are VACATED, and their cases are REMANDED for re-sentencing consistent with this opinion.

[Updated at 2:32 pm] The Sentencing Law Blog has now posted this entry headed "Major Seventh Circuit ruling permitting judges to vary from guidelines based on fast-track disparity."

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil opinions today (1):

L. Steven Beckham, Jacquelyn K. Beckham, and Amos Agri Products, Inc. v. Lafayette Bank and Trust Company (NFP)

NFP criminal opinions today (5):

Dorris Merriweather III v. State of Indiana (NFP)

Louis Jenkins v. State of Indiana (NFP)

Jamie Lee Benton v. State of Indiana (NFP)

Allen Elston v. State of Indiana (NFP)

Steven Pritt v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on: How significant are halting foreclosures to the housing market overall?

Supplementing yesterday's ILB entry, which included this quote from the NPR story:

But how significant are halting foreclosures to the housing market overall?

The answer to that question depends largely on whether banks and their loan servicing operations were sloppy just on this final affidavit, or all the way through the process.

Today's lengthy Washington Post story by Brady Dennis and Ariana Eunjung Cha, headed "In foreclosure controversy, problems run deeper than flawed paperwork," may foretell the answer. Here are several quotes from within the article:
At the core of the fights over the legal standing of banks in foreclosure cases is Mortgage Electronic Registration Systems, based in Reston.

The company, known as MERS, was created more than a decade ago by the mortgage industry, including mortgage giants Fannie Mae and Freddie Mac, GMAC, and the Mortgage Bankers Association.

MERS allowed big financial firms to trade mortgages at lightning speed while largely bypassing local property laws throughout the country that required new forms and filing fees each time a loan changed hands, lawyers say.

The idea behind it was to build a centralized registry to track loans electronically as they were traded by big financial firms. Without this system, the business of creating massive securities made of thousands of mortgages would likely have never taken off. The company's role caused few objections until millions of homes began to fall into foreclosure. * * *

"Assertions that somehow MERS creates a defect in the mortgage or deed of trust are not supported by the facts," a company spokeswoman said.

But that's precisely what lawyers are arguing with more frequency throughout the country. If such an argument gains traction in the wake of recent foreclosure moratoriums, the consequences for banks could be enormous.

"It's an issue of the whole process of foreclosure having been so muddied by the [securitization] process," said Bush, the banking analyst. "It is no longer a straightforward legalistic process, which is what foreclosures are supposed to be."

Janet Tavakoli, founder and president of Tavakoli Structured Finance, a Chicago-based consulting firm, said that for much of the past decade, when banks were creating mortgage-backed securities as fast as possible, there was little time to check all the documents and make sure the paperwork was in order.

But now, when judges, lawyers and elected officials are demanding proper paperwork before foreclosures can proceed, the banks' paperwork problems have been laid bare, she said.

The result: "Banks are vulnerable to lawsuits from investors in the [securitization] trusts," Tavakoli said.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Courts in general

Ind. Courts - "Warrick County will elect its first female prosecutor in November"

Garret Mathews of the Evansville Courier & Press has this report today on the contest between Dawnya Taylor and JoAnn Krantz.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Courts

Ind. Decisions - "Indiana Supreme Court sees no problem with drug searches of any car parked in a public lot"

That is the headline to a story today in The Newspaper.com ("A journal of the politics of driving"), referencing the Supreme Court decision Sept. 30th in the case of State v. James. S. Hobbs, IV (see ILB summary here). Some quotes:

Cars in public parking lots can be searched at any time by police with drug sniffing dogs, the Indiana Supreme Court ruled last week. The precedent was handed down in the case of James S. Hobbs IV who was arrested on March 13, 2009. State troopers had an arrest warrant for Hobbs and were waiting for him across the street from the Pizza Hut where the suspect worked. At 9:15pm, Hobbs left the restaurant and placed an object in his car, but the police were not able to grab Hobbs before he returned to the restaurant.

While Hobbs was placed under arrest inside the Pizza Hut, a drug dog was used to search his car. Marijuana was found. A trial court ruled the search illegal because it was conducted without a warrant. The court of appeals disagreed, as did a divided supreme court.

Hobbs had argued that because he was in the restaurant under arrest, the usual "officer safety" excuse to search a vehicle did not apply, nor could the necessity of preserving evidence be used to excuse the lack of a search warrant because the arrest warrant for Hobbs had nothing to do with drug charges.

"Most cases addressing the automobile exception arise in the context of an arrest or an investigatory stop of a motorist that gives rise to probable cause, but the exception is grounded in the mobility of the vehicle and its location in a public area, not on whether the issue arises in the context of an arrest or a traffic stop," Justice Theodore R. Boehm wrote for the majority. "Under the exception, an operational vehicle is inherently mobile, whether or not a driver is behind the wheel or has ready access.... It is well settled that a dog sniff is not a search protected by the Fourth Amendment. Accordingly, no degree of suspicion is required to summon the canine unit to the scene to conduct an exterior sniff of the car or to conduct the sniff itself."

The Newspaper.com looks to have a number of interesting stories. Go to the home page and scroll down. See, for example, the "Red Light Camera Studies Roundup."

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Yet more on "Magistrates failing to keep up with case loads"

Updating this list of earlier ILB entries, Bob Kasarda of the NWI Times reports today in a story that begins:

VALPARAISO | An Oct. 1 deadline has passed without Porter County Magistrate James Johnson catching up on a backlog of cases pending in his court.

Johnson, who was out sick for nine days since being given the deadline a couple months ago, has completed much of the work and has been given a couple extra weeks to wrap up the job, according to his supervisor, Porter Superior Judge Roger Bradford.

Bradford said he and temporary judges will cover the current caseload in Johnson's court over the next couple of weeks.

The judges had been relying on attorney Mary DeBoer to hear the new cases while Johnson worked on the backlog.

Bradford said once the work on the backlog is complete, he assumes Johnson will return to his post in the court with a plan in place to avoid future delays in cases.

Posted by Marcia Oddi on Thursday, October 07, 2010
Posted to Indiana Courts

Wednesday, October 06, 2010

Ind. Courts - Justice Boehm: Sr. Justice Boehm: Sr. Judge Boehm?

Updating this ILB entry from yesterday, Oct. 5, which noted four Supreme Court opinions signed Oct. 5, 2010 by Justice Boehm, although he reportedly resigned effective Sept. 30th, a reader has just pointed out this press release from the Court, dated today, that announces:

The Court of Appeals of Indiana will hear oral argument in Stacy Price v. State of Indiana on Wednesday, October 6th at 1:00 p.m. in the Auditorium of Benton Central Jr.-Sr. High School. A panel of Chief Judge John G. Baker, Judge Margret G. Robb, and Senior Judge Theodore R. Boehm will hear the case on appeal from the Howard Superior Court.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Courts

Ind. Gov't. - 6 News: "BMV Head [allegedly] Arrested On Public Indecency Charge" [Updated]

Here is another headline you don't really want to see.

[Updated 10/7/10] Here is the front-page Indianapolis Star story this monring, headed "BMV chief arrested in public indecency case: IMPD says he exposed himself to undercover officer in public restroom."

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Government

Courts - How significant are halting foreclosures to the housing market overall?

An excellent review from NPR's All Things Considered, audio will be available at about 7 pm.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to General Law Related

Ind. Courts - "Kagan to Oversee Emergency Appeals for 6th and 7th Circuits"

So reports Tony Mauro today in this article from The National Law Journal. - "the same circuits her predecessor John Paul Stevens handled before retiring in June."

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Courts

Ind. Gov't. - Here is a headline you really don't want to see

"Regulators postpone Duke hearing amid scandal"

It heads this just-posted IBJ story by Chris O'Malley that begins:

The Indiana Utility Regulatory Commission canceled a hearing set for Thursday on Duke Energy Corp’s controversial Edwardsport generating plant amid a conflict-of-interest scandal that cost the agency’s chief his job.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Government

Environment - Still more on "Contaminated soil from Louisville arena site dumped in Clarksville"

Updating ILB entries from May 13th and May 14th, 2010, Ben Zion Hershberg reports today in the Louisville Courier Journal in a story that begins:

After an investigation of more than five months, Indiana environmental regulators believe at least six times more dirt was hauled to the privately-owned Marrs fill site in Clarksville from the Louisville arena construction site than they originally were told, and some or all of it may be contaminated.

The Indiana Department of Environmental Management is attempting to determine exactly where the estimated 78,000 cubic yards of soil and concrete was dumped within the 22-acre Marrs property. The site is licensed to accept only clean fill.

“Our main goal is to find out where it’s all at,” Doug Bentfield, environmental health specialist with the Clark County Health Department, said Tuesday. If the material at Marrs is contaminated, Bentfield said, “our primary goal is to get the stuff out as soon as possible.”

Benjamin Marrs, the landfill’s owner, acknowledged in July after being questioned by state and local environmental inspectors that he had received thousands of truckloads of material from the site of the soon-to-open KFC Yum! Center in downtown Louisville.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (0):

In Charles J. Kennedy v. State of Indiana , a 19-page opinion, Judge Barnes writes:

The issues before us are: I. whether the trial court properly admitted DNA evidence tending to implicate Kennedy in the robbery; II. whether the trial court properly permitted the testimony of a witness who was not discovered by the State until mid-trial; and III. whether Kennedy's sentence is inappropriate. * * *

[I] Kennedy is challenging the very highly technical details of how Keeling conducted her testing. We believe this is the very reason the rules of evidence provide for expert witness testimony. The details of how DNA testing is conducted are beyond the ready grasp of laypersons, or judges and lawyers for that matter. Furthermore, DNA testing is not always a black-and-white science. Keeling, whom Kennedy recognizes as a qualified expert in this field, testified that DNA analysts almost always have to exercise some degree of discretion in testing. Chakraborty also agreed that trained and qualified DNA analysts can have reasonable disagreements regarding proper test results. We believe this clearly is a case where the dispute between Keeling and Chakraborty regarding the precise details of her testing methods goes to the weight of her results, not their admissibility. Kennedy was permitted to and in fact did present to the jury a detailed critique of Keeling's methods. The trial court did not abuse its discretion in admitting the results into evidence. * * *

[II] Defense counsel was able to depose Felty, as well as several other witnesses with information related to Felty's testimony. Felty did not testify for seven days after she was discovered; when she did testify, defense counsel was able to vigorously cross-examine her. Certainly, it is never an ideal situation for a witness to be newly-discovered in the midst of trial, which creates added pressure on counsel at an already stressful time. Nevertheless, where there is no indication the State engaged in any misconduct and defense counsel had an opportunity to investigate Felty and her testimony, we cannot say the trial court abused its discretion in permitting her to testify. * * *

[III] In sum, we find nothing in the record to suggest that Kennedy's sentence is inappropriate, either on its own merits or in comparison to Willis's sentence.

Conclusion. The trial court did not abuse its discretion either in admitting the results of Keeling's DNA testing into evidence or in allowing the late-discovered witness Felty to testify. Additionally, Kennedy's twenty-seven-year sentence is not inappropriate. We affirm Kennedy's convictions and sentence.
Affirmed.

NFP civil opinions today (0):

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

NFP criminal opinions today (0):

Term. of Parent-Child Rel. of C.R.; N.Q. & J.R. v. I.D.C.S. (NFP)

Samuel Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on the upcoming JNC/JDC election [Updated]

As the ILB reported in this August 3, 2010 entry:

Ballots and biographies of each candidate will be mailed to all Second District attorneys on October 12, 2010. Ballots are due by 4:00 p.m. on November 10, 2010. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 12, 2010.
This year there is much interest in the election. Five individuals have submitted their candidacy.

The ILB several weeks ago extended the opportunity to all five candidates to submit their photo and a 350-word statement of why lawyers in the 2nd district should vote for them, for publication in the ILB. I am happy to report that all five candidates responded before the deadline of COB Monday, Oct 4.

When will this feature run? My plan is to post it on the morning of Tuesday, Oct. 12, the very date the ballots are mailed out.

For background, here is a list of earlier ILB entries on the 2nd district JNC/JDC election:

  • August 3, 2010 - Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

  • Sept. 2, 2010 - Court charges for miscellaneous services and the race for the Judicial Nominating Commission

  • Sept. 9, 2010 - More on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

  • Sept. 10, 2010 - Still more on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

  • Sept. 17, 2010 - Even more on: Nominations open for the 2nd District attorney member of the Judicial Nominating Commission

  • Sept. 28, 2010 - The attorney members of the Judicial Nominating Commission - Part I

  • Oct. 1, 2010 - Warning: You may not receive a ballot for the upcoming JNC election

  • Oct. 5, 2010 - "Role of the Judicial Nominating Commission in Judicial Selection"

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Courts

Ind. Gov't. - "IURC Appointment process differs from most states" [Updated]

Tim Evans has this story in the Indianapolis Star today, suggesting that Indiana's utility commissioners might better be elected, or at least subject to legislative confirmation. Some quotes:

In Indiana, the governor has absolute authority to appoint the five-member IURC.

"In 47 other states, utility regulators are either elected by the voters or approved by one or both chambers of the General Assembly," said Kerwin Olson, program director for the consumer advocacy group Citizens Action Coalition.

"We've been clamoring about this for 30 years -- and the problems that are coming out now are the exact reason we need regulatory reform. It is time to get the fox out of the henhouse."

"We elect 157 officials to oversee our state tax dollars," Olson said, "but we do not elect a single person to oversee utilities."

Ideally, Indiana voters would elect IURC members, he said. At the minimum, though, he said his group wants gubernatorial appointments confirmed by a majority vote of both houses of the General Assembly.

