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Tuesday, November 30, 2010

Ind. Gov't. - More on "Indiana budget leaders target prison population reductions"

Supplementing yesterday's entry quoting LCJ coverage, Niki Kelly of the Fort Wayne Journal Gazette reports today:

During state budget hearings Monday, Indiana Department of Correction officials targeted lawmakers as the reason for spending and offender population increases.

“Politicians have gotten very good at playing politics with the criminal justice system,” DOC Commissioner Edwin Buss said, noting it’s easy to accuse each other of being soft on crime.

And Buss told members of the State Budget Committee it will take courageous lawmakers to overhaul sentencing laws in the 2011 legislative session, or state prison costs will continue to skyrocket.

In the last 20 years, lawmakers have amended the criminal code 107 times to either add new crimes or lengthen the prison sentences of existing crimes. * * *

[I]nitial recommendations from a major sentencing overhaul study are set to be released next week.

Changes could include decreasing prison time for certain crimes; moving more offenders to community corrections and revamping the state’s earned credit rules.

“This is not easy,” said Rep. Jeff Espich, R-Uniondale. “This is going to take a lot of guts.”

Rep. Eric Turner, R-Marion, said he is as guilty as other lawmakers who react to terrible crimes by increasing penalties or creating new statutes.

“But the public is paying the price,” he said. “Now we are trying to fix it in one fell swoop, and it’s going to be very difficult.”

Much of the conversation Monday focused on the roughly 3,000 non-violent or low-level offenders serving less than a year in a state prison at any given time.

Sending some of these offenders to community corrections at a lower daily cost could help save the state millions of dollars but doesn’t address systemic changes to sentencing.

“The choice to do nothing will be very expensive,” State Budget Director Adam Horst said.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Government

Ind. Gov't. - "South Bend backyard chicken law probably won’t be decided this year"

Adding to the ILB's list of Indiana "chicken underground" entries is this story today from the South Bend Tribune, reported by Erica Morrison. Some quotes:

In June, The Tribune published a story about Michael Thompson and Bobbie Crowel, former LaPorte residents who moved to Mishawaka a year ago. After that city’s code enforcement received an anonymous tip, Thompson and Crowel were told they weren’t allowed to keep their four pet hens in the city.

Cities such as Bloomington, Indianapolis and Evansville allow backyard chickens, and some residents are hoping South Bend will be added to the list.

Karen Coman, who has been actively campaigning for her own backyard coop in South Bend off and on since 2008, said that finally this year some progress has been made.

Common Council member Henry Davis Jr., D-2nd, agreed to sponsor the proposal allowing backyard chickens. On Nov. 8, the issue was brought before thecommunity relations committee.

Coman said members of committee were receptive to the idea, but they were most concerned about health-related risks associated with having fowl in city limits, code violations and whether the idea will cost the city any money. * * *

Davis believes backyard chickens are what is best for the community. He said the proposal is currently in the fact-finding stage and that nothing has been drafted at this time.

Davis believes “lack of education behind urban chickens” is the reason people debate the idea of chickens being allowed within the city. He cites economic development as one of the key reasons for allowing urban chickens.

The lack of access to grocers and economic growth in neighborhoods such as the Comans’ Monroe Park neighborhood, Davis said, are prime examples of the need for more alternative food sources like Unity Gardens, which are found throughout the city.

According to Kathleen Cekanski-Farrand, South Bend Common Council attorney, two separate ordinances would have to be filed to change the current ordinances already in place: Chapter 5 Animals and Fowl and a Chapter 21 zoning ordinance.

South Bend’s current policy does not allow residents to own chickens unless they have at least five acres of land. * * *

Susan Greutman, a mother of three who lives in the Edison Park neighborhood, said she is all for backyard chickens because of the role they play in the green sustainability movement.

Greutman said that in her neighborhood of post-World War II homes, she has seen more and more gardens popping up in the same spots victory gardens existed decades ago.

She noted that with today’s economic challenges, people are just trying to feed themselves, and backyard chickens would only encourage that self-sustainability.

Proponents of the measure say residents who are interested in supporting it should contact their council members.

“If South Bend claims to be a 21st century city of innovation,” Greutman said, “we need to move forward with this.”

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Government

Ind. Law - "Zoeller seeks forfeiture law rewrite"

Angela Mapes Turner reports today in the Fort Wayne Journal Gazette:

Indiana Attorney General Greg Zoeller announced Monday his recommendations to state legislators to overhaul Indiana’s civil forfeiture laws. * * *

Zoeller is recommending the 2011 General Assembly pass legislation to establish a formula for how civil forfeitures will be apportioned. Law enforcement agencies, county prosecutors and the Common School Fund would each receive a percentage – a “consistent, flat rate” – predetermined by the legislature.

He’s also asking lawmakers to more strictly regulate the use of outside counsel attorneys hired on a contingency basis to file civil forfeiture actions on the prosecutor’s behalf, out of a concern a few attorneys receive large windfalls, according to the statement.

Here is the Nov. 29, 2010 press release.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Law

Courts - More on: "Sealed cases are too hidden, says Kentucky Chief Justice: Chief justice says names, docket numbers to be public"

Updating this ILB entry from Nov. 25, 2010, in this post Michael Stevens of the Kentucky Law Blog quotes a Nov. 26, 2010 Louisville Courier Journal editorial about the Journal's earlier story "that thousands of Kentucky court cases have been sealed over the past several years without the public even knowing the cases existed." A sample:

There may be reasons to seal some cases, but the state has no set rules on what they are — this has been left to judges' discretion — and that lack of clarity has led to a system in which some cases have been erased from public view and knowledge.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Courts in general

Ind. Gov't. - "NWI legislator hopes to halt fox, coyote penning with new law"

Kathleen Quillligan of the NWI Times has this story today that begins:

A Northwest Indiana lawmaker is working on legislation to stop a training practice for hunting dogs she calls "inhumane" that has received preliminary approval by a state panel.

State Rep. Linda Lawson, D-Hammond, said she will co-author a bill with state Rep. David Cheatham, D-North Vernon, and introduce it in January to prohibit coyote and fox penning.

Penning involves releasing coyotes and foxes in enclosed pens, sometimes acres large, and allowing hunting dogs to compete in chasing the animals. While hunters and supporters of the practice say the dogs can be called off at the last minute, opponents of the pens say the hunted animals often are torn apart and killed by the dogs.

"I do not have a problem with going out and shooting a coyote if it is a nuisance," Lawson said. "But don't have a pack of dogs shred it. Let's not be a state that allows penning."


A Nov. 12, 2010 editorial in the Fort Wayne Journal Gazette that begins:

Allowing hunting dogs to chase and kill fenced-in coyotes who have little chance of escape is unsporting. Not allowing ample opportunity for comment at a public meeting about the controversial proposal is unfair as well.

The Indiana Department of Natural Resources has historically supported humane wildlife management policies and promoted the ethic of fair chase in hunting. Now, the agency is considering regulations that appear contrary to those important principles. Opponents also fear they will not be allowed to offer information challenging the proposed rules at an upcoming public meeting.

On Tuesday, the state Natural Resources Commission is holding its regular public meeting in Indianapolis, and a proposal to legalize and regulate operations that allow hunting dogs to chase penned coyotes and foxes is on the agenda.

CeAnn Lambert of the Indiana Coyote Rescue Center and others who oppose hunting confined animals want to speak at the meeting. But state officials advised them that “there is nothing that states the public must be allowed the opportunity to speak. Public testimony is at the discretion of the chairman.”

Phil Bloom, spokesman for the DNR, said if the commission votes in favor of preliminary adoption of the regulations, it would begin the rule-making process that would include a public comment period and a public hearing.

That’s good, but the commission would very likely benefit from hearing the concerns before it votes on the issue. Seeking ample public opinion is especially needed considering the recommendations from the DNR regarding penned runs have changed drastically in recent months.

"‘Black eye on hunting’: Proposed rules on hunting coyotes, foxes with dogs anger wildlife rehabilitator," a Nov. 15, 2010 story by Matt Fritz of the LaPorte Herald-Argus, begins:
LA PORTE — “This is not hunting, this is not predatory control, this is state sanctioned dog fighting,” said La Porte resident Laura Nirenberg about newly proposed state rules for hunting trapped coyotes and foxes with dogs.

These rules, which allow dogs to hunt coyotes and foxes in permitted enclosures in Indiana, could receive preliminary approval from the Indiana Natural Resources Commission on Tuesday in Indianapolis.

Nirenberg, a registered wildlife rehabilitator and founding director of Wildlife Orphanage, an organization dedicated to the humane removal of mammals in homes and properties, said the changes flew in the face of what she did.

She said she didn’t rehabilitate animals so someone else could just trap them and tear them apart with their dogs.

She also pointed out that the commission was supposed to be dedicated to the welfare of wildlife, not animal trappers, which the changes were apparently aimed for.

“This is a black eye on hunting,” she said.

"State panel OKs permits to regulate hunting enclosures," a Nov. 16, 2010 story by the Indy Star's Dan McFeely that begins:
INDIANAPOLIS - The state's Natural Resources Commission voted 9-2 today to create a permit that allows and regulates enclosed areas used by hunters to train hound dogs - using live coyotes and foxes as bait.
From the Greene County Daily World, a Nov. 17, 2010 story reported by Nick Schneider that begins:
The state's only hunting dog training facility located in western Greene County that uses live coyotes and foxes as bait for training purposes will continue to operate.

However, a new type of permit may have to be secured by the facility in the future if recommendations handed down on Tuesday morning are enacted.

The Indiana Natural Resources Commission voted 9-2 to create a permit that allows and regulates enclosed areas used by hunters to train hound dogs -- using live coyotes and foxes as bait.

However, the process is a deliberate one that could take more than a year to implement, according to Indiana Department of Natural Resources spokesman Phil Bloom.

The facility, located east of Midland and north of Linton has operated for about two decades with no evidence of illegal activity, Bloom said.

"Coyote dog training grounds get tentative OK from state" is the headline to this long, Nov. 21, 2010 story by Seth Slabaugh of the Muncie Star-Press that begins:
KENNARD -- Two years ago this month, Henry County fur buyer Earl Hunt, 67, pleaded guilty to felony charges of supplying foxes and coyotes to fenced running enclosures in Southern states where the animals became running stock for hounds.

The conviction followed a multi-state investigation during which undercover conservation officers bought 28 coyotes and two foxes from Hunt.

That same year, the Humane Society of the United States (HSUS) applauded the Indiana Natural Resources Commission for adopting a rule prohibiting the sale of live coyotes to "gruesome wildlife pens across the Southeast." Now the society is booing the commission for reversing its stance.

This past week, the commission gave its preliminary OK to fenced-in areas where hunters can train their hound dogs by letting them chase live coyotes and foxes. But only at one facility in Greene County -- for now.

Anne Sterling, Indiana director of HSUS, said the most troubling aspects of the proposed new rule, which is still up for public comment, include:

-- Requiring coyotes and foxes placed in pens to be spayed/neutered. "Requiring a captive animal to undergo major surgery is inappropriate," Sterling said. "We're concerned about how much time the wild animal will be given to recover from the surgery."

-- Allowing up to 175 dogs to be released in a pen at a time with captive coyotes and foxes.

-- Allowing coyotes and foxes as young as seven months old to be released into the pens.

-- Allowing coyotes and foxes to be chased by up to 175 dogs for 16 continuous hours.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Environment | Indiana Government

Ind. Decisions - Still more on Hamilton Southeastern decision

Updating this ILB entry from earlier today, here are the:

in the case of Hamilton Southeastern Schools, et al v. Mitch Daniels.

The opinion itself is here.

I think the only filing missing is the amicus brief first mentioned on p. 2 of the opinion:

Amicus Curiae, Growing Schools Corporations representing 31 School Districts, were granted leave to file a brief in opposition to the Motion to Dismiss, which was filed and considered by the Court.
[More] Okay, here is the Amicus Brief in support of plaintiff schools.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In MH Equity Managing Member, LLC v. Debra K. Sands , a 12-page opinion, Judge Bailey writes:

MH Equity Managing Member, LLC (“Managing Member”) appeals an order of the Marion County Superior Court enforcing a settlement agreement between Managing Member and Debra K. Sands (“Sands”) providing for dismissal with prejudice of a complaint alleging that Sands had breached a fiduciary duty in performing services for MH Private Equity Fund, LLC (“MH Equity”). We affirm.

Managing Member presents two issues for review: I. Whether the trial court erroneously extended comity to a Wisconsin court decision finding that the parties had reached a valid settlement agreement; and II. Whether the trial court erred in determining that a valid settlement agreement was entered into by the parties and enforcing its term of dismissal.

In Albert J. Hall v. State of Indiana , a 5-page opinion, Judge Kirsch writes:
Albert J. Hall was convicted after a jury trial of operating a motor vehicle as an habitual traffic violator (“HTV”),1 a Class D felony. He appeals, raising the following restated issue: Whether the trial court committed fundamental error in its instruction on the mens rea element of the Habitual Traffic Violator Statute. We reverse and remand. * * *

Here, the other instructions as a whole did not sufficiently inform the jury of the required mens rea. Final Instruction No. 4 provided the charging Information, which states that Hall “knowingly or intentionally” operated a vehicle while being an HTV, and Final Instruction No. 9 defined the terms “knowingly” and “intentionally.” Neither of these instructions informed the jurors that to convict Hall the State had to prove that he operated a vehicle while knowing that his driving privileges were suspended. To the contrary, they were expressly told that in order to convict Hall, the State must prove that Hall “knew or should have known” that his driving privileges were suspended. Appellant’s App. at 125. Moreover, mens rea was the central issue of Hall’s trial. Hall did not dispute that he was an HTV or that he was driving when he was stopped. He only disputed that he knew of his suspension.

We hold that the trial court committed fundamental error in instructing the jury that it could convict on a lesser mens rea than that provided in the statute. Accordingly, we reverse and remand for a new trial.

NFP civil opinions today (7):

Involuntary Commitment of B.K. (NFP)

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

In the Matter of the Adoption of E.L.; J.N. v. R.J. (NFP)

L.S. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

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

Mary E. McKinney v. Windy Lane Farms, Inc., et al. (NFP)

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

NFP criminal opinions today (10):

Anastacio Carrera v. State of Indiana (NFP)

Kevin Ware v. State of Indiana (NFP)

Justin Robinette v. State of Indiana (NFP)

Maria Chavarria v. State of Indiana (NFP)

Brandon Phillips v. State of Indiana (NFP)

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

Kieno Austin v. State of Indiana (NFP)

Vera D. Alsadi v. State of Indiana (NFP)

Anthony B. Rias, II v. State of Indiana (NFP)

Dewayne V. Adamson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - One tax court decision posted today

In Hubler Realty Company v. Hendricks County Assessor, a 7-page opinion filed yesterday, Judge Fisher writes:

On appeal, Hubler asserts that the Indiana Board's final determinations should be reversed because they sanction the “„loathsome and inequitable [assessing] practice'” of selective reappraisal and sales chasing. (See Pet'r Br. at 4-6 (citation omitted).) (See also Oral Argument Tr. at 4-5.) According to Hubler, the Assessor admitted, during the Indiana Board hearing, that she had engaged in the prohibited practice when she testified that she “„believe[d] taking one sale and putting it to the actual property that is in question is acceptable[.]'” (Pet'r Br. at 5 (quoting Cert. Admin. R. at 177).) In another instance, argues Hubler, a member of the PTABOA admitted to engaging in the practice when he explained that the PTABOA had “considered . . . the sale on the property [and had] used [it in] making [its] decision[.]” (See Pet'r Br. at 5 (citing Cert. Admin. R. at 175). * * *

The certified administrative record (record) in this case, however, does not evidence that either the Assessor or the PTABOA applied any of these practices in determining the market values-in-use of Hubler's properties. * * *
For the above stated reasons, the Indiana Board's final determinations are AFFIRMED.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Judge Nemeth requests an apology: Nemeth says commissioners implied he wasn't following the law"

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

Probate Judge Peter J. Nemeth has demanded that Bob Kovach and Dave Thomas apologize for statements the two made during a recent commissioners meeting.

In separate letters dated Nov. 22, Nemeth challenges the two commissioners to “set the record straight. Show me the law that is being ‘broken' by the passing of this ordinance.

“If you cannot do this, I believe you owe me a public apology.”

During a meeting Nov. 16, the two Democrats voted to veto an ordinance appropriating $225,000 in juvenile probation fees to convert the former CASA space at the Juvenile Justice Center into a fifth courtroom.

In doing so, both cited a recent mandate case involving the county and Nemeth, in which the Indiana Supreme Court ruled that juvenile probation fees may only be used to supplement probation services or probation officer salaries and not “to replace other funding or probation services.”

“By casting this vote, I intend to follow the law,” Kovach said at the time, to which Thomas added, “To vote for this ordinance would set a poor example to the citizens of St. Joseph County that it's OK to break some laws.”

“In effect, you are implying that I am not following the law,” Nemeth says in the two letters. “In reading the Supreme Court opinion regarding our recent mandate action, there is no such statement that juvenile probation user fees cannot be used to expand courtrooms.”

He adds: “Your above cited statement is not supported by the record or any other evidence. To put it bluntly, you are either ignorant of the law or deliberately misstating what the law is.”

Nemeth also notes that even though the court ruled he did not provide sufficient evidence during the mandate trial “to show that a new courtroom is reasonably necessary to the court's operation,” “the evidence has changed since that trial was held.”

For background, start with this ILB entry from Nov. 17th.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Courts

Ind. Gov't. - "Duke Energy's Assistant General Counsel, State President Fired Over Hiring Flap"

That is the headline to this story by Sue Reisinger in Corporate Counsel. A quote:

In a Nov. 8 filing with the Securities and Exchange Commission, Duke Energy Corp. said it fired Storms, an assistant general counsel for regulatory affairs, along with the president of its Indiana operations, Michael Reed. * * *

Due to "the visibility of this matter," the company said, it announced the firings in a memo to its employees and contractors. The memo says Duke terminated Storms and Reed "after careful consideration ... [of] its review of the events leading up to the hiring of Scott Storms."

Duke also said in the memo that it was implementing specific hiring guidelines to "ensure that job candidates linked to regulatory and oversight groups are removed from all Duke Energy affairs prior to being considered for opportunities."

Unless I missed it, neither the story nor the filing and attached memo indicate that Storms, in addition to his position as "general counsel for Indiana's state utility regulator," had also served as the administrative law judge presiding over Duke's Edwardsport case.

[More] The IndyStar editorial today is headed "Compromised by business as usual."

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Government

Ind. Courts - FWJG Editorial: Courts, by the numbers

This Fort Wayne Journal Gazette editorial today is an excellent review, I wish I'd written it. I've reproduced the entire piece below, and added emphasis in one spot:

The major conclusion in last week’s comprehensive report showing trends and statistics surrounding Indiana’s court system was that cases are up, forcing judges to juggle more – hardly a surprise. But the study of the state’s courts over the past decade produced numbers that not only reflected what is happening with society but also offer guidance on the future of Indiana’s judicial system.

Among the numbers and their stories:


The number of mortgage foreclosures filed in 2009 – up 19.8 percent from 2005 but down 8.7 percent from the previous year, suggesting that 2008 was the peak for foreclosures. Most of the cases represent a dream vanished and lives upended.

To the credit of Chief Justice Randall Shepard, the Indiana Supreme Court last year began requiring creditors to notify homeowners of their right to a settlement conference.

Judges – including Allen Superior Court’s Nancy Eshcoff Boyer – have become more aggressive in seeking settlements and alternatives to foreclosure. The report estimates that each time a foreclosure is prevented, it saves the community $40,000.


vs. $64.31

The first number is the cost of supervising a convicted criminal on probation for one day. The second is the cost of holding a convicted criminal in a state prison for one day.

Legislators, judges and other officials will likely be mindful of the contrast as they address Indiana’s increasing rate of incarceration, especially contrasted with other states.


The number of Child in Need of Services claims filed in 2009. Each of those children is the victim or potential victim of abuse and neglect, requiring government intervention and forcing the courts to make gut-wrenching decisions that include whether children should live with their parents, other relatives or foster homes.

Changes in state law have resulted in wrongly moving some power over decisions from local judges to state welfare workers.

16 percent

When considering courts, most attention surrounds criminal cases, particularly the most serious – including the 225 murder cases filed last year in Indiana. But of all new cases, only 16 percent are criminal, while 30 percent are civil or small claims matters. The biggest category: Infractions, which are violations of traffic laws and other non-criminal laws, which make up 43 percent of cases.


The total number of new cases filed in Indiana courts last year, up 16.5 percent from 2000. Supreme Court officials say that the courts really need 597 judicial officers, 155 more than the current number.

Don’t expect lawmakers to hire 100 new judges in this fiscal climate. But legislators should examine recommendations of a court study commission that courts be streamlined – in addition to judges, Indiana has a system of referees, magistrates, hearing officers and commissioners with inconsistent authority that should be streamlined. Allen County alone, for example, has nine Superior Court judges – three hear criminal cases, two hear juvenile cases, four hear civil cases. Is that mix still the best? Are their caseloads equitable?

$400 million

The annual cost of operating the court system – though taxpayers foot the bill for less than half, with the remainder coming from user fees, fines and assessed court costs.

In contrast, Terre Haute's WIBQ has this story today, headlined "State Criminal Court Cases See Huge Increase":
Two million new court cases were filed in Indiana last year! That's from a report that was released yesterday by the Indiana Supreme Court’s Division of State Court Administration. The report indicates a nearly 17 percent increase in the number of criminal cases filed in the state since 2000.

The census shows the state's population has only gone up by six percent in that same period of time. Court officials say its not that there are more criminals or that people in Indiana are behaving badly, but that they're using the courts more. Many times, court watchers say, the courts have had to step in to protect children from violence, thus increasing the number of criminal cases.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Indiana Courts

Ind. Decisions - More on Hamilton Southeastern decision

Updating yesterday's entry and the posting of the opinion, Bill McCleery of the Indianapolis Star had an expanded report in today's paper. Some quotes:

Indiana Attorney General Greg Zoeller said Monday he has not decided whether to appeal Nation's decision not to dismiss the lawsuit -- as the state had requested -- but some Central Indiana school officials and parents are heartened by the ruling. * * *

Officials and several parents claim the state's funding formula causes an inequity in funding per student from district to district, which they say is unconstitutional. They also say the funding formula particularly hurts growing school districts.

Zoeller said in a prepared statement that he recognizes school districts are facing budget problems and that some parents think state funding for education is insufficient. However, he said, the case should have been dismissed because political subdivisions such as school corporations have no sovereign authority and cannot challenge the constitutionality of state law.

"This public policy debate belongs in the budget session of the legislature, not in court," Zoeller said. "I have also proposed that legislators prohibit school corporations from using state dollars to sue the state."

Both Bourke and Brian Smith, Hamilton Southeastern's superintendent, said they support a "complexity index" that is used to funnel more money to districts with higher percentages of low-income or at-risk populations. But that factor is not the reason for statewide disparity, they said.

West Lafayette Schools, for example, has demographic and socioeconomic characteristics similar to Hamilton Southeastern's, said Michael Reuter, HSE's chief financial officer, but it collects about $1,100 more per student in annual state revenue.

"We have 18,000 students," Reuter said. "That's $18 million more per year we could have." * * *

Nation rejected all of the state officials' arguments in their efforts to get the case dismissed.

"Governmental entities such as plaintiff school corporations do have standing to challenge a statute where they demonstrate a significant interest in the outcome and some direct injury," Nation wrote in his decision, which was filed Wednesday but not released until Monday.

From the Elkhart Truth, Justin Leighty reports:
MIDDLEBURY -- The lawsuit filed against the state by Middlebury Community Schools and two central Indiana school districts cleared a hurdle Monday when a judge ruled against a state request to dismiss the case.

The lawsuit was filed in February in Hamilton County as a challenge to the state's method of school funding. Hamilton Southeastern Schools and Franklin Township Community Schools filed the suit along with Middlebury, arguing their districts get short-changed by the state's formula.

Middlebury Superintendent Jim Conner said at the time that 333 of the 344 public school districts and charter schools in Indiana receive more funding per student than Middlebury.

When determining how much funding to give each district, Indiana considers the average daily membership, or the number of students attending school in the district, as well as the district's location and a factor called the "complexity index," which takes into account factors such as the number of students on free and reduced lunch, Cam Savage, communications director for the Indiana Department of Education, said last year.

The lawsuit argues the state formula violates a state constitutional requirement for "general and uniform" education funding because districts get different per-pupil amounts.

According to the New Jersey-based Education Law Center, the case is the first to argue against the part of the state funding formula that weights funds to address the educational needs of students from poverty backgrounds.

Posted by Marcia Oddi on Tuesday, November 30, 2010
Posted to Ind. Trial Ct. Decisions

Monday, November 29, 2010

Ind. Gov't. - "Indiana budget leaders target prison population reductions"

Good story, just posted, by Lesley Stedman Weidenbener of the Louisville Courier Journal. A few quotes:

INDIANAPOLIS – State budget leaders appear ready to make big changes in Indiana’s criminal sentencing system to try to stymie or even reduce the growth in the prison population.

But members of the State Budget Committee said Monday the General Assembly will need more detailed data and lots of political courage to make changes that save money and better serve inmates and the public.

The data should come in December, when the Pew Center on the States and the Council of State Governments Justice Center finishes an intensive study of the state’s criminal justice system and makes recommendations for a sentencing overhaul.

The latter could be more difficult. State lawmakers have made a habit, in reacting to crimes, of passing laws that create new felonies or lengthen sentences. * * *

The discussion Monday was part of the Indiana Department of Correction’s presentation to the five-member, bipartisan budget panel that includes four legislative fiscal leaders and the governor’s budget director. * * *

State Budget Director Adam Horst * * * is serving on the state steering committee for the criminal justice study, which is being funded largely by grants and private sources. The study began last summer and recommendations are expected in the coming weeks.

The study includes a comprehensive look at the state’s criminal justice system, including evaluations of probation and parole supervision practices, community corrections and transition programs, the use of issue-specific courts including drug and family courts, and sentencing guidelines and requirements.

Indiana last evaluated its sentencing codes in 1976. Since then, Indiana’s adult prison population has grown from 7,500 to 29,000.

Rep. Eric Turner, R-Marion, said Monday that he’s as guilty as other lawmakers of voting for bills that lengthen sentences or create new crimes because of emotions rather than data.

But he said the General Assembly needs to reconsider those laws and the entire system.

“We need to figure out how we can come back and fix it in one big swoop,” Turner said. “It’s going to be very difficult.”

Fascinating stuff, right? Much of the information (but not Weidenbener's skillful putting it together) is from today's testimony before the State Budget Committee which, as the ILB first wrote on Nov. 17, 2010, sadly is NOT videocast. Think of what else you, the public, are missing from these hearings, which are going on daily for a month.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Indiana Government

Ind. Decisions - More on: Judge denies State claim that districts, led by Hamilton Southeastern Schools, have no standing to sue

Many thanks to the Indiana Attorney General's Office, which has provided a copy of today's 12-page opinion by Hamilton Superior Court Judge Steven R. Nation in Hamilton Southeastern Schools, et al v. Mitch Daniels.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Judge denies State claim that districts, led by Hamilton Southeastern Schools, have no standing to sue

First the background. This ILB entry from Feb. 24, 2010 is headed "Districts' lawsuit may spark political fireworks" and quotes both the Indianapolis Star from that date, plus a 2009 Fort Wayne Journal Gazette story that began:

If the state is to continue demanding accountability for school dollars, as it must, lawmakers must also ensure those dollars are distributed equitably, without the last-minute gimmicks that make a mockery of any formula.

That’s what seemingly occurred with the restoration grant. It was devised to ensure school districts received, at minimum, the amount they received in 2009.

See also this Oct. 18, 2009 ILB entry.

This ILB entry from June 11, 2010 quotes a Star story that began:

Three school districts suing the state for more funding are expected to respond today to the state's motion to dismiss the lawsuit.

The state argues that the districts, led by Hamilton Southeastern Schools, have no standing to sue.

Political subdivisions such as school corporations have no sovereign authority, so they cannot challenge the constitutionality of state law, according to an e-mail from Bryan Corbin, spokesman for the attorney general's office.

Slightly after noon today Bill McCleery of the Star reported under the heading "Judge allows school-funding lawsuit to proceed." Some quotes:
A Hamilton County judge has denied a motion by Gov. Mitch Daniels to dismiss a lawsuit brought against the state by Hamilton Southeastern Schools and two other districts alleging that the state's funding formula for local schools lacks uniformity and therefore is unconstitutional.

State attorneys had cited five premises on which they believed the schools' case should be dismissed, and Hamilton Superior Court Judge Steven Nation rejected all five premises.

The school corporations bringing the lawsuit argue that the state's funding formula unfairly penalizes growing school districts "by not allowing funding to follow the students."

The state countered by asking a judge to dismiss the case, because it says the schools have no standing to sue. * * *

Nation's ruling means that the lawsuit will proceed to trial barring an out-of-court settlement or a successful appeal by the state to a higher court on getting the lawsuit dismissed.

The Attorney General has issued a press release, stating:
We respect the court's ruling but are disappointed and will review our litigation options.

I recognize the budget difficulties school corporations face and the frustration of parents who believe their children's schools receive insufficient state funding. But as the state's lawyer defending state statutes from legal challenge, my position is that public school districts do not have the legal standing to challenge the constitutionality of state laws that provide their funding, and that in any event only the Indiana General Assembly has the authority to change the formula to fund schools.

This public policy debate belongs in the budget session of the Legislature, not in court.

I have also proposed that legislators prohibit school corporations from using state dollars to sue the state," Zoeller said.

ILB: Some readers will recall that this "restoration grant," like a number of other items, was a "special session surprise," language slipped into the budget bill in the conference committee report. As Karen Francisco, editorial writer at the Fort Wayne Journal Gazette, wrote over a year ago:
To a long list of last-minute legislative sleights-of-hand, add the mysterious “restoration grant.”

This never-before-seen calculation emerged in the school-funding formula in the final hours of the General Assembly last June, enriching some Indiana school districts and ignoring others.

Another 2009 "special session surprise" gave the State Dept. of Public Welfare, rather than the trial court, the final say over the placement of juveniles in a home or facility located outside Indiana. A challenge to that legislative change is now pending bbefore the Supreme Court.

On Nov. 15, 2010, the ILB posted this entry headed "The separation of powers, the one subject requirement, and the budget bill, or 'Will the Court revamp the process and force the genie back into the bottle?'" making the case that these last minute "surprises", and indeed much of the non-appropriating language which it has recently become the practice to pack into the end of the "budget" bill, may well violate the Indiana Constitution.

The ILB would like to post Judge Nation's ruling - please contact me if you can help.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (3):

In Donnie Salyer v. State of Indiana , a 9-page opinion, Judge Mathias writes:

Our court has granted the permissive interlocutory appeal filed by Donnie Salyer (“Salyer”) challenging the Starke Circuit Court's denial of his motion to suppress evidence obtained during a search of his residence. Salyer argues that the search warrant was invalid because the address and description of his property contained on the warrant were incorrect. Concluding that the incorrect address information did not invalidate the warrant, we affirm. * * *

Upon realizing the error in the address, Officer Keen should have corrected the error in the warrant and affidavit and obtained a new warrant prior to searching Salyer's residence. Indeed, had Officer Keen not been the executing officer, we might well reach a different result. However, because Officer Keen knew the precise location of Salyer's residence, prepared the search warrant and accompanying affidavit, and executed the search warrant, there was no risk that Officer Keen would enter the wrong residence or undertake indiscriminate searches of other homes.

Accordingly, under the unique facts and circumstances before us, we are compelled to conclude that Officer Keen's execution of the search warrant was reasonable and did not violate either the Fourth Amendment or Article I, Section 11 of the Indiana Constitution. The trial court therefore did not abuse its discretion when it denied Salyer's motion to suppress.

In S.D. v. State of Indiana , a 13-page opinion, Judge Vaidik writes:
S.D. appeals his juvenile delinquency adjudication for what would be Class C felony child molesting if committed by an adult. Before S.D. was interviewed about the child molesting allegation, he and his guardian were given time to consult with each other. However, the consultation took place in a room where video cameras were recording, and S.D. and his guardian were aware of that fact. S.D. contends that the admission of his subsequent confession constitutes fundamental error. We conclude that there is fundamental error because S.D. was in custody when he confessed and was not given meaningful consultation with his guardian as required by Indiana’s juvenile waiver of rights statute because the video cameras constituted an improper police presence and infringed on the privacy necessary to any meaningful consultation. We therefore reverse.
In Walker Whatley v. State of Indiana - "Walker Whatley, pro se, appeals the dismissal of his motion for re-trial under Ind. Trial Rule 60(B). Whatley raises one issue, which we revise and restate as follows: whether the trial court erred in dismissing his motion for re-trial under Rule 60(B). We affirm."

NFP civil opinions today (3):

Bruce D. Seal v. Lori L. Seal (NFP)

Paternity of F.B.; P.B. v. J.M. (NFP)

Cody Lewellen and Cody Dallas v. Brandon Cessna (NFP)

NFP criminal opinions today (6):

John V. Gurthrie, Jr. v. State of Indiana (NFP)

James M. Sampson v. State of Indiana (NFP)

Rafael A. DeJesus v. State of Indiana (NFP)

Michael Nuckols v. State of Indiana (NFP)

Travis W. Jackson v. State of Indiana (NFP)

Eric Hall v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two Indiana cases today from 7th Circuit, plus seed corn case out of Illinois

In American Bank v. City of Menasha (ND Ind., J. Springmann), a 12-page opinion, Judge Psoner writes:

The Private Securities Litigation Reform Act of 1995 provides, with an immaterial exception, that “all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss” a suit governed by the Act. 15 U.S.C. § 78u-4(b)(3)(B). The Securities Litigation Uniform Standards Act of 1998 (SLUSA) amended the Private Securities Litigation Reform Act (PSLRA) to authorize the district court to “stay discovery proceedings in any private action in a State court, as necessary in aid of its jurisdiction, or to protect or effectuate its judgments, in an action subject to a stay of discovery pursuant to [section 78u-4(b)(3)(B), quoted above].” 15 U.S.C. § 78u-4(b)(3)(D). The question presented by this appeal is whether this provision of SLUSA authorizes the district court to enjoin a private securities plaintiff from gaining access to records that a state’s public-records law entitles members of the public to see and copy at their own expense. * * *

The City’s position is not only wrong; if one looks to the future it is futile. The City acknowledges that had American Bank requested the records before filing suit, there would have been no ground for refusing the request. So the only effect (beyond this case) of our affirming the district court would be that in the future private securities plaintiffs would file their publicrecords requests a few weeks or months before rather than (as in this case) a few weeks after filing suit.

Of course if states create discovery procedures but call them “requests for public records,” perhaps by deeming all records in the files of private corporations public, this would not defeat a motion for a stay. Substance trumps form. But in this case substance and form coincide. The judgment granting a stay is REVERSED.

In O'Connor-Spinner v. Astrue (SD Ind., J. Hamilton), a 15-page opinion involving a social security case, Judge Ripple concludes:
We conclude that the ALJ failed to direct the VE to the totality of Ms. O’Connor-Spinner’s limitations, thus leaving unsupported the determination that someone with her limitations could perform work in the national economy. We further conclude that the ALJ did not address potentially important evidence that Ms. O’Connor-Spinner has difficulty taking instructions and responding appropriately to supervisors. Accordingly, the judgment of the district court is reversed, and this case is remanded to the agency for further proceedings consistent with this opinion.
Clifford, III v. Crop Production Services (CD Ill), a negligence case involving Illinois substantive law, begins:
The plaintiff below and appellant here, John C. Clifford, III, farmed seed corn under a contract with Monsanto. In 2007, at Monsanto’s direction, Clifford planted male and female strains of seed corn on three different fields. The male strains were labeled as being sensitive to two types of herbicides: sulfonylureas and pigment inhibitors. In early June, Clifford noticed weeds in the corn and asked Monsanto about potential herbicides he could use to control the weeds. Despite the corn’s sensitivity to sulfonylureas and pigment inhibitors, a Monsanto representative told Clifford that there were no restrictions on the types of herbicides that could be applied to the corn. Clifford then contacted a supplier of herbicides, appellee Crop Productions Services, Inc. (“CPS”), and asked it to send a representative to his farm in order to view the weeds. A CPS representative viewed the weeds and recommended that Clifford use a custom blend of herbicides containing Steadfast, a brand-name sulfonylurea herbicide, and Callisto, a brand-name pigment-inhibitor herbicide.

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

Courts - "Judges Make List of Top 10 High-Paying Jobs With No Future"

See this item from the ABA Journal Blog.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Courts in general

Courts - "These assets turn into crime-fighting tools"

Joseph H. Hogsett, U.S. attorney for the Southern District of Indiana, has an opinion piece today in the Indianapolis Star, lauding the federal asset forfeiture process. It begins:

The Star's recent report on the varied applications of Indiana's state forfeiture law was quite revealing. On the federal level, the rules and standards for forfeiture are much less discretionary and concerns highlighted in the recent Star articles do not exist.
However, the federal system is not without criticism. See, for example, this Feb. 1, 2010 ILB entry headed "Asset Forfeiture: 'A License to Steal.'”

For more, see this entry from Oct. 14, 2009, headed "SCOTUS looks at asset-forfeiture hearings, in a review of a 7th Circuit opinion," and this one from Dec. 8, 2009.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Courts in general

Courts - Focus on Justice John Paul Stevens and the death penalty

Here, via YouTube, is last evening's 60 Minutes interview with the retired justice.

The NY Times'
Adam Liptak wrote Nov. 27th in a column headed "Ex-Justice Criticizes Death Penalty." It begins:

WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

The New York Review of Books' article by Justice Stevens takes the form of a review of a new book by David Garland titled "Peculiar Institution: America’s Death Penalty in an Age of Abolition ."

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Courts in general

Ind. Law - More on monetary costs of the death penalty in Indiana

Supplementing this ILB entry from Nov. 17th, there are several recent Indiana stories on death penalty issues.

"High cost, errors have Indiana, Illinois rethinking death penalty,"
is the heading to this Nov. 28th story by Dan Carden of the NWI Times. Some quotes:

INDIANAPOLIS | While the death penalty remains popular among residents of Indiana and Illinois, officials in both states are rethinking whether to keep the ultimate punishment, given its tremendous cost and the potential for error.

Indiana Attorney General Greg Zoeller this month called on state lawmakers to reconsider their support for the death penalty because of its effect on the already strained budgets of the state and its counties. * * *

The Republican attorney general pointed out that counties and the state often end up paying for both sides in a death penalty trial, as nearly all death penalty-eligible defendants receive legal assistance from the public defender at trial and in their mandated appeals.

An analysis by the nonpartisan Legislative Services Agency pegged the average cost of a capital case and one appeal at $449,887, not including expenses for prosecutors or sheriffs. Trials in which the maximum possible penalty is life without parole only cost an average of $42,658, according to the agency.

The National Institute for Corrections, a federal agency, pegs the annual cost of incarceration at $19,695 per inmate in Indiana and $21,334 in Illinois. That means a person sentenced to life in prison in Indiana would have spend more than two decades behind bars before the cost would outweigh just the defense cost of a capital punishment trial and initial appeal.

Legislation to get rid of the death penalty in Illinois could come up for a vote when the General Assembly returns to Springfield on Monday. * * *

Despite Zoeller's encouragement, Indiana lawmakers are unlikely to consider a death penalty repeal when they return to the Statehouse on Jan. 5.

Gov. Mitch Daniels and the Republican leaders of the Indiana House and Senate have said they want legislators focused on the state budget, redistricting and school and local government reform, leaving divisive issues like the death penalty for the 2012 session.

Two stories today from the Lafayette Journal Courier. The first, by Dorothy Schneider, includes this quote:
William McLauchlan, an associate professor of political science at Purdue University, said there's little the state can do to trim costs of death penalty trials.

"The U.S. Supreme Court has been consistent on trying to make sure that before the death penalty is imposed, the (appeals) procedure has been carefully and fully followed because of the extreme consequences," he said.

So if the General Assembly takes on the issue in the upcoming session, McLauchlan said legislators face an "all or nothing" decision.

"They can really only focus on the elimination of the death penalty all together," he said. "If you're going to have the death penalty for crimes, you have to be prepared to pay for it. And those costs are quite high."

Vanderburgh County Prosecutor Stan Levco says Indiana's death penalty system is nearly broken because it costs so much. He says it's almost to the point where it's no longer viable.

In some cases, Ives said counties can shift trial costs to the state. But he said that's not a sustainable option in the long run.

Schneider also has a story reporting on the death penalty views of Lafayette-area lawmakers.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Indiana Law

Environment - "Indiana lagging on renewable energy plan: Illinois, Michigan standards help attract investment

That was the headline to this Nov. 26th Gary Post-Tribune story by Gitte Laasby. Some quotes:

When it comes to renewable energy, economic development officials in Michigan could be laughing all the way to the bank.

Michigan's renewable energy policy has attracted billions of dollars in investments over the last two years while neighboring Indiana sat idly by. The developments are expected to create thousands of jobs in manufacturing -- a blow to industrial areas like Northwest Indiana. * * *

"Since the adoption of the renewable energy standard in Michigan, we have attracted more than $9 billion in new investment in new alternative energy manufacturing business," said Michael Shore, spokesman for Michigan Economic Development Corp.

"That $9 billion is projected to create more than 9,000 jobs over the next 10 years. We've gotten significant new investments in solar energy manufacturing, wind energy, biofuels as well as advanced battery. Those are the green, sustainable energy sectors we've targeted."

Indiana is one of 14 states nationwide without any kind of renewable energy standard, according to the Pew Center of Global Climate Change. The Indiana Legislature has considered one the past four sessions. Both houses passed separate bills last year, but couldn't agree on a compromise because one senator wanted to include nuclear among renewables. Other lawmakers cited concerns that electricity rates will increase if utilities have to get a certain percentage of energy from renewables, which are more expensive than coal.

There is much more in the story. The IBJ has what looks to be a shorter, AP version of the story here today.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Environment

Law - "Federal repeal of marriage act gays’ best hope"

The impact of the federal Defense of Marriage Act is examined in this Washington Post editorial, reprinted today by the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to General Law Related

Ind. Courts - "Courts likely to help each other with civil caseloads: Plan calls for counties to be treated as districts"

From today's Gary Post-Tribune, a good explanation by Teresa Auch Schultz of one part of A New Way Forward: Indiana Judicial Conference Announces Strategic Plan to Reform Courts. (Access the Court report documents here.) Some quotes from today's long story:

Data released this week from the state showed that Porter County judges all have heavy caseloads, taking up more time than the judges have available in a given year.

With the county facing budget cuts just like most other local governments across the state, the county doesn't have the option to add another judge -- and the staff a judge would need -- to make sure cases are handled in a timely manner.

Help could be on the way though, through a proposed statewide change that would spread open the idea of counties as boundaries for the courts.

The idea, put forth by the Judicial Conference of Indiana, calls for all the counties to be split into 26 districts, with Porter, Newton, Jasper and Benton counties making up District 2. Lake County would by itself make up District 1.

The overall plan for the districts would incorporate several changes, but the first one and most likely to happen in the next year is allowing the courts to help each other when it comes to civil cases, Porter County Judge David Chidester said.

"You're not going to think of things as counties anymore but as districts," said Chidester, who sits on the Judicial Conference.

The proposal would mean judges with a low caseload in a district -- even if they're not in the same county -- could help judges with heavy caseloads, said Elkhart County Judge Terry Shewmaker, who heads the committee looking into the changes. * * *

The change would only be for civil cases, as state law calls for criminal cases to be heard in the county they are charged in. However, moving civil cases would free up time for judges to work on the criminal cases, Shewmaker said.

Chidester said judges in a district would all elect a presiding judge who would oversee assignment of cases to make sure no one judge got too much. That judge could also mediate any arguments or squabbles among the other judges, he said. * * *

Another idea is to streamline the various types of judges at the local level -- such as superior, circuit, city and town judges. The idea is that all judges would be at a county level and could handle all kinds of cases. That change would have a larger ramification for Lake County, because its 11 city and town courts would be absorbed into the county courts.

Both those proposals face roadblocks, though, because they require approval from the General Assembly. Shewmaker said judges on the committee were working on possible bills to introduce to the legislature, although he did not say when they might be introduced.

They would also likely require moving funding for courts to the state level, similar to how funding for schools was taken off counties' shoulders. That proposition -- and how it would work -- is much less certain.

"That's got to be worked out," Chidester said. "They haven't really gotten down to the devils of the details."

Posted by Marcia Oddi on Monday, November 29, 2010
Posted to Indiana Courts

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

Here is the Clerk's transfer list for the week ending November 24, 2010. It is one page (and 5 cases) long.

No transfers were granted for the week ending Nov. 24, 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 Monday, November 29, 2010
Posted to Indiana Transfer Lists

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

Here is the answer to "What did you miss over the weekend from the ILB? But first, please think about becoming an ILB supporter!

From Sunday, November 28, 2010:

From Saturday, November 27, 2010: From Friday, November 26, 2010: From Thursday, November 25, 2010:

Posted by Marcia Oddi on Monday, November 29, 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 11/29/10):

Next week's oral arguments before the Supreme Court (week of 12/06/10):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 11/29/10):

Tuesday, November 30th

Next week's oral arguments before the Court of Appeals (week of 12/06/10):

Next Tuesday, December 7th

Next Friday, December 10th

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, November 29, 2010
Posted to Upcoming Oral Arguments

Sunday, November 28, 2010

Ind. Gov't. - Another amazing IURC / Duke Energy story today

Following on this long list of earlier entries, John Russell reports in a front-page story in the Sunday Indianapolis Star, under the headline: "IURC chief and Duke exec were pals, e-mails show: Regulator, utility power player discussed a lot -- including Duke's hiring process." The "Duke exec" in the story is not the recently fired president of Duke Energy-Indiana, but the second in command to Jim Rogers himself. Some quotes:

James L. Turner, the second-highest-paid executive at Duke Energy Corp., liked keeping in touch with Indiana regulators, even on a long holiday weekend when he was riding in a boat.

On July 2, Turner sent an e-mail to David Lott Hardy, then chairman of the Indiana Utility Regulatory Commission, telling him he was heading out on a channel to Lake Michigan.

"Would the ethics police have a cow if you and the woman came up some weekend?" he wrote.

Hardy wrote back: "Probably -- we might 'be in the area' some afternoon, but I won't be doing this forever."

A few minutes later, he added that driving to the lake would be a fun outing in a high-performance BMW M5. "It would be a nice run in the M5 and a cheaper [Michigan] journey as usually we only go to [Michigan] so the woman can go to Nieman Marcus."

In dozens of e-mails, obtained by The Indianapolis Star under an open records request, the two men schmoozed and joked over all sorts of personal topics, sometimes trading messages eight or 10 times a day. At one point, Hardy offered advice on what kind of BMW Turner should buy. Another time, they talked about Butler University's basketball championship games. Several times, they had frank discussions on private personnel matters involving Duke officials and job candidates.

Taken together, the e-mails paint a picture of a cozy relationship that extended far beyond a professional association between a utility executive and a powerful state regulator.

And from the end of the long story:
How far the cozy relationships with Duke executives extended into state government is unclear. But the subject of Storms' hiring by Duke was raised with Daniels' chief of staff, Earl Goode, nearly two months before Storms left the IURC.

The Star reported last week that Reed was concerned by comments Goode made to him about Storms during a golf game Aug. 1.

According to e-mails, Reed told Hardy he had run into Goode, who said he would be surprised if the state's ethics panel cleared Storms, because of his role in presiding over Duke's $2.9 billion coal-gasification plant in Edwardsport.

Goode said last week that his comments to Reed meant only that Storms would have to go before the state ethics panel, as would any state administrator considering a private sector job offer. He said he had no opinion on Storms at that time. Only later would Daniels' office issue findings that Storms had a conflict of interest.

Asked why he was golfing with Reed, Goode said they were playing together in an event for GTE workers. He and Reed previously worked for GTE.

Reed apparently was worried about Storms' possible difficulties with the ethics commission. Later that same day, he sent Hardy an e-mail suggesting a way to address those difficulties. He urged Hardy to have the IURC's ethics officer, Loraine Seyfried, "clearly spell out how [Storms] would be walled off from Edwardsport, and therefore meet the test."

A few weeks later, Seyfried sent a three-page memo to Storms, stating her opinion that his prospective employment with Duke would not violate the state ethics code. Storms presented that opinion to the ethics panel Sept. 9, when he asked for approval to take the Duke job. The ethics panel gave him the green light in a ruling that largely mirrored Seyfried's memo.

Storms and Hardy later joked by e-mail that they were impressed that no one laughed during the ethics hearing. Later, after Storms went to work for Duke, Hardy offered [Storms'] old job as administrative law judge to Seyfried, presiding over Duke's Edwardsport project.

Daniels' office later found Storms had not walled himself off from Duke cases while discussing career options there.

Posted by Marcia Oddi on Sunday, November 28, 2010
Posted to Indiana Government

Ind. Decisions - Still more on suit between one Indiana state agency and another

Remember this ILB entry from May 27, 2010. The parties were Indiana Protection and Advocacy Services and the Indiana FSSA. At issue was the Eleventh Amendment.

This SCOTUSblog entry from Nov. 26th alerts us to a strikingly similar case, being argued Dec. 1, 2010 before the SCOTUS:

On December 1, in Virginia Office for Protection and Advocacy v. Stewart, the Court will hear argument regarding whether the Eleventh Amendment prohibits an independent state agency from suing state officials in federal court for an injunction to remedy a violation of federal law.
Here is a preview prepared by a professor at John Marshall Law School. A quote:
This case arises from VOPA’s attempts to investigate two deaths and one injury in facilities operated by the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services. As part of its investigations, VOPA repeatedly requested certain records related to the deaths and injury, but state officials refused to provide them.

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

Ind. Decisions - "Custody ruling raises legal concerns"

"Custody ruling raises legal concerns" is the headline to this Nov. 27, 2010 story by Dave Stafford in the Anderson Herald Bulletin. Some quotes:

Craig Scarberry of Anderson lost joint custody of his three children this month after Madison County Superior Court 3 Commissioner George C. Pancol issued an order that included court evidence that Scarberry, formerly a Christian, had become agnostic. The order was affirmed by Superior Court 3 Judge Thomas Newman.
A Nov. 19th story that the ILB missed at the time, reported:
ANDERSON, Ind. — An Anderson father says that because he professed religious doubt in a custody hearing, a judge took his children from him.

Craig Scarberry, 29, this month was stripped of joint custody of his three children, Kaelyn, 7; William, 6, and Ayvah, 4, because he changed his religion from Christian to agnostic.

“It blew my mind away,” Scarberry said of an order written by Madison County Superior Court 3 Commissioner George C. Pancol and affirmed by Judge Thomas Newman. The order that stripped Scarberry of joint custody listed evidence heard in the case upon which Pancol based his ruling.

Pancol’s order says Scarberry “did not participate in the same religious training that the (mother) exercised and that (Scarberry) was agnostic.” Scarberry has until Dec. 1 to appeal the ruling, which has reduced his custody to visitation with his children four hours per week and on alternating weekends. * * *

Pancol’s order included other evidence presented in court. It said there was evidence that Scarberry had used profanity in front of the children and at times “failed to control or manage his anger. ... In addition, (Scarberry) was sending a great number of text messages to (Porcaro).”

The order does not say that Scarberry was abusive or negligent toward the children.

ILB: Re the religion issue, at least two relatively recent Court of Appeals opinions come immediately to mind.

The Wicca issue reported in this Aug. 18, 2005 ILB entry, quoting from an Indy Star story:

A judge exceeded his authority by ordering an Indianapolis Wiccan activist and his ex-wife to shield their 9-year-old son from what he called their "non-mainstream religious beliefs and rituals," the Indiana Court of Appeals ruled yesterday.

The appeals court threw out an order from Marion Superior Court Judge Cale Bradford, citing a state law that gives a custodial parent the authority to determine a child's upbringing -- including religious training -- unless certain exceptions are met.

The "Father also learned that Mother had taken the children to the Jesus Metropolitan Community Church (JMCC), a church open to gay, lesbian, bisexual, and transgender people" and that mother has a transgendered friend issue. The COA ruled, in Lowhorn v. Lowhorn (see July 30, 2008 entry here):
There is no evidence that the children’s occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody. * * *

In summary, we conclude that many of the trial court’s findings are clearly erroneous, and the remaining findings, taken together, fail to demonstrate a substantial change necessary to modify custody. We therefore reverse the trial court’s grant of Father’s petition to modify custody and remand for proceedings consistent with this opinion.