There are plenty of models for Indiana leaders to examine.

In 11 states, voters elect commission members, typically during primary elections, according to data collected by CAC. Some, such as Alabama, conduct partisan elections. But in others, including Georgia, races are nonpartisan, although candidates do sometimes declare a party affiliation.

Commissioners in more than 30 other states -- including Illinois, Kentucky, Michigan and Ohio -- are appointed by governors but then approved by the Senate or both houses of the legislature.

Still, Olson said, changing the way business is done in Indiana will not be easy -- regardless of the party in power.

"What party is in control is not really an issue," he said, "because of the influence the utilities have at the Statehouse. They've got dozens of lobbyists and truckloads of cash. And now, it is apparent, they are dictating outcomes at the commission, too."

ILB thoughts: Be careful what you wish for. The "truckloads of cash" would certainly come into play if utility commissioners were on the ballot, and requiring legislative confirmation would occasion intense lobbying, where the utility interests have it all over citizen groups insofar as money and connections are concerned.

Indiana's system of selecting utility commissioners parallels in many ways our system of selecting appellate judges. There is a 7-member nominating commission (IC 8-1-1.5-3):

... not more than four (4) of whom shall belong to the same political party and none of whom may be a member of the general assembly.
(b) The governor shall appoint three (3) members of the nominating committee and designate one (1) as chairman. The speaker of the house of representatives, the president pro tempore of the senate, the minority leader of the senate, and the minority leader of the house of representatives shall each appoint one (1) member of the nominating committee. Each appointment shall be certified to the secretary of state within ten (10) days of the appointment.
(c) Each member of the nominating committee shall be appointed for a term of four (4) years.
Under IC 8-1-1.5, the nominating commission interviews candidates and submits three names to the govenor. The governor may name one, or reject them all, and call for an additional panel - once.

IC 8-1-1-2 provides that the Utility Regulatory Commission shall consist of 5 members, "at least one (1) of whom shall be an attorney qualified to practice law before the supreme court of Indiana and not more than three (3) of whom belong to the same political party." The members of the commission are appointed for a term of four years, except when a member is appointed to fill a vacancy, in which case such appointment shall be for such unexpired term only. The governor appoints the chair. A member may be removed by the governor "for cause." "The chairman of the commission shall assign cases to the various members of the commission or to administrative law judges for hearings."

IC 8-1-1-3 provides at (c) that "The commission may appoint one (1) or more administrative law judges who shall be responsible to and serve at the will and pleasure of the commission. While serving, the administrative law judges shall devote full time to the duties of the commission and shall not be actively engaged in any other occupation, profession, or business that constitutes a conflict of interest or otherwise interferes with carrying out their duties as administrative law judges" and at (e) that "On order of the commission any one (1) member of the commission, or an administrative law judge, may conduct a hearing, or investigation, and take evidence therein, and report the same to the commission for its consideration and action; however, a hearing concerning a request for a general increase in the basic rates and charges of a utility in an amount exceeding twenty million dollars ($20,000,000) may only be conducted by one (1) or more commission members."

As I wrote in an earlier post, the problems here, to my mind, are structural, if you think of the commissioners and their ALJs as serving a quasi-judicial, rather than an executive/administrative, function.

Comments?

An attorney reader writes:

Also, we would need to consider who has the authority to fire a commissioner if need be. If the IURC is elected, the governor won’t. Impeachment? Not for something like allowing an employee to cross lines like this.

Nominating Commission sounds about right. Just need to tighten the rules on this agency and all ALJs while we are at it.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Government

Ind. Gov't. - "Daniels fires chairman of utility regulatory agency"

The Louisville Courier Journal's Lesley Stedman Weidenbener has this coverage today on the IURC firing - the lengthy story begins:

INDIANAPOLIS – Citing ethics problems at the agency, Gov. Mitch Daniels fired the chairman of the Indiana Utility Regulatory Commission on Tuesday and ordered the commission to review some of its decisions involving Duke Energy.

An internal investigation shows that David Lott Hardy, who has chaired the utility commission since 2005, knew that its chief administrative law judge was presiding over a Duke Energy case at the same time that the judge was talking to the company about a job, the governor’s office said.

But Hardy did not remove the official from the case, a controversial proceeding about construction of a coal gasification power plant in Edwardsport, said David Pippen, the governor’s general counsel, in a letter explaining the issue to other state agency heads. * * *

Citizens Action Coalition Executive Director Grant Smith said he’s not surprised by the governor’s finding. Smith also said problems at the utility agency are larger than issues with the former administrative law judge, Scott Storms, who now works in Duke’s legal department.

“From the beginning, we didn’t think this power plant should be built and now it appears to us to be a quid pro quo from the standpoint that Storms had significant influence at the commission,” Smith said. “We believe the original order to approve the plant should be vacated and money returned to the ratepayers.”

The governor’s office said Tuesday that all Duke opinions over which Storms presided “will be reopened and reviewed to ensure no undue influence was exerted in the decisions.”

It was not clear Tuesday which decisions that would include. IURC spokeswoman Danielle McGrath did not return a message seeking comment.

Daniels’ action came just weeks after the coalition first raised questions about Duke’s hiring of Storms, which was considered and approved by the Indiana Ethics Commission.

Since then, Duke has put Storms and Michael Reed, president of Duke Energy-Indiana, on administrative leave as company officials investigate the issues as well. The company has hired an outside attorney to conduct that review, said company spokeswoman Angeline Protegere.

Jeff Swiatek and Tim Evans report today in the Indianapolis Star under the heading "Ethics controversy erupts as governor fires IURC chair." Some quotes from far into their long story:
Duke's most pressing regulatory filings in recent years involve its $2.9 billion coal gasification plant under construction in Edwardsport in Southern Indiana. Storms was integrally involved at the IURC in regulatory matters involving the plant and Duke's wish to bill ratepayers for its construction costs before the plant opens as the first in the nation to use a new cleaner-burning technology to generate electricity from coal. [ILB: for background, see this ILB entry from Oct., 4, and its link to CWIP entry.]

"We'd like to see the Edwardsport case reopened and re-evaluated for misconduct," Olson said. "We feel the commission ignored evidence and essentially has given a blank check to Duke" to forge ahead with its construction despite cost overruns, he said.

Julia Vaughn, policy director for another government watchdog group, Common Cause/Indiana, questioned whether Inspector General Dave Thomas -- being an appointee of the governor -- is in a good position to lead a probe into other appointees of the governor.

Instead, the investigation of the IURC should be handled by the U.S. attorney's office, she said. "That way, people can be assured a really independent investigation is done."

Vaughn said the matter involving Storms and Hardy "raises a lot of serious questions about decision-making" at IURC and also casts a cloud over the state ethics commission, which approved Storms' move to Duke without the mandated "cooling-off" period that bans high-level government officials from taking a job with a company they regulate for one year after leaving their state job.

"It raises questions about their ability to make decisions," she said of the ethics commission. "If you read the transcript (of meetings where Storms' case was discussed), they didn't come off as being very professional or very concerned."

The commission decided that Storms didn't have to abide by the one-year ban because he didn't hold a decision-making job at the IURC.

In his Tuesday memo to agency heads, Daniels' general counsel countered that ethics commission finding, saying that from now on, "administrative law judges who preside over information-gathering and order drafting" come under the one-year ban on working for companies they help regulate.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Indiana Government

Ind. Courts - "Newton County prosecutor reprimanded for lapsed license"

The Sept. 30, 2010 Supreme Court disciplinary ruling, In the Matter of James E. Barce, is the subject of a brief story today by Sophia Voravong in the Lafayette Journal Courier. The ILB summarized the ruling in this entry (last case), and linked to a long list of earlier entries. Here are some quotes from today's story:

The 3-2 ruling, written by Supreme Court Justice Brent E. Dickson, largely echoed the recommendation and findings of hearing officer Thomas Busch, who determined that Barce's misconduct was not intentional and caused few ramifications.

Busch, the judge of Tippecanoe Superior Court 2, was appointed by the Supreme Court to preside over Barce's proceedings. A public hearing was held in Lafayette on April 9.

The Supreme Court had final say on what type of discipline Barce received.

Barce also was ordered Tuesday to pay back registration fees. That amount is not outlined in Dickson's two-page decision.

Currently, inactive attorneys in Indiana pay $65 for annual registration fees, or half of the cost for active attorneys. * * *

A public reprimand is one of the lower types of punishment an Indiana attorney can receive for misconduct. Other options include private reprimand, suspension and disbarment. * * *

A three-term elected prosecutor, Barce submitted affidavits indicating inactive status in 2005, 2006, 2007 and 2008.

He testified during the April 9 hearing in Lafayette to not understanding what he filled out. Busch also noted that the paperwork was confusing in his recommendation to the Supreme Court.

This is Barce's last year in his third term as prosecutor. He lost in the May Republican primary.

ILB: From the opinion:
The costs of this proceeding are assessed against Respondent. Those costs shall include the difference between the reduced fees Respondent paid and the active status fees for the years he was on inactive status.
If I remember the annual registration form correctly, "active status fees" increase appreciably if you miss the deadline ... It is not clear whether that penalty applies here. In addition, the opinion says nothing about making up CLE credits.

Posted by Marcia Oddi on Wednesday, October 06, 2010
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 05, 2010

Ind. Gov't. - More on: "Governor terminates IURC chairman, issues ethics memo to agency heads"

Supplementing two earlier ILB entries from today, Chris O'Malley of the IBJ is now reporting:

Duke Energy Corp. placed Mike Reed, president and CEO of its Indiana operations, on administrative leave Tuesday afternoon in the wake of a state investigation that involves the company and resulted in the dismissal of the chairman of the Indiana Utility Regulatory Commission.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Government

Ind. Decisions - More opinions from Supreme Court

According to this press release, Justice Boehm stepped down from the Supreme Court, effective Sept. 30, 2010. But here are two more opinions issued today, making a total of four dated Oct. 5, 2010, signed by Justice Boehm.

In Wayne D. Kubsch v. State of Indiana, an 18-page, 5-0 opinion, Justice Rucker concludes:

We affirm the judgment of the post-conviction court.
In In the Matter of Paternity of P.S.; B.S. v. L.S. & G.D, a 6-page opinion, 5-0 opinion, Justice Rucker writes:
Father appealed the trial court’s denial of his motion for relief from judgment. Because Father failed to demonstrate the trial court abused its discretion in so doing, we affirm the judgment of the trial court. * * *

In this case Father advances no argument explaining how the trial court may have abused its discretion in denying his 60(B)(2) motion for relief. For example Father does not contend that evidence newly discovered after the date of the trial court’s order of dismissal entitles Father to relief; nor does Father suggest any extraordinary set of circumstances occurring since the entry of the trial court’s order of dismissal that warrant the grant of Father’s 60(B)(2) motion. Instead the substance of Father’s claim is a challenge to the merits of the trial court’s order of dismissal. We decline to entertain this attempted but untimely appeal of the trial court’s order. The Judgment of the trial court is affirmed.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Nevin Brooks v. State of Indiana , a 19-page opinion, Sr. Judge Barteau writes:

Defendant-Appellant Nevin Brooks appeals his conviction of and sentence for felony murder. We affirm.

Brooks raises six issues for our review, which we restate as:
I. Whether the juvenile court abused its discretion in waiving jurisdiction over Brooks.
II. Whether the admission of evidence obtained through a pat down search was proper under the Fourth Amendment.
III. Whether the admission of evidence obtained through a pat down search was proper under Article I, Section 11 of the Indiana Constitution.
IV. Whether the trial court erred in denying Brooks’ motion for mistrial.
V. Whether the State presented sufficient evidence to support the conviction.
VI. Whether the sentence imposed was inappropriate.

[Re #VI, the opinion concludes] We note that the trial court considered Brooks’ age in fashioning the sentence imposed. The court also considered Brooks’ criminal history. He is not a little boy who can be trusted to mend his erring ways; he is a hardened individual who, in the midst of committing a series of crimes, robbed and murdered a random victim. Given the nature of the offense and the character of the offender, we cannot conclude that the sentence imposed by the trial court is inappropriate. Affirmed.

In State of Indiana v. Amanda Renzulli , a 23-page, 1-1-1 decision, Judge Riley begins her 7-page "majority" opinion with a footnote #1 that reads: "Under the criteria set forth in Appellate Rule 65, I vote not to publish this opinion." The opinion continues:
The State presents one issue, which we restate as: Whether the trial court's grant of Renzulli's motion to suppress is contrary to law. * * *

Here, we agree with the State that the 911 caller who spotted the blue Volkswagen should be considered an identified informant or concerned citizen, as opposed to an anonymous tip, and, thus, the tip was a circumstance which bore in favor of reasonable suspicion. However, we conclude that the police failed to "couple" the concerned citizen's tip with corroborative investigation. * * *

In light of the lack of any evidence that the police officers corroborated that Renzulli's car was the vehicle which the 911 caller referred to, we cannot conclude that the trial court's grant of the motion to suppress was contrary to law.

Based on the foregoing, we conclude that the trial court's grant of Renzulli's motion to suppress was not contrary to law. Affirmed.

MATHIAS, J., concurs in result with separate opinion.
BRADFORD, J., dissents with separate opinion.

Judge Mathias opinion runs from p.8-13:

I respectfully concur in result. I do so believing that the State's procedural decisions at the trial court level have forfeited its appeal. * * *

For all of these reasons, I would hold that although the State had the right to appeal from the trial court's order granting Renzulli,s motion to suppress, the State's right to appeal was forfeited when it failed to file its notice of appeal within thirty days after that order. * * *

Although I believe that the State's appeal should be dismissed, the practical effect of such a dismissal would be that the trial court's order granting Renzulli's motion to suppress would remain undisturbed. This is the same result as Judge Riley's conclusion that the trial court's suppression order should be affirmed on the merits. I therefore concur in result.