See also this Feb. 13, 2008 ILB entry, quoting a NYT story headed "Religion Joins Custody Cases, to Judges’ Unease."

Posted by Marcia Oddi on Sunday, November 28, 2010
Posted to Ind. Trial Ct. Decisions

Environment - More on: Asian Carp; the Indiana Dunes; and Lake County Trash

Asian Carp. From John Flasher of the AP, a lengthy story in the Louisville Courier Journal on the potential danger of the Asian Carp to Lake Erie. A quote:

WHEATLEY, Ontario — Well before dawn, Todd Loop takes his fishing tug onto Lake Erie in pursuit of yellow perch, walleye and other delicacies — a livelihood that has sustained his family for three generations but faces a future as murky as the freshwater sea on a moonless night.

Already ravaged by exotic species such as the sea lamprey and quagga mussel, the Great Lakes soon may be invaded by Asian carp, greedy giants that suck plankton from the water with the brutal efficiency of vacuum cleaners. Scientists are unsure how much damage they would do, but a worst-case scenario has them unraveling the aquatic food web by crowding out competitors and decimating a fishing industry valued at more than $7 billion.

Nowhere is the danger greater than in Lake Erie. Although the shallowest of the five lakes, its fish populations are by far the most abundant. That's why commercial fishing, which has faded elsewhere in much the Great Lakes region, is still alive in Canadian port towns scattered along the lake's northern shoreline.

The Indiana Dunes. A long, important story today by Diane Krieger Spivak of the Gary Post Tribune reporting on how the Park needs public/private partnerships to help fill the federal funding gap.

Lake County Trash. The ILB has had a number of entries on the "Continuing saga of politics of trash in Lake county." Today Marc Chase reports in the NWI Times under the heading "Former waste district adviser urges caution in trash-to-ethanol deal." The story begins:

As Lake County communities consider 20-year contracts to send their trash to a planned processing facility, a former county solid waste adviser urges caution. He points to lingering questions and a past deal that failed, costing taxpayers millions.

As a former member of the Lake County Solid Waste Management District's Citizens Advisory Committee, H. Allen Pederson said he wants to believe a public-private plan to transform the county's trash into ethanol will work.

"This could be a great thing for Lake County, the country and the world -- if it works," said Pederson, of Griffith. "But show me one that works."

The process -- which aims to transform carbon-based trash into ethanol while sorting out metals, glass and other nonorganic material for recycling -- never has been attempted on the large commercial scale proposed for Lake County by Powers Energy of America.

Posted by Marcia Oddi on Sunday, November 28, 2010
Posted to Environment

Ind. Law - Two editorials on asset forfeiture and the common school fund

Updating this ILB entry from Nov. 27, 2010, quoting from an Indy Star story headed "Lawmakers might specify division of seized assets," and this very long list of earlier ILB entries on the topic, both the Gary Post Tribune and the Fort Wayne Journal Gazette have editorials today.

From today's Gary paper, the headline is "Keep seized assets with law enforcement." Some quotes:

It makes little sense for assets seized from criminals to go into the Common School Fund.

It makes all the sense in the world for those assets to go to support the future activities of a variety of law enforcement agencies, as well as the prosecutors who either handle the forfeiture action or prosecute the cases in court.

Knowing they will share in what is seized -- such as large amounts of cash from drug dealers -- also can be an extra incentive for law enforcement.

And given the strained financial condition local law enforcement finds itself in today, the forfeitures often are a tremendous help in supplementing budgets that don't have enough funding for police vehicles, training or a variety of other needs.

It also makes little sense to help fund schools through an unstable funding source. Schools should be funded in total through the state and from local property taxes.

Because there is confusion surrounding the use of seized assets, the General Assembly in January should clarify that the money should stay with law enforcement.

From today's FWJG, an editorial headed "Forfeiture law fails taxpayers." Some quotes:
An Indianapolis Star investigation followed, revealing that there is no oversight of asset seizures, with no state agency tracking the cases. Joel Schumm, a professor at Indiana University School of Law-Indianapolis, told the Star that there is no clear definition of how law enforcement expenses related to the forfeitures should be calculated, so judges generally go along with a prosecutor’s assessment.

Prosecutors and law enforcement agencies clearly benefit from a loose interpretation of their enforcement costs. Allen County Sheriff Ken Fries used $600,000 from a drug bust netting about $1 million in cash and roughly 6,700 pounds of marijuana to help finance a new shooting range. The Star reported on Putnam County Prosecutor Tim Bookwalter, who used $28,000 in seized cash to support a spay-neuter clinic, arguing that stray animals constitute a law-enforcement problem. In Delaware County, Prosecutor Mark McKinney prosecuted criminal drug cases while also representing the county in civil forfeiture cases as a private attorney.

Schumm suggested the Indiana attorney general would be the likely advocate for ensuring the money is distributed fairly. But Attorney General Greg Zoeller announced last week that he will defend the county prosecutors in the suit, not taxpayers.

The law should be clarified. While a legislative solution might work going forward, the lawsuit rightly asks whether the prosecutors routinely violated the current law in retaining the seized assets instead of turning them over to the school fund. Taxpayers deserve an answer to that question, as well as clear guidelines from lawmakers. Some authority should be designated for fairly determining law enforcement costs related to forfeitures, as well as for oversight of the distribution.

ILB: Divergent viewpoints, but both come to the same conclusion -- the asset forfeiture law needs to be clarified.

Posted by Marcia Oddi on Sunday, November 28, 2010
Posted to Indiana Law

Saturday, November 27, 2010

Environment - "Biomass invades, threatens Southern Indiana"

The ILB has had many entries on the proposed biomass projects in Scottsburg and Crawford County.

A long article in The Bloomington Alternative, dated Nov. 27, 2010, reported by Linda Greene, begins:

The biomass-combustion industry has southern Indiana under seige. The corporations are attempting to site biomass electricity-generating plants in Crawford, Scott, Dubois and Gibson/Pike counties. Those companies apparently don’t expect opposition from the residents of small towns in rural southern Indiana.

The industry touts biomass burning as a “green” technology; it’s anything but. Biomass plants are more polluting per unit of energy generated than coal-burning plants, which are the No. 1 cause of global warming. A 32-megawatt biomass plant uses 500,000–700,000 gallons of fresh water every day and regurgitates some 350,000 gallons of pollution-tainted waste water into the local river or lake.

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Environment

Ind. Gov't. - IN.gov uses ChaCha search, as does Indiana University [Updated]

From the State of Indiana website:

Improved Search: IN.gov has partnered with Indiana's ChaCha.com, to combine the best search results from other search engines along with dedicated human intelligence. Need additional help? Just chat with a skilled search expert immediately.
Here is a ChaCha search from Nov. 24, 2010, asking "what is the majority party in the Indiana House of Representatives?"

For insurance, I've made a PDF copy of the results I received on Nov. 24th. Apparently no one told the ChaCha experts about the Nov. 2 election results.

[Updated 11/28/10] A reader sent this message this morning:

I don't personally care for the ChaCha search engine ingov uses. It tends to borrow most of it's results from Google anyway. Not to nitpick, however, regarding the result of your query to it on 11-24-2010, I believe that until the newly elected Representatives are sworn in in January, that the search engine did return the correct response to your query. The November election hasn't changed anything "yet", but in January that'll be a different story.
ILB response. (1) I didn't query ChaCha, I have a bot that searches for all mentions of the Indiana General Assembly and it returned that page. The answer caught my eye. (2) More importantly, however, both ChaCha and the reader are incorrect. The members of the newly elected General Assembly were sworn in at the Organization/Orientation Day on Nov. 9th. Their terms had already begun. Per Article 5 of the Indiana Constitution:
Section 3. Senators shall be elected for the term of four years, and Representatives for the term of two years, from the day next after their general election. One half of the Senators, as nearly as possible, shall be elected biennially.
(History: As Amended November 6, 1984).
Apparently no one told the ChaCha "experts" about the Indiana Constitution.

[More] Another reader writes:

You would think that someone might have tried out ChaCha before they signed the entire state onto it :)

Interestingly, I googled the exact same question and received a response, through a link to Wikipedia, that appears to be correct and reflects the Republicans now have majority.

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Indiana Government

Ind. Gov't. - Richard Lugar: "Charting His Own Course Against Prevailing Winds"

Jennifer Steinhauer's article on Indiana Senator Richard G. Lugar, will appear in the Sunday NY Times. A quote:

Even after the midterm rout that will remove many long-serving members from Congress, the idea that Mr. Lugar would be vulnerable to a primary challenge is a chilling notion to many Republicans, a symbol of symbolism gone too far.

“If Dick Lugar,” said John C. Danforth, a former Republican senator from Missouri, “having served five terms in the U.S. Senate and being the most respected person in the Senate and the leading authority on foreign policy, is seriously challenged by anybody in the Republican Party, we have gone so far overboard that we are beyond redemption.”

[More] James R. Carroll of the Louisville Courier Journal has this long story, dated Nov. 27, 2010, headlined "Indiana Sen. Lugar working with Obama for Senate OK on arms treaty." The long story begins:
WASHINGTON — In December 1999, Sen. Richard Lugar visited a previously undisclosed Russian missile silo that plunged nearly 20 stories deep in the Siberian wilderness.

“At about the fifth floor, there were two enlisted men from Russia, who I gather were responsible for the weapons that night,” the Indiana Republican recalled in a recent interview. “And, on the wall around where they were, were pictures of American cities.”

Ostensibly, Lugar said, these were the targets for the missile warheads.

It was a “very chilling moment” to realize that the Russians had in mind demolishing entire cities such as Louisville or Indianapolis, Lugar said.

More than a decade later, Lugar — eager to ensure that such missiles never leave their underground homes — has joined with the Obama administration in trying to win ratification of a new arms control treaty with Russia that would reduce the number of weapons each country has in its arsenal.

Ratification requires the support of 67 senators — two-thirds of the body — and Democrats, with a 59-member caucus, need at least eight GOP votes to pass it. The House plays no role in ratifying treaties.

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Indiana Government

Ind. Courts - "Lawmakers might specify division of seized assets"

From Heather Gillers' story Nov. 25th in the Indianapolis Star:

The tussle over how to divide seized asset funds between public schools and public safety is already headed for the courthouse. Now, it appears bound for the Statehouse.

Sen. Richard Bray announced Wednesday he plans to introduce a bill within the next few weeks that would increase oversight of forfeiture funds and clarify how to share the money, which is seized from suspected criminals, between education and law enforcement.

"Indiana had three goals in mind when drafting the existing state forfeiture laws," Bray, R-Martinsville, said in a news release. "First, we wanted to send the message that crime doesn't pay. Second, we wanted to alleviate the costs of prosecution and law enforcement. Third, we wanted to enhance Hoosier communities by giving back to our schools."

The current law says that funds from seized assets should be sent to the state's Common School Fund, which lends money for school technology and construction projects. Prosecutors are allowed to keep enough funds to cover law enforcement costs.

A Star investigation, however, revealed that prosecutors have wildly varying interpretations of law enforcement costs -- and many counties, including Marion, never send any money to the school fund.

The issue is the basis for a lawsuit unsealed last week in Marion Superior Court. The suit claims 78 prosecutors kept forfeiture funds not intended for them and failed to turn over money owed to the state's Common School Fund.

The Indianapolis firm that brought the whistleblower suit estimates that the schools should have received almost $17 million more in the past year alone.

Bray, however, called suing prosecutors for the money "ridiculous." He and Attorney General Greg Zoeller, who announced Tuesday that he is defending the prosecutors against the suit, think the issue is one for lawmakers.

"They aren't intentionally violating the law," Bray said. "We need a few more guidelines."

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Indiana Courts

Ind. Gov't. - "Town of Burns Harbor in court against itself Monday"

Updating this ILB entry from Oct. 17, 2010, Paulene Poparad of the Chesterton Tribune had this new story on Nov. 26th. A few quotes:

Opposing lawyers square off Monday in court over the Burns Harbor Town Council’s challenge to the town Board of Zoning Appeals’ Aug. 24 decision allowing expansion of the CR England midwest regional truck terminal.

A 250 semi-truck parking lot and guardhouses were approved for land on the west side of Indiana 149 south of Tech Drive. Several conditions including installation of a new traffic signal at the intersection were tied to the 3-2 BZA approval.

Attorney Terry Hiestand, representing England and other property owners drawn into the litigation, and attorney Brian Hurley representing the BZA both have filed motions seeking to have the Town Council’s appeal dismissed.

Sept. 22 attorney Thomas Mixdorf of Ice Miller LLP of Indianapolis filed on behalf of the town, its council, two residents and 11 businesses asking Porter Superior Court Judge Mary Harper to review the record in the BZA case, and to remand it back to the board with instructions England’s special exception and two variances be denied.

Ice Miller maintains England should have filed for a rezoning, not a special exception, to expand its site in a special-use district, and that it incorrectly described its business as a “freight terminal", which is defined as using various forms of transportation and providing multimodal shipping capabilities such as rail, truck and air. * * *

In Hurley’s response on behalf of the BZA, he too questioned why no one involved with the town or its council challenged the BZA decision to have England apply for a special exception/variances instead of a rezoning at the time that decision was made this summer.

Typically, town administrative remedies should be exhausted before lawsuits are filed.

Hurley also tackled the issue of standing contending that a town as a political subdivision cannot and should not attempt to overturn BZA action. “Indiana law does not allow an executive-legislative body to overrule a quasi-judicial Board of Zoning Appeals decision.”

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Indiana Government

Ind. Courts - "Judges fed up with residents ignoring jury duty: Court officials to consider contempt if service doesn't improve"

Alicia Gallegos has the report today in the South Bend Tribune. A quote:

“In 20 years I've never been unable to seat a jury,” said St. Joseph Superior Court Judge Roland Chamblee Jr. “This year, I've had four.”

Chamblee said he was livid the first time a significant number of confirmed residents didn't show up for jury duty. The lack of bodies led to the trial having to be reset and the jurors who did appear being sent home.

Chamblee said he understands emergencies happen and that residents can become ill, but the judge said he's at the end of his rope with those who don't even call to explain their absence.

The pattern of no-shows has resulted in Chamblee issuing summons for violators to appear in court and show cause for their absences.

Posted by Marcia Oddi on Saturday, November 27, 2010
Posted to Indiana Courts

Friday, November 26, 2010

Environment - Still more on: Ohio agricultural waste, dumped in Indiana

Rick Callahan of the AP reported today, in a story, dateline Winchester IN, available in both The Seattle Times and The Indy Channel, on the movement of Ohio poultry manure from Ohio to Indiana. Some quotes:

The cleanup of a popular but algae-fouled Ohio lake has angered some Indiana residents who argue a federally backed effort to truck livestock waste across state lines is only moving the problem to their region.

Eastern Indiana resident Allen Hutchison said the trucks filled with manure are worsening the air quality around his farm, which he said was already thick with ammonia and dust from a nearby dairy. He and other residents worry that runoff from the manure that's applied to fields as fertilizer will harm nearby rivers and streams, just as it has tainted Ohio's largest inland lake, Grand Lake St. Marys. * * *

Ohio livestock farmers have for years sold their manure to Indiana crop farmers as a rich natural fertilizer that's significantly cheaper than commercial fertilizers.

But that manure traffic began growing in July after Ohio offered livestock farmers a new incentive under a U.S. Department of Agriculture subsidy program that partially covers the cost of shipping manure out of the Grand Lake St. Marys watershed. Officials took the action after manure runoff from fields was largely blamed for causing the shallow, 13,000-acre lake to become tainted with toxic blue-green algae, making it virtually off-limits to recreation last summer. * * *

Adding to the problem is that the state has no authority to stop or regulate the manure imports, said Bruce Palin, the Indiana Department of Environmental Management's assistant commissioner of land quality. He said Indiana's regulations only cover manure produced by in-state livestock farms.

"It's only been over the last couple of years where it's come to our attention that we need to address that," Palin said. "It's like many things - until it happens you don't really think about it."

Also from the story:
[Mike Shelton, a spokesman for the Ohio Department of Natural Resources] said the 14 permitted livestock farms in the watershed - all but one of them poultry farms with more than 2.8 million animals - are generally able to absorb the costs of shipping some of their manure to customers. The subsidy payments are directed at the watershed's 300 or so smaller hog and dairy farms, which he said can't easily afford the cost of shipping manure.

Since July, 35 livestock farmers have signed manure-transfer contracts that include federal payments totaling $220,000 over one or more years that will subsidize the fuel costs they incur trucking manure out of the watershed, said Chris Coulon, a spokeswoman for the Ohio office of the Natural Resources Conservation Service.

Those payments will help move about 14,500 tons of solid manure and 17.5 million gallons of liquid manure out of the watershed, although Coulon said she did not have a breakdown of how much will end up in Indiana.

Posted by Marcia Oddi on Friday, November 26, 2010
Posted to Environment

Ind. Gov't. - Still more on: - Good news from House of Representatives

Updating this ILB entry from Nov. 17th, which noted: (a) that although the House has said all committee meeting will be videocast, there has been no similar word from the Senate; and (b) that the important Budget Committee hearings, going on right now, are NOT being videocast, today's story by Dan Carden in the NWI Times also gives no word on what the Senate is doing:

Northwest Indiana and the Indiana Statehouse soon will be only a mouse click apart.

House Speaker Brian Bosma, R-Indianapolis, plans to have every House committee room wired for video and audio and will broadcast every committee meeting over the Internet, starting Jan. 5.

"Every action of every committee will be observed by the public," Bosma said. "We're going to create unprecedented transparency in the Indiana House." * * *

Bosma is seeking cost estimates for his wiring plan, according to Indiana House GOP spokeswoman Tory Flynn. The new technology and installation will be paid for out of a Legislative Services Agency technology fund, she said.

Schorg said Democrats didn't wire every committee room when they had the majority over the past four years because of cost. Instead, Democrats would move popular committee hearings, such as House testimony on the Illiana Expressway, to already wired rooms or the House chamber so they could be webcast, Schorg said.

Posted by Marcia Oddi on Friday, November 26, 2010
Posted to Indiana Government

Thursday, November 25, 2010

Courts - "Sealed cases are too hidden, says Kentucky Chief Justice: Chief justice says names, docket numbers to be public"

Jason Riley reported Nov. 22, 2010 in the Louisville Courier Journal:

For the past several years, thousands of court cases across Kentucky have been sealed without the public knowing they existed.

Kentucky Chief Justice John D Minton Jr. now says that was a mistake that needs to be corrected.

While the state has no set rules on when court files may be sealed — the decision is left to judges' discretion — Minton sent an e-mail this week to all Kentucky court clerks and judges cautioning that sealing court cases should be done rarely and “only for compelling reasons.”

And he said the existence of these cases must not be hidden from the public.

Minton's e-mail came a week after The Courier-Journal asked the state court system for an accounting of 3,600 cases that it says have been sealed from public view in the past decade.

Court officials acknowledged they know very little about the cases — including why they were closed, if they were closed properly and whether they remain closed.

There is, in fact, currently no way for the public even to know the identity of the cases that were sealed or who was involved. * * *

In his e-mail to judges this week, Minton cited a 1996 order by former Chief Justice Robert Stephens that directed judges and clerks to ensure that the public has access to the identity of sealed cases.

Minton noted that in recent years, after Kentucky adopted new computer technology, “the practice of sealing cases and moving them to the confidential division began anew.”

To address that, Minton said the state's Department of Technology Services would “immediately begin work” on changes in the courts' computers that will make the party names and docket numbers of sealed cases available to the public, except those that are confidential by state law, such as juvenile files.

And clerks will be asked to “make adjustments to previously sealed cases,” he wrote. * * *

Jefferson Circuit Court Clerk David Nicholson, who is also president of the state court clerk's association, said he was not aware that when clerks were entering sealed records into the KyCourts computer system, which was phased in at the beginning of the decade, they were erasing them completely from public court terminals.

“The (Minton) order makes sense,” he said. “The public should have a right to know there is an action pending.”

Chief Jefferson Circuit Court Judge Barry Willett said he had “no idea that you could push a button … and make the case become invisible,” noting that the public should know sealed cases exist in case they want to challenge the judge's order.

Minton “has determined there was an unintended glitch in the system that he has … corrected,” Willett said.

Leigh Anne Hiatt, a spokesperson for the Administrative Office of the Courts, said Minton's e-mail only will open the case numbers and names of parties in sealed civil and criminal cases.

What about Indiana?

The ILB wrote much about this issue last year. See this entry from Oct. 8, 2008, this entry from April 1, 2009 headed "Re the Appellate Clerk's docket, has the other shoe finally dropped?" and citing Adm. Rule 9(G)(4), and this one from May 5, 2009.

Posted by Marcia Oddi on Thursday, November 25, 2010
Posted to Courts in general

Ind. Decisions - Following up on: Federal Judge Barker enjoins 10% cuts in foster care payments

Updating this ILB entry from Jan. 26, 2010, the AP's Ken Kusmer reported yesterday:

Indiana won't cut subsidies to parents and other caregivers for more than 21,000 adopted and foster children under a settlement to a class-action lawsuit that was pending Wednesday before a federal judge.

The agreement filed Friday by attorney Ken Falk of the American Civil Liberties Union of Indiana would make permanent a preliminary order by U.S. District Judge Sarah Evans Barker barring the Department of Child Services from carrying out a proposed 10 percent reduction in the maximum $25 per day subsidy that parents and guardians receive for the daily needs foster children and some adopted children with special needs.

Barker is expected to sign the permanent order in January, which would come one year after she issued her preliminary injunction in the case.

Posted by Marcia Oddi on Thursday, November 25, 2010
Posted to Ind Fed D.Ct. Decisions

Law - "Ask an Elder Law Attorney: Medicaid and the Primary Residence"

This looks to be one of a useful series of columns in the NY Times under the heading "The New Old Age."

Posted by Marcia Oddi on Thursday, November 25, 2010
Posted to General Law Related

Environment - "Overhaul of fuzzy pollution rules stalls"

That would be the development of antidegradation rules. The ILB has had a number of entries on this issue, including this one from Jan. 4, 2008, which includes these quotes from a NWI Times story:

Indiana's lack of an effective antidegradation policy was pointed out last month by Indiana University professor James Barnes in a report on IDEM's controversial wastewater permit for BP.

The report concluded the permit complied with state and federal rules, but it said Indiana's lack of clear antidegradation regulations prevented IDEM from getting complete information from BP. It also hindered the state agency's ability to defend the permit. * * *

[IDEM Commissioner Tom] Easterly is now hopeful an antidegradation regulation can be in place by the end of this year. The usual process takes 18 months.

Today Gitte Laasby has this lengthy story in the Gary Post-Tribune. Some quotes:
Three years after the firestorm over BP Whiting's wastewater permit, Indiana is still issuing permits under the same fuzzy rules that led to the controversy.

At the heart of the outrage over the BP refinery being allowed to increase its pollution to Lake Michigan were Indiana's unclear water pollution rules.

The state started revising them in early 2008, but nearly three years later, the overhaul is stalled. Permits -- including a wastewater permit for U.S. Steel Midwest in Portage -- are still being issued under the old rule. State officials say new rules won't be ready until next year.

Critics say the standstill leaves industry and the public in limbo about when it's OK to increase pollution to Lake Michigan and other waters, and opens the possibility for lawsuits.

Even those strongly dedicated to the process are throwing in the towel. Among them is one of Indiana's most respected veteran environmentalists, Miller resident Lee Botts. She sent a letter to the governor's office announcing she's resigning effective Dec. 1 from the board that's responsible for approving the new rules. She served on the board since 2006.

"I cited my frustration with the failure of (the Indiana Department of Environmental Management) to deal with that issue as a reason for my withdrawal" from the Water Pollution Control Board, said Botts, who is considered a moderate environmentalist. "I have had no reply from the governor's office."

Indiana Gov. Mitch Daniels commissioned the report by Indiana University professor Jim Barnes. He recommended a revision of the so-called antidegradation rules in a December 2007 report, saying they were a major cause of the BP firestorm.

The rules determine under what circumstances, and by how much, polluters can increase pollution to Lake Michigan and other waters. The rules are intended to prevent new and increased pollution that would degrade water quality unless the increase is necessary to accommodate important social and economic benefits.

"They do have rules for the Great Lakes, but they just didn't spell out with any level of specificity what (polluters) need to do. So the way it is now, most of the state has no rules and the Great Lakes basin has rules but they're rules that have already been found by Barnes to be inadequate," said environmental attorney Albert Ettinger. "The idea was they'd write rules that would cover the whole state." * * *

Frustration mounted at the end of January after the U.S. Environmental Protection Agency sent a letter to IDEM saying EPA would not approve the rules as drafted because they don't live up to federal standards -- an argument environmentalists had also made. In some circumstances, the revamped rules would allow up to 21/2 times more pollution than is acceptable under federal law, EPA said.

"It seems that IDEM is frozen in its tracks in the rulemaking for antidegradation ever since EPA criticized the draft rule. So I don't think we understand completely how Indiana is handling the antidegradation analysis here under the old rules" for permits like U.S. Steel Midwest, said Lyman Welch, water program manager for the Alliance for the Great Lakes. "It's sad that Indiana has not addressed the concerns that EPA has raised and moved forward on putting a new draft rule out there."

Posted by Marcia Oddi on Thursday, November 25, 2010
Posted to Environment

Wednesday, November 24, 2010

Ind. Courts - More on: David Camm hearing tomorrow in Rockport [Updated]

Updating yesterday's ILB entry, Grace Schneider of the Louisville Courier Journal was at the hearing today in Rockport. Here are some quotes from her story:

ROCKPORT, IN – Prosecutors and defense lawyers for David Camm sparred aggressively during a hearing Wednesday over the question of whether Floyd County Prosecutor Keith Henderson should be allowed to stay on the triple murder case.

Special Judge Jonathan Dartt didn’t rule after nearly six hours of testimony on whether Henderson should be removed from the case because of a book deal Henderson signed in May 2009, a deal a law professor testified resulted in the prosecutor having “divided loyalties.”

The judge’s decision is expected within a month. If he rules Henderson can stay on the case, Camm’s defense team may appeal, which could delay the trial well into 2011.

Camm, a former Indiana State police trooper, has been convicted twice of fatally shooting his wife, Kim, 35, and his two children. Both convictions were overturned on appeal, and now the parties are gearing up for a third trial — in a case that’s predicted to cost Floyd County, Ind. taxpayers more than $2 million.