Judge Bradford's dissent runs from pp. 14-23. It begins:

Because I believe that the trial court erroneously granted Renzulli's motion to suppress all evidence derived from the investigatory stop of Renzulli's vehicle and that the State timely filed the instant appeal, I respectfully dissent.

NFP civil opinions today (5):

Tyra L. Brooks v. Larry D. Brooks (NFP)

David Ramos v. Robert W. James, et al. (NFP)

Term. of Parent-Child Rel. of B.D.; G.D. v. IDCS (NFP)

Mardi Clemens v. Daniel Clemens (NFP)

Debra L. Walker v. David M. Pullen (NFP)

NFP criminal opinions today (7):

William Moore v. State of Indiana (NFP)

David Likens v. State of Indiana (NFP)

Kristopher G. Runkle v. State of Indiana (NFP)

Angel L. Highbaugh v. State of Indiana (NFP)

Robert Lavaugh Ackles v. State of Indiana (NFP)

Thomas L. White v. State of Indiana (NFP)

Roderick L. Ensley v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Second decision today from the Supreme Court

In Indiana Department of State Revenue v. Belterra Resort Indiana, LLC, an 11-page, 3-2 opinion. Justice Rucker writes:

In this opinion we address the question of whether a contribution by a parent corporation to the capital of its subsidiary is automatically excluded from Indiana use tax. We conclude it is not. * * *

We reverse the decision of the Tax Court, and enter summary judgment in favor of the Department.

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

Boehm, J., dissents with separate opinion in which Dickson, J., joins.

I respectfully dissent. I believe the majority adopts a definition of contribution to capital that incorrectly assumes a contribution to capital is for no consideration, and then imports contract law notions of consideration to conclude that Belterra's transfer of this riverboat to its subsidiary was not a contribution to capital. * * *

Importing the step transaction doctrine into Indiana tax law should be done, if at all, on a more fully developed argument in the Tax Court. I would affirm on this record, where the argument was not “developed,” and we therefore do not have the Tax Court‟s analysis of it.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: "Governor terminates IURC chairman, issues ethics memo to agency heads"

ILB thoughts: I just took at look at the Indiana Utility Regulatory Commission re its organization, and read this. The IURC has three divisions: Technical Operations, Internal Operations/Governmental Affairs, and General Counsel. Re the latter (my emphasis):

General Counsel Scott R. Storms serves as the chief legal advisor to the Indiana Utility Regulatory Commission. His office provides complete legal support for all aspects of the Commission's operation, including ethics and court reporting. Attorneys in the Office of General Counsel serve as Administrative Law Judges in formally docketed Commission proceedings; conduct legal research on a wide range of issues; participate in matters before the Federal Energy Regulatory Commission; and work in concert with the Attorney General's Office on appeals of Commission Orders and other litigation involving the Commission. Check here for hearing procedures.
Maybe it is time to change this.

When IDEM was first created in 1985, its ALJs were also inhouse. They worked for the Commissioner. Their decisions were subject to appeal to the part-time air, water, and waste boards - they were not the AOPA ultimate authority. To exhaust administrative remedies IDEM ALJ rulings had to be reviewed and finalized by the environmental boards before they could be appealed to court.

No one was satisfied with this system, with "captive" hearing officers and a two-tier adjudicatory process. Eventually, in 1995, the law was changed and the independent Office of Environmental Adjudication was established.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Government

Ind. Gov't. - "Governor terminates IURC chairman, issues ethics memo to agency heads"

This was just released by the Governor's office: [emphasis by ILB]

Governor terminates IURC chairman, issues ethics memo to agency heads

INDIANAPOLIS (October 5, 2010) -- Governor Mitch Daniels today terminated the employment of David Lott Hardy, chairman of the Indiana Utility Regulatory Commission, effective immediately, and appointed IURC Commissioner Jim Atterholt as the commission’s new chair.

The action follows the departure of the IURC’s general counsel Scott Storms, who accepted employment with Duke Energy of Indiana in September, and a letter Daniels sent shortly thereafter to Hardy outlining his expectations of the IURC in upholding a formal ethics opinion on the matter.

David Pippen, the governor’s general counsel, also sent a memo to all executive branch agency heads. The text is below.

To: All Agency Heads/General Counsels

From: David Pippen, General Counsel to the Governor

Re: Ethics

Recently, a former general counsel and administrative law judge (ALJ) for the Indiana Utility Regulatory Commission left state government to work for Duke Energy of Indiana, a regulated entity. I wrote a letter to the IURC explaining the Governor’s interpretation of the spirit and intention of the ethics reform he spearheaded when he came to office. In short, he will not tolerate even the appearance of impropriety.

Upon the Governor’s direction, an internal review of the matter revealed the lawyer was communicating with Duke regarding a position with the company at a time he was presiding over administrative hearings concerning Duke. Additionally, the agency head was aware of the communications and did not remove the lawyer from matters for which the lawyer was now conflicted.

So you understand the seriousness of this matter, I want you to know our response:

1. The Governor has terminated the employment of the chairman of the IURC;

2. The administrative opinions over which the ALJ presided regarding Duke will be reopened and reviewed to ensure no undue influence was exerted in the decisions;

3. The one-year cooling off period for decision makers are to be considered to include ALJs who preside over information gathering and order drafting; and

4. The matter has been referred to the Inspector General to determine if any laws were broken or misinformation given to the Ethics Commission when requesting a formal opinion;

To reiterate the ethics rules as they relate to regulated entities:

1. No ALJ should engage in communications with regulated entities regarding possible employment without recusing oneself from matters appearing before that regulator;

2. Administrative opinions over which an ALJ presided while pursuing employment opportunities with the regulated entity will be reopened and reviewed to ensure no undue influence was exerted in the decision;

3. The one-year cooling off period for decision makers includes ALJs who preside over information gathering and order drafting; and

4. Violations of these points will be referred to the Inspector General.

Please advise your staff to avoid this circumstance in the future.

Atterholt’s appointment is effective immediately. The governor will request that the IURC Nominating Committee begin the process of accepting applications to fill the open position on the commission.

See also this ILB entry from Oct. 4th.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Government

Ind. Courts - "Role of the Judicial Nominating Commission in Judicial Selection"

Last month (Sept. 3) Adrienne Meiring of the Indiana Judicial Nominating/Disciplinary Commission published this column in Indiana Court Times. Here are some interesting items from the end of the column:

Over the years, what has been the gender distribution of the Nominating Commission’s Supreme Court nominees?

Since 1985, the Judicial Nominating Commission has nominated eight women and sixteen men to the Indiana Supreme Court. (Judge Betty Barteau was nominated by the Commission twice.)

How many of the Commission’s nominees were sitting judges?

Since 1985, thirteen individuals who were selected as the Commission’s final nominees were sitting judges at the time of their nominations. (Judge Barteau was an Indiana Court of Appeals judge at the time of both her nominations.)

Given the role that recommendations play in the selection process, are current judges permitted to submit recommendation letters on behalf of a particular candidate?

Ok, so I sneaked in an ethics question, but I have been asked this one a lot in the last few months. Yes, judges may participate in the selection process by writing letters of recommendation for particular candidates or by otherwise initiating communications or responding to inquiries from Commission members about the professional qualifications of a person considered for judicial office. See Ind. Judicial Conduct Rule 1.3, Comment 3. Judges even may use official court letterhead for these recommendations.

ILB: My question would be the reverse of the last question. Are current judges applying for a higher judgeship permitted to solicit recommendation letters from those who currently may appear before them? (An offer you can't refuse?)

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Term. of Parent-Child Rel. of I.A.; J.H. v. IDCS, a 14-page, 4-1 opinion, Justice Rucker writes:

The trial court terminated Father's parental rights on the grounds that (1) the reason for his child's placement outside of Father's home will not be remedied; and (2) the continuation of the parent-child relationship poses a threat to the well-being of the child. Concluding that the evidence does not clearly and convincingly demonstrate that Father's parental rights should be terminated, we reverse the judgment of the trial court. * * *

DCS has not proven by clear and convincing evidence that there is a reasonable probability that the reasons for Child's placement outside of Father's home will not be remedied or that the continuation of the parent-child relationship between Father and Child poses a threat to the well-being of the child. We therefore reverse the judgment of the trial court terminating Father's parental rights.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with separate opinion:

I respectfully dissent. I recognize that termination of parental rights presents an intrusion by the courts into constitutionally protected interests of the parent. And protection of constitutional rights may require enhanced appellate scrutiny. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 498–504 (1984). The role of the appellate courts, however, is somewhat different in some termination cases than it is in determining whether the record supports a finding of actual malice in a defamation case. The ultimate issues in this case are the likelihood that the conditions leading to the child's removal will not be remedied, and whether continuation of the parental relationship poses a threat to the child. In my view, neither of these is susceptible to the rigorous analysis we seek to apply in determining whether more precise statutory elements are met, or whether the evidence is sufficient to establish a historical fact such as whether the traffic light was red or green. * * *

In sum, I would not disrupt this child's current placement based on failure of the trial court to articulate its reasoning in sufficient detail. In recent years, for good reason, we and most states have taken legislative and administrative steps to avoid prolonged and repeated disruptions in a child's placement. This also favors leaving in place an order that may be on the edge of acceptability but where future review is unlikely to result in a different outcome. I would accept as sufficient the trial court's ultimate findings that continuation of the parental relationship presents a threat to the child's well-being and there is a reasonable probability that the conditions leading to placement outside the home will not be remedied.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Ind. Sup.Ct. Decisions

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

Updating a long list of earlier ILB entries, Leslie Scism and Mark Mremon of the Wall Street Journal report today:

A federal judge allowed the civil-lawsuit claims of an Indiana family to go forward against American International Group Inc., in which the family alleges the insurer was complicit in a "scheme" to let investors buy life insurance on older people as speculative bets.

The claims got the go-ahead last week as the judge ruled on multiple motions in the dispute in U.S. District Court in Indianapolis over a $15 million policy on Germaine "Suzy" Tomlinson, who drowned, fully clothed, in her bathtub in 2008.

The case is one of the highest profile of several hundred pending nationally as families, insurers and investors sort out the legal wreckage from a now-collapsed boom in the secondary market for life policies. In numerous lawsuits—involving what insurance companies call "stranger-originated life insurance"—agents and investors contend the insurers' own managers welcomed the business to boost their compensation, and that they should have to honor the policies. * * *

Last week's ruling by Judge Sarah Evans Barker rejected AIG's efforts to get a summary judgment in its favor. Instead, the judge wrote that the issues raised by Ms. Tomlinson's family "deserve to be fully explored."

At the same time, in a ruling favorable to AIG, Judge Barker concluded that Indiana law allows insurers to raise questions about "insurable interest" even after the standard two-year period for contesting a policy has passed. State insurable-interest laws require a buyer to be a relative, employer or someone else more interested in having the insured person alive than dead.

AIG said in a statement: "We believe that this insurance policy was obtained by fraud. Judge Barker's order grants us the opportunity to prove that at trial. We are confident that we will prevail in this case."

Here is Judge Barker's 23-page, Sept. 30, 2010 Entry on Pending Motions in AIG v. Germaine Tomlinson Insurance Trust. It begins: "The facts of this case are, to say the least, prolix and convoluted."

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "The Fishers Town Council's actions over the past six months remain in effect even though one of its members moved out of his district, the town attorney said Monday"

That is the lede to this story today by Kevin O'Neal in the Indianapolis Star. More:

"For public policy reasons, several months of work and the many decisions made by the council will not be rendered invalid because a member of the council was not eligible to serve," town attorney Doug Church told the council at its meeting Monday. * * *

Because White has not lived the district from which he was elected for most of this year, some have questioned whether the council's actions since then should be allowed to stand. In Church's opinion, the votes and decisions should remain in effect.

Church told the Fishers council that despite eligibility question arising from White's move out of his district, he remained a "de facto" member of the council under Indiana law.

White still was a council member who had the right to vote on council decisions, in Church's opinion, until he resigned when the eligibility question was raised.

"If an officer serves 'de facto,' the officer's official acts are valid despite their ineligibility," Church told the council. "His acts, although not of a lawful officer, remain valid and not subject to attack."

Interesting ....

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Government

Ind. Gov't. - Continuing saga of politics of trash in Lake county

This spring the ILB linked to a NWI Times series on the politics of trash in Lake County.

Bringing you up-to-date:

This Oct. 1, 2010 story by Diane Krieger Spivak of the Gary Post Tribune, headed "Lawyers: County can own bioethanol plant: Taxpayers not liable if county takes ownership of site." A quote:

CROWN POINT -- An Indianapolis law firm has determined that Lake County taxpayers will bear no liability if the county takes ownership of a planned $254 million bioethanol plant.

Lake County Solid Waste Management attorney Cliff Duggan read a release at the district's meeting Thursday night outlining findings by the law firm Barnes and Thornburg.

The district hired the legal firm to determine whether an interlocal agreement turning ownership of the plant over to the county once it opens would leave the county open to liability, either financially or environmentally, as some municipalities had feared.

The firm's legal opinion also determined that the agreement signed between the district and Powers in 2008 does not violate anti-trust or interstate commerce laws in the transportation of garbage from municipalities to the plant for processing into ethanol.

This Oct. 2, 2010 Spivak story that begins:
Earl Powers confirmed Friday that his Evansville-based company Powers Energy LLC has reached an agreement with three Lake County construction firms to build a $254 million garbage-to-ethanol plant in Schneider.

"We agreed to terms, all four of us," Powers said.

Powers Energy sent out a proposed contract by e-mail to the companies Thursday. Powers took representatives of the companies to tour a pilot plant in Fayetteville, Ark., which uses the technology Powers Energy plans to use in its Schneider plant.

The pilot plant is owned by British chemical company Ineos Bio, from which Powers leases its patented process to turn municipal garbage into ethanol.

Powers has an agreement with the Lake County Solid Waste Management District to turn the county's municipal waste into ethanol.

The plant would be owned by the county, but operated and maintained, as well as entirely funded by Powers Energy.

This Oct. 2, 2010 story by Marc Chase in the NWI Times that begins:
The Lake County sheriff filed a formal complaint Friday alleging the county solid waste district is keeping secret what should be public information related to the trash-to-ethanol deal.

Sheriff Rogelio "Roy" Dominguez filed the complaint with the Indiana public access counselor, claiming the Lake County Solid Waste Management District was too vague in justifying why it discussed portions of a public-private contract in a closed executive session last week.

The district held the executive session to discuss a legal opinion by Indianapolis-based law firm Barnes & Thornburg regarding a controversial ownership clause in the contract. Only district board members and officials were allowed to attend.

On Thursday, the district revealed their lawyers recommended taxpayer ownership remain a part of the county's contract with Powers Energy of America, but written details of the opinion were not provided.

In 2008, the district signed a contract in which the county would own a $280 million facility to be built and operated by Powers in Schneider. The facility would process the county's garbage into the fuel alternative ethanol using technology not yet proven on a large commercial scale.

Some municipal leaders have worried that county ownership could open up taxpayers to liability for possible mishaps or financial failures at the facility.

On Friday, Dominguez said taxpayers are entitled to know detailed reasoning for why taxpayers should own the plant and how they would be protected from liability.

"It's really a travesty that details pertaining to the central issue of public ownership or liability -- things the public has a right to know -- are being kept secret," Dominguez said.

Lake County Solid Waste Management District attorney Clifford Duggan said the district was in full compliance with state access laws when it closed the executive session.

This Oct. 2, 2010 story in the Post Tribune by Christin Nance Lazarus that begins:
Lake County Sheriff Roy Dominguez is taking his complaints about a recent executive session held by the Lake County Solid Waste Management District board to the state's Public Access Counselor.

Dominguez alleges in his formal complaint that the board circumvented the state's Open Door Law by not listing the subjects they planned to discuss or details about any pending or threatened litigation.

In the executive session on Sept. 23, the board received legal advice from Barnes and Thornburg about ownership issues and possible lawsuits facing the proposed $254 million garbage-to-ethanol plant, board member Gerry Scheub said.

This Oct. 5, 2010 story by Christine Kraly in the NWI Times - some quotes:
The Lake County Solid Waste Management District did not have adequate justification to hold a closed-door meeting last month, a state public access expert said Monday.

Steve Key, legal counsel for the Hoosier State Press Association, said he did not think the district's rationale for secrecy was enough to shut out the public from a meeting on a taxpayer issue.

"I believe a verbal threat reported on by the newspaper does not trigger the provision that the solid waste district is relying upon to have held an executive session," Key said.

District counsel Clifford Duggan said last week a Sept. 23 meeting of the district governing board was closed under a law protecting meetings to discuss threatened litigation.

Duggan cited a Times story from April in which the National Solid Wastes Management Association said it was considering its legal options based on the county's trash-to-ethanol contract. * * *

In April, the district sought a legal opinion from Barnes & Thornburg, an Indianapolis-based law firm, on the contract's ownership clause, after residents aired concerns over county liability and potential lawsuits over county ownership.

On Sept. 23, the district governing board turned away members of the public from a meeting to discuss the firm's opinion.

"The comments made to the newspaper are not written threats as contemplated by the state Legislature," Key said Monday. "Written claims to a governing body or letters that make a threat of litigation would be the trigger for a possible executive session." * * *

Last week, Lake County Sheriff Rogelio "Roy" Dominguez filed a complaint with the Indiana public access counselor, claiming the district was too vague in justifying the meeting closure. * * *

A response on Dominguez's meeting complaint is expected by Nov. 3, a representative from the access counselor's office said Monday.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Indiana Government | Indiana Law

Courts - Use of GPS to track person's car without a warrant

From an editorial today in the NY Times:

In August, three judges on the United States Court of Appeals for the District of Columbia (two conservatives, one liberal) ruled unanimously — and correctly — that police violated the Constitution when they hid a GPS device on a person’s car and tracked his every move without a valid warrant. That person, Antoine Jones, was convicted of conspiracy to distribute crack and cocaine based on the tracking of his Jeep for four weeks.

The way to define what was reasonable for Mr. Jones to regard as private, the court said, is by focusing on what was unreasonable for law enforcement to consider public. “The whole of one’s movements over the course of a month is not constructively exposed to the public,” Judge Douglas Ginsburg said, adding that it “reveals an intimate picture of the subject’s life that he expects no one to have — short perhaps of his spouse.”

Last week, the Justice Department asked the whole court to rehear the case. The government relies heavily on one precedent. In 1983, the Supreme Court said it was legal for police to use a beeper without a warrant to track a suspect on public roads. The argument was dubious: The suspect’s movements were visible and anyone could have gleaned what the police did without the beeper’s help, so he had no reasonable expectation of privacy.

The government now contends that replacing the beeper with a GPS makes no difference because surveillance of Mr. Jones was on public roads as well. Two other appeals courts in the past three years have accepted that argument. In one, the opinion was written by Richard Posner, among the most respected federal judges.

For background, start with this Aug. 15, 2010 ILB entry. This Nov. 23, 2009 ILB entry has links to the various decisions.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Courts in general

Courts - "Should the state require you to show ID to vote?"

This question is now an issue in Kansas. Rick Plumlee of the Wichita Eagle has a very long story today examining all sides of the question. Here is a sample:

Missouri had a strict photo ID law, but it was struck down in October 2006 by the state Supreme Court.

Rep. Kinzer suggested that Kansas should pattern its law after Georgia's or Indiana's.

Both those states have withstood legal challenges to their ID laws, although Georgia is back before the state Supreme Court after the state's Democratic Party argued that the law does nothing to prevent voter fraud and violates the state constitution.

A U.S. Supreme Court decision in 2008 upheld the constitutionality of Indiana's law. But observers say the court likely would have ruled against Indiana if it had not provided a free voter identity card to those who don't have acceptable identification.

Those who mail in ballots don't have to meet the same photo ID requirements as those who vote at the polls, even though most experts agree that voter fraud is most likely to happen with mail-in ballots.

Earlier this year the League of Women Voters challenged the Indiana requirement in state Supreme Court, arguing that the law violates the state constitution because it imposed a requirement on some voters but not all. The challenge failed.

Increasingly, more people are mailing in ballots. Kansas hit 35 percent in 2008.

Posted by Marcia Oddi on Tuesday, October 05, 2010
Posted to Courts in general

Monday, October 04, 2010

Ind. Decisions - "Porter County wins battle in transfer station war" [Updated]

This Porter County fight against a transfer station variously described as "near Mount Baldy" and near the Town of Pines, which has been in litigation for years, reached another milestone today.

Phil Wieland reports in the NWI Times in a story that begins:

MICHIGAN CITY | A LaPorte County Superior Court judge has ruled in Porter County's favor in the ongoing battle over plans to build a trash transfer station on County Line Road in LaPorte County.

Judge Richard Stalbrink granted Porter County's request for a summary judgment dismissing the suit filed by Great Lakes Transfer LLC and the property owners Darren and Gina Kaletha. Great Lakes received a permit from the Indiana Department of Environmental Management to build the trash transfer station on about 64 acres owned by the Kalethas on the LaPorte County side of County Line Road.

The dispute resulted from Porter County's refusal to allow a driveway cut to the property from County Line, which is the only access road. The county has jurisdiction over all roads on its eastern and southern boundaries and rejected several applications to allow the driveway cut saying the road was not built to handle the steady flow heavy trucks that would be using the transfer station.

Bob Harper, president of the board of county commissioners, said the county fought the project from the beginning because the proposed driveway is "not that far from the dunes park, there is residential across the street and the road can't handle the semis."

"It needs to be a major highway," Harper said of County Line. We are talking hundreds of semis a week, and that is a very simple county road. Traditionally it's been a low-traveled road. It was wetlands all around where they are going to put the transfer station. I am very pleased with this decision."

The most recent earlier ILB entry is from June 13, 2008 and is headed "Ind. Decisions - Permit for trash station near Mount Baldy upheld."

[Updated 10/5/1] This story in today's Gary Post-Tribune, reported by Christin Nance Lazerus, is more factually specific:

A LaPorte County judge ruled in favor of the Porter County Board of Commissioners' right to deny road permits to a proposed waste transfer station on the LaPorte County side of County Line Road.

The Porter County Board of Commissioners have jurisdiction over County Line Road and they denied the Great Lakes Transfer's application for a driveway permit/curb cut on three separate occasions.

The Porter County Engineer, Highway Department and Commissioners cited concerns about overweight trucks using the road.

LaPorte County Superior Court Judge Richard R. Stalbrink granted a summary judgment in favor of Porter County, noting that the decision to deny a permit to cut into a county road is not subject to judicial review.

Commissioner Bob Harper was pleased with the decision.

"This is not very far from the entrance to the National Lakeshore, and it's in a residential area," Harper said. "There would be hundreds of trucks coming down that road each week, and that road is not ready for that."

In November 2005, Great Lakes Transfer was granted a construction air permit from the Indiana Department of Environmental Management, which is good for 5 years.

The commissioners challenged the issuance of the permit, but an administrative law judge denied their petition.

Subsequently, a Marion County judge and Indiana Court of Appeals judge would come to the same conclusion, but in each case, they said that Great Lakes Transfer must comply with local laws and regulations.

Great Lakes Transfer can appeal the decision, but it's not clear if they will.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Environment | Ind. Trial Ct. Decisions

Courts - Nina Totenberg on Justice Stevens

NPR's Nina Totenberg today has a long, two-part feature on Justice Stevens.

The first part (nearly 8 minutes) was this morning on NPR's Morning Edition, "Justice Stevens: An Open Mind On A Changed Court."

The second part
was this evening on All Things Considered. It is titled "Justice Stevens: Life On The High Court," and is 9 minutes long.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Courts in general

Ind. Decisions - A number of notable disciplinary decisions in the past week

A number of notable disciplinary decisions in the past week:

  • In the Matter of Steven F. Fillenwarth - a quote from the opinion:
    Respondent represented a client in several legal matters, including negotiating a prenuptial agreement with the client's wife in 2004. Respondent then represented the client in filing an action to dissolve the marriage on February 6, 2007. Unbeknownst to the client, Respondent and the client's wife exchanged frequent emails from January 9 through February 26, 2007. The emails included discussions of the divorce action and Respondent's romantic interest in the client's wife. When the client became aware of the emails, he immediately discharged Respondent as his attorney. Respondent then withdrew from representing the client.
  • In the Matter of Steven C. Litz - a quote from the opinion:
    Respondent asked his adult children to dispose of 12 to 14 "banker boxes" that contained the files of clients and former clients. At his request, the children took the boxes to a site with recycling bins. Finding the bins full, they placed the boxes on the ground by the bins. They did not inform Respondent that they did not put the boxes inside the bins. The wind later blew the tops off some of the boxes and scattered some of the contents of the client files into public view. After being notified of what occurred, Respondent and his children retrieved the documents and boxes.
  • In the Matter of Charles W. Beacham - some quotes from the opinion:
    AB's case was a fairly routine employment discrimination case. * * *

    AB began requesting interim billing statements in October 2004. Respondent sent no interim statements, however, until April 2006, by which time he asserted an hourly fee total of $220,684. AB was shocked that the attorney fees were so high. The parties' relationship deteriorated, and Respondent withdrew from the representation. Respondent sent a final bill showing an hourly fee total of $233,484. Eventually, at the recommendation of new counsel, AB settled the case for $20,000. Respondent filed a complaint against AB in Indiana to collect unpaid attorney fees. AB did not appear at the trial, and the court entered default judgment for Respondent for $195,000. AB has since filed for bankruptcy relief. * * *

    The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

    1.4(a): Failure to keep a client reasonably informed about the status of a matter and respond promptly to reasonable requests for information.
    1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.
    1.5(a): Charging a nonrefundable retainer and a fee that is unreasonable in amount.

    Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, beginning November 12, 2010.

  • In the Matter of James E. Barce is a 3-2 opinion with the majority imposing a public reprimand and the dissenters asking for a suspension. This is the case of the Newton County prosecutor who prosecuted for years while on an inactive status - the ILB has a long list of entries on this case. Some quotes from the majority opinion:
    Respondent began serving as the part-time prosecuting attorney for Newton County in 1995. In 2005, Respondent elected to become a full-time prosecutor, which required that he close his private law practice. On August 5, 2005, Respondent signed an affidavit of inactivity, which placed his law license on inactive status. In the affidavit, Respondent stated under the penalties of perjury that he was not engaged in the practice of law in Indiana. Respondent signed substantially similar affidavits in 2006, 2007 and 2008. While claiming inactive status, Respondent paid a reduced annual registration fee.

    In February 2009, defense counsel in a case Respondent was prosecuting pointed out that his law license was inactive. Promptly thereafter, Respondent arranged to place his license on active status, self-reported the violation to the Commission, and offered to pay the difference between the reduced fees he paid and the active status fees for the years he was on inactive status. * * *

    [T]he Court imposes a public reprimand for Respondent's professional misconduct.