Camm’s lawyers argued during the hearing that Henderson should be removed from the case and replaced with a special prosecutor because it was a conflict of interest for Henderson to sign a book deal while the case was still ongoing. * * *

During the hearing, Camm lawyers Richard Kammen and Stacy Uliana presented testimony from Norman Lefstein, a former Indiana University law school dean who testifies frequently as an expert on legal ethics.

Lefstein testified there were several instances where he thought Henderson’s conduct — lining up a literary agent shortly after the second murder conviction and signing a contract with Penquin Book last year — violated state judicial ethics rules and put Henderson’s personal goals and the state’s interests in conflict.

The professor, who acknowledged he isn’t licensed to practice law in Indiana, pointed to one ethics rule accepted in most states that prohibits defense lawyers and prosecutors from negotiating or contracting literary rights on cases in which they are involved.

“It’s really about divided loyalties,” Lefstein said. “You suddenly have personal interests that may be in conflict” with the prosecutor’s professional duties to represent the state.

Louisville's WHAS11 has a 2:00 minute newsclip here.

[Updated 11/25/10] Janelle MacDonald of WAVE3 has this story. Some quotes:

"The third trial is a bigger book and our fear is that from this point on, whatever assurances he makes to the contrary the book, the desire for the book drives the case," said Camm's new lawyer, Richard Kammen.

Kammen says the prosecutor has a conflict and he should be kicked off the case.

Henderson says at the time he signed the deal, he thought the conviction would be upheld and the Indiana Attorney General's office was on the case. He says the deal was terminated after the Supreme Court's decision.

"There's no conflict of interest," Henderson said. "I wasn't the prosecutor. I wasn't the prosecutor on the case ... What's my conflict, that I'm going to prosecute him harder?"

In a five hour hearing Wednesday, lawyers made their case to Special Judge Jon Dartt and it got ugly at times.

"I think that unfortunately, sometimes people play to the press," Kammen said. "I think that's one of the concerns here: the more that the press is involved, the bigger the book it is."

"Let's call this for what it is," Henderson said. "They want to get rid .. they've gotten rid of the judge, they've gotten rid of the jury, the county and now they want to get rid of the prosecutor. It's a tactical advantage pure and simple."

The lawyers will file written arguments with Judge Dartt by December 4 and the judge promises to make a decision within 30 days or less, but it's unclear when the trial would be. Henderson estimates late summer or fall but also says if he stays on the case, the defense will appeal. If there's a new prosecutor, that person will have to get up to speed. Both could slow down this ten year old case.

Some quotes from this story by Matt Thacker of the New Albany News & Tribune:
Lefstein testified that attorneys are prohibited from negotiating for literary rights in connection with a case in which that attorney is still engaged. He said that section of the attorney ethics code applies to all attorneys, including prosecutors who represent the state as a client.

Camm’s attorneys frequently referenced an e-mail to Henderson’s agent and co-author that was written July 30, 2009.

In the e-mail, Henderson asks them to delay deliveries of the manuscript to the publisher until after the third trial and advises them to negotiate more money on the front or back end because it will now be a “bigger story than ever.”

Owen said the entire deal was worth only $10,000, with 15 percent of that going to the agent and the remainder split in half between the writer and Henderson. He said it was never about the money.

One challenge for both sides was finding applicable case law.

“Not a single prosecutor in our knowledge in the history of the state of Indiana has done what Mr. Henderson did,” Camm’s attorney, Richard Kammen, argued. * * *

Another alleged ethical violation was Henderson’s press release stating, “After the case is completed, the unedited version of events need to be told.”

Camm’s side argued that this was intended to prejudice the next jury by hinting that there is more evidence than can be presented at trial.

They also argued there was no written agreement that the book deal would be terminated if the decision was reversed by the Supreme Court. Owen said the agreement was not written, but there was an understanding that it would be terminated.

Camm’s attorneys alleged that Henderson’s misrepresented his agreement in filings with the court.

“He has, in my opinion, not been truthful explaining what transpired in the past,” Lefstein said.

He said it was Penguin Publishing that terminated the book deal because they did not want to wait until after the third trial.

Another issue was whether Henderson should be required to submit a manuscript of the book to the court. Henderson said he does not have it and has never seen it, but Kammen wanted it produced from the co-author. Henderson objected.

“The defense does not have a right to my thoughts, to my opinions,” Henderson said.

Kammen said Henderson indicated in an e-mail that what is in the manuscript could have him removed from the case, and they have the right to know what that is.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 7 today (and 12 NFP)

For publication opinions today (7):

In City of Indianapolis, Metropolitan Development Commission and Indiana Sports Corporation v. Clarke Kahlo and Howard Elder, et al., a 12-page opinion in an interlocutory appeal, Judge Najam concludes:

We conclude that Plaintiffs have standing to bring the Complaint as third party beneficiaries. The terms of the restrictive covenant in the 1985 Agreement created an obligation for the ISC to make the plaza available for the use and benefit of the public. The facts that the obligation was stated in passive language and that the public's use had to be reasonable do not render the terms of the restrictive covenant something other than an obligation. We further conclude that the 1985 Agreement is a project agreement, not a redevelopment plan. The terms of the 1985 Agreement do not meet the statutory requirements for a redevelopment plan, but they track the statutory requirements for a project agreement between the Commission and a private party.

Additionally, we conclude that the Commission, not the City, conveyed title to Square 88 to the ISC under the terms of the 1985 Agreement. The statutory framework provides that the Commission may acquire, hold title, and convey property in furtherance of an urban renewal plan. This distinguishes the role and responsibility of the Commission and the Department of Metropolitan Development from those of the civil city, which is otherwise authorized to acquire, own, and convey real estate for other purposes. And the lack of any evidence of negotiations for the initial purchase of Square 88 is also insignificant. Indiana Code Section 36-7-15.1-12(c) provides a framework for negotiations, but negotiations are not required for the purchase of property that is to be included in a redevelopment plan. And finally, we conclude that the effect of the Amendment, which reduced the size of the plaza but extended the term of the restrictive covenant in perpetuity, did not terminate the restrictive covenant in the 1985 Agreement. As such, the trial court erred when it found the existence of a genuine issue of material fact as to whether execution of the Amendment triggered the buyout provision in the restrictive covenant.

In sum, we affirm the trial court's grant of summary judgment on the issue of standing, although on different reasoning, and we reverse the trial court's denial of summary judgment on the issues of the nature of the 1985 Agreement, the applicability of Indiana Code Section 36-1-11-3, and whether the execution of the Amendment triggered the buyout provision in the restrictive covenant of the 1985 Agreement.

In Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al., an 18-page opinion, Judge May writes:
William and Elizabeth Cure owned commercial property in Martinsville. They leased it from 1986 to 1991 to a dry-cleaning tenant, Masterwear, who used perchloroethylene (“PCE”) as a solvent. In 1996, the Neals, who own property nearby and operated a business there, were having health problems. The value of their property had been decreased by PCE in the soil and in the air inside their building. The Neals sued Masterwear and the Cures for environmental contamination under the Environmental Legal Act (“ELA”), nuisance, trespass, and negligence. The Cures were granted summary judgment on all four theories of liability. We affirm.
ILB: Read Neal if you do environmental law.

In Allied Property and Casualty Ins. v. Linda Good and Randall Good , a 19-page, 2-1 opinion, Judge May writes for the majority:

[W]e find one dispositive: whether the trial court erred by denying Allied‘s motion for summary judgment because misrepresentations on the application for insurance made Linda‘s policy void ab initio. Because the uncontradicted evidence indicates Linda misrepresented the Goods‘ cancellation history on the application for homeowners insurance and Allied would not have issued the policy if it had known the truth about their history, the trial court erred by denying Allied‘s motion for summary judgment. We accordingly reverse and remand for entry of judgment for Allied. * * *

Whether Linda misrepresented her cancellation history hinges on the interpretation of the word "ever." Allied‘s application for insurance asks for the name of the applicant‘s current insurance company, the number of years with that company, and the expiration date of that policy. On the same line, there is a space to answer the query, "Coverage ever declined, cancelled, or non-renewed." (App. at 7940.) The Goods argue "ever" refers only to the policy in effect when they filed the application, while Allied argues "ever" refers to the applicant‘s entire insurance history. * * *

Because "ever" means "at any time," we hold the query, "Coverage ever declined, cancelled, or non-renewed," (App. at 667), refers to any policy the Goods "ever" applied for or had "at any time" in the past. * * *

Reversed and remanded.
BARNES, J., concurs.
BAILEY, J., dissents with separate opinion. [which begins, at p. 11 of 19] The majority reverses judgment favoring Linda Good ("Good') on the ground that the trial court improperly denied Allied‘s motion for summary judgment. Because I disagree with the majority‘s interpretation of the application form and the materiality of Good‘s responses to certain items on that form, I respectfully dissent. [ILB: Take a look at the form on p. 12.]

Bradley Peaver v. State of Indiana - "1. Whether the trial court abused its discretion when it admitted testimony under the Protected Person Statute. 2. Whether the State presented sufficient evidence to support his conviction. We affirm."

In St. Joseph Hospital v. Richard Cain , a 15-page opinion, Judge Barnes concludes:

Because the trial court had subject matter jurisdiction over St. Joseph's unverified petition for judicial review, it improperly granted the HRC's motion to dismiss and declined to rule on the other outstanding motions, namely St. Joseph's motion to amend. The alleged lack of a quorum, however, was not properly raised in St. Joseph's motion to dismiss. We reverse and remand for consideration of St. Joseph's motion to amend.
In John P. Donovan v. State of Indiana , a 9-page opinion, Judge Barnes writes:
Donovan bases his argument on Shelby v. State, 875 N.E.2d 381 (Ind. Ct. App. 2007), trans. denied, where this court held that “where any considerable length of time has elapsed from the time of the theft to the time of the arrest there must be some showing that the defendant has had the exclusive possession of the property during that period of time.” * * *

However, the Shelby court also noted: “In cases where the defendant is found to be in possession of property which has not been recently stolen, and there has been no showing of exclusive possession of the property during the relevant time frame, this court may also consider additional evidence tending to support the defendant’s conviction.” Id. (emphasis added). There is certainly additional evidence here tending to support Donovan’s conviction, including that the vehicle was hot-wired, the DOT numbers were scraped off, most of the VIN numbers were removed, Donovan did not have an ignition key, a registration, or a license plate for the vehicle, and he was unable to provide contact information for “Paul Monroe.” * * *

The evidence is sufficient to sustain Donovan’s conviction for auto theft as a Class D felony.

In Estate of Doris P. Jackson, John Cox, et al. v. George R. Jackson, II, et al., a 15-page opinion, Judge Crone writes:
In her will, Doris P. Jackson bequeathed 120 acres to eight beneficiaries. After Doris‟s death, a coal company offered to purchase the land for over $1,400,000. The personal representatives of Doris‟s estate petitioned the trial court for an order authorizing the sale of the property to pay the obligations of the estate. Two of the beneficiaries objected to the sale. Pursuant to Indiana Code Section 29-1-15-4, the personal representatives petitioned the trial court for an order requiring the objectors to post a bond to pay the estate‟s obligations, estimated at over $124,000. The trial court ordered the objectors to post a $100,000 cash bond.

In this interlocutory appeal, the objectors, Daphne Bargar and John Cox (“Appellants”), contend that the trial court erred in setting the amount of the bond and in ordering them to post a cash bond. Finding no abuse of discretion in either respect, we affirm.

NFP civil opinions today (5):

M.N. v. A.N. (NFP)

Company v. Review Board (NFP)

Term. of Parent-Child Rel. of J.J.; V.B. and K.J. v. I.D.C.S. (NFP)

MacLellan Integrated Services, Inc.v. Domineck P. Marano, II (NFP)

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

NFP criminal opinions today (7):

J.B. & J.G. v. State of Indiana (NFP)

Christopher Brinker v. State of Indiana (NFP)

Tyrone A. Saunders v. State of Indiana (NFP)

Latrina Strader v. State of Indiana (NFP)

Roger Sloan v. State of Indiana (NFP)

Robert Perry v. State of Indiana (NFP)

Tonya Peete v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "COA ruling reverses child molest verdict"

Yesterday's COA ruling in Larry Cox v. State of Indiana (ILB summary here, 3rd case) is the subject of a story in today's Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

[T]he Indiana Court of Appeals on Tuesday reversed the convictions against Larry R. Cox, 42, of Crawfordsville, who was found guilty in October 2009 of 15 counts of child molestation -- 10 Class A felonies and five Class C felonies -- following a jury trial in Tippecanoe Superior Court 2.

The high court's reason: Jurors should not have been allowed to watch the alleged victim's videotaped interview with a prosecutor's investigator when that same boy took the witness stand at trial, before the video was played in the courtroom.

"He did not testify to the facts of the allegations because the state chose instead to play the video," said Lafayette attorney Dan Moore, who represented Cox on appeal.

"It was an unsworn statement. The state can't have it both ways."

More specifically, Cox's appeal was based on an Indiana Supreme Court opinion issued in March 2009 that addressed the state's protected person statute.

That statute allows statements or videotapes as evidence if a witness is not available to testify or if testifying in front of the defendant would cause serious emotional distress -- making the witness unable to "reasonably communicate."

Indiana considers children younger than 15 protected persons.

The supreme court's March 2009 ruling, which dealt with a child molestation case from Ripley County, determined that the combination of live, direct testimony and a videotaped statement could be unfairly prejudicial to a defendant.

The high court further noted that the protected person statute should be rarely used.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov.t. - "Lawmakers’ plate already plenty full"

So opined the Terre Haute Tribune Star in this Nov. 18th editorial:

TERRE HAUTE — The legislative session facing the Indiana General Assembly packs plenty of pertinent issues. The last thing lawmakers need is a protracted, divisive battle to turn an existing law into a constitutional amendment.

Gov. Mitch Daniels has wisely asked legislators for a “truce” on social issues, especially the push to constitutionally ban same-sex marriage. Indiana already has a law prohibiting gay marriage. The pursuit of an amendment would needlessly distract state representatives and senators from pressing matters.

The list of those issues needing immediate attention is weighty. The state must figure out a way to repay a $2-billion debt to the federal government for bailing out Indiana’s unemployment compensation fund, which went broke two years ago. That’s no small problem. But there’s more. Much more.

The biennial budget is expected to be nearly $1 billion out of balance, because state tax revenues continue to fall short of expenses. That means serious cuts in painful areas, such as public schools and higher education, are likely.

Daniels also wants to tackle local government reform, including the dissolution of the township government systems.

The national surge by Republicans in the Nov. 2 midterm election was fueled, presumably, by the state of the economy, taxes and a repudiation of government involvement. At the statehouse level, if newly elected Republicans want to stake their agenda on a mandate from the voters, their only legitimate calling is to focus on repairing the economy, and finding a way for Indiana to properly fund its educational system while also balancing the state’s budget. Going beyond that — especially into abortion, same-sex marriage and immigration causes — would distort the will of the electorate.

Hoosier lawmakers’ plate is full. They have from January to April to create a budget that doesn’t cripple public education, redraw legislative maps, fix the unemployment fund, create jobs (remember, the campaign rallying cry was “jobs, jobs, jobs”), consider Daniels’ plans to reform K through 12 schools, and adhere to the GOP’s vow not to raise taxes.

Now firmly in control of the Indiana House and Senate, Republicans will be tempted to capitalize on their dominance by wading into conservative social issues. The stakes are too high for such things to consume precious time during the upcoming legislative session. The lawmakers need to heed Daniels’ request, show restraint and stay on task. Hoosiers deserve nothing less.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Government

Ind. Courts - Completing the Allen County Courthouse

The Fort Wayne Journal Gazette has an editorial today, complete with striking photos, celebrating the completion of the project to restore both the exterior and interior of the historic courthouse building. It concludes: "Everyone involved in restoring one of the county’s most important treasures deserves the community’s thanks."

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Courts

Ind. Courts - Marion County Traffic Court Judge Young suspended for 30 days

The Supreme Court "Order Accepting Agreed Discipline" was filed at 5:00 PM yesterday evening and released this morning. It is one-page long:

On July 16,2010, the Indiana Commission on Judicial Qualifications ("the Commission") filed a "Notice of the Institution of Formal Proceedings and Statement of Charges" against Judge William E. Young ("Respondent") pursuant to Ind. Admission and Discipline Rule 2S(VIII)(F). Respondent did not file an Answer. Special masters were appointed by order dated September 8, 2010.

The Commission and Respondent have tendered a "Statement of Circumstances and Conditional Agreement for Discipline" ("Conditional Agreement") for review by the Court pursuant to Ind. Admission and Discipline Rule 2S(VIII)(H). Having reviewed the Conditional Agreement, the Court ACCEPTS the facts and agreed discipline. A copy of the Statement is attached to and is made a part of this order.

Accordingly, William E. Young will be suspended for thirty (30) days from office without pay, and the costs of this proceeding will be assessed against him. An opinion of the Court will follow in due course, which shall indicate when the suspension will take effect.

The attached "Statement of Circumstances and Conditional Agreement for Discipline", signed Nov. 17, 2010, is 8 pages long, plus 38 pages of attachments.

The ILB has OCRed the scanned document, reduced it in size, and made it available here.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Courts

Ind. Gov't. - "E-mails suggest early doubts in IURC ethics case: Messages warned of concerns about Duke's hiring of IURC lawyer"

Another big Indianapolis Star story today, reported by John Russell, on the Duke / IURC connections, adding to this long list of ILB entries.

I'm not going to try to pick quotes from the story, it needs to be read carefully and in full. When you finish reading, you may agree with me that, given the context of the rest of the story, the biggest shocker may be in the last paragraph.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Government

Courts - "California ruling backs police use of DNA from discarded cigarette"

A story Tuesday in the Sacramento Bee, reported by Denny Welsh, begins:

In the first case of its kind in California, a state appellate court in Sacramento ruled Monday that a suspect in a criminal investigation has no expectation of privacy in a discarded item, and a DNA test of the item is not an unconstitutional search.

The court upheld the murder conviction of a man snared 15 years after the crime by results of DNA testing on a cigarette butt he tossed on a sidewalk.

Rolando N. Gallego's lawyer challenged the second-degree murder conviction in Sacramento Superior Court, contending his client's constitutional shield against warrantless searches was violated by a DNA test of saliva taken from the cigarette.

But a three-justice panel of the 3rd District Court of Appeal concluded that the test was for the sole purpose of identifying Gallego as a suspect in an ongoing homicide investigation, and "did not constitute a search under the Fourth Amendment. … (He) had no reasonable expectation of privacy in this discarded item."

Later in the long story:
On appeal, Gallego's court- appointed attorney, Ralph Goldsen, argued that no one reasonably expects the government to conduct "warrantless, suspicionless" testing of bodily fluids to generate a DNA profile containing "a wealth of private information, including medical conditions and familial relations."

The three appellate justices cited a 1988 U.S. Supreme Court opinion holding that defendants "possessed no reasonable expectation of privacy in trash bags they had left at the public curb," which contained incriminating evidence of narcotics trafficking.

Gallego's cigarette butt, like the trash bags, was left in a place "particularly suited for public inspection," the justices said in their 30-page opinion, quoting the high court. Both were "abandoned … in a public place," with "no reasonable expectation of privacy."

Goldsen, joined by American Civil Liberties Union attorney Michael Risher in an amicus brief filed with the appellate court, argued that the "concept of abandonment (is) inapplicable" because it presupposes a willful act. Gallego did not voluntarily expose his genetic profile to public view, they maintained.

As one commentator put it in a cited law review article:

"Depositing DNA in the ordinary course of life when drinking, sneezing, or shedding hair, dandruff, or other cells, differs from placing papers in a container on a street to be collected as garbage. Depositing paper in the trash is a volitional act. … Leaving a trail of DNA, however, is not a conscious activity."

The three appeal court justices did not buy it. They declared that Gallego "engaged in a conscious activity – indeed, an unlawful act of littering. … We do not face the situation of DNA being deposited in a truly non-volitional way of unconsciously shedding cells."

Here is the California 3rd Distrct COA ruling from 11/22/10 in the case of The People v. Rolando N. Gallego. It includes a number of citations.

How would this case be decided in Indiana?

You see this all the time on TV crime dramas, offering a suspect a can of coke, retrieving a discarded cigarette butt, putting the suspect in a hot room where he will sweat ....

Prof. Joel Schumm of IU-Indy Law had this comment re how Indiana courts would rule:

I'm not sure. The abandonment idea seems right to me, although I don't think an Indiana court has adopted it. I know sometimes prosecutors seek warrants, though.

On a somewhat related noted, I guess we're still waiting on the Indiana Supreme Court to rule in Garcia-Torres, which requires reasonable suspicion (and not probable cause) for a cheek swab.
Oral arguments were held Jan. 11, 2010 before the Supreme Court in Garcia-Torres. Since then, of course, Justice Boehm has retired.

Here is a list of all the ILB entries re Garcia-Torres.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Courts in general

Ind. Law - "Stories shift in Notre Dame case: Authorities now say they were informed of sex assault allegation"

Updating yesterday's ILB entry, which quoted a South Bend Tribune story headed "Police knew of assault report: Spokesman says earlier comments wrong: County was aware of Saint Mary's student's allegation against Notre Dame student," Stacy St. Clair reports in today's Chicago Tribune in a story that begins:

The circumstances surrounding the Notre Dame police department's investigation into an alleged sexual attack by a football player have become more muddled as two Indiana law-enforcement agencies this week abruptly changed their accounts of contacts with campus police.

The shifting stories raise new questions about how different jurisdictions were communicating with each other and how much urgency was brought to the case.

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to Indiana Law

Law - Dawn Johnsen: Regrets, she has a few, but then again ...

Continuing a long list of ILB entries on Dawn Johnsen, the last several of which were labeled "Dawn Johnsen: Let Me Be Clear, I Have No ‘Regrets’ ", Prof. Johnsen, in a story ($$) in the Nov. 20th Bloomington Herald-Times by Mike Leonard, headed "Dawn Johnsen tells law school audience she has no regrets about failed nomination," allows that:

In the final analysis, Dawn Johnsen says she wishes the Obama administration would have called for a full Senate vote on her nomination to head the Department of Justice’s Office of Legal Counsel.

And absent that happening, the professor in Indiana University’s Maurer School of Law says a temporary recess appointment when Congress was not in session would have been fine with her.

“I would have welcomed a recess appointment,” Johnsen said following her first public address at the law school in two years. “I believe it would be in our nation’s best interest for the president to be able to use that authority in the future when there is unwarranted obstruction by senators who are trying to not even have a vote on a nominee. I do regret that wasn’t a possibility for me, because I would have accepted that, and I’m hopeful in the coming years the president will use his recess appointment power.” * * *

The longtime Bloomington resident said both in her public remarks and to reporters after her address that her 16 months in “limbo” between her nomination and withdrawal were difficult both personally and as a citizen accustomed to weighing in and participating in discussions of the issues of the day. She decried the “silence and inaction forced upon nominees” who are not allowed to comment, and said the net effect is to muzzle people who by virtue of their nominations alone are leaders in their given areas.

“I think it’s an underappreciated cost of this system breakdown. All those judicial nominees out there for months and months. They cannot do their work and speak out on issues. This is a group of people who ordinarily are very politically active and key players in making policy and setting direction, and this is a way for elected officials who are known to be obstructionists to stop these people for long periods of time to be able to participate.”

Still, the IU professor implored the law students in the audience to not let her long, arduous and, ultimately, failed nomination to deter them from public service. She said that while she appreciated a New York Times editorial that said she should have been confirmed, she disagreed strongly with the suggestion that her treatment could have a chilling effect on others who might either refuse to go through the process or live a life of silence for fear that being outspoken could derail careers that intersect with politics.

She said she was proud of her advocacy for reproductive rights, for the rule of law and against torture as a legitimate method of interrogation.

“It has not hurt me,” Johnsen said. “My message could not be more simple or more clear. I have no regrets.”

Posted by Marcia Oddi on Wednesday, November 24, 2010
Posted to General Law Related

Tuesday, November 23, 2010

Ind. Courts - David Camm hearing tomorrow in Rockport

From an unattributed story this evening in the Louisville Courier Journal:

David Camm was transported Tuesday to Spencer County to attend a key hearing in preparation for his anticipated murder retrial. * * *

The hearing before Special Judge Jonathan Dartt is to consider a motion by Camm’s lawyers to remove Floyd County Prosecutor Keith Henderson from the case. The defense contends that Henderson’s involvement in a book deal about the case after Camm’s second trial poses a conflict of interest.

Camm’s defense team also hopes to convince Dartt to force Henderson to produce the book manuscript. Henderson has battled to stay on the case, insisting that no conflict exists because the terms with the book publisher included voiding the deal if Camm’s second conviction was overturned.

Here is a list of many earlier David Camm entries.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Courts

Ind. Gov't. - "Attorney General's Office to defend Prosecutors in suit"

AG Zoeller has just issued this press release, that begins:

Standing on the side of law enforcement, the Indiana Attorney General's Office will provide legal representation to a group of county prosecutors named last week in a civil lawsuit, Attorney General Greg Zoeller announced today.
For background, start with this ILB entry from earlier today.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Government

Ind. Decisions - Senior Judge Boehm's first opinion

And it was a 3-page NFP, Clark v. State, issued Nov. 12, 2010. Henry Circuit Court Judge Mary G. Willis is affirmed:

Defendant-Appellant Samuel D. Clark, Jr., appeals the trial court’s revocation of his term of home detention and suspended sentence. The only issue is whether the trial court abused its discretion when it revoked Clark’s home detention and ordered that he serve his full five-year sentence at the Department of Correction. We find that the trial court acted within its discretion.
Judges Margret Robb and Elaine Brown concur.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: "IURC Appointment process differs from most states"

Updating this ILB entry from earlier this afternoon re the IURC selection process, a knowledgeable attorney reader writes:

The Star continues to ignore the fact that the legislature appoints four of the seven members of the IURC Nominating Committee. Our “elected representatives” have a significant chance to do their vetting and “have their say”. The meetings are public and obviously so is the list of applicants.

If you diminish the Governor’s role in the process, you diminish his/her ability to rectify a problem – which was done in the recent matter.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Government

Ind. Gov't. - Still more on: Continuing saga of politics of trash in Lake county

Updating this ILB entry from Nov. 9, which dealt with an executive session meeting of the Lake County Solid Waste Management District on a proposed garbage-to-ethanol plant and whether it violated the Open Door Law, events have taken an interesting turn.