    C.J. Shepard wrote the dissent, in which j. Rucker joined:
    Courts at all levels set the standard and a tone for the legal profession in the course of signaling what they consider important and what they consider trivial. The highest court of a state plays a special role in setting the bar on ethics and professionalism, acting as it does in the full view of the public.

    Respondent Barce signed an affidavit under oath declaring that he was not engaged in the practice of law, and tendered it to the Clerk of this Court. The result was that he exempted himself from paying the regular annual registration fees and registering for the regular continuing legal education that Indiana’s 17,400 lawyers and judges do each year. The Clerk therefore sent him a card, as the Clerk does to us all, but the card sent to Barce told Barce rather directly that he was an Indiana attorney with an Indiana license, “but may not use that license as the basis for engaging in the practice of law.”

    Barce nevertheless regularly practiced law. He carried this card in his pocket (according to the evidence) and prosecuted thousands of citizens for the customary list of criminal and civil violations. He did that over a period of four years until he was exposed in the minutes just before a jury trial was to commence. As our Disciplinary Commission argues, if a defendant had argued he was not guilty of speeding because he had not bothered to read the speed limit posted on the sign, it is doubtful the Respondent would have found that to be a persuasive argument.

    The Disciplinary Commission of this Court, probably mindful that lawyers and judges will notice the sanction we give, has asked us to suspend Mr. Barce for this serial violation of his duties as an attorney.

    We have in the past treated gross neglect of precisely the same sort demonstrated by Mr. Barce as warranting a substantial suspension. Matter of Baars, 542 N.E.2d 558 (Ind. 1989) (lawyer who practiced law for seven years while swearing he was not, suspended for 24 months). That seems pretty stiff in retrospect, but giving this Respondent a mere reprimand tells everyone the Supreme Court thinks this behavior is a pretty minor matter.

    The Commission obviously thinks practicing law without a license is important, and so do I. The Court should suspend Barce for thirty days, and his reinstatement should be conditioned on his paying both the back registration fees and reimbursing the costs of convening the jury that had to be sent home when his violation was brought to light.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Donald L. Pruitt v. State of Indiana , a 7-page opinion, Sr. Judge Sullivan writes:

This interlocutory appeal was certified to this court by the trial court and we accepted jurisdiction. Donald L. Pruitt (Pruitt) was charged with Operating a Motor Vehicle after his driving privileges had been forfeited for life, a Class C felony. In this appeal Pruitt challenges the denial of his pre-trial Motion to Suppress.

The offense charged emanated from a traffic stop conducted in a private parking lot in the city of Martinsville. The officer making the charge had been on routine patrol in his marked police vehicle sometime after midnight when he saw Pruitt’s vehicle being operated without its headlights in a parking lot of the “Square One Pub.” The officer activated his police car lights and after determining that Pruitt’s driving privileges had been suspended placed him under arrest.

Pruitt asserts that the officer’s traffic stop was invalid and that the evidence resulting from the stop must be suppressed. * * *

In this case, we note that although Indiana Code section 9-21-7-2 is limited in application to vehicles on Indiana highways, the statute does not necessarily imply that a driver is allowed at all times and under all circumstances to drive without headlights on private property. Such a reading of the statute would run counter to the policy of facilitating safe automobile traffic. Furthermore, the statute neither states nor implies that an officer is barred from stopping a driver for driving without headlights on private property. Under these circumstances, as in Datzek, we cannot conclude that the officer was mistaken in believing that Pruitt had committed a traffic violation by driving without headlights. Therefore, the officer had reasonable suspicion to stop Pruitt for driving without headlights, which led to the officer’s discovery that Pruitt was driving even though his license was suspended for life.

For these reasons, we conclude that there is sufficient evidence of probative value to support the trial court’s ruling. We affirm the trial court’s denial of Pruitt’s Motion to Suppress.

In SPCP Group, LLC v. Dolson, Inc., et al. , a 15-page opinion, Judge Robb writes:
SPCP Group, LLC, appeals the trial court’s orders denying its motion for partial summary judgment and granting defendant Earlene Holland’s cross-motion for summary judgment on SPCP’s complaint seeking foreclosure of a mortgage on Holland’s real property. SPCP raises two issues, of which we find the following restated issue dispositive: whether the trial court properly determined there is no genuine issue of material fact and Holland is entitled to judgment as a matter of law. Concluding the undisputed facts establish that the mortgage SPCP seeks to foreclose inaccurately and inadequately describes the debt it purports to secure, and as a result, SPCP cannot establish an essential element of its claim, we affirm.
NFP civil opinions today (7):

Andy Alafogianis, et al. v. Joseph Guffey, et al. (NFP)

T.J. and Ginger Richard v. Janet Egolf (NFP)

Qwinces LLC, et al. v. Viking Hardwoods, Inc., et al. (NFP)

Bettye Alvis v. Professional Account Service, Inc. (NFP)

Adoption of W.G.; D.M. and K.M. v. T.G. (NFP)

R.R. v. Review Board (NFP)

Wayne Miller v. Jennifer Shue (NFP)

NFP criminal opinions today (3):

Jamie Keys v. State of Indiana (NFP)

Curtis D. Holiday v. State of Indiana (NFP)

Wayne Jewell v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 1, 2010

Here is the Clerk's transfer list for the week ending October 1, 2010. It is two pages (and 28 cases) long.

One transfer was granted last week:

  • Citizens State Bank, et al. v. Countrywide Home Loans, et al. - see ILB summary here from March 5, 2010 - concerns Indiana law regarding priority rights when a foreclosing mortgagee sells the property to a third party.

__________

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, October 04, 2010
Posted to Indiana Transfer Lists

Law - "Hoosier casinos battle cheaters: Ind. casinos' high-tech defense can't always stop the crooks"

Grace Schneider of the Louisville Courier Journal as two very long stories today on Indiana casinos:

Also, this survey of "Common casino cheating methods."

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to General Law Related

Environment - Air pollution issues in NW Indiana and Muncie area

"Advocacy groups say State Line Energy allowed to continue violating air permit" is the headline to this long Oct. 2, 2010 story by Gitte Laasby of the Gary Post Tribune. Some quotes:

HAMMOND -- For more than six years, a Northwest Indiana power plant has repeatedly belched out smoke so thick it violates air pollution laws and aggravates respiratory illnesses for residents nearby.

The coal-fired State Line Energy power plant near the Indiana-Illinois border in Hammond exceeded its permit limit for smoke thickness more than 1,700 times since the beginning of 2004. The company claimed to have valid excuses for some of the violations, but had no justification for 927 of them.

The reason for the violations? Outdated pollution control equipment. * * *

Even though state records show State Line violated its air permit 927 times over six years without explaining itself, the Indiana Department of Environmental Management has not issued any fines and has no pending enforcement action against the plant. * * *

Environmentalists say IDEM could force the company to stop the violations by including a deadline for correcting the problems in State Line's new air permit. IDEM has been in the process of renewing the plant's permit for more than a year.

"Exide exposes neighborhood to illegal levels of lead in air" is the headline to this very long Oct. 3rd story by Seth Slaubaugh of the Muncie Star-Press. The story begins:
MUNCIE -- Beginning Oct. 15, the children of Drumm Addition will be living in the only area in Indiana designated by the U.S. Environmental Protection Agency as being in violation of a revised federal air quality standard for lead.

Which comes as a surprise to the parents of children in the southwest Muncie neighborhood.

"That sucks" Jason Strombeck, a young-adult resident of the addition, told The Star Press. While Strombeck doesn't have any children, he said, "This neighborhood is full of kids. Every other house has kids."

What residents also don't know is that Thomas Easterly, commissioner of the Indiana Department of Environmental Management, asked EPA to designate Drumm Addition as being in compliance with the new lead standards but was overridden by Susan Headman, regional administrator of the EPA in Chicago.

Nor are the residents aware that Exide Technologies -- which operates the nearby secondary lead smelter that is the source of the lead pollution -- is allegedly not using the best control technology to reduce the pollution.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Environment

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

Updating two earlier ILB entries, from Sept. 24 and Sept. 25, 2010, here are a few quotes from this commentary in the Bloomington Alternative by Steven Higgs, dated Oct. 2, 2010:

When [Scott] Storms started his job with Duke Energy on Sept. 27, state politicos were abuzz with talk of ethics. Duke is one of the world’s great environmental polluters and is at the center of one of the most audacious economic/environmental crimes against the citizenry in Indiana history, which really is saying something.

Instead of following the state’s mandatory “one-year cooling-off rule” and not working for a company he had previously regulated, Scott Storms walked through a loophole, packed his briefcase at the IURC and unpacked it at Duke.

“The hubris by Duke Energy and those involved in this hiring decision is horrid,” CAC’s Kerwin Olsen said in a Sept. 25 news release. “… Those laws were put in place to remove the appearance of impropriety on the part of the State employee seeking employment and the corporation doing the hiring.”

According to documents obtained by CAC, Storms has “issued at least four orders relative to Duke Energy cases” pending before the IURC since July 8, 2010. All were related to the company’s economically risky, taxpayer-funded, coal-gasification power plant under construction at Edwardsport in Knox County. * * *

CAC said Storms wrote and signed the July 28 IURC order that allowed Duke to recover costs from ratepayers and earn incentives, even though the plant isn’t producing electricity and is experiencing delays and soaring costs.

See this Aug. 15, 2010 ILB entry for some background on the CWIP request.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Indiana Government

Courts - The Perils Of Big Money In Judicial Elections As Groups Target Judges Over Narrow Issues, Will That Affect How They Rule?

That is the heading to this column by Eliza Newlin Carney of The National Law Journal in her regular series, "Rules of the Game," which surveys campaign finance and election laws and regulations.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Courts in general

Courts - The SCOTUS women

Via SCOTUSblog, a photo of our three current women justices, plus Justice O'Connor.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Courts in general

Ind. Decisions - More on the Supreme Court's two casino rulings last week [Updated]

Updating this ILB entry from Sept. 30, 2010, which presents summaries of the Supreme Court's opinions on that date in the cases of Donovan v. Grant Victoria Casino, and Caesars Riverboat Casino v. Kephart, here are some of the pess and other reports on the rulings:

  • Casinos can ban card counters, court rules, Dan Carden, NWI Times 9/30/10 - Some quotes:
    "The mere fact that Indiana Gaming Commission regulations do not expressly compel the expulsion of card counters from casino facilities does not confer upon a patron an affirmative right of access to a casino's facilities," wrote Justice Frank Sullivan Jr., for the majority.

    Justice Brent E. Dickson, a Gary native, dissented. He said casinos only exist in Indiana because state law and regulations have allowed them to exist and that casinos have no rights -- such as the common law right of exclusion -- beyond those specifically granted by the state.

    "Permitting a casino to restrict its patrons only to those customers who lack the skill and ability to play such games well intrudes upon principles of fair and equal competition and provides unfair financial advantages and rewards to casino operators," Dickson said. "I am not persuaded that such schemes are supported or protected by any common law right or privilege."

  • Ind. Supreme Court rulings uphold casino rights, AP 9/30/10 -

  • Court decision may settle Indiana's card counting issue, Lesley Stedman Weidenbener, LCJ 10/1/10 - The story begins:
    Indiana’s top gaming regulator said Friday the state may not need to make any rules about card counting now that the Indiana Supreme Court has given casinos the authority to ban gamblers who engage in the practice.

    Ernest Yelton, executive director of the Indiana Gaming Commission, said the court’s 3-1 decision Thursday makes clear that “casinos have a legal right to restrict card counters, and that creates a pretty high hurdle” for anyone who would seek a rule that says otherwise.

    “We’ll provide the (gaming) commissioners with the court decision, and if they want to visit the issue of course we would do so,” Yelton said. But “the decision is a reaffirmation of what we already believed the law in Indiana to be.”

    Still, Thomas P. Donovan – the self-described card counter at the center of the Supreme Court case – said the commission could still pass a rule giving gamblers the right to use their minds to compete against casinos.

    “Otherwise, they’re saying that only losers are welcome at the Indiana casinos,” Donovan said. “After you win a big jackpot, they can kick you out. I don’t think that’s what the public would want.”

  • Gambling Addiction Case Comes out Trumps for Casino is an interesting entry from the blog, A New Take on Legal News.
[Updated 10/6/10] The FWJG has a brief editorial this morning that begins: "Two rulings from the Indiana Supreme Court last week support the adage that the house always wins by taking the casino’s side in both cases."

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - ISBA judicial retention poll ballots due

ISBA Members: Your electronic ISBA judicial retention poll ballots were originally due today, Oct. 4.

The deadline has been extended by the ISBA to Oct. 11, but I'm sending mine in today while I'm thinking of it.

No Supreme Court justices are up for retention this year. The following COA judges are scheduled for retention balloting this year:

  • Judge L. Mark Bailey, First District, Indiana Court of Appeals

  • Judge Cale J. Bradford, Second District, Indiana Court of Appeals

  • Judge Elaine B. Brown, Fifth District, Indiana Court of Appeals

  • Judge Melissa S. May, Fourth District, Indiana Court of Appeals

  • Judge Margret G. Robb, Fifth District, Indiana Court of Appeals
You may review their background and opinions here before you vote.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Indiana Courts

Courts - "Flawed Paperwork Aggravates a Foreclosure Crisis"

Supplementing our foreclosure coverage from this weekend, my NY Times this morning has this front-page story by Gretchen Morgenson. The lengthy report begins:

As some of the nation’s largest lenders have conceded that their foreclosure procedures might have been improperly handled, lawsuits have revealed myriad missteps in crucial documents.

The flawed practices that GMAC Mortgage, JPMorgan Chase and Bank of America have recently begun investigating are so prevalent, lawyers and legal experts say, that additional lenders and loan servicers are likely to halt foreclosure proceedings and may have to reconsider past evictions.

Problems emerging in courts across the nation are varied but all involve documents that must be submitted before foreclosures can proceed legally. Homeowners, lawyers and analysts have been citing such problems for the last few years, but it appears to have reached such intensity recently that banks are beginning to re-examine whether all of the foreclosure papers were prepared properly.

In some cases, documents have been signed by employees who say they have not verified crucial information like amounts owed by borrowers. Other problems involve questionable legal notarization of documents, in which, for example, the notarizations predate the actual preparation of documents — suggesting that signatures were never actually reviewed by a notary.

Other problems occurred when notarizations took place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.

On still other important documents, a single official’s name is signed in such radically different ways that some appear to be forgeries. Additional problems have emerged when multiple banks have all argued that they have the right to foreclose on the same property, a result of a murky trail of documentation and ownership.

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Courts in general

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

As noted in this entry July 16th, headed "Sadly, no more ILB on weekends or holidays," the ILB is no longer updated on weekends or holidays because of financial issues. (If that concerns you, then please -- you individually, your practice group, your firm, your company or your association -- sign on as an annual ILB supporter, and do it today. Review the Supporter Application for more information. Contact me if you have questions.)

That said, there were several stories this weekend that could not be overlooked:

Posted by Marcia Oddi on Monday, October 04, 2010
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

  • No oral arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of 10/11/10):

  • No oral arguments currently scheduled.

Webcasts of Supreme Court oral arguments are available here.



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

[Note: Two cases have been added since last week's listing: Arlton and Fox.]

Monday, October 4th

  • 12:00 PM - Paul Arlton vs. Gary Schraut, M.D., et al. (# not provided) - Appellant-Plaintiff Paul Arlton brought a medial malpractice action against Appellee-Defendant Gary Schraut, M.D., alleging that Arlton had suffered permanent injury to his eye as a result of laser eye surgery performed by Schraut. The jury returned a verdict in favor of Schraut. On appeal, Arlton claims: (1) that the trial court abused its discretion when it sustained Schraut's objections to Arlton's proffer of printed, enlarged copies of angiograms depicting Arlton's retina; (2) that the trial court abused its discretion when it refused to provide the jury with access to digital evidence during deliberations; and (3) that the trial court abused its discretion in refusing Arlton's tendered instruction informing the jury that, if they so desired, they could review the digital evidence during deliberations. The Scheduled Panel Members are: Chief Judge Baker, Judges Najam and Mathias. [Where: Moot Court Room, Indiana University Maurer School of Law, Bloomington, Indiana]

  • 3:00 PM - Quintez Deloney vs. State of Indiana (22A01-0906-CR-273) - Quintez Deloney appeals his conviction of Class A felony attempted robbery resulting in serious bodily injury and Class B felony burglary resulting in bodily injury. The parties will argue whether expert testimony regarding DNA found on a red hat at the scene of the crime should have been admitted when that expert could not state a statistical probability that Deloney was the source of the DNA, and instead would say only that the analysis could "not exclude" Deloney as a contributor of the DNA. Also at issue is the propriety of Deloney's eighty-year sentence. The Scheduled Panel Members are: Judges Bailey, May and Brown. [Where: Shanklin Theatre, Hyde Hall, University of Evansville]

Tuesday, October 5th

  • 10:00 AM - Rex E. Breeden Revocable Trust vs. Rebecca Jan Hoffmeister-Repp (03A04-1003-CT-185) - Plaintiff appeals trial court's entry of summary judgment in an action for rescission/damages arising from a contract for the sale of residential real estate. Plaintiff contends that the trial court erred and that there are material questions of fact they make summary judgment inappropriate. The threshold issue is whether the contract is exempt from the Residential Real Estate Disclosure Act because the purchaser was a revocable trust and the statute excludes transfers to a living trust from its applicability. The second issue raised is whether under general principles of contract and tort law, the defendant has demonstrated that she is entitled to summary judgment. The Scheduled Panel Members are: Judges Riley, Kirsch and Bailey. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 2:00 PM - Hunt Construction Group vs. Shannon D. Garrett (49A02-1001-CT-86) - This case deals with liability for a workplace injury on the Lucas Oil Stadium project. The trial court ruled in favor of the Plaintiff, ruling that Hunt Construction Group was liable for her injuries. Hunt Construction argues that since the owner, not Hunt Construction, held the contracts from her employer that the Owner should be liable. The Scheduled Panel Members are: Judges Friedlander, Barnes and Crone. [Where: Court of Appeals Courtroom (WEBCAST)]

Wednesday, October 6th

  • 1:00 PM - Stacey Price v. State of Indiana (34A02-1004-CR-366) - Stacy Price was convicted following a jury trial of dealing in cocaine, a Class A felony. On appeal, Price argues the trial court erred in admitting two exhibits offered by the State over her objection because the State failed to prove the chain of custody. The Scheduled Panel Members are: Judges May, Robb and Vaidik. [Where: Benton Central Jr.-Sr. High School, 4241 East 300 South, Oxford, Indiana 47971]

Thursday, October 7th

  • 10:00 AM - Sharon Gill, on her own behalf and on behalf of the Estate of GALE GILL vs. Evansville Sheet Metal Works, Inc. ( 49A05-0912-CV-699) - Gale Gill died of lung cancer which his wife, Sharon Gill, alleges was caused by exposed to asbestos while he worked as a contractor at Evansville Sheet Metal Works. On behalf of her husband's estate, Sharon appeals the trial court's summary judgment in favor of Evansville Sheet Metal Works. The Appellant presents the following issue for our review on appeal: whether the trial court properly granted summary judgment where the Appellees failed to meet their burden to establish that Indiana Code section 32-3-1-5 (the Construction Statute of Repose) applies to this case to bar Sharon's claim. The Scheduled Panel Members are: Judges Riley, Kirsch and Bailey. [Where: Court of Appeals Courtroom (WEBCAST)]

  • 1:30 PM - Sheila Perdue, et al vs. Anne Waltermann Murphy, et al (49A02-1003-PL-250) - The ACLU of Indiana brought a class action complaint, pursuant to 42 U.S.C. § 1983, to enjoin practices of the Indiana Family and Social Services Administration whereby adverse action notices were issued to applicants and recipients of assistance under Medicaid, Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance Program, which notices generically alleged a failure to cooperate but did not specify which verification document was not provided (according to FSSA records). The complaint further alleged that, with respect to SNAP, the FSSA failed to comply with the federally-mandated "refusal to cooperate" standard, instead implementing a "failure to cooperate" standard. With regard to Sheila Perdue, it was also alleged that the FSSA violated the Americans with Disabilities Act of 1990. Upon cross-motions for summary judgment, the trial court found that, despite the lack of specificity in an adverse action notice, the FSSA procedures (as a whole) satisfied due process requirements and FSSA was entitled to partial summary judgment in that regard. However, the trial court issued a declaratory judgment and injunction against the FSSA on two bases: that the FSSA had, in violation of federal law governing SNAP, utilized a "failure to cooperate" standard as opposed to a "refusal to cooperate" standard, and had violated Perdue's rights under the ADA. The parties now cross-appeal. The Scheduled Panel Members are: Judges Riley, Kirsch and Bailey. [Where: Court of Appeals Courtroom (WEBCAST)]

Friday, October 8th

  • 1:00 PM - Bruce R. Fox vs. Dennis Rice and West Central Community Corrections (# not provided) - Bruce Fox was taken from serving a sentence in the Department of Correction to the Montgomery County Jail where he was incarcerated for an additional 112 days. Fox claimes his incarceration was wrongful, and filed a complaint against the Montgomery County Sheriff, the Montgomery County Prosecutor, and West Central Community Corrections. Fox appeals the trial court's grant of summary judgment to West Central Community Corrections, arguing the trial court erroneously granted summary judgment by finding the time for filing a tort claim notice began to run on the first day he was incarcerated at the Montgomery County Jail, West Central was not the cause of his injury, and West Central was immune from liability. The Scheduled Panel Members are: Judges Kirsch, May, and Robb. [Where: Bruce R. Fox vs. Dennis Rice and West Central Community Corrections]

Next week's oral arguments before the Court of Appeals (week of 10/11/10):

  • No oral arguments currently scheduled.

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, October 04, 2010
Posted to Upcoming Oral Arguments

Saturday, October 02, 2010

Courts - More on "GMAC Mortgage Stops Foreclosures in 23 States"

Updating this ILB entry from earlier today, David Streitfeld is reporting today in the NY Times in a story that begins:

A major title insurance company has stopped insuring homes foreclosed by JPMorgan Chase, another sign that the controversy over the legal practices of the big lenders is starting to influence the housing market.

The company, Old Republic National Title Insurance, told its agents Friday that it would not write policies on foreclosed Chase properties until “the objectionable issues have been resolved,” according to a memorandum sent out by the firm’s underwriting department. * * *

After a lender seizes a home in a foreclosure case and the defaulting homeowner is, if necessary, evicted, the company works with local real estate agents to prepare the house for sale. The National Association of Realtors said distressed sales, including foreclosures, were 34 percent of all existing home sales in August. In some stricken areas, the percentage is much higher.

When foreclosures are done with faulty documentation, that could leave the new owners of the house vulnerable to claims. Title insurance protects the buyer against defects, errors or omissions in the chain of title.

Posted by Marcia Oddi on Saturday, October 02, 2010
Posted to Courts in general

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

Updating this Sept. 15, 2010 ILB entry, which related that "A federal judge has denied a request to stop the way Kansas Supreme Court justices are selected," and this Aug. 29th entry where the ILB compared the Kansas and Indiana selection systems, this Oct. 1st story by Lisa Demer of the Anchorage Daily News reports that the 9th Circuit has rejected a similar challenge in Alaska. The headline: "Alaska's system for selecting judges is sound, court rules: Lawsuit was rejected as an attempt to change the constitution."

Some quotes:

Alaska's system of selecting judges will remain in place after the 9th U.S. Circuit Court of Appeals rejected a challenge.

In a decision released Thursday, the appeals court upheld an earlier decision by U.S. District Judge John Sedwick to throw out a lawsuit that contended that lawyers have too much say in picking judges.

The suit was brought on behalf of Kenneth Kirk, an Anchorage lawyer who has applied for judgeships but has never been nominated, as well as two other Alaskans, Michael Miller and Carl Ekstrom, who contend they don't get enough say in the matter. One of their lawyers was James Bopp of Indiana, general counsel for the James Madison Center for Free Speech. * * *

Under a system modeled after Missouri's and adopted after the constitutional convention more than 50 years ago, the Alaska Judicial Council nominates at least two candidates from a list of applicants for each open judgeship. The governor appoints from those nominated.

The council includes three lawyers named by the Alaska Bar Association board of governors, three non-lawyers appointed by the governor, and the chief justice of the Alaska Supreme Court. [ILB: sounds same as Indiana's membership, except our 3 attorneys are elected by the state bar membership.]

The plaintiffs wanted all participants involved in appointing Alaska judges either to be elected officials or named by an elected official.

The 9th Circuit found no constitutional basis for that and said the plaintiffs were trying to change Alaska's Constitution through the courts "because Plaintiffs would prefer judges to be elected and want to reduce attorney influence."

Here is the 21-page 9th Circuit opinion in Kirk v. Chief Justice. It concludes:
Alaska is not the only state to give a significant role to attorneys in the merit selection process. Fourteen other states, including Alabama, Hawaii, Indiana, Iowa, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Mexico, Oklahoma, South Dakota, Vermont, and Wyoming, have systems in which (1) the nominating commission includes attorney members who are chosen neither through popular election nor by a popularly elected government official; and (2) the governor of the state must select a candidate nominated by the commission.

There are also well-established federal judicial appointments that do not conform to Plaintiffs’ desired universal principle. For example, federal magistrate judges are nominated by merit selection panels composed of lawyers and community members, and then appointed by a majority of district court judges in the district where the magistrate is to serve. See 28 U.S.C. § 631(a), (b)(5). Similarly, federal bankruptcy judges are nominated by merit screening committees and then appointed by federal appellate judges. See id. § 152(a)(1). In both cases, neither the judges nor the members of the nominating body are popularly elected.

Ultimately, Plaintiffs seek to effectuate a change in Alaska’s constitutional policy through the courts because Plaintiffs would prefer judges to be elected and want to reduce attorney influence. The pros and cons of merit selection as a system for selecting state court judges, and the pros and cons of giving attorneys a particular role in that system, were discussed at the Alaska Constitutional Convention. Debate continues to the present day. See Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System, 34 Fordham Urb. L.J. 125 (2007) (characterizing debate). In the United States, the discussion of merit selection and attorney influence is ongoing and increasingly informed by empirical data. Some states have acted through the legislature or referendum to reduce attorney influence. See, e.g., O’Connor, 74 Mo. L. Rev. at 492 (describing Arizona’s “move from attorney-dominated selection commissions to commissions dominated by lay members of the public”).

[7] Alaska’s founders, when considering the selection of the members of the Judicial Council at the Constitutional Convention, discussed these tensions and resolved the debate in favor of the expertise that attorneys could bring to the process. The Equal Protection Clause, as long interpreted by the federal courts, does not preclude Alaska from making that choice. AFFIRMED.

Here is the O'Connor (Sandra Day, 2009) article - unfortunately (and like the Indiana Pattern Jury Instructions) it is freely available only to Lexis $$$ subscribers.