Michael Puente reported for WBEZ91.5 on Nov. 19th under the heading "Lake County may drop ownership plans for trash-to-ethanol facility." Some quotes:

For several years now, the Lake County, Indiana Solid Waste Management Board has insisted that in order for a nearly $300 million facility to turn trash into ethanol fuel to become reality, it needed to own it.

But now, it may not want to.

Board attorney Cliff Duggan says he plans to present the board a provision that would eliminate the requirement that the county be the owners of the facility once it’s up and running.

That provision will be presented at the board’s next meeting on Dec. 16.

The change in heart came following a three hour public hearing on the proposed facility Thursday evening at the Lake County Government Center in Crown Point, Ind.

Board chair Gerry Scheub said the provision that the county own the facility was to ensure enough trash would get to the plant.

“Our concern was to be able to move the garbage without being sued. And, in order to do that, we did a lot of investigation. This is still being discussed on the board. This is not a dead issue,” Scheub said.

But concerns about taxpayer liability if the county was to own the facility seem to be growing.

One some of the loudest cries against county ownership of the plant are coming from Roy Dominguez, the sheriff of Lake County who is not a member of the solid waste board.

Standing before nearly 200 attendees, most of whom were union tradesmen hoping to work on building the facility, Dominguez said there are risks to taxpayers if they own the facility.

“If you own something, there’s liability, folks. There’s liability,” Dominguez said.

But also behind the board’s change in stance is that the company proposing to build the facility, Powers Energy of America, says it would prefer to be the owner. * * *

Jeff Langbehn, executive director of the county waste district, says no city or town will be required to send trash to the new facility to be built in the far southern Lake County town of Schneider near the Kankakee River.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Government

Ind. Gov't. - More on: "IURC Appointment process differs from most states"

Updating this ILB entry from Oct. 6, 2010, several new items.

The Indianapolis Star writes again today, this time via an editorial, suggesting that the selection process for the IURC be changed. Some quotes:

Gov. Mitch Daniels, as the state's chief executive, will appoint one of three finalists selected by a nominating committee.

In most states, that process is too close for comfort. Indiana is one of the few that do not choose utility regulators by general election or the vote of a legislative body.

In the last paragraph, they do allow that either of the alternatives may be far from perfect:
Throwing the selection process out to elections or legislative review, both of which have been proposed, would not necessarily be a panacea. Corporate dollars would influence voters; lobbying and partisanship would have their usual effect on lawmakers. But at least the public and/or its elected representatives would have some say over whom to entrust with, among other public business, $14 billion a year in utility rates. With all due respect to the governor, it's time to invite the payers of the heat bill in from the cold.
The ILB wrote about the selection process at length in this Oct. 6th entry, after the first Star suggestion that the selection process was at fault. A quote:
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.
In this Oct. 5th entry, I wrote that some structural changes may be needed, not in the selection of the commissioners, but in the ALJ setup -- currently the IURC ALJs wear two hats.

This Nov. 20th Star story, by John Russell and Ted Evanoff, lists the applicants to fill the current vacancy on the IURC. Some quotes:

Twelve candidates -- including the chairman of the State Parole Board, the top lawyer at the State Lottery Commission and the top lawyer at the state Natural Resources Department -- have applied for what has become a bit of a hot seat. * * *

The current crop of candidates for the open seat on the five-member commission is heavy with government officials and light on industry executives. Daniels will choose from among three finalists selected by a nominating committee and appoint that person to a four-year term. * * *

Kari Evans Bennett: Chief legal counsel, Indiana Department of Natural Resources.
Peter Bisbecos: Former director, Division of Disability and Rehabilitative Services, Indiana Family and Social Services Administration.
Dwight Coats: Retired small-business owner.
Michael Gallagher: Chief accountant, Indiana Utility Regulatory Commission.
James Huston: District director for U.S. Rep. Steve Buyer.
Walter Jessen: Retired senior manager, Northern Indiana Public Service Co.
Andrew Klinger: General counsel, Indiana State Lottery Commission.
Robert Marischen: Attorney and compliance adviser, BP North America.
Buz Nesbit: Took a buyout in March as Indiana division president, Bright House Networks.
Gregory Server: Chairman, Indiana State Parole Board.
James Wallace: TWG Capital.
David Yount: Self-employed investment manager. * * *

William Stephan, a vice president at Indiana University who is chairman of the nominating committee, said he hopes to present a list of finalists to Daniels by late December so the appointee could take office in January. He declined to say what skills or experience the committee planned to consider. But he said the discussion would be open to the public.

I recognize the names of several of these applicants as highly qualified individuals who would be fine commissioners. But they also would be unlikely or unable to campaign for the job if it were an elective position, or be the candidates promoted by lobbyists if the position were made subject to legislative review.

Finally, a story Nov. 20th in the NWI Times had this sidebar:

FBI wants info from state utility regulators

The Indiana Utility Regulatory Commission has confirmed that FBI agents visited its Indianapolis offices on Nov 10 and says it is "fully cooperating with all of their requests for information."

That revelation comes two weeks after U.S. Attorney Joe Hogsett told the Vincennes Sun Commercial newspaper that the Federal Bureau of Investigation is looking into whether any federal laws were broken when Duke Energy hired then-IURC General Counsel Scott Storms in September.

The IURC is deferring all questions on the reason for the FBI's visit to their offices on Nov. 10 to the bureau, according to IURC spokeswoman Danielle McGrath.

In early October, Gov. Mitch Daniels fired Indiana Utility Regulatory Commission Chairman David Lott Hardy and replaced him with Jim Atterholt, a commission member. Hardy was fired because he allowed Storms to preside over rate cases involving Duke Energy while he was seeking a job at the company.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Government

Environment - "Mercury plagues Indiana"

From a report by Joseph Picard in the Nov. 17th International Business Times:

Indiana has over 30 coal-burning power plants. The smoke rises and disperses in the air, but its chemical contents do not vanish. They linger in the atmosphere and they return to the earth, and to the waterways of Indiana, with the rain.

And that poses a danger to Indianans, and Indiana wildlife, and other Americans, too.

The U.S. Geological Survey, in partnership with the Indiana Department of Environmental Management, recently published the results of a decade-long study of Indiana waterways. The title says a lot: Mercury in Indiana Watersheds.

"Mercury contamination in water and fish throughout Indiana has routinely exceeded levels recommended to protect people and wildlife," said the USGS release accompanying the report. "About 1 in 8 fish samples tested statewide had mercury that exceeded the recommended safety limit for human consumption. The causes include mercury in the rain and mercury going down the drain." * * *

The USGS scientists found that "mercury concentrations in Indiana watersheds routinely exceeded criteria protective of humans and commonly exceeded criteria protective of wildlife," said Martin R. Risch, who led the study. * * *

According to the USGS, the most significant source of mercury to Indiana watersheds is fallout from the air. In Indiana, coal-burning power plants emit more mercury to the air each year than any other human activity, the report said.

The Indiana Department of Environmental Management says it has been dealing with its mercury problem for years and, based on the report, does not think it needs to radically change its approach. * * *

But Bowden Quinn, conservation program coordinator for the Hoosier Chapter of the Sierra Club, said IDEM is painting too rosy a picture.

"That's ridiculous to say that most of the pollution originates outside Indiana," Quinn said. "Indiana is the coal-burningest state in the nation. We're causing the mercury pollution right here."

Quinn pointed out that last year neighboring Illinois took a pledge to slash mercury emissions from power plants by 90 percent, becoming the seventh state to commit to lowering airborne mercury to levels below federal standards.

"Indiana would not take the pledge," Quinn said.

Here is the news release issued Nov. 10th by the USGS. And here is the report itself.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Environment

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Deidre Carter v. Grace Whitney Properties, a 14-page opinion, Judge Barnes writes:

Deidre Carter appeals the small claims court's orders in this proceedings supplemental brought by Grace Whitney Properties. We reverse and remand. * * *

We conclude that Vanderburgh County Local Rules 1.23(C) and 1.05(E), as applied here, violate Article 1, Section 22 of the Indiana Constitution because they contemplate the use of contempt to enforce an obligation to pay money even where, as here, the debt does not involve child support or fraud. Although a “personal order of garnishment” is permitted under the Indiana proceedings supplemental statutes, the small claims court erred by continuing the personal order of garnishment where Carter presented evidence that she had no non-exempt assets or income available to pay the judgment and that her circumstances were unlikely to change. Further, future proceedings supplemental against Carter by Grace Whitney Properties must be supported by a showing that new facts justifying a new order or examination have come to its knowledge. We reverse and remand for proceedings consistent with this opinion.

In Gregory Owens v. State of Indiana , a 26-page opinion, Judge Crone writes:
Gregory Owens appeals his conviction for class A felony child molesting,1 arguing that reversal is warranted due to three alleged trial errors. Two of these alleged errors are based on the Fifth Amendment privilege against self-incrimination. First, he argues that his Fifth Amendment right was violated when the State introduced evidence that he failed to respond to police requests for contact. Second, he asserts that the prosecutor improperly commented in closing argument that Owens did not testify. Third, he alleges that after a witness violated a ruling that prohibited any evidence of prior domestic abuse, he moved for a mistrial, and the trial court erred in denying his motion.

We conclude that the State did not infringe upon Owens's Fifth Amendment privilege against self-incrimination by introducing evidence that he did not contact police. Although we find that the prosecutor's comment in closing argument was improper, it does not rise to the level of fundamental error requiring reversal. Finally, we conclude that the witness's violation of the ruling prohibiting evidence of prior domestic abuse was isolated, vague, and brief, and that the trial court admonished the jury to disregard C.R.'s statement, and thus, the trial court did not err in denying Owens's motion for mistrial. We therefore affirm Owens's conviction for child molesting.

In Larry Cox v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Larry Cox appeals his convictions for ten counts of Class A felony child molesting and five counts of Class C felony child molesting. We reverse and remand.

The two issues we address are: I. whether the trial court properly admitted into evidence a recording of a pretrial interview of the victim; and II. whether there is sufficient evidence to support Cox's convictions. * * *

On October 3, 2008, the State filed a fifteen-count information against Cox, alleging he committed ten counts of Class A felony child molesting and five counts of Class C felony child molesting against D.H. Before trial, the State filed notice that it intended to introduce, as substantive evidence, the videotaped recording of [3-year-old] D.H.'s interview with Pruitt. The trial court conducted a hearing on this request on October 7, 2009. The trial court concluded that the interview was sufficiently reliable to be admitted, but there was no evidence or finding that D.H. would be unable to testify at trial. Cox's jury trial was held on October 20, 2009. The trial court permitted the State to call D.H. to the stand and ask him whether he understood the difference between a truth and a lie. Then, in lieu of in-court direct examination about the alleged molestations, the State, over objection, was permitted to play the videotaped interview for the jury. Afterwards, D.H. was subject to cross-examination. The jury found Cox guilty as charged, and he was sentenced accordingly. He now appeals. * * *

The trial court improperly permitted the State to introduce D.H.'s videotaped statement in lieu of live direct examination, and that error was not harmless. Cox may be retried, however. We reverse Cox's convictions and remand for further proceedings consistent with this opinion.

NFP civil opinions today (1):

Kyle Sheets v. Kandie Sheets (NFP)

NFP criminal opinions today (3):

Erik Neal, Jr. v. State of Indiana (NFP)

Steven Thrash v. State of Indiana (NFP)

Tara K. Mateyko v. State of Indaina (NFP)

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Decisions

Courts - "Michigan Supreme Court censures ex-justice for secretly recording court deliberations"

From a Detroit Free Press story by Dawson Bell:

The Michigan Supreme Court has issued a pointed rebuke of former justice Elizabeth Weaver for making secret recordings of internal court deliberations and releasing some of the transcripts.

The court released Monday a copy of a Nov. 17 letter to Weaver, signed by five of the court's seven justices, in which they say "it is truly a sad day when this Court is forced to censure a former colleague."

Weaver responded with a statement in which she said she had "done nothing wrong," reiterated long-standing disdain for her former colleagues and suggested that she intends to make public additional transcripts of court deliberations.

The court's censure stems from Weaver's release in October of partial transcripts of a meeting of the court to discuss a pending 2006 case. She said the transcripts showed that another justice, Robert Young Jr., used inappropriate language and should be defeated.

[More] Here is more, from the WSJ Law Blog.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Courts in general

Environment - The end of Ethanol?

Jonathan H. Adler has this entry in The Volokh Conspiracy that begins:

Maybe it’s the new mood in Congress. Maybe the stars are aligned. Whatever the cause, opposition to ethanol subsidies is cropping up in some unusual places — and just in time, as ethanol tax credits are set to expire in a few weeks.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Environment

Environment - More on: Ohio agricultural waste, dumped in Indiana

Updating this ILB entry from Nov. 16th, Tom Bechman of The Prairie Farmer reported on Nov. 22nd:

Rumors of Ohio livestock producers hauling manure into Indiana and 'dumping' it led to a sensational-type report aired on an Indianapolis TV station, WTHR, Channel 13, last week. The rumors say livestock producers in the heavy-livestock laden counties of west-central Ohio will soon face tougher regulations, so they're bringing manure to Indiana to get rid of it instead of face the regulations.

Tom Menke, of Menke Consulting, Inc., Greenville, Ohio, says that may be what some people think is happening, but it's not reality as he sees it. First, manure has moved from Ohio into Indiana for at least the past 34 years he's been advising livestock producers. Much of it is spread on land owned or rented by Ohio farmers. The rest is spread on land owned or rented by Indiana farmers who are buying the manure, typically poultry litter, because it's a cheaper source of fertilizer than commercial fertilizers.

In fact, Menke argues that the value of manure itself will keep it from being wasted. Farmers know how valuable it is. Poultry manure tends to be economical to haul within a 100-mile radius of where it's produced. That means a large percentage of it is hauled into Ohio counties surrounding high-livestock producing areas as well.

The term dumping is also inaccurate, he notes. Ohio law allows for stockpiling of manure. Government officials have long recognized there that manure can't always be land-applied when it needs to be removed from the facility. So they instituted requirements for stockpiling. As far as we know, Indiana does not have the same stockpiling rules for people who buy manure but who don't raise livestock.

However, that could change. Bob Kraft, Indiana Farm Bureau, says the legislature may address the issue of the person who stores and uses manure, but who currently isn't under the same regulations as his adjoining neighbor who has a livestock confinement operation and produces the manure. He expects it's possible a bill may be proposed that would require those storing and applying manure to meet the same requirements as those who have CAFO units.

Also dated Nov. 22nd, this story by Bill Richmond of the Winchester News-Gazette, headlined "Manure dumping report draws praise, criticism." Some quotes:
Area water quality activist Barbara Sha Cox has received more than 200 e-mails congratulating her on a recent WTHR-television report on manure dumping in Randolph County. The TV report alleges that thousands of pounds of poultry manure from farms in Western Ohio are being trucked across the state line to Eastern Indiana.

“Overall the response has been positive,” Cox said Thursday. “They are mostly glad the issue was finally aired.”

The television station website includes numerous comments on the segment. Some accuse Cox of conspiring to eliminate animal agriculture, some point out that most farmers are responsible, while others decry the state’s lax standards for punishing out of state dumpers.

Indiana Department of Agriculture Director Joe Kelsay in this week’s Hoosier Ag Today newsletter said people seem to misunderstand the goals and outcomes of livestock farming. Kelsay said the use of animal nutrients to fertilize corps is an important tool for Indiana agriculture and most farmers manage it very well.

She said for some farmers the issue is how low in phosphorus Randolph County soil is and how desperately we need the this type of fertilizer.

“When this came up last year, there wasn’t as much poultry manure as there seems to be this year,” Cox said. “I, along with other environmental groups, meet with IDEM (Indiana Department of Environmental Management) monthly and I keep bringing this up. They suggested the manure brokers follow best management practices.

“But year before last a law was enacted dictating that counties cannot regulate manure dumping more stringently than the state chemist’s office does.”

She said although there is much opposition on the the issue, a commonsense solution could have been reached long ago if not for the excessive amount of bureaucracy involved. The issue has worsened substantially since last summer when Grand Lake St. Marys, Ohio, was devastated by blue-green algae that killed fish, birds and tourism. An Ohio water quality management official has allegedly called for increased manure hauling away from the lake’s watershed as a possible solution.

“When you see what Ohio has suffered, you know pretty much what’s at stake,” Cox said.

“I am not anti-farming. I spend more of my waking hours on the farm than at home.

“We need manure management rules stringent enough to protect our waterways. We’re encouraging livestock farmers to use best management practices - simply put, to be concerned about how your actions affect others. If you have a lot of manure, put a berm around it or cover the manure.

“IDEM says they’ve never had a problem but they also say they’ve never inspected, so how do they really know they’ve not had a problem?”

Cox said when she took the television crew to a site where a massive amount of chicken manure had been dumped on a particularly windy day they couldn’t believe what was going on.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Environment

Ind. Decisions - 7th Circuit decides 2 Indiana cases today; plus another of general interest

In Nightingale Home Healthcare v. Anodyne Therapy (SD Ind., Judge Barker), a 15-page opinion, Judge Posner writes:

The judge had granted summary judgment in favor of Anodyne on Nightingale’s Lanham Act claim early in the litigation. Nightingale, which had not appealed that ruling, contends that no award of attorneys’ fees is justified, because the case is not “exceptional.” * * *

Nightingale continues its frivolous litigation tactics in this court by arguing that Anodyne has “unclean hands” because it failed to turn over certain documents during discovery. It is apparent that the documents are not within the scope of Nightingale’s discovery demand once omitted matter indicated by an ellipsis in Nightingale’s quotation from the demand is restored.

Nightingale argues that even if Anodyne is entitled to reimbursement for some of the attorneys’ fees that it incurred, the district court’s award is excessive because it includes fees for defending against claims (discussed in our previous opinion) that were based on state law rather than the Lanham Act. But Anodyne showed that the work that its lawyers had performed in defending against the Lanham Act claim could not be separated from their work in defending against the other claims, and Nightingale presented no rebuttal.

We not only affirm the judgment of the district court but also grant Anodyne’s motion for fees and costs pursuant to Rule 38 of the appellate rules, and we dismiss as moot Anodyne’s motion to strike Nightingale’s brief and appendix.

In Kimmel v. Western Reserve Life (ND Ind., MJ Cherry), a 15-page opinion, Judge Hamilton writes:
On November 13, 2006, Richard Kimmel applied for a $500,000 life insurance policy from Western Reserve Life Assurance Company and paid an initial premium. In return for his application and payment, he received a conditional receipt. Both Richard’s application and the conditional receipt contained a clause that expressly terminated after 60 days any life insurance coverage provided by the company pending its review of Richard’s application. Sixty days then passed without Western Reserve either accepting or rejecting Richard’s application. On February 26, 2007, Richard was killed in an automobile accident. Richard’s widow June Kimmel sought benefits under the terms of the conditional receipt. When Western Reserve denied her claim, June brought this suit. The district court granted Western Reserve’s motion for summary judgment, finding that the conditional receipt expired on its own terms and that Western Reserve had not acted in bad faith under Indiana law. The court denied as moot June’s motion for summary judgment on Western Reserve’s defense of material misrepresentation. June has appealed from the judgment. We review de novo decisions made at the summary judgment stage. * * *

Although Western Reserve’s lack of action is inexplicable, unfortunately for June it is not actionable under existing Indiana law. June has not directed us to, and we have not found, Indiana decisions recognizing an insurer’s duty of good faith in its handling of applications with those who are not yet its policyholders. * * *

June has not pointed to any statutory or contractual basis on which Indiana law would impose a duty on Western Reserve to accept or reject Richard’s application within a reasonable time. * * *

Although Western Reserve deserves criticism for its handling of Richard’s application for life insurance, its behavior is not actionable under Indiana tort law. On this issue, too, we affirm the district court.

In Research Automation v. Schrader-Bridgeport, a case out of Illinois, Judge Hamilton's opinion begins:
This case presents a relatively rare appeal of an issue that arises frequently in district courts: two parties file identical lawsuits, each a mirrorimage of the other, in different federal districts. To prevent duplication of this sort, district courts may transfer, enjoin, or dismiss one of the lawsuits. We take this opportunity to provide additional guidance on this issue for district courts and for litigants.

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

Ind. Courts - Still more on: "78 prosecutors sued for seized funds: Law firm claims counties broke state law by not turning money over to school fund" [Updated]

Updating this ILB entry from Nov. 20th, Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

Area prosecutors believe they are being unfairly targeted by a Marion County lawsuit accusing 75 of the state’s county prosecutors of breaking state law regarding how they handle assets seized from criminals. * * *

[S]ome area prosecutors rarely seek asset forfeitures from criminals, because the process is costly and time-consuming. And the few they have filed didn’t net enough money to pass on to the common school fund after law enforcement costs were paid.

Huntington County Prosecutor Amy Richison is among the 75 prosecutors listed as defendants, a fact that makes her noticeably angry.

“I can only speak for my county and what I do in my county … but I can assure the public that we have done it according to the statute,” Richison said. “Therefore the lawsuit in which we are named is frivolous.”

In the two-year period outlined in the lawsuit, Richison said her office filed three civil forfeitures.

“In one of the cases, the law enforcement costs exceeded the results of the forfeiture action,” Richison said, adding the other two cases involved vehicle seizures and the cases are pending, so no money has been distributed to anyone.

She said Ogden’s allegations that the prosecutors are intentionally withholding the money are untrue.

“My office received no money whatsoever in civil forfeiture,” she said. “The money that we pursue is to reimburse the law enforcement expenses – period. We do not retain a single penny of what is forfeited. None of our office is funded by civil forfeitures proceeds.” * * *

While a few county prosecutors have since been dropped from the suit, Ogden said if they are still named then they haven’t given any money to the common school fund or is possibly using federal policies as a way to sidestep the law.

Steuben County Prosecutor Tom Wilson said his office rarely seizes assets, largely because the type of criminals Steuben County sees rarely have the kind of assets worth forfeiting. The last forfeiture case handled was through a federal drug case, which Wilson said does not require money to be sent to the common school fund. * * *

Attorney General Greg Zoeller has yet to decide whether to join the lawsuit. The suit was filed in July but sealed for 120 days to allow Zoeller time to decide whether to intervene.

Zoeller’s spokesman, Bryan Corbin, said the attorney general is still deciding whether to intervene. No prosecutors have asked the attorney general to intervene.

Ogden said he believed that because the case was filed on behalf of the state as a whistle-blower suit, the attorney general needed to either side with the plaintiff or stay out of the case.

Corbin said the attorney general does not yet need to respond.

“I don’t know if we agree with Mr. Ogden’s interpretation. But as of today we are not going to make a decision.”

[Updated at 2:30 PM] Paul Ogden has posted this entry on his blog, titled "The Responsibility of Attorney Genral Greg Zoeller to Uphold the Law ."

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Courts

Ind. Law - More on: Sadly, another death at Notre Dame, again involving football

Updating this ILB entry from Nov. 21st, Stacy St. Clair of the Chicago Tribune reported yesterday under the heading: "Notre Dame sends prosecutors its file on sex attack claim months after incident reported: 'Voluminous report' from campus police was forwarded last week, official says." It began:

University of Notre Dame police have forwarded to prosecutors their findings regarding allegations that a football player sexually attacked a woman — a complaint brought to campus authorities more than two months ago.

St. Joseph County Prosecutor Michael Dvorak said Monday that campus police had forwarded a "voluminous report" to his office last week but that he was unaware of it until Sunday, when the Tribune published a story detailing the university's handling of the case. The Tribune had notified Notre Dame of its findings several days before Sunday's report was published and indicated at the time that the paper intended to run a story on the allegations soon.

Today's South Bend Tribune has a story by Mary Kate Malone that is headed: "Police knew of assault report: Spokesman says earlier comments wrong: County was aware of Saint Mary's student's allegation against Notre Dame student.>" Some quotes:
SOUTH BEND — St. Joseph County police said Monday they were, in fact, notified by the University of Notre Dame that a Saint Mary's College freshman who committed suicide Sept. 10 had reported being sexually assaulted 10 days earlier.

On Sunday, county police reported the opposite: Officials said they had been unaware of the alleged sex assault case while they investigated 19-year-old Elizabeth Seeberg's death.

Assistant Chief and spokesman William Redman took responsibility for providing the incorrect information to The Tribune and other media outlets. * * *

The Chicago Tribune also reported that Notre Dame did not tell county police about the alleged assault, and that the prosecutor's office might also have been unaware of it.

But both entities have since said they were, in fact, notified. * * *

Notre Dame has its own police department and detectives who are capable of investigating sex crimes, officials said.

But Notre Dame would not confirm if an investigation was taking or had taken place regarding Seeberg's allegations, citing federal law.

As a result, it is not clear how soon Notre Dame notified officials from Saint Mary's and law enforcement about the sexual assault claim.

The county police detective assigned to the death investigation, Cpl. Steven Metcalfe, said Monday he was told about the assault case "a couple days" after the suicide. County police handled the investigation since Saint Mary's does not have its own police department.

However, Metcalfe made no mention of the assault allegation in his police report. He closed the case once he determined no foul play was involved, Redman said.

St. Joseph County Coroner Dr. Michael O'Connell said he was made aware of the alleged assault case by Saint Mary's security. He ruled Seeberg's death a suicide by drug overdose and is still processing the death certificate, he said.

Redman said Metcalfe "did not do anything wrong" by not including Seeberg's allegations in his reports.

But since Metcalfe did not include the information in his report, Redman assumed the detective did not know about it, leading him to tell reporters that the county was unaware, he said.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Law

Ind. Courts - More on: Massive annual report on operation of Indiana Courts released

Updating this ILB entry from yesterday, there are several stories today on the court report.

Here is the story from Maureen Hayden of CNHI Statehouse Bureau, as it appears in the New Albany News & Tribune under the headline: "Officials say ‘offense inflation’ may account for rise in court cases in Indiana." A quote:

Indiana Court of Appeals Chief Justice John Baker said the numbers reflect a more aggressive use of the courts.

“I don’t think we’ve misbehaved more in that time period,” Baker said.

But more bad behavior has become criminalized, he said, with punishments escalating. He said the number of criminal statues in Indiana’s penal code has gone from about 200 in 1977, when there was a major rewriting of Indiana’s laws, to nearly 2,000 today.