Posted by Marcia Oddi on Saturday, October 02, 2010
Posted to Courts in general

Ind. Courts - "Judge David recommends reprimand, not suspension, for McKinney"

Okay, the ILB no longer blogs on the weekends, but there are just too many important stories today - the foreclosures suspension, the errors in courts statistics story, and now this. And at least two more ....

Douglas Walker reports today in the Muncie Star-Press:

MUNCIE -- Mark McKinney "clearly" committed professional misconduct, the judge in the Delaware County prosecutor's disciplinary case has ruled. But the judge has recommended that the Indiana Supreme Court issue only a public reprimand of McKinney rather than suspending his law license.

The state's highest court will have the final say in McKinney's disciplinary case, taking into account the recommendations filed Friday by Boone Circuit Court Judge Steven David -- who will soon join the court. * * *

The court's disciplinary commission has alleged McKinney's dual roles as a prosecutor (for the most part as a deputy prosecutor, prior to his 2006 election) and as attorney in civil forfeiture cases for the Muncie-Delaware County Drug Task Force violated rules of professional conduct for lawyers. * * *

In mid-2009, the Supreme Court rejected a proposed settlement of the McKinney case calling for a 90-day license suspension, apparently indicating that was not a severe enough penalty.

Kidd said Friday the timing of the court's decision could be affected by whether the attorneys involved file responses to David's recommendations.

The parties in the case could file a petition for review or a brief on sanction. The former would indicate one side or the other objects to David's finding. The latter would indicate a disagreement with only the recommended punishment. * * *

Although David's recommendation would appear to be good news for McKinney, the judge's findings of fact -- besides noting mitigating factors that should be weighed in the prosecutor's favor -- notes many aggravating factors that are sharply critical.

"The commission met its burden of proving misconduct by clear and convincing evidence," David wrote.

The judge wrote that on "numerous occasions" McKinney "knew or should have known that the asset forfeiture program and his management of it was being called into question as being unethical."

The Delaware County prosecutor "never himself raised or otherwise thoroughly investigated the real issue everyone was complaining about but instead relied on opinions that were given based upon a lack of information," David wrote. "McKinney was either convinced he was right and was not worried about the concerns of others or he failed to understand and appreciate... The Indiana Rules of Professional Responsibility."

In mitigation, the judge noted the practice of deputy prosecutors handling forfeiture cases had been established before then-Prosecutor Richard Reed hired McKinney in the mid-1990s. He also acknowledged McKinney's participation in community and attorney organizations. And David said there was no evidence of any "quid pro quo" in the prosecutor's dealings with drug defendants who forfeited property.

David also said the manner in which drug forfeiture cases were being handled in Delaware County should be "soundly denounced" and that "some entity... should undertake efforts to ensure that this practice is not occurring anywhere."

The Star-Press also has posted the 25-page ruling of Judge David.

For background, see this Aug. 23, 2010 ILB entry headed "An attorney for the Indiana Supreme Court's disciplinary commission on Friday formally recommended that Delaware County Prosecutor Mark McKinney's law license be suspended for six months." That led to this entry headed "Is a county prosecutor a member of the executive or judicial branch?." Followed by this Aug. 25th entry with some of your responses.

Posted by Marcia Oddi on Saturday, October 02, 2010
Posted to Indiana Courts

Ind. Courts - South Bend Tribune review finds errors in Indiana court statistics

Amazing, and lengthy, story today from Alicia Gallegos of the SB Tribune. Some quotes - the story should be read in full:

For decades, the Indiana Supreme Court has compiled data from each county in order to provide a clear snapshot of caseloads moving through the court system.

For most counties, these reports are the only easily accessibly data available to the public on the type of criminal and civil cases being handled by the courts and how those cases are being decided. These figures, say state officials, are used for policy decisions, judicial staffing, and proposing new fees and penalties, among other uses.

But a Tribune analysis of these state statistics over the course of several weeks found significant errors in the supreme court’s data for St. Joseph County, including:

  • years of missing numbers in certain case categories

  • specific case filings thousands of numbers different from filings cited by the prosecutor's office

  • exorbitant case data in some categories.
* * * [Lillia Judson, executive director of the Indiana Supreme Court Division of State Court Administration] said a lack of uniformity in how each Indiana county compiles its own court data contributes to some inaccuracies.

"The numbers are only as good as the systems that provide them," Judson said. "It goes back to the basic systems that are in place." * * *

Individual courts in St. Joseph County record their own statistics — primarily forms filled out by hand — then give them to the county court administrator, who compiles all the numbers and sends them to the state.

Every year, the Supreme Court then generates and eventually publishes the county and state totals.

But the Tribune review of the state reports found the numbers paint a misleading picture of how some cases are handled by the court and prosecutor's office, and they make it nearly impossible to rely on trends for other decided cases.

For example, in 2008 — the most recent Supreme Court report published — numbers show St. Joseph County had a 56 percent dismissal rate for criminal misdemeanors.

These data were presented to the prosecutor's office, where Prosecutor Michael Dvorak and his office staff said the rate “couldn't be right.”

Additional local reports obtained and analyzed by The Tribune show a misdemeanor dismissal rate of 53.9 percent for 2009.

“I think you or someone has hit on it,” Scopelitis said when dismissal numbers were pointed out. “That’s too high.”

What is missing from most of the records are numbers of “deferred” misdemeanors, infractions and ordinance violations. According to the Supreme Court website, this category refers to when prosecutors and defendants agree to defer prosecution or for the defendant to enter a diversion program. The category, says the site, is a way for the state to track the number of defendants consenting to the programs.

Officials from the prosecutor's office say they defer dozens of cases each year, including close to 50 cases a year that are referred to drug court.

Dating back to 2006, these deferred cases were not recorded in the Supreme Court stats.

Judson said missing numbers in some categories would not raise red flags with the state because each county handles cases differently and may or may not have diversion programs.

“The (Supreme) Court staff has no way of knowing this,” she said. “We do not have auditors out in the field. … The level of responsibility requires every court to report and requires us to collect.” * * *

Also in question is the correct number of misdemeanors recorded as being filed each year.

In 2008, the Supreme Court report cites that 8,946 criminal misdemeanors were filed in St. Joseph County, while the prosecutor's office says only 5,979 were actually filed, a difference of nearly 3,000.

Pat Higgins, chief of staff of the prosecutor’s office, called the state stats “grossly inflated” and suggested the problem could be that traffic and misdemeanor cases are being counted by the courts when arrests are made and cause numbers assigned, but before charges are officially filed.

Judson said she does not know the reason for the large discrepancy but stressed that the state has clear classification of offenses. Cases are only to be defined as a misdemeanor, she said, “when a charge is filed by the prosecutor.”

Also missing from the St. Joseph County report are numbers of violation bureau cases for 2008. Local court officials say they had numbers for that year and would have sent them to the state, but the numbers are absent from the state’s online publication.

Posted by Marcia Oddi on Saturday, October 02, 2010
Posted to Indiana Courts

Courts - "GMAC Mortgage Stops Foreclosures in 23 States"

This includes Indiana.

What does this mean for the future?

What does it mean for finalized foreclosures?

The ILB hopes to find some answers.

[More] The initial reports were confusing:

Here is a Sept. 21st story by Denise Pellegrini of Bloomberg. A quote:

GMAC Mortgage may “need to take corrective action in connection with some foreclosures” in the affected states, according to a two-page memo dated Sept. 17 and obtained by Bloomberg News. Ally Financial spokesman James Olecki confirmed the contents of the memo. Brokers were told to stop evictions, cash-for-key transactions and lockouts, regardless of occupant type, with immediate effect, according to the document, addressed to GMAC preferred agents.

The company will also suspend sales of properties on which it has already foreclosed. The letter tells brokers to notify buyers that the company will extend the closing date on all sales by 30 days. Buyers will be able to cancel their agreement to purchase and get their deposit back, according to the letter.

But here is a story from the same day from Dan Burrows of Daily Finance which contains a lengthy denial from Ally Financial that GMAC Mortgage is halting foreclosures. According to Daily Finance, "GMAC Mortgage is a division of Ally Financial (GJM), which was known as GMAC Inc. before the financial crisis hit. The company received than $17 billion in federal bailout funds before rebranding itself last year." Re the Mortgage Electronic Registration System (MERS)
But today, Oct. 2, 2010, the LA Times has a story headed "Bank of America freezes evictions in 23 states: The bank cites concerns over whether its foreclosure paperwork was handled properly." E. Scott Reckard reports:
Citing concerns over whether its foreclosure paperwork was handled properly, Bank of America Corp. on Friday put evictions on hold in 23 states — joining two rivals that have taken similar steps.

The freeze is taking place in states where courts have jurisdiction over foreclosures, Bank of America said. [ILB - that includes Indiana] It will not apply to California and 26 other states where foreclosures usually take place without a court order, but the action could put added pressure on banks to ease back on foreclosures more broadly amid high unemployment and continued turmoil in the housing market. * * *

Detroit-based Ally Financial Inc. halted evictions in the 23 states last month after the head of Ally's document processing team acknowledged in a deposition that he signed thousands of affidavits certifying that foreclosure paperwork was correct even though he hadn't read the documents.

JPMorgan Chase & Co., the giant New York bank, suspended its evictions this week after problems surfaced with signatures on some of its affidavits.

Charlotte, N.C.-based Bank of America — which became the largest mortgage customer-service provider when it acquired Countrywide Financial Corp. in 2008 — followed suit Friday.

"To be certain affidavits have followed the correct procedures, Bank of America will delay the process in order to amend all affidavits in foreclosure cases that have not yet gone to judgment in the 23 states where courts have jurisdiction over foreclosures," the bank said in a statement.

The affidavits are required to be filed in court when banks make motions for summary judgment to obtain foreclosure orders from judges. * * *

The banks have said they believe the information in the affidavits — such as how much is owed and when the mortgages went into default — is accurate even if the affidavit signers didn't take the time to read them thoroughly because of the glut of foreclosures.

Reuters reported yesterday that: "Fannie Mae (FNMA.OB) and Freddie Mac (FMCC.OB), the largest providers of funding for U.S. residential mortgages, on Friday said they are taking steps with their regulator to strengthen oversight of thousands of loan servicers.."

Take a look at some of the Oct. 1, 2010 entries on this mortgage blog. This entry quotes Connecticut Attorney General Richard Blumenthal:

This freeze should stop a foreclosure steamroller based on defective documents and enable effective remedies. The actions of GMAC/Ally and JP Morgan are inexcusable, a possible fraud on the court undermining the integrity of the legal process and consumers’ ability to fight foreclosures.
And this one from the same mortgage blog is also well worth reading.

Finally, Delaware Online has this opinion piece today that concludes:

The admission adds to a growing list of private lenders and mortgage companies whose employees signed documents in foreclosure cases without verifying the information in them.

What's particularly galling is that hundreds of stressed homeowners were made to jump through multiple paperwork hoops to comply with refinancing programs.

Now it turns out the cost to secure documents and upfront fees may have been a cruel hoax furthered by avoidable incompetence.

It's not enough to cite the burden of millions of foreclosures as an excuse, as one BofA employee complained.

With this mortgage crisis, the ball has always been in the hand of the lender.

Now that it's known that these homeowners never stood a chance of having their efforts to save their home even reviewed, much less the expectation of being fairly reconsidered, how will these lenders make good on this error?

Here are some earlier ILB entries worth reviewing:
  • From 9/23/2010 - Forclosure mess is even worse than previously thought

  • From 11/22/2009 - "If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free"

    From Nov. 19, 2009 - "In Kansas, the Mortgage Machine Backfires; MERS issue raised in Indiana "

Posted by Marcia Oddi on Saturday, October 02, 2010
Posted to Courts in general | Indiana Courts

Friday, October 01, 2010

Ind. Courts - "What do they wear under those robes?" [Updated]

A story today in the Indianapolis Star headed "Retiring Justice Boehm honored at reception" included a photo with this caption:

Justice Theodore Boehm (right) answered the question, "What do they wear under those robes?" Thursday by showing off his seasonal wear (both Pacers and Colts jerseys).
In the photo the Justice has stripped off his robe to reveal a Pacer's jersey, fashionably worn over a Colt's jersey. The Pacer's jersey is Number 33. Any significance to #33?

[Updated at 6:23 p.m.] A reader writes: "Apparently it's Danny Granger's number. I thought maybe Reggie Miller, but he was 31."

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Indiana Courts

Ind. Law - Indianapolis bankrupcty attorney Mark Zuckerberg is the focus of a front-page story today because ....

... because his name is Mark Zuckerberg, same as Mark Zuckerberg of Facebook fame. Reporter Erika D. Smith wrote the story for the Indianapolis Star. A sample:

For [Mark] S. Zuckerberg, this is a problem. A doppelganger sort of problem.

Already, his office in Downtown Indianapolis gets about a dozen phone calls a day from people complaining about Facebook and demanding tech support. He gets about 500 Facebook friend requests a day, many of them coming from people in other countries who don't speak English, so he couldn't explain his identity even if he wanted to. * * *

But most of all, S. Zuckerberg bemoans the loss of being the only Mark Zuckerberg of note on Google. A standout in his field of consumer bankruptcy law, with several awards and a schedule of national speaking gigs -- Zucked by an upstart.

"I was always on the first page, always number one. No. 1. Now," S. Zuckerberg said with an irritated sigh, "I'm pages and pages back. This guy is killing me!"

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Indiana Law

Courts - "Couple Allowed to Sue Morgue for Retaining Son's Brain"

Mark Fass reports today in the New York Law Journal, in a story that begins:

The New York City Medical Examiner's Office's failure to inform a Staten Island couple that the office had removed and retained their late son's brain violated the couple's right of sepulcher, Brooklyn's New York Appellate Division, 2nd Department has ruled.

"[W]hile the medical examiner has the statutory authority…to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation…to turn over the decedent's remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled," Justice William F. Mastro wrote for a unanimous panel in Shipley v. City of New York, 2009-03226.

Jesse Shipley, a 17-year-old Port Richmond High School student, was killed on Jan. 9, 2005, when the car in which he was riding collided with another vehicle.

The following day, Jesse's father, Andre, consented to an autopsy. An examiner completed the autopsy, and funeral home personnel picked up the remains that same day. The family held a funeral three days later.

Two months later, classmates of the Shipleys' daughter, Shannon, who was also injured in the accident, took a field trip to the Richmond County Mortuary. Several students noticed a jar holding a human brain suspended in formaldehyde.

"In what can only be described as a surreal coincidence," Mastro wrote, "the label on the jar indicated that the brain was that of Jesse Shipley, a circumstance which evoked strong emotional reactions from some of the students who were present."

Read in conjunction with this description of the book, "Give Me My Father's Body: The Story of Minik, the New York Eskimo."

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Courts in general

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

For publication opinions today (1):

In Lawrence T. Davis v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:

Defendant/Appellant Lawrence Terrell Davis appeals the trial court’s sentencing enhancements after he was convicted of one count of auto theft and two counts of resisting arrest. We affirm but remand.

Davis raises three issues for our review, which we restate as: I. Whether the trial court failed to give a sufficient advisement of Davis’ right to a jury trial during the enhancement phases of the trial. II. Whether the trial court erred in using the same prior conviction both to support the habitual offender and the auto theft enhancements. III. Whether the trial court erred in imposing a separate sentence for the habitual offender determination.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Gary S. Moore v. State of Indiana (NFP)

Cory A. Waltmire v. State of Indiana (NFP)

Daniel L. Lannen v. State of Indiana (NFP)

Corey Stewart v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana cases and a cybersquatting case decided today by 7th Circuit

From Annex Books v. City of Indianapolis (SD Ind., Evans), a 4-page, per curiam opinion:

This suit began when the City of Indianapolis required adult bookstores to be closed all day on Sunday and between midnight and 10 a.m. on other days. We held last year that the empirical support for this ordinance was too weak to satisfy the requirement of intermediate scrutiny, which applies to such laws. * * * The City needs evidence about the effects of the sort of law it enacted. We suggested that experience in Indianapolis itself could supply the required data: Before the City’s ordinance took its current form, plaintiffs had been treated like other bookstores, so it should be possible to find out whether the new closing hours reduced crime or produced other benefits. 581 F.3d at 463.

After the remand, plaintiffs asked the district court to enter a preliminary injunction. A hearing was held, at which Indianapolis offered a single piece of evidence: Richard McCleary & Alan C. Weinstein, Do “Off-Site” Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence, 31 L. & Policy 217 (2009). The authors concluded that dispersing adult stores that sell for off-site reading or viewing reduced crime in Sioux City, Iowa. Indianapolis contended that this article supports its ordinance too. The district judge was skeptical, and entitled to be so, for three reasons. * * *

The district judge did not abuse her discretion. The single article that Indianapolis offered suffers some of the shortcomings of the evidence we evaluated last year: it concerns a dispersal ordinance rather than an hours-ofoperation limit, and the authors did not attempt to control for other potential causes of change in the number of arrests near adult establishments. The other new evidence, derived from experience with this ordinance in Indianapolis, appears to support the plaintiffs (though a statistical analysis might show that the support is illusory). Given the state of the record, the district court’s decision is sound. The parties should devote their energies to compiling information from which a reliable final decision may be made after a trial on the merits. AFFIRMED

In U.S. v. Suggs (SD Ind., Hamilton), a 12-page opinion, Judge Sykes writes:
Police officers arrested Charles Suggs after a traffic stop during which he pulled a handgun from beneath the driver’s seat of his truck. Suggs later pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and was sentenced to 108 months’ imprisonment. On appeal Suggs challenges the district court’s application at sentencing of a 4-level increase under U.S.S.G. § 2K2.1(b)(6) for using or possessing the firearm in connection with another felony offense. We affirm.
In a case out of Illinois, Mobile Anesthesiologists v. Anesthesia Associates, Judge Hamilton writes:
We refer to the parties as Mobile/Chicago and Mobile/Houston. Mobile/Chicago brought suit against Mobile/Houston in federal court in Illinois claiming that Mobile/Houston violated the federal anti-cybersquatting statute by registering a domain name confusingly similar to Mobile/Chicago’s registered trademark. The district court dismissed the suit for lack of personal jurisdiction.

We affirm. First, we conclude that Mobile/Houston did not waive its personal jurisdiction defense by asking to delay a preliminary injunction hearing or by asking for expedited discovery to prepare for that hearing. Second, we agree with the district court that Mobile/ Houston lacked the required “minimum contacts” with Illinois to support personal jurisdiction there. Mobile/ Chicago relies principally on the inference that Mobile/ Houston expressly aimed its conduct in Texas at harming Mobile/Chicago in Illinois. That inference is based on two inadequate connections between Mobile/ Houston and Illinois: (1) Mobile/Houston’s creation of a website accessible in Illinois but aimed only at the Houston market, combined with Mobile/Houston’s constructive notice of Mobile/Chicago’s trademark via federal registration of that mark; and (2) Mobile/Houston’s receipt of Mobile/Chicago’s cease-and-desist letter. These contacts are not sufficient to establish that Mobile/Houston’s activities in Texas were calculated to cause harm in Illinois.

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - List of those successful on the July 2010 Indiana Bar Examination

Here is the list of those applicants who were successful on the July 2010 Indiana Bar Examination.

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Indiana Courts

Ind. Courts - Warning: You may not receive a ballot for the upcoming JNC election

This will be the most contested race ever for an attorney seat on the Judicial Nominating Commission. Per the Clerk of the Courts:

Ballots and biographies of each candidate will be mailed to all Second District attorneys on October 12, 2010. Ballots are due by 4:00 p.m. on November 10, 2010. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 12, 2010.
ILB: Here are reasons you may not receive a ballot:
  • You are not a Second District attorney. Here is an interactive map of the Second Judicial District. Here is a list: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White. (I was surprised when I looked at the map, I'd always thought of the 2nd District as the middle third of the State.)

    So if you live in Boone, Hendricks, or Johnson County, for instance, you can't vote.

  • Notice I said "live in," as the ballots are sent to your home address. You may practice in Marion County, but if you live in Johnson County, you won't receive a ballot.

  • You also won't receive a ballot if you did not provide a home address on your annual bar registration. Fortunately, you can still remedy this if you act quickly. (You may not have provided a home address because you didn't want it showing up on the online Roll of Attorneys.) Use the Clerk's Change of Address form to remedy this ASAP. I'm told they will be making up the final mailing list of home addresses on Oct. 8th.

  • Finally, some of you may practice out of a home office, and provided your home address as your business address, and left home address blank. I don't know how you can tell if that will be a problem for you, unless you retained a copy of the annual registration form the Clerk sent out in August. It has been suggested to me that if you received a Notice of Election in August, then they are using your home address. But no, that may have been sent to what the Clerk's Office has listed as your business address -- it is unclear to me.
If you can add anything to this discussion, please send me a note.

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Indiana Courts

Courts - More pre-first Monday in October stories

"Major cases for the Supreme Court's 2010-11 term" is the heading of this lengthy story by Joan Biskupic in USA TODAY. Some quotes from the story (which includes a sidebar listing major cases for the Court's 2010-11 term):

WASHINGTON — When the Supreme Court opens its term on Monday, it will look different from any U.S. high court in history. And as this new set of nine — including, for the first time, three women — begins to resolve cases, it could chart new territory on the law, too.

In its early days, the look of the bench is likely to be most striking. Along with Justice Elena Kagan, who rounds out the first trio of women on the court, the group is more youthful. Kagan, who succeeded John Paul Stevens, is 40 years younger, and the average age of the justices is now 64, compared with 76 five years ago. * * *

Since 2005, four new members have joined the court, after what was an unusually stable period of 11 years with no retirements.

Today, generally with Roberts, 55, on the right are Republican-appointees Scalia, 74, Kennedy, 74, Clarence Thomas, 62, and Samuel Alito, 60. The Democratic appointees on the left are Kagan, 50, Ruth Bader Ginsburg, 77, Stephen Breyer, 72, and Sonia Sotomayor, 56.

The greatest change in the courtroom is the three women sitting together.

Female justices, including Ginsburg, have said their presence would not necessarily affect the substance of the law. Yet Ginsburg has referred to the "subtle influence" women have.

The gender divide might come into play in a challenge to a provision of U.S. immigration law that treats mothers and fathers differently. It brings the court back to a 2001 ruling that Ginsburg told USA TODAY last year is "the case that I most regret on this court."

In the earlier case, the court upheld a law that made it easier for a child born to unmarried parents abroad to be considered a U.S. citizen if the mother, rather than father, was already a citizen.

The new case tests whether mothers and fathers can have different residency requirements in situations involving the citizenship of a child born out of wedlock abroad.

Of the 2001 decision, from which she dissented, Ginsburg referred in the interview to "the notion of men of a certain age" that an unwed father would not care about a child as much as an unwed mother. The court has become younger and more female since 2001. Yet it will be without a third woman when it hears the case; it is one of the disputes involving the government that Kagan will sit out.

An interesting story today from Ben Conery of the Washington Times begins:
The Supreme Court's upcoming term will include the most emotionally charged freedom-of-speech case in recent history along with the usual assortment of high-profile challenges focusing on hot-button issues such as immigration and prosecutorial misconduct.

But the term, which begins Monday, also is notable for what it often will not include, namely new Justice Elena Kagan.

Justice Kagan, who won confirmation this summer to replace retired Justice John Paul Stevens, has said she must step aside for about half the roughly 50 cases the court has so far agreed to hear this term. It is not uncommon for justices to have to step aside when the court hears cases with which they had some previous involvement, but Justice Kagan's unusually high number is a result of her previous job as solicitor general.

It is unclear how many more, if any, recusals Justice Kagan will have this term, or how many she will have in subsequent terms, though the number is likely to be lower in ensuing years. With such a large number of recusals, some cases could end in 4-4 ties, which means they would retain a lower court's ruling.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, tried to avoid that scenario by proposing a bill this week that would allow retired Justices Stevens, Sandra Day O'Connor and David H. Souter to fill in for such cases.

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Courts in general

Courts - A guide to the technology cases before the SCOTUS

A long survey today by David Kravets of the Wired blog, Threat Level, begins:

The U.S. Supreme Court begins a new term Monday with a slew of technology and civil rights issues queued on its docket, some of which could have far-reaching implications for the Freedom of Information Act, copyright, warrantless searches of private residences, the “state secrets” privilege and freedom of expression.

The cases we’re tracking involve regulation of videogame sales, the limits of the Copyright Act’s first-sale doctrine and the power of the government to collect sensitive data on employees. Another case asks whether convicted defendants have a right to use modern DNA testing to prove their innocence.

Ruling on these issues is a rapidly changing high court, with four new appointees in five years, creating the youngest court in the modern, digital age.

“You’re getting a new generation of justices. You’ve got justices who text on their phones, who do e-mail, who actually use a computer,” says Thomas Goldstein, the SCOTUSblog founder who has argued nearly two dozen cases before the Supreme Court. “That can have real consequences. It makes a difference.”

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Courts in general

Courts - "Your Early Guide to the Big Business Cases of the High Court Term"

A useful review from Ashby Jones of the WSJ Law Blog.

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Courts in general

Ind. Gov't. - "We can no longer afford tolerating remnants of the spoils system as the necessary cost of our form of government"

Indiana Supreme Court Justice Theodore R. Boehm spoke from the bench at his retirement ceremony yesterday, September 30, 2010. In a serious moment, he talked about the current economy impacting "public safety, education at all levels, and a deteriorating infrastructure, not to mention public transportation, libraries and parks, and a myriad of amenities that nourish thriving communities."

"Yet," Boehm continued, "we are often unable to implement programs that can provide better service at less cost." He cited examples in all three branches of government, examples that are "costing us money and degrading the quality of service we can and should expect from government:"

  • The Kernan-Shepard analysis of county and township government identified a number of steps that could be taken to modernize our nineteenth century form of local government. When Indiana started out as a State, the only government that really mattered to most people was local government, and it was quite useful in a horse and buggy day to have the seat of government within one day’s ride from every citizen. In today’s world of internet communications and interstate highways those considerations are largely obsolete. Yet we cling to duplicative and grossly inefficient ways to accomplish the work of government.

  • A second example comes from the judicial branch, where in some parts of the state we have systems of judicial selection that work well, but in Marion county, for example, we have a scheme that purports to place the selection in the hands of the voters, but in practical effect leaves it under the control of a few party officials. There are several pernicious results, not the least of which is the judges become a vehicle for raising funds for political parties. Despite widespread derision, even ridicule of this system, few in government have the will to challenge it.

  • The legislative branch has its own problems. There seems to be an emerging consensus that Gerrymandered legislative districts are a bad thing. If the vast majority of districts are dominated by one party of the other, the primary election, not the general election becomes the decision point in selection of most legislators.

    And the selection is inevitably reflective of the center of gravity of the dominant party, not the population as a whole. The result is a polarized legislature composed of very few mediators, compromisors, or centrists.

Boehm closed: "What to do about these questions and many more are subjects for greater exploration at a later date. For now, ... I hope they will be in the public dialog and ultimately the citizenry will demand reform. I hope to be a voice in that discussion."

Posted by Marcia Oddi on Friday, October 01, 2010
Posted to Indiana Government