Baker also cited what he called “offense inflation” — violations that have escalated from infraction to misdemeanor and misdemeanor to felony. According to the report, one of the biggest increases is in Class D felonies filed, from 39,114 to 51,524 in 2009, a nearly 32 percent increase.

The result of the rising numbers: Overcrowded court dockets and an increase in Indiana’s prison population. In 2009, for example, the prison population nationwide dropped 0.4 percent but in Indiana, it rose 5.3 percent. That’s the largest percentage increase in any state in the nation.

The report also indicates that in many counties, the number of judges and court personnel has not increased at the same pace as the rise in cases. In Boone County, for example, the judges there are carrying a heavier “weighted” case load — based on the time and resources it takes to process a case — than in any other county.

Last year, according to the report, it cost Indiana taxpayers almost $400 million to operate the courts. That amount could be reduced, Baker said, if judges would streamline and share their resources. But he said too many judges rule over what they consider their “personal fiefdoms” for that to occur easily.

Here is a story from Dan Carden of the NWI Times. The lede: "Indiana courts saw fewer cases filed in 2009 compared to the year before, but case filings are up 16.5 percent in the last decade, according to a new report."

This story today
from Carrie Ritchie of the Indianapolis Star begins:
A new study shows that an increasing number of civil and criminal cases are being filed in Indiana, but state court officials are prepared: They're already implementing a strategic plan to become more efficient.

Posted by Marcia Oddi on Tuesday, November 23, 2010
Posted to Indiana Courts

Monday, November 22, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In TacCo Falcon Point v. Atlantic Limited, et al., a 17-page opinion, Judge Kirsch found:

[T]he trial court [did not err when] it granted the Clapper Parties' motion because the issues involved had previously been decided by other courts and were therefore barred by the doctrine of res judicata; and [T]he trial court [did not abuse] its discretion when it found that the judgment at issue had been satisfied because, when TacCo purchased the judgment, it was acting as a strawman for American Realty Trust, Inc. We affirm.
In State Automobile Mutual Insurance Co. v. Flexdar, Inc. and RTS Realty, a 16-page opinion, Judge Vaidik writes:
This is an insurance coverage dispute involving interpretation of a pollution policy exclusion. Flexdar, Inc., manufactured rubber stamps and printing plates at its factory in Indianapolis. Flexdar's machinery employed the chemical solvent trichloroethylene, which leaked from the factory premises and contaminated subsoil and groundwater. The Indiana Department of Environmental Management ordered Flexdar to investigate the contamination and informed Flexdar that it could be liable for the costs of cleanup. Flexdar requested defense and indemnification from its commercial general liability insurer, State Automobile Mutual Insurance Company, and State Auto filed this action seeking declaration that it owed no coverage. State Auto invoked a policy exclusion barring coverage for claims resulting from the escape of “pollutants.” The trial court entered summary judgment in favor of Flexdar. The trial court found that State Auto's pollution exclusion was ambiguous and unenforceable and thus did not preclude coverage. We agree and affirm the judgment of the trial court. * * *

We conclude, pursuant to the last fourteen years of precedent, that State Auto's absolute pollution exclusion is ambiguous, must be construed in favor of the insured, and therefore will not operate to preclude coverage in connection with Flexdar's TCE leakage. Under Kiger and its progeny—and consistent with the above-quoted 1997 executive veto—an insurance policy must be specific if it wishes to except from coverage claims relating a particular alleged contaminant. It is within the province only of our Supreme Court to decide otherwise.

For these reasons we affirm the trial court's entry of summary judgment for Flexdar.

In Judith C. Lombardi v. Robert R. Van Deusen, a 16-page opinion, Chief Judge Baker writes:
Mother and Father divorced, and Father moved to Illinois. Mother registered the child support order in Illinois, and she and Father subsequently consented to transfer jurisdiction of the child support issue to Illinois. The Illinois trial court modified Father's child support obligation. Years later, he asked that the Clark County, Indiana trial court reassume jurisdiction. The trial court did so. It found that the Illinois proceedings were a nullity because jurisdiction was never properly transferred and retroactively modified Father's support obligation to its original amount. The magistrate hearing the case also held a thirty-six-minute ex parte conference with Father's attorney and the prosecutor, explicitly barring Mother, who was pro se, from attending. We find the trial court's legal conclusions erroneous and the ex parte proceedings extremely troubling. Therefore, we reverse and remand with instructions that this matter be assigned to a different judicial officer.

Appellant-petitioner Judith Lombardi (Mother) appeals the trial court's order finding the Illinois proceedings to be void and reinstating appellee-respondent Robert R. Van Deusen's (Father) original support obligation of $45 per week retroactive to the original order. Finding that the Illinois trial court had jurisdiction when it modified the order and that jurisdiction has never been reestablished in Indiana, we reverse and remand for further proceedings. We also hereby order that a new judicial officer be assigned to this matter. * * *

The State does not dispute the fact that the prosecutor was not representing Mother's interests in the proceeding. Instead, it argues that even if Mother's due process rights were violated, the violation was harmless “because this appeal has cured any deficiencies that occurred in the trial court at the hearing.” Notwithstanding this astonishing argument, we simply note that we agree with Mother that “[b]eing deprived of the procedural due process rights of a meaningful opportunity to be heard is the 'prejudice' that a party must show for purposes of the harmless error doctrine.” That said, inasmuch as we have already found in Mother's favor on the merits of her appeal, we decline to reverse on this basis.

We hereby order that upon remand, this case be reassigned to a different judicial officer. Moreover, if, as seems likely to happen, jurisdiction of the child support issue is transferred from DuPage County back to Clark County, we order that a judicial officer other than Magistrate Dawkins continue to handle the case.

Levie S. Jackson v. State of Indiana - "Because Jackson has not presented any explanation of how he was prejudiced by the timing of the additional charge, his request that we reverse his habitual offender enhancement is denied."

NFP civil opinions today (2):

Boost Up Wireless Solutions v. Brightpoint North America (NFP)

William Delk, et al. v. Reid Hospital and Health Care Servs. (NFP)

NFP criminal opinions today (1):

Uma D. Chaluvadi v. City of Indianapolis (NFP) - see earlier opinions here.

Posted by Marcia Oddi on Monday, November 22, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Massive annual report on operation of Indiana Courts released

See the press release here. A quote:

The Judicial Service Report is made up of Volume 1: Judicial Year In Review; Volume 2: Caseload Statistics; Volume 3: Financial Report. The Probation Report includes Volume 1: Statewide Summary and Volume 2: Individual Department and County Data. Indiana Courts In Brief, a 12-page brochure is also available to provide an overview of all reports.

Posted by Marcia Oddi on Monday, November 22, 2010
Posted to Indiana Courts

Ind. Courts - "Lawyer seeks media silence for murder trial"

Justin Leighty reports in the Elkhart Truth in a long story that begins:

GOSHEN -- Bruce White's attorney doesn't want anyone outside the courtroom to read, view or hear anything about White's murder trial until it's all over.

He didn't ask to have the public prohibited from viewing the proceedings, but Carl Epstein asked a judge to gag The Elkhart Truth and all other media outlets until the end of the trial and, if White's convicted, the end of the sentencing.

White is scheduled to go on trial Dec. 13 in connection with the July 25, 2009, drug-related murder of Alphonso James.

Epstein asked specifically for a gag order on:

  • All court staff in Elkhart County "from discussing case related information with the media or otherwise releasing case related information to the media." Elkhart Circuit Judge Terry Shewmaker already informed Epstein that his staff doesn't hold press conferences to release information but maintains files which are open to the public under state law.

  • All staff of the Elkhart County Prosecutor's office. At a prior hearing in the case, Chief Deputy Prosecutor Vicki Becker said that the prosecutor's office doesn't release information because of ethical rules.

  • The press. He cited a case of a 1998 gag order which The Truth and other area media outlets fought. The difference, though, is that gag order only applied to participants in the trial and not to the press.
The Indiana Judicial Center's Bench and Media Guide to Interaction cites that same case, saying, "A trial court's gag order on participants in a criminal case does not serve as a prior restraint on the press in Indiana, but is proper only where the fair trial rights of the defendant are likely to be unfairly prejudiced by pretrial publicity and cannot be adequately protected by less restrictive alternatives. ... the distinction is between a gag order on the press, which would typically be seen as a prior restraint in violation of the First Amendment, and a gag order on trial participants, which is not a prior restraint, but requires a balancing between the competing constitutional interests."

Epstein notified The Truth, The South Bend Tribune and WSBT of the hearing. However, the Indianapolis attorney failed to notify The Truth's newsgathering partner (WNDU), any other area TV or radio stations or any other area newspapers.

In effect, if the judge granted Epstein's request, he'd either have to gag only those who were notified -- leaving competitors free to publish information -- or gag all media without giving other media outlets a chance to weigh in on the request to have their constitutional rights infringed upon.

When Epstein asked for a gag order on media last month, Shewmaker denied it in part because Epstein never notified the news organizations he wanted the judge to gag.

At that time, Shewmaker also pointed out that asking for a gag order can be counterproductive, asking, "Has it occurred to anyone but me that a hearing would bring more attention to the case?"

After receiving Epstein's latest request, Shewmaker scheduled the requested gag order for a hearing at 8:30 a.m. Dec. 2.

Posted by Marcia Oddi on Monday, November 22, 2010
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending November 19, 2010

Here is the Clerk's transfer list for the week ending November 19, 2010. It is one page (and 9 cases) long.

On the list is Susanne C. Gaudin, et al. v. J.W. Austin, et al., the Brown County Fire District case where the CJ recused and the remaining justices split 2-2, meaning that " the Court of Appeals' decision is now reinstated as Court of Appeals precedent." See ILB discussion here, from Nov. 17th.

One transfer was granted for the week ending Nov. 19, 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 Monday, November 22, 2010
Posted to Indiana Transfer Lists

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

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

From Sunday, November 21, 2010:

From Saturday, November 20, 2010:

Posted by Marcia Oddi on Monday, November 22, 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 11/22/10):

Tuesday, November 23rd

Next week's oral arguments before the Supreme Court (week of 11/29/10):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 11/22/10):

Next week's oral arguments before the Court of Appeals (week of 11/29/10):

Next Tuesday, November 30th

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

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

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

Posted by Marcia Oddi on Monday, November 22, 2010
Posted to Upcoming Oral Arguments

Sunday, November 21, 2010

Ind. Decisions - More on: Mendenhall Convicted In Beating Of State Rep. Ed Delaney

Updating this list of earlier ILB entries, WTHR13 reported Friday:

Hamilton County - A man found guilty but mentally ill for an attack on Indiana state Rep. Ed. DeLaney has been sentenced to 40 years in prison.

Eyewitness News-gathering partner The Indianapolis Star reported that with various allowances 39-year-old Augustus Mendenhall could spend 20 years in prison under Thursday's sentence.

Posted by Marcia Oddi on Sunday, November 21, 2010
Posted to Ind. Trial Ct. Decisions

Not law - "I (Heart) Boobies" and other inane efforts to put a shiny face on breast cancer

Exercising my prerogative as ILB editor-publisher, this entry is not about law. I found the month of October focus on breast cancer "awareness", including such aberrations as pro football players running around in fuchsia gloves and chin-straps, extremely disquieting. So did many other women.

Last weekend's (Nov. 12, 2010) NYT Magazine has a long article by Peggy Orenstein headed "Think About Pink." It begins:

A friend of mine’s 12-year-old daughter has taken to wearing a bracelet, one of those rubber, Lance Armstrong-style affairs, that says on it, “I (heart) Boobies.”

“Oh, yeah,” she said, vaguely, when questioned about it. “It’s for breast cancer.”


It’s hard to remember that, not so long ago, the phrase “breast cancer” was not something women spoke aloud, even among themselves. It wasn’t until the early 1970s, with the high-profile diagnoses of the former child star Shirley Temple Black, the first lady Betty Ford and Happy Rockefeller that the disease went public. A short time later, Betty Rollin, an NBC-TV correspondent, published the groundbreaking memoir “First You Cry.” Back then, her grief over losing her breast and the blow cancer dealt to her sex life was greeted with hostility by some critics and dismissed as frivolous. Mammography was just coming into use to detect early-stage tumors. The American Cancer Society was still resisting the idea of support groups for post-mastectomy patients. A woman like Rollin, some said, was supposed to be grateful that she qualified for a radical mastectomy, stuff a sock in her bra and get on with it.

Fast-forward to today, when, especially during October, everything from toilet paper to buckets of fried chicken to the chin straps of N.F.L. players look as if they have been steeped in Pepto. If the goal was “awareness,” that has surely been met — largely, you could argue, because corporations recognized that with virtually no effort (and often minimal monetary contribution), going pink made them a lot of green.

But a funny thing happened on the way to destigmatization. The experience of actual women with cancer, women like Rollin, Black, Ford and Rockefeller — women like me — got lost. Rather than truly breaking silences, acceptable narratives of coping emerged, each tied up with a pretty pink bow. There were the pink teddy bears that, as Barbara Ehrenreich observed, infantilized patients in a reassuringly feminine fashion. “Men diagnosed with prostate cancer do not receive gifts of Matchbox cars,” she wrote in her book “Bright-Sided.”

The October 29, 2010 Slate has a review by Katherine Russell Rich of a book by Gayle Sulik titled Pink Ribbon Blues. Some quotes from the review:
It's more than bad taste that's disturbing to breast cancer survivors. It's also the whiff of impotence and manipulation. Breast Cancer Awareness Month has become a distracting sideshow, a situation that sociologist Gayle A. Sulik explores in compelling depth in her new book, Pink Ribbon Blues. Sulik argues that despite the $1 billion raised over the years by pink-clad volunteers on hikes, despite the greater billions the U.S. plows into related research each year, science has failed to make any real progress in the fight against breast cancer. All the hoopla and boosterism of Breast Cancer Awareness Month leaves the impression that important work is being done, but in fact, in the time since the war on cancer was declared 40 years ago, things have gotten worse. The stats are dismal.*

Sulik's evidence is strong and disturbing. A woman now has a 1-in-8 chance of getting breast cancer in her lifetime. In 1975, the figure was 1-in 11. The risk of dying from the disease, upon diagnosis, decreased just 0.05 percent from 1990 to 2005. A woman with invasive breast cancer today will be bombarded with many more treatments and spend a lot more than her grandmother might have on care, but she'll have about the same chance of dying from the illness as women did 50 years ago.* * * *

She's especially sharp in decrying the shining face that the pink world puts on breast cancer. The women featured in stories and ads embody the triumph of the human spirit, they fight fight fight, they're always transformed by the experience and they rarely have recurrences, even though, in the real world, some 30 percent of women do. Pink campaigns largely steer clear of incurable Stage 4, with its average life span of two and a half years. "We are the dirty little (and not so little) secret that Pink October doesn't want to advertise," one woman in this category posted on Breast Cancer Insight. "Why would anyone contribute money if they thought Stage 4 could happen to them?" Yet it is the sizeable number of women with advanced cancer who most desperately need the treatment advances October dollars are supposed to help develop.

Posted by Marcia Oddi on Sunday, November 21, 2010
Posted to General News

Ind. Gov't. - "Democrats contest White's election: Petition says he is not eligible to be secretary of state"

That is the headline to this Nov. 20th story by Mary Beth Schneider of the Indianapolis Star. It follows on this Nov. 3 ILB entry. From the Nov. 20th story:

The Republican winner, Charlie White, is under investigation by two special prosecutors on allegations of felony voter fraud. He's accused of voting in a precinct in which he did not live.

Democrats say he should be found ineligible to serve as Indiana's chief elections officer, and that state law provides for the second-highest vote-getter to be elected instead.

Friday, Indiana Democratic Party Chairman Dan Parker filed a petition with the Indiana Recount Commission contesting White's election. He argued that White was trying to cover up the fact that he had moved outside the Fishers Town Council district he represented, so he voted in the May 2010 primary in a precinct in which he no longer lived.

Parker said White was fraudulently registered to vote at the wrong address, so was ineligible to be nominated by the GOP and ineligible to serve now that he's been elected.

And, he said in the petition, White would also be ineligible to serve if he's convicted of a felony.

Democrats cite a section of state law that says that if a candidate is found to be ineligible to serve, "the candidate who received the second highest number of votes for the office is entitled" to be certified as the winner.

Republicans say that's rubbish.

They point to another provision in state law, which says the governor shall appoint a replacement if there is a vacancy for state office.

ILB: To paraphrase the Star story, IF White was fraudulently registered to vote at the wrong address, then:
(a) he was ineligible to be nominated by the GOP and

(b) ineligible to serve now that he's been elected.

In that case, he would not be able to resign from office, leaving a vacancy for the Governor to fill -- because he would never have assumed the office.

IC 3-12-11 deals with "Recount and Contest Procedures for Presidential Primary Elections and Nomination for and Election to Federal, State, and Legislative Offices"

IC 3-12-11-25 provides:

Whenever the commission makes a final determination under section 18 of this chapter that the candidate who is subject to a contest proceeding is not eligible to serve in the office to which the candidate is nominated or elected, the candidate who received the second highest number of votes for the office is entitled to a certificate of nomination or certificate of election even though a certificate may have been issued to another candidate upon the tabulation of the votes.
But there is more. From Count 6 of the petition:
Alternatively, Petitioner believes in good faith that were White, who is currently under investigation by two special prosecutors on suspicion of voter fraud, be convicted of, pleads guilty to or pleads nolo contendere to a felony before taking office, he would be ineligible to take office pursuant to I.C. 3-8-1-5.
But if White assumes office, and then is convicted of, or pleads guilty to, a felony, and resigns from office, he will have created a vacancy.

From Article 5, Section 18 of the Indiana Constitution:

When, during a recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly; or when, at any time, a vacancy shall have occurred in any other State office, or in the office of Judge of any Court; the Governor shall fill such vacancy, by appointment, which shall expire, when a successor shall have been elected and qualified.
Another constitutional provision which may prove relevant is Article 15, Section 3:
Whenever it is provided in this Constitution, or in any law which may be hereafter passed, that any officer, other than a member of the General Assembly, shall hold his office for any given term, the same shall be construed to mean, that such officer shall hold his office for such term, and until his successor shall have been elected and qualified.
In other words, a vacancy may not exist here unless someone is seated and then resigns or is removed. Normally, under IC 4-5-1-2(a):
The individual elected as secretary of state shall take office on January 1 following the individual's election.

Posted by Marcia Oddi on Sunday, November 21, 2010
Posted to Indiana Government

Ind. Courts - "Defending yourself in criminal case? Not so fast"

That is the headline of this important story this morning in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Some quotes [emphasis added by ILB]:

Under the U.S. Constitution, criminal defendants not only have the right to an attorney, they also have a right to no attorney if that is what they want.

While it’s not common, defendants in minor criminal cases or traffic court occasionally represent themselves, with varying degrees of success.

But in two recent serious and complicated criminal cases, defendants tried to represent themselves over the loud objections of prosecutors and others who thought self-representation would rob the defendants of the right to adequate representation – in effect, preventing them from getting a fair trial.

In one case, accused murderer Delmas Sexton’s request to represent himself was denied by Special Judge Thomas Hakes.

In the other, accused rapist Brian Mast – whose 1989 convictions for rape, criminal deviate conduct, battery and burglary were overturned by the state’s highest court – was on the verge of being allowed to serve as his own counsel when he changed course mid-hearing. Mast now plans to have a public defender serve as his attorney.

Allen County Prosecutor Karen Richards, who is handling the case against Mast, said defendants who choose to represent themselves, or “go pro se,” make it difficult to guarantee a fair trial.

“They don’t do themselves any legal favors,” she said. “It doesn’t happen very often. … Most defendants are smart enough to know it’s not a good idea.”

The appellate courts hold defendants to the same legal standards as any attorney, even though they lack formal training and may even have low IQs or suffer from mental illness.

“That’s why it is so foolish for people to represent themselves,” Richards said.

Judges often appoint an attorney – sometimes the one first appointed to the defendant as a public defender – as standby counsel, there to give advice and process documents if the defendant is behind bars. But they do not intervene. * * *

Richards believes state and federal case law allows judges to deny defendants’ requests to represent themselves if the judge finds they have inadequate knowledge of the legal system or have vacillated on their decision to defend themselves.

ILB: Related is the Indiana case of Ahmad Edwards v. State, which has been to the SCOTUS and back, involving the issue of whether "a trial court may deny a defendant’s request to act pro se when the defendant is mentally competent to stand trial but suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself." See this March 17, 2009 ILB entry and its links.

Posted by Marcia Oddi on Sunday, November 21, 2010
Posted to Indiana Courts

Ind. Law - Sadly, another death at Notre Dame, again involving football

The headline to the story by Stacy St. Clair and Todd Lighty in today's Chicago Tribune is: "Notre Dame silent on teen's death: Northbrook student apparently killed herself days after telling campus police she had been sexually attacked by football player." A few quotes from the lengthy story [emphasis added by ILB]:

A 19-year-old Northbrook woman died of an apparent suicide nine days after telling University of Notre Dame police that she had been sexually attacked by a football player in a dorm room, the Tribune has learned.

Elizabeth "Lizzy" Seeberg, a freshman at neighboring St. Mary's College who had battled depression, apparently overdosed on prescription medication in her own room during the third week of classes in September. The player, meanwhile, has remained on the field.

More than two months later, Notre Dame refuses to publicly acknowledge the case, and what actions university officials have taken to investigate her allegation remain largely unknown.

Campus authorities did not tell the St. Joseph County Police Department investigating Seeberg's death about her report of a sexual attack, county officials said. Nor did they refer the case to the county's special victims unit, which was established to handle sex offenses, according to prosecutors. * * *

In the months since Seeberg's death, the university and its police force have denied formal requests for information from the Tribune, asserting it is not bound by open records laws that make public reports filed at other Indiana police departments. * * *

Notre Dame police could have turned the case over to the county's special victims unit, which is trained to handle sex-crime investigations. However, officials did not do so, and a campus police log shows the matter was assigned within the department. * * *

Notre Dame also declined to make university officials available, but issued a written statement Thursday: "Any time we are made aware of a student potentially violating university policies, we implement a process that is careful and thorough so that facts can be gathered, rumors and misinformation can be sorted out, and an informed decision can be made about what action to take — if action is warranted. We take our obligation seriously, we involve law enforcement officials as appropriate, and we act in accordance with the facts."

The Tribune's findings come as Notre Dame's football program grapples with fallout from the Oct. 27 death of team videographer Declan Sullivan, a 20-year-old junior from Long Grove who was killed during practice when a scissor lift he was working on toppled in high winds. The athletic department has been criticized for failing to take responsibility for the incident and for appearing to put the team's interests before Sullivan's safety.

See this ILB entry from Nov. 6th headed "Notre Dame's legal (and moral) issues."

The Notre Dame story follows on this Nov. 19th story by Nick Werner in the Muncie Star Press -- some quotes:

MUNCIE -- More than a week after a student reported she was raped at Central High School, school administrators are coming forward to speak with police detectives.

The development happened after police blasted the school for "interfering" and "delaying" the police investigation into the reported rape on Nov. 9. * * *

School officials did not call police in after the victim reported having been raped in a school restroom, but instead had her sit in the principal's office for two and a half hours.
The high school's principal and two assistant principals backed out of an appointment last Friday to meet with detectives.

The Delaware County prosecutor's office on Wednesday threatened to convene a grand jury to compel the school officials to tell what they knew about the alleged rape and how it was handled.

School officials, however, insisted earlier this week that they were cooperating with police.

By Wednesday night, Muncie Community Schools Supt. Eric King and human resources Director Lon Sloan agreed to give statements to police.

Police have also been in touch with the school's principal and two assistant principals and anticipate interviews in the near future, Muncie police Capt. Mark Vollmar said.

According to Sgt. Mike Engle, detectives plan on interviewing about eight more school employees.

"They're finally cooperating," Vollmar said.

Posted by Marcia Oddi on Sunday, November 21, 2010
Posted to Indiana Law

Saturday, November 20, 2010

Ind. Gov't. - Backyard "Chicken Underground" expands to include turkeys

As these ILB entries attest, one of the ILB's favorite entries was this one from Sept. 15, 2009, headed "Chicken underground' emerges in Indiana." The entry surveyed the ordinances of several Indiana cities, including Indianapolis, which permit urban chicken farming.

Today Barb Berggoetz of the Indianapolis Star reports on Tina and Charlie Tyzzer of Fortville and their backyard flock of turkeys. The headline: "Backyard farmers tend to Heritage turkeys, who live the good life until it's time for dinner." Some quotes:

"There definitely is a lot greater interest and continues to be in backyard agriculture and backyard chickens, in particular," said Dr. Jim Combs, field veterinarian for the Indiana State Board of Animal Health and avian division director.

Interest is growing, in part, he said, to satisfy people's back-to-nature drive and desire to raise their own food. "They have decided it's time to take nutrition into their own hands and have a little fun doing that."

While recent numbers are hard to find, Kyle Kohlhagen, an inspector for the Indiana State Poultry Association, said 2004 figures estimated 10,000 Hoosiers had backyard flocks, with 80 percent of them chickens and the rest divided between ducks and turkeys.

Chickens are more popular because they are smaller and less expensive to raise, requiring less land and food. They're also less susceptible to diseases.

Posted by Marcia Oddi on Saturday, November 20, 2010
Posted to Indiana Government

Ind. Courts - More on: "78 prosecutors sued for seized funds: Law firm claims counties broke state law by not turning money over to school fund"

Updating this ILB entry from earlier today, a press statement has now been issued by Roberts & Bishop attorney Paul K. Ogden. Some quotes:

Yesterday a qui tam lawsuit my law firm had filed in Marion County Superior Court against almost all the prosecutors in the State of Indiana was unsealed after the mandatory 120 day waiting period. The Indianapolis Star, which has extensively covered problems with Indiana's civil forfeiture law, first broke the story which appears in today's paper. Given that many outlets are picking up on that story, I write to provide more information regarding the lawsuit.

A qui tam lawsuit is a lawsuit filed by a private individual on behalf of the citizens of the State of Indiana in which the private individual attempts to recover state funds that were misappropriated or which should have been paid to the state. In a qui tam case, the Attorney General can choose to intervene in the case helping to prosecute it on behalf of the private citizen who originally brought it. Thus far, Attorney General Zoeller has not made a decision whether his office will participate in this lawsuit.

Under Indiana law, a prosecutor is to deduct law enforcement costs from civil forfeiture proceeds and the remainder is to be paid to the Common School Fund. It has long been suspected by many in the legal community that the civil forfeiture law had not been complied with for years. This summer I asked for records from the State Treasurer’s Office and was stunned to find that only $95,509 from civil forfeitures had been paid to the common school fund in more than a two year period and that only five counties, Dubois, Montgomery, Putnam, Vigo (which was only one check for $84.50) and Wayne had paid any civil forfeiture proceeds to the Common School Fund. Wayne is the only county in the state doing civil forfeitures that has complied with the law, meticulously calculating law enforcement costs on every civil forfeiture case and checks regularly to the Common School Fund.

The largest counties in the state, including Allen, Lake, Marion County (which reportedly takes in $1.6 million or more a year on civil forfeiture), and Vanderburgh, where among the 87 counties which gave nothing to the Common School Fund over the last two years. In actuality the non-compliance with the law stretches back for as much as a decade or more. To be practical we just focused on the last two years.

Doing some mathematical calculations, I estimate that the civil forfeiture proceeds seized by the Indiana counties for the last two years at $22,857,142 million and that $16,777,142 should have gone to the Common School Fund above law enforcement costs. Instead $95,509 was paid. Obviously, even if our estimate is off by a whole lot, there is still enormous non-compliance with the law by prosecutors.

A few prosecutors, including Marion County’s, take the position that law enforcement costs refers to all law enforcement costs on every case, including those completely unrelated to the civil forfeiture action in which the money or property was seized. * * *

I have attached a copy of the amended complaint and the spreadsheet on payments to the common school fund. Also, please note that eleven prosecutors responded to open records requests saying they did not do civil forfeiture and thus were dismissed from the case at our request yesterday. Those prosecutors are:

William Weist (Benton County Prosecutor), Kevin Basey (Blackford County Prosecutor), Jeremy Mull (Clark County Prosecutor), Cheryl Hillenburg (Crawford County Prosecutor), Dennis Byrd (Harrison County Prosecutor), Robert Clamme (Jay County Prosecutor), Gary L. Smith (Jennings County Prosecutor), David Holmes (Marshall County Prosecutor), Kelly Minton (Orange County Prosecutor), David Daly (Randolph County Prosecutor), and Jay Rich (Tipton County Prosecutor).

Wayne County's prosecutor, Michael Shipman, who has meticulously complied with the law, was never named in the lawsuit.

The Indianapolis Star has now posted the 6-page complaint.

Posted by Marcia Oddi on Saturday, November 20, 2010
Posted to Indiana Courts

Ind. Courts - "78 prosecutors sued for seized funds: Law firm claims counties broke state law by not turning money over to school fund"

A lengthy story by Heather Gillers in this morning's Indianapolis Star reports:

An Indianapolis law firm is suing 78 county prosecutors, claiming they routinely violate state law by holding on to seized assets instead of turning them over to a state school fund.

The case, which was unsealed Friday in Marion Superior Court, seeks to tighten adherence to state forfeiture laws and repay two years' worth of money the firm thinks is owed to Indiana's Common School Fund.

Critics question the suit's legitimacy, however, and the attorney general -- who can significantly influence how the case proceeds -- has not yet weighed in.

Prosecutors' tendency to confuse -- some argue abuse -- Indiana's loose forfeiture laws has been the subject of a continuing Indianapolis Star investigation, and lawmakers are considering tightening state rules next year. * * *

Roberts & Bishop's suit claims the prosecutors violated the Indiana False Claims Act by taking money the firm thinks was not intended for them. Under a whistleblower provision of Indiana law, a citizen plaintiff -- in this case Roberts & Bishop attorney Adam Lenkowsky -- can bring a case he or she thinks could benefit other citizens, usually in hopes that the state attorney general will take over the case.

The suit was originally filed in July, but the court had to seal it for 120 days in order to provide Attorney General Greg Zoeller time to decide whether he wanted to intervene. Zoeller spokesman Bryan Corbin said Friday the attorney general's office is still reviewing and evaluating the lawsuit.

One possibility for Zoeller would be to take over the suit and litigate it on behalf of the state. Another possibility, according to Corbin, would be to take the prosecutors' side, if asked, and defend them against Lenkowsky.

That possibility has not presented itself because, at this early stage of the case, none of the prosecutors has sought the attorney general's legal representation. As Corbin put it, "We don't have a client yet."

A third possibility, according to Ogden, would be for Zoeller to take Lenkowsky's side and then seek to dismiss the case. A fourth would be to leave the case alone and let Lenkowsky and the prosecutors fight it out in court.

In a story dated Nov. 19th in the Louisville Courier Journal, Harold J. Adams references:
... an opinion issued by Zoeller at the request of the Indiana Prosecuting Attorney’s Council last spring.

That opinion holds that “there is a legal distinction between criminal forfeitures and civil forfeitures,” Bryan Corbin, a spokesman for the attorney general, said Friday via e-mail.

The Indiana Constitution “does not apply to forfeiture actions” brought under the state law because the constitutional requirement “pertains only to forfeitures attendant to criminal proceedings,” Zoeller wrote in the May 12 opinion.

Though most forfeiture actions are connected to criminal prosecutions such as drug cases, the actual forfeitures are done in separate civil cases, Zoeller’s opinion says. “It is only fines and forfeitures from criminal proceedings that must be paid into the common school fund,” the attorney general wrote.

In a story in today's Lafayette Journal Courier, headed "Harrington expresses surprise at being named in Marion County lawsuit," Amanda Hamon reports:
[Tippecanoe County Prosecutor Pat Harrington] said his office takes a strict interpretation of the state law that directs county prosecutors to turn over money seized from suspected criminals to the state's common school fund. Forfeitures are defined as profit from an ongoing criminal enterprise.

The law allows the counties to hold on to a portion of the money to reimburse law enforcement costs.

"My office follows Indiana state law regarding forfeitures. I'm completely, 100 percent confident we follow the law," Harrington said.

Seized assets in Tippecanoe County are used to reimburse law enforcement costs for the individual case pertaining to the forfeiture, Harrington said. * * *

Last year, there was an average of $854 forfeited per case, for a total of $34,000, according to Harrington's website. In 2008, there were $72,000 in forfeitures.

Harrington, who was not in his office when contacted Friday evening, said he didn't know offhand how much of the forfeited assets went to the school fund and how much was used for law enforcement. He said he could provide the information Monday.

Here is a long list of ILB entries on asset forfeitures. Most recently, they link to the Indianapolis Star investigative stories published this month. Many relate to issues surrounding former Delaware County Prosecutor Mark McKinney's use of asset forfeitures. This entry from August 15th is headed "Asset forfeiture laws and the Common School Fund" and links to the AG opinion discussed above.

Posted by Marcia Oddi on Saturday, November 20, 2010
Posted to Indiana Courts

Thursday, November 18, 2010

About this blog - Expect few new entries until Monday, but who knows?

Having cataract surgery this morning on the second eye.

As I wrote three months ago after the first surgery, "Hopefully, we can all look forward to fewer typos in the future." But of course that hasn't hAfppened.

Posted by Marcia Oddi on Thursday, November 18, 2010
Posted to About the Indiana Law Blog

Ind. Courts - "Annexation or incorporation - which came first for Covered Bridge?"

Ben Zion Hershberg reported yesterday in the Louisville Courier Journal in a long story that begins:

Lawyers for the towns of Sellersburg and Covered Bridge argued in court Wednesday about whether Sellersburg’s attempt to annex Covered Bridge came before or after efforts to incorporate the newly created town.

“It seems clear to me there is a race going on,” Clark Superior Court Judge Jerry Jacobi said as he reviewed the timing of the activities during a hearing. Jacobi said he expects to make a decision in two weeks.

The timing is important, Sellersburg lawyer Perry McCall and Covered Bridge lawyer Andrew Wright agreed, because legal precedent holds that once an annexation process begins, it can’t be stopped by incorporating an area.

The lawyers disagreed, however, on when Sellersburg started its attempt to annex the then-subdivision of Covered Bridge, the adjoining Willows of Covered Bridge and land between Covered Bridge and Sellersburg.

Posted by Marcia Oddi on Thursday, November 18, 2010
Posted to Indiana Courts

Ind. Courts - "Court building to be renamed in honor of retiring judge: One commissioner abstains but backers say donations will pay for cost"

Chelsea Schneider Kirk reports in the Gary Post Tribune:

The Lake County Superior Court building in East Chicago will be renamed in honor of retiring Lake Circuit Court Judge Lorenzo Arredondo.

The Lake County Board of Commissioners voted Wednesday in favor of naming the courthouse as the "The Lorenzo Arredondo Justice Center." Commissioner Fran DuPey, D-Hammond, abstained from voting on the measure.

"Employees who worked very hard are losing their jobs," DuPey said, "and at the same time we're building statues ... I don't think we should be naming any of our buildings after people."

Lake Superior Court Judge Calvin Hawkins came to the meeting to ask commissioners to rename the courthouse. Hawkins, who presides over the East Chicago court, compared Arredondo to a star.

"As we dream and focus on the star there are some old myths and there are some new realities," Hawkins said. "One old myth is that we should not name a building after a living person. You have shattered that myth by naming the Lake Superior Court building in Gary after Indiana Supreme Court Justice Robert Rucker."

Posted by Marcia Oddi on Thursday, November 18, 2010
Posted to Indiana Courts

Wednesday, November 17, 2010

Environment - Seminar on the History of Indiana Environmental Law

An interesting seminar is coming up on Thursday, December 2nd, from 1:00 - 4:30 pm. 3.0 hours CLE.

Registration form here.

Here is the program, or at least the most recent draft. It should be good!


December 2, 2010 | Indiana Bar Association Conference Center | Indianapolis, Indiana

1:00 Welcome

    Program Co-Chair: Elizabeth L. DuSold, Esq.

1:00 – 1:35 A Historical Perspective on Indiana Environmental Law and Key Statutory Developments

    Elizabeth L. DuSold, Esq., Assistant General Counsel, Eli Lilly and Company, and

    Marcia J. Oddi, Esq., Indiana Law Blog

1:35 - 2:15 The Role of the Courts in Development of Indiana Environmental Law

    Peter M. Racher, Esq., Partner, Plews Shadley Racher & Braun LLP

2:15 – 2:30 Break

2:30 – 3:30 Indiana Environmental Law Stories

    [Gayle Helart, Esq., To be confirmed], U.S. Attorney’s Office

    Tim Junk, Esq., Deputy Attorney General, Indiana Attorney General’s Office

    John M. Kyle, Esq., Partner, Barnes & Thornburg

3:30 – 4:15 Indiana’s Natural Places: A Historical Perspective

    Kari Evans Bennett, Esq., Chief Counsel, Indiana Department of Natural Resources

    Tim Maloney. Land Use Director, Hoosier Environmental Council

4:15 – 4:30 Closing Comments and Open Question and Answer

    Program Co-Chair, Peter Racher, Esq.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Environment

Law - More on "Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation"

Updating yesterday's ILB entry re the meeting of the Congressional Oversight Panel, here is an entry from The Wonk Room quoting the Iowa Attorney General: "Robo-Signing Is Not ‘A Technical Issue,’ It’s ‘An Affront To State Courts’". Watch a clip of the testimony.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to General Law Related

Ind. Decisions - 7th Circuit decides one Indiana case today

In USA v. Rosalio Cruz-Rea (SD Ind., CJ Young), a 17-page opinion, Judge Bauer writes:

Rosalio Cruz-Rea appeals his conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and his conviction and sentence for possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii). Zoyla Garcia-Rea appeals her conviction and sentence for conspiracy to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. These cases were consolidated for trial and appeal. We have reviewed the district court’s legal conclusions de novo and its findings of fact for clear error. * * *

For the reasons discussed above, we find no error with the district court’s legal conclusions or findings of fact. We therefore AFFIRM the convictions and sentences of Cruz-Rea and Garcia-Rea.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Supreme court hears arguments in Brown County fire district case [Updated]

Updating this ILB entry from earlier today on yesterday's oral argument, it appears that we already have a result. Here is the order as it appears in the Court docket:






11/17/10 ****** ABOVE ENTRY MAILED ******

Readers may want to refer again to the Nov. 15th ILB pre-argument summary.

From Feb. 26, 2010, this COA opinion (2nd case), which held that the commissioners did not have the authority to dissolve the district by ordinance. The decision now has been reinstated.

So which side was it that called for the CJ's recusal? Did demands for Chief Justice Shepard's recusal backfire?

[Updated at 6:00 pm] The Supreme Court at 4:30 pm filed its "Published Order Reinstating Decision of the Court of Appeals." Access it here.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

The Village Pines at the Pines of Greenwood Homeowners' Assn. Inc. v. The Pines of Greenwood Homeowners' Assn. Inc. is a 9-page opinion concerning dueling homeowners' associations. Judge Darden writes:

We find the critical question to be: does the Master Plan Ordinance require that there be a master homeowners’ association; and, if so, what areas of the PUD does it control? The answer must turn on the statutes – here, the PUD Zoning Ordinance and the Master Plan Ordinance. * * *

We hold that as a matter of law, the trial court erred when it concluded that the controlling ordinances – the PUD Zoning Ordinance and the Master Plan Ordinance – did not require the creation of a master homeowners’ association and for the shared use of amenities located in The Pines. Moreover, this error affects existing recorded covenants. * * *

We note that ab initio, the VP-HOA has sought equitable relief. Consistent therewith, we find that in order for the governance of The Pines to proceed in accordance with the law, i.e., by means of a master homeowners’ association, equity requires that the parties engage in mediation. The parties would work together to create governing documents for the master homeowners’ association -- with covenants as to both its management and its maintenance of The Pines’ common areas and amenities, and its structure for the assessment and collection of fees therefor; said covenants would thereafter run with the land within The Pines. The parties would also mediate the corollary reformation of existing POG and VP covenants consistent with the foregoing. Therefore, we instruct the trial court to order the parties to engage in mediation accordingly. Reversed and remanded.

In Gregory M. Small v. Frank A. Rogers , a 13-page opinion, Judge Darden writes:
As the Indiana Code is silent as to the liability between co-guarantors, we must look to common law. Id. In so doing, we apply the same theory of contribution that has been applied to co-sureties to co-guarantors, namely, “'[t]he right of contribution operates to make sure those who assume a common burden carry it in equal portions.'” Id. (quoting Fleck v. Ragan, 514 N.E.2d 1287, 1288-89 (Ind. Ct. App. 1987)). * * *

[I]n this case, the debt still exists. Rogers did not discharge the debt, either by paying the debt or a judgment on the debt. See Balvich, 894 N.E.2d at 243 (noting that contribution involves the reimbursement of one who has discharged a common liability). Furthermore, the amounts paid by Rogers do not constitute more than his proportionate share of the more than $5,000,000.00 of debt incurred. He therefore is not entitled to contribution from his co-guarantors at this time. Finding that Rogers is not entitled to judgment as a matter of law, we hereby reverse the trial court's entry of summary judgment for Rogers. Reversed.

In Randy Horton v. State of Indiana , a 21-page opinion, Judge Robb writes:
Randy Horton appeals, after a jury trial, his convictions of six counts of child molesting as Class A felonies, three counts of child molesting as Class C felonies, and consecutive sentences for an aggregate of 324 years. He raises two issues for our review that we expand and restate as three: whether the trial court erred by allowing a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule; whether the trial court erred by sentencing him to consecutive maximum sentences for each offense for a total of 324 years in prison; and whether his sentence is inappropriate. Concluding the trial court did not abuse its discretion in admitting evidence or sentencing Horton, and the 324-year sentence is not inappropriate considering the nature of the offenses and Horton's character, we affirm.
In Darrian Bunch v. State of Indiana , a 19-page opinion, Judge Kirsch writes:
Bunch's conviction in Count III was based upon his removing K.V., at gunpoint, from
the hallway of her home, taking her to the den, and forcing her to lay face down. His conviction under Count XI was based upon his removing her from the den and taking her, at gun point, upstairs to her bedroom in order to obtain the money and lottery tickets. Finally, Bunch's conviction under Count XII was based upon his ordering K.V. to leave the den and go to the front door in order to dissuade her niece from entering the home. There was no evidence, nor does the State point to any, suggesting that K.V. felt free and was, in fact, free from detention at any time within the span of her confinement during Bunch's home invasion. Regardless of the number of rooms to which she was confined, this was but one continuous period of confinement, and Bunch's convictions under Counts III, XI, and XII flowed from that offense. Bunch's convictions and sentences in Counts III, XI, and XII violated the double jeopardy clause of the Indiana Constitution. Accordingly, his convictions and sentences in Counts XI and XII, which merged into his conviction and sentence in Count III, must be vacated.
In R.A. v. State of Indiana , a 5-page opinion, Judge Darden writes:
R.A. appeals the juvenile court’s order that he be committed to the Indiana Department of Correction (the “DOC”). We reverse and remand.

ISSUE: Whether the juvenile court abused its discretion by committing R.A. to the DOC. * * *

Given the facts and circumstances of this case and the statutory policy favoring the least-harsh disposition, we reverse the juvenile court’s commitment of R.A. to the DOC. See, e.g., D.P. v. State, 783 N.E.2d 767, 771 (Ind. Ct. App. 2003) (finding that where the juvenile’s conduct did not rise to a level of repetitive and serious misconduct, the juvenile court abused its discretion in committing the juvenile to the DOC). Noting that the State “does not oppose remand in order to place R.A. in a secure residential treatment facility,” we hereby remand with instructions to the juvenile court to vacate its dispositional decree and order R.A.’s placement in an appropriate rehabilitative setting.

NFP civil opinions today (4):

Lisa Burress v. Brad Wells (NFP)

Robert Burch, et al. v. Vern Penner (NFP)

K.W. v. L.W. (NFP)

Michele Michaylo v. Event Experts (NFP)

NFP criminal opinions today (8):

Marty McConnell v. State of Indiana (NFP)

Anthony J. Woods v. State of Indiana (NFP)

Curtis E. Cash v. State of Indiana (NFP)

Kyle E. Beals v. State of Indiana (NFP)

Tracy Trimble v. State of Indiana (NFP)

Steve D. Eller v. State of Indiana (NFP)

Hirman Jackson v. State of Indiana (NFP)

Jared Beeler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: AG Zoeller says policymakers should take a hard look at the costs and fiscal impact of capital punishment cases in Indiana

Updating this brief ILB entry from Nov. 15th, Niki Kelly and Rebecca S. Green of the Fort Wayne Journal Gazette have a long story today that begins:

Attorney General Greg Zoeller used a legal summit to kick-start a statewide discussion of the financial burdens associated with the death penalty in Indiana.

He told 75 lawyers and law students at a University of Notre Dame event Monday that state lawmakers and policymakers should take a hard look at the costs and fiscal burden of capital punishment cases in Indiana.

But he did not call for a repeal of or moratorium on the death penalty. He also had no specific proposals.

More from the long story:
And at a time of shrinking revenue and when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers should look carefully at cost structures driving the expense of death penalty cases at the trial and appellate levels.

“It is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana,” he said. “I don’t claim to know the answers, but as the state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions. We serve the crime victims and our constituents – the taxpayers – best if we confront a problem directly and objectively.”

Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, said he doesn’t think lawmakers are interested in getting rid of the death penalty.

“There are some cases that are so heinous in nature that the only penalty that is just is death,” he said.

There is much more to read in this story.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Indiana Law

Ind. Decisions - Supreme court hears arguments in Brown County fire district case

The Supreme Court heard oral argument yesterday in the case of Susanne Gaudin, et al. v. J.W. Austin, et al (see ILB summary here).

Tom Lotshaw of the Brown County Democrat had this report yesterday.

Laura Lane, the terrific reporter for the Bloomington Herald-Times, reports today ($$$):

Attorney Bill Lloyd argued that a countywide fire district was illegally dissolved by the Brown County commissioners last year and should be reinstated in order to provide better protection for Brown County residents and their homes.

Lawyer Stephen Buschmann said Brown County citizens overwhelmingly oppose the fire district and argued the commissioners acted in accordance with the law, and as advocates for those who elected them, when they voted it down.

And four member of Indiana’s Supreme Court listened.

Tuesday morning, the Brown County fire district case, which Lloyd said has had “a very long and eventful journey,” was heard by the state’s highest court. The justices will decide and issue a ruling soon about the legality of dousing the fire district.

A 2007 ordinance established the fire district, which consolidated fire protection under one governing unit instead of having it provided by individual township departments. The commissioners who supported the district got voted out the next year, and the new panel at its first meeting dissolved the fire district.

After that, Lloyd — a Brown County resident who challenged the action — sought review by the Indiana Court of Appeals, claiming the commissioners did not follow proper procedures in disbanding the district. Earlier this year, the state court of appeals agreed, saying an established fire district cannot be dissolved merely by passing an ordinance. The ruling said the commissioners must receive a petition with signatures from a majority of property owners in the county to be able to dissolve the district, then must hold a public hearing before voting on the issue.

Kurt Young, the county attorney who advises the commissioners, then challenged the appeals court decision and asked for a hearing before the Supreme Court.

During the oral arguments Tuesday, Lloyd argued that a fire district would put an end to squabbles among various volunteer departments and unify them under one governing body. “There is fire protection being provided. It’s a patchwork quilt. If you read, as you I’m sure have, the history of Brown County ... the controversy, this that and the other, arguing who’s in charge of putting the fire out, et cetera, and saving the foundation. All of that’s our history. All of that prompted the district to begin with.”

Buschmann said the commissioners were elected by the people and acted at the will of the people when they voted the district out.

“In September of 2007, two county commissioners and a group of unelected citizens took control of fire protection in Brown County. In 2008, the citizens took their government back,” he argued. “What we are here to determine today is whether the fire district statute allows that to happen, whether the General Assembly’s intent is for citizens to control their government.”

The fire district placed the county’s rural volunteer fire departments under the leadership of an appointed board of directors. Most fire departments in the county opposed the consolidation. Thousands of citizens signed petitions against it.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Indiana Decisions

Ind. Gov't. - More on: - Good news from House of Representatives

Updating this ILB entry from earlier this morning, the IBJ is now reporting that "all Indiana General Assembly committee meetings will be shown live online in the 2011 session for the first time."

I haven't seen an announcement from the Senate, however. The General Assembly convenes Jan. 5, 2011.

Moreover, the very important hearings of the Indiana State Budget Committee are taking place right now. As far as I know, they are NOT being videocast online. Today begins the review of state university budgets. In the opinion of the ILB, these hearing should not only be videocast and archived, but the budget documents submitted by the agencies and institutions should be posted.

[More] Giving a good example of what those who cannot fit into the crowded Statehouse committee room are missing, Eric Weddle of the Lafayette Journal Courier reports this morning:

When Purdue University officials ask today for an increase in state appropriated tax dollars for the next funding cycle, they'll face the same state legislators who grilled them on budget decisions last year.

President France Córdova and others travel to Indianapolis today to explain their financial needs to the State Budget Committee in hopes of keeping the university system operating at or near current levels.

"I will hit the top-level things, which are the most crucial items, which is the research item and the R&R," Córdova said, referring to funding tied to increased sponsored research and repair and rehabilitation to buildings. "We do expect some hard questions."

The meeting is part of the Indiana General Assembly's process of writing the 2011-2013 budget bill. In addition to Purdue, officials from Indiana University and Ball State University will also present their needs today. On Thursday, Vincennes University and University of Southern Indiana officials will do the same. * * *

State universities have been asked by State Budget Director Adam Horst to present their priorities for funding, mainly operating funds, money for new buildings; or money for repairs and rehabilitation.

State Sen. Brandt Hershman, R-Buck Creek, a member of the state budget committee said knowing which is a top need for Purdue will help decide how schools are funded.

A companion story is headed "More details on budget cuts emerge." and is accompanied by a slide show of the Purdue budget presentation.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Indiana Government

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

Updating this ILB entry from August 26, 2010, Erin Blasko reported in the Nov. 16th South Bend Tribune in a story that began:

The St. Joseph County Board of Commissioners voted unanimously today to veto an ordinance appropriating $225,000 to finance improvements at the Juvenile Justice Center.

Probate Judge Peter J. Nemeth requested the money in October to convert the space formerly occupied by the Court Appointed Special Advocates Program into a fifth courtroom.

He asked that it be taken from the Juvenile Probation Fees Fund.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Indiana Courts

Environment - More on: "College Campuses Continue to Leave Coal Behind"

Updating this ILB entry from Nov. 12, the Fort Wayne Journal Gazette yesterday had this editorial headed "Purdue has power to change for better."

Purdue University, accustomed to admiration for its advancements in alternative energy, is under fire from state and national environmental groups for expanding its reliance on a pollution-producing coal-fired power plant.

The Sierra Club and the Hoosier Environmental Council petitioned the U.S. Environmental Protection Agency to review the permit the Indiana Department of Environmental Management gave Purdue in July to expand its coal-fired plant. The groups think the permit violates the federal Clean Air Act.

Meanwhile, many college campuses around the country are moving away from coal-fired power to adopt greener energy sources. The American College and University Presidents’ Climate Commitment project claims to have signed 676 academic institutions to a pledge to reduce greenhouse gas emissions by 80 percent. A praiseworthy example close to home is Ball State University, which is building the largest geothermal system in the nation. It should be completed in 2017.

Purdue, known throughout the world for innovations in engineering, agriculture and renewable energy, is moving in the opposite direction.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Environment

Ind. Gov't. - Good news from House of Representatives

From an Indianapolis Star story yesterday:

[House Speaker] Bosma said that for the first time all House committee hearings will be broadcast over the internet. In the past, only House floor action and only a couple committees, including the budget-writing House Ways and Means Committee, were available to be watched by the public via the internet.

Posted by Marcia Oddi on Wednesday, November 17, 2010
Posted to Indiana Government

Tuesday, November 16, 2010

Ind. Courts - "Hospital asks court to silence woman's criticism of patient care"

Susan Brown reports today in the NWI Times:

CROWN POINT | Sisters of St. Francis Health Services has filed a defamation suit against a Crown Point woman who e-mailed comments critical of patient care to family and friends.

On Monday, Lake Circuit Court Magistrate Richard McDevitt heard more than two hours of arguments and testimony regarding the health system's request for an emergency restraining order against Nancy Anglis, who has been critical of the care given to her 87-year-old mother-in-law at St. Anthony Medical Center in Crown Point. * * *

Anglis contends her mother-in-law, who also suffers from dementia, was mistreated by two nurses at St. Anthony, one of whom was later disciplined for calling the mother-in-law "evil" during an exchange on the morning of June 30 when Anglis found her mother-in-law missing from her room. * * *

Attorney Donald Wruck, with Wruck Paupore LLC, of Dyer, in representing Anglis, argued the requested restraining order amounts to prior restraint -- a violation of Anglis' constitutional rights to free speech.

The health system emergency motion asks the court to bar Anglis from discussing her mother's treatment with any other person, including regulatory bodies. It also seeks to prevent Anglis from receiving medical care at any facility connected to the health system.

Attorney Robert Anderson, with Krieg DeVault, of Schererville, in representing the health system, argued Anglis was carrying out a vendetta against the two nurses and defaming the hospital.

"While free speech is important, it has some limits," Anderson said, citing the well-known U.S. Supreme Court decision that a person may not yell "fire" in a crowded theater.

Anderson told the court the hospital determined there was no abuse of the mother-in-law.

Putting the defamation issue aside, however, Wruck told the court, "Regardless of the 'facts,' a person has the right to speak out."

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to Indiana Courts

Law - "When should a person’s right to control his image trump the free-speech rights of others to use it?"

This is the focus of this front-page story today by Katie Thomas in the NY Times. A quote:

“It’s one of the most important clashes in all of First Amendment law, and one of the more unsettled areas,” said David L. Hudson Jr., a scholar with the First Amendment Center at Vanderbilt University. “I think it’s an area that is crying out for Supreme Court review in the right case.”

It is also an area about which the Supreme Court has remained largely silent. The court has taken up the right-of-publicity issue only once, in 1977, when it ruled in favor of Hugo Zacchini, a circus performer who originated the human cannonball act and who sued the owner of a television station that broadcast his entire act without his consent.

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to General News

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

Kevin L. Hampton v. State of Indiana - "It follows that there was no error in omitting the requested sentence and, accordingly, appellate counsel did not fail to provide effective assistance."

In State of Indiana v. J.S. , an 8-page opinion, CJ Baker writes:

Here, a juvenile has struggled for most of his life with multiple social and developmental disorders. After being charged with being a delinquent child for certain sex offenses, J.S.’s competency to stand trial was evaluated by three professionals. Two of the three found him incompetent to stand trial, and the juvenile court dismissed the petition.

Appellant-petitioner State of Indiana appeals the trial court’s dismissal of the State’s delinquency petition against appellee-respondent J.S., arguing that the trial court erred by finding J.S. incompetent to stand trial and dismissing the delinquency petition. Finding that the dismissal of the delinquency petition was not an abuse of discretion and did not unduly endanger the public, we affirm.

In Vaughn A. Reeves, Jr. v. State of Indiana , a 15-page opinion in an appeal of an interlocutory order, Judge Darden concludes:
In summary, the State’s charging informations against Reeves contain allegations that he committed aiding securities fraud on dates that were within the statute of limitation period (June 30, 2004 to July 2005) and outside of the limitation period (September 2000 to June 29, 2004). The charging informations, however, did not contain any sort of allegation of the concealment of evidence exception that would have taken it outside of the statute of limitation for the acts alleged to have occurred on or between September 2000 to June 29, 2004. Accordingly, the trial court did not err by denying Reeves’ motion to dismiss in relation to the June 30, 2004 to July 2005 time period but did err by denying the motion to dismiss in relation to the September 2000 to June 29, 2004 time period. We note, however, that the probable cause affidavit does contain specific allegations regarding the concealment of evidence exception that would have put Reeves on notice that the State intends to rely on the concealment of evidence exception for the purpose of bringing all the alleged acts within the five-year statute of limitation. Therefore, under the specific facts of this case, we remand to the trial court for consideration, as set forth in Indiana Code section 35-34-1-4(d), of whether it will discharge the defendant as to the dates specified above or deny the discharge upon determining that the prosecutor would be entitled to cure the information by amendment. Affirmed in part, reversed in part, and remanded.
NFP civil opinions today (4):

Blake Parkins v. State of Indiana (NFP)

Christina Smith v. State of Indiana (NFP)

Jamarr Da-Juan Williams v. State of Indiana (NFP)

Antonio Simeone, et al. v. Schreiber Lumber, Inc., et al. (NFP)

NFP criminal opinions today (8):

Raymond Hannah v. State of Indiana (NFP)

Jane Marie Burkart v. State of Indiana (NFP)

Kenneth W. Ellis v. State of Indiana (NFP)

Jason Montgomery v. State of Indiana (NFP)

Michael J. Kempf v. State of Indiana (NFP)

Christopher Martin v. State of Indiana (NFP)

Justin Stanback v. State of Indiana (NFP)

Cory R. Dowden v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to Ind. App.Ct. Decisions

Environment - Ohio agriucultural waste, dumped in Indiana

Supplementing this series of ILB posts, the most recent from Sept. 10, 2010, headed "One of the state of Ohio's solutions -- transporting future manure to farm fields outside the watershed, including fields in Indiana -- has alarmed some Hoosiers in East Central Indiana," WTHR13's Bob Segall had a long investigative story last evening, headed "Dumped in Indiana." Here is the lede:

Agricultural waste has caused environmental devastation to Ohio's largest inland lake. To help prevent further damage, Ohio is shipping hundreds of millions of pounds of poultry manure to Indiana. Some Hoosiers say the massive piles of manure piling up near their homes are toxic - and state officials say there's nothing they can do about it.
More from the story:
[Ohio's] state officials say the algae crisis was a direct result of manure runoff that drained into the shallow lake from area farm fields. To curb the problem – and hopefully save the lake – state officials developed a detailed action plan to improve water quality at Grand Lake St Marys. The plan calls for Ohio to "promote manure hauling" away from the lake's watershed, and it includes using federal funds from the Environmental Quality Incentive Program to help Ohio farmers transport their manure to Indiana. Ohio's plan is already underway.

Importing manure or trouble?

13 Investigates observed truck after truck filled with manure heading across the state line into Indiana. Some of it is liquid manure from cows and pigs. But most of the manure being trucked and dumped in Indiana is from chickens and turkeys in Mercer and Darke counties. Located along the Ohio-Indiana border, those two counties alone are home to dozens of commercial farms licensed to raise more than 22 million birds. * * *

IDEM admits it does not respond to most complaints involving poultry manure, and WTHR discovered why.

Indiana's manure rules do not apply to manure coming from other states. While Indiana manure is regulated, Ohio manure crossing the border to Hoosier farm fields is not.

"We just don't have the authority to regulate or require [farmers] to do certain things with those piles at this point," explained Bruce Palin, IDEM's assistant commissioner of land quality. "It's really how the rules and statute was structured." IDEM officials say they are not aware of any cases in which runoff from a pile of poultry manure contaminated a waterway or caused illness in Indiana.

Those who live near Indiana farms where out-of-state manure sits unregulated for months with no runoff protection say they are frustrated the state cannot do more.

"It makes absolutely no sense," said Sha. "Who cares what state it's from? We need to protect our water."

Palin says he understands the concern.

"It's frustrating for us, too," he said. "It's odd. Currently the material coming from out-of-state is being treated less stringently than what's generated in the state. I don't think we should be saying ‘if it's coming from a farm in Indiana they gotta do this, but coming from out-of-state they don't.'"

What should Hoosiers do about it?

"All I can say at this point is ‘be patient,'" said Palin, whose agency regulates more than 300 Indiana poultry farms licensed to raise 51 million chickens and turkeys. "We're working on it."

IDEM and the Office of the Indiana State Chemist are now developing new rules that would apply to manure on all large Indiana farms – including manure imported from other states. Palin believes the new rules will be developed and implemented by the end of 2011.

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to Environment

Courts - Recusal: "Judging Whether to Be the Judge"

Recusal was the subject of Adam Liptak's NY Times "Sidebar" column yesterday. “Justice Kagan took no part in the consideration or decision of this application.” Liptak writes that Justices Kagan, Breyer and Sotomayor:

used essentially the same language in noting their own recusals from other cases last week. None of them explained why.

That is both routine and in its way quite odd. In other parts of the justice system, there is general agreement on a couple of points. One is that you should not be a judge in your own case. The other is that courts gain legitimacy by explaining the reasoning for their decisions. * * *

Chief Justice William H. Rehnquist was dismissive of the idea [that the full court should review recusal motions] in 2004 when senators asked him about Justice Scalia’s duck-hunting trip.

“While a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case,” Chief Justice Rehnquist wrote. “This is because it has long been settled that each justice must decide such a question for himself.”

You could call that second sentence reasoning, but you would be being generous.

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to Courts in general

Law - "Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation"

From NPR this morning, a news story that began:

The disarray stemming from flawed foreclosure documents could threaten major banks with billions of dollars in losses, deepen the disruption in the housing market and hurt the government's effort to keep people in their homes, according to a new report from a congressional watchdog.

Revelations that several big mortgage issuers sped through thousands of home foreclosures without properly checking paperwork already has raised alarm in Washington. If the irregularities are widespread, the consequences could be severe, the Congressional Oversight Panel said in a report issued Tuesday. The full impact is still is unclear, the report cautions.

From the Congressional Oversight Panel's webpage:
The Congressional Oversight Panel's November oversight report, "Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation," reviews allegations that companies servicing $6.4 trillion in American mortgages may in some cases have bypassed legally required steps to foreclose on a home. The implications of these irregularities remain unclear, but it is possible that "robo-signing" may have concealed deeper problems in the mortgage market that could potentially threaten financial stability and undermine foreclosure prevention efforts.

In the best-case scenario, concerns about mortgage documentation irregularities may prove overblown. In this view, which has been embraced by the financial industry, a handful of employees failed to follow procedures in signing foreclosure-related affidavits, but the facts underlying the affidavits are demonstrably accurate. Foreclosures could proceed as soon as the invalid affidavits are replaced with properly executed paperwork.

The worst-case scenario is considerably grimmer. In this view, which has been articulated by academics and homeowner advocates, the "robo-signing" of affidavits served to cover up the fact that loan servicers cannot demonstrate the facts required to conduct a lawful foreclosure. The risk stems from the possibility that the rapid growth of mortgage securitization in recent years may have outpaced the ability of the legal and financial system to track mortgage loan ownership. In essence, banks may be unable to prove that they own the mortgage loans they claim to own.

The 127-page Nov. 16, 2010 report itself is linked.

Posted by Marcia Oddi on Tuesday, November 16, 2010
Posted to General Law Related

Monday, November 15, 2010

Ind. Law - Attorney General Zoeller says policymakers should take a hard look at the costs and fiscal impact of capital punishment cases in Indiana [Updated]

That is from a details news release issued late this afternoon by the AG's Office. The release also links to the executive summary of a study by Anne Morrison Piehl titled "Fiscal Considerations and the Death Penalty in Indiana."

For background, start with this Dec. 10, 2009 ILB entry headed "Is death penalty worth the price? Single case can cost taxpayers as much as $1 million." It quotes from a lengthy story in the Indianapolis Star, reported by Jon Murray, and also collects together important earlier, related links.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Law

Ind. Decisions - The separation of powers, the one subject requirement, and the budget bill, or "Will the Court revamp the process and force the genie back into the bottle?"


On October 20th, the Supreme Court heard oral argument in In the matter of A.B., a Child Alleged to be a Delinquent (71S00-1002-JV-156). This was a direct appeal from the St. Joseph Probate Court, which held that the Indiana Department of Child Services' (DCS's) recommendations for in-state placement were unreasonable and not in A.B.'s best interests and that several statutes giving the DCS a role in the placement of juveniles are unconstitutional. The DCS appealed directly to the Supreme Court.

One of the provisions at issue was what the ILB has called a "special session surprise." Specifically, during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.
This change has been criticized as "an 11th-hour insertion" into the special session budget, which was passed June 30th and effective July 1st -- there was no opportunity for public input and one doubts that most legislators were aware of the change or its implications. [The language is located at PL 182-2009(ss), SECTION 387.]

Both the constitutional provisions on separation of powers (Article 3, Sec. 1) and the prohibition of Article 4, Sec. 19 that "An act ... shall be confined to one subject and matters properly connected therewith" were cited by appellee as reasons why the last minute insertion of the DCS language into the budget law should fail.

Counsel for appellee argued that the insertion of the provision was "log rolling" or a "rider"*. Both the Attorney General's representative, arguing on behalf of appellant DCS, and several of the justices, noted that in in Indiana we don't look at the history of a bill, that history is not relevant. All we can look at is the enrolled act itself.

But Justice Dickson and CJ Shepard probed counsel for appellees for additional rationale on why this DSC language would violate the one subject prohibition. Appellees, however, could respond only that the amendment came in at a very late time -- they could not move beyond condemning the legislative procedure that led to the inclusion of the language in the budget bill.


Notice that Article 4, Sec. 19 is not phrased in terms of a "bill." A bill, when it becomes law, is called an "Act." The Indiana constitution states: "An act ... shall be confined to one subject and matters properly connected therewith."

So challenging an Act on the basis of that logrolling or the inclusion of a rider occurred during the crafting of the bill by the General Assembly will fail; the Court will not look at the internal procedural processes that lead to the enactment of an Act, the Court will only look at the face of the Act itself.

But the Court has been faced with cases in recent decades where the results of logrolling or other legislative compromise were readily apparent to many on the face of the Act itself. In these instances the applicability of Article 4, Sec. 19 has not been addressed directly by the Court. Reasons given have included the enrolled act rule and the separation of powers doctrine -- the Court will not look beyond the face of the act to inquire into the internal procedures that led to an Act's passage, the Court will not inquire into the procedures of a separate branch of government. Procedural reasons ...

So does this constitutional provision have any meaning at all? Or was the court in Jackson v. State (1924) prescient when it warned that by "a process of tracing relationship, we could find that most subjects of legislative enactments were related, just as by a similar process we can find the relationship of all of mankind.” And was the Indianapolis Star correct when it editorialized in 2001 that "lawmakers might as well just stuff everything they do into one giant bill each session and send the entire mess to the governor in a wheelbarrow with a take-it-or-leave-it note"?

How did we get to this point?

Perhaps by two sets of changes converging in the same span of time:

(1) Revolution in the budget bill. The budget bills of today are not typical in Indiana's history. Tracing the recent evolution:

The ACTS of 1977(SS), for example, contains three separate budget acts: PL 10, the operating budget; PL 11, the construction budget; and PL 12, the highway budget. The operating budget covers just that in SECTIONS 1 through 12, going agency by agency and making line item appropriations. SECTIONS 13 - 29 are the "boilerplate" provisions that remain in the budget laws to this day.

The ACTS of 1989(1st SS), PL 357, titled "AN ACT concerning the appropriation and administration of funds," follows the same structure, first the governmental appropriations, then the boilerplate at SECTIONS 12-29. The difference is that the construction budget is now wrapped into the bill, at SECTION 30.

1991 is when the change came. Or one might say the floodgates broke. The ACTS of 1991 (2nd SS), PL 240 is titled "AN ACT concerning the performance of certain constitutional duties of the general assembly including appropriation, redistricting, and state and local administration relating to appropriations." Following the governmental appropriations, and the boilerplate, and the construction budget, and continuing for 159 pages, is not only the decennial redistricting language, but the proverbial kitchen sink.

And it has continued since, for nearly two decades.

Does that make it too late to put the genie back in the bottle? Perhaps not in the long-time scheme of things, going back to 1852.

(2) Amendments to Art. 4, Sec. 19. This section of the Indiana constitution has been amended twice since 1852.

Notice the careful titling of the 1991 budget bill. That goes back to what was the requirement of Sec. 19 until a constitutional amendment was ratified in 1974. Previous to the amendment, Sec. 19 began:

Sec. 19. Every act, amendatory act, or amendment of a code shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be expressed in an act, amendatory act, or amendment of a code, which shall not be expressed in the title, such act, amendatory act, or amendment of a code shall be void only as to so much thereof as shall not be expressed in the title. * * *
After the 1974 amendment, the constitution has required only that an act be limited to one subject and matter properly connected. The title requirement no longer exists.

But titles carefully written so that they encompassed everything in a bill continued to be the practice. And the Supreme Court, in several post-1974 one-subject challenges, has cited cases as precedent that turned on the old, no longer relevant, title-body rationale.

And the corollary to the title rule has been -- so long as you can write a title broad enough to cover it, you can put anything in a bill.


In a 2001 paper, I wrote that the prohibition of Article 4, Section 19 is absolute, but:

No objective test for determining what constitutes one subject has been devised by the Indiana Supreme Court. Despite the caveat of the Jackson court that, by “a process of tracing relationship, we could find that most subjects of legislative enactments were related, just as by a similar process we can find the relationship of all of mankind,” this is precisely the method that appears most often to have been applied in the past. * * *

[J]udicial deference may not be the proper response to violations of the one subject matter limitation, the effects of which cut across all three branches of government. For, if members of the legislature may, without fear that the act later will be struck down by the courts, place other members in the position of having to accept an unwanted provision in order to get a wanted one, so may they impact the Governor in the same manner. The Governor, without a line item veto, may be placed in as difficult a position as a member of the General Assembly by the combination of two different subjects within one act, such as the state budget and, for example, a rider relating to riverboat gambling.

The same rationale also applies to the judicial branch. Dague v. Piper Aircraft presented such a case. During the last hours of the 1978 legislative session, legislative leaders patched an endangered products liability bill onto the end of a “judges bill,” a 27- section bill relating to the Indiana court system. The subsequent challenge to the constitutionality of the combined act was the first to be decided by the Indiana Supreme Court under the newly revised Article 4, section 19. Here the Court was placed in the position of either invalidating the entire combined courts/products liability act, or issuing a ruling upholding the constitutionality of the act, a “choice” similar to that legislators, and then the Governor, had faced earlier.

So long as the Court maintains its current noninterventionist approach to Article 4, section 19 challenges, the possibility posited in the January 7, 2001 editorial of “one giant bill [sent] to the governor . . . with a take-it-or-leave-it note” does not appear entirely unrealistic. But, in a recent opinion indicating that its position of deference does have limits, the Court spoke directly to the question of the relationship between judicial deference and the separation of powers, on the one hand, and the constitutional system of checks and balances, on the other.

That opinion was State v. Monfort, 723 N.E.2d 407, __ (Ind. 2000), where the Court wrote:
The separation of powers provision exists not only to protect the integrity of each branch of government, but also to permit each branch to serve as an effective check on the other two. * * *

The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention or denial by another branch of that government.

* "Legislative logrolling involves combining together into one bill several unrelated proposals, in order to accumulate the requisite number of votes for the combined measure to pass. This practice may occur during the initial drafting of the bill, or at any point after introduction. A subset of logrolling involves the addition of an unrelated rider to an essential piece of legislation, such as a budget or appropriations bill, generally in the last days of a legislative session, so that it may 'ride' to approval." (From my 2001 article.)

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Decisions | Indiana Government

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

For publication opinions today (11):

In Mary Booher, et al. v. Sheeram, LLC, an 8-page opinion, CJ Baker writes:

An attorney was facing major surgery and attempting to work with an expert who was unable to get a report completed in a timely fashion. Consequently, the attorney contacted opposing counsel to explain that an extension of time to file his client’s designated evidence in opposition to summary judgment would be needed. Opposing counsel agreed that an extension would be acceptable. Although we encourage collegiality among members of the legal profession, the attorney here should also have filed a formal request with the trial court for an extension of time. Having failed to do so, the trial court was without discretion to accept the technically late-filed documents.

Appellants-plaintiffs Mary and Steve Booher appeal the trial court’s order granting summary judgment in favor of appellee-defendant Sheeram LLC d/b/a Hampton Inn of Elkhart (Hampton Inn) on the Boohers’ negligence complaint. The Boohers argue that the trial court erroneously struck their designation of material facts in opposition to Hampton Inn’s summary judgment motion as untimely. They also contend that there are issues of material fact precluding summary judgment. Finding no error and no issues of fact, we affirm.

In Tony A. Holmes v. Celadon Trucking of Indiana, et al. , a 7-page opinion, Judge Bradford concludes:
Because Trial Rule 3 explicitly states that an action commences when the initiating party files the original and necessary copies of the complaint, the prescribed filing fee, and the original and necessary copies of the summons, and the evidence before the trial court indicates that Holmes filed these required documents via certified mail on April 24, 2009, we conclude that Holmes commenced the instant action during the statutorily allotted time. Therefore, we further conclude that the trial court erroneously granted Celadon’s motion for judgment on the pleadings on the grounds that the action was not filed within the statutorily allotted time frame. Accordingly, we remand this action for the entry of partial summary judgment in favor of Holmes on the question of whether the instant action was timely filed.

The judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this opinion.

In City of Jeffersonville v. Hallmark at Jeffersonville, a 17-page opinion, Judge Brown writes:
[T]he record suggests that a calculation error was made in computing the correct sewer tap fee under Ordinance 63.9 Accordingly, the voluntary payment doctrine is inapplicable in this case.

To the extent that the City argues that the voluntary payment rule applies in this case because the City is a governmental entity, we disagree. * * *

In addition, as previously mentioned, Ind. Code § 36-9-23-28.5 provides that an overpayment which remains unclaimed for more than seven years becomes property of the municipality. We can think of no policy reason consistent with these statutes to permit the City to keep Hallmark's overpayment—which was seven times the proper sewer connection fee amount under Ordinance 63—under the facts of this case, especially where the City would be taking financial advantage of its own calculation error. Under the circumstances of this case, and in light of the Indiana Code sections above governing sewer fees, we cannot say that the policy justifications referred to in Time Warner, and perhaps demonstrated to some extent by City of Evansville and other cases cited by the City, favor application of the voluntary payment rule, even though the City is a governmental entity.

In In the Matter of the Unsupervised Estate of Dwight M. Wilson v. Phyllis Steward, a 9-page opinion, Judge Crone writes:
This case addresses the question of how long is too long to wait before enforcing a money judgment. In September 2009, shortly after a father's death, his ex-wife filed a claim against his estate for unpaid child support stemming from a July 1989 judgment against the father. The estate asked the court to dismiss the ex-wife's claim, arguing that she failed to make a timely claim under Indiana law. The trial court denied the estate's request and awarded the ex-wife damages.

The estate of Dwight M. Wilson (“Father's estate”) appeals, arguing that Indiana's statutes of limitation bar the claim filed by Phyllis J. Steward (“Mother”) against Father's estate. Finding no error, we affirm.

In Wayne & Susan Vanderwier v. Joshua & Stephannie Baker, a 10-page opinion, Judge Mathias concludes:
This evidence supports the trial court's judgment that the Bakers established, by a preponderance of the evidence, that the Vanderwiers made fraudulent misrepresentations on the Sales Disclosure Form, and that the Bakers justifiably relied on the Vanderwiers' fraudulent disclosure of only “minor garage seepage.” For all of these reasons, we affirm the trial court's judgment in favor of the Bakers.
In Robert Guy v. Commissioner, Indiana BMV , an 8-page opinion, Judge Vaidik writes:
Robert T. Guy appeals the trial court’s denial of his verified petition for order to renew his Indiana operator’s license. Because Guy only served the Commissioner of the Bureau of Motor Vehicles and did not also serve the Attorney General, as required by both the Indiana Administrative Orders and Procedures Act and Indiana Trial Rule 4.6(A)(3), we conclude that the trial court did not have personal jurisdiction and therefore could not enter any order in this case. We therefore vacate the trial court’s order. * * *

Because the Attorney General was not served as required by both the AOPA and Trial Rule 4.6(A)(3), it comes as no surprise that no one appeared on the Commissioner’s behalf at the December 29 expedited hearing. * * *

Because Guy did not serve the Attorney General, his service of process was ineffective in this case. The trial court did not have personal jurisdiction over the Commissioner and therefore could not enter any order in this case. We therefore vacate the trial court’s order. Vacated and Reversed.

Charlotte Manns v. Amos J. Richie, et al.

Paternity of C.H.; K.L. v. M.H.

Clarence Seeley, Jr. v. State of Indiana

Robert L. Comer v. State of Indiana

Donald Kistler v. State of Indiana

NFP civil opinions today (5):

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

In Re: The Guardianship of Patrick Hill; Kristin S. Hill v. Michael W. Hill (NFP)

In the Matter of I.D.; T.D. v. IDCS (NFP)

Sharla Hackney and Raymond Hackney, Sr. v. Stacy G. Toole (NFP)

James R. Stephens v. Brenda K. Stephens (NFP)

NFP criminal opinions today (6):

Dewayne E. Rhye v. State of Indiana (NFP)

Raymond Lee v. State of Indiana (NFP)

Stephen Quick, II v. State of Indiana (NFP)

Jose L. Macias v. State of Indiana (NFP)

Ronald Fisher v. State of Indiana (NFP)

Gerardo Delao v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Lorenzo Tavarez (SD Ind., Judge Lawrence), an 8-page opinion, Judge Hamilton writes:

Based on information provided by a confidential informant, appellant Lorenzo Tavarez was arrested and charged with two counts of distributing methamphetamine. Despite the informant’s unexplained absence at trial, a jury convicted Tavarez on all charges. Tavarez now argues that the district court erred by refusing to give the jury a requested “missing witness” instruction and that, without the informant’s testimony, the evidence was insufficient to sustain his conviction. We affirm. * * *

The case against Tavarez was not overwhelming. We can imagine innocent explanations for the fingerprint and the buy money in the men’s clothing. But the ability to imagine an innocent explanation is not equivalent to harboring reasonable doubt. This circumstantial evidence was not so weak as to preclude a guilty verdict.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Ind. (7th Cir.) Decisions

Law - "Kentucky Bar Association seeks to regulate attorneys' Facebook comments offering services"

Jason Riley of the Louisville Courier Journal reported Nov. 14th in a lengthy story:

When Louisville attorney Christian Mascagni wanted to reach a few thousand potential clients during the Breeders' Cup weekend, he didn't take out TV ads or radio spots, he turned to Facebook — and never paid a dime.

Mascagni posted on his Facebook page, to his more than 2,000 friends, that he wanted “the Breeder's Cup and weekend partiers to call if you get into trouble or need out of jail before Monday,” and he said these kind of postings have paid off.

“I have picked up a lot of business on Facebook,” Mascagni said, noting that the social-networking site allows him to directly reach out to his target market, club-hoppers in their 20s and 30s who are difficult to reach through traditional advertising.

But to the Kentucky Bar Association, such postings represent a dangerous trend that needs oversight. In fact, the bar is proposing a regulation that would prohibit lawyers from trying to solicit potential clients on social media unless their comments are regulated by the bar's Advertising Commission — and they pay a $75 filing fee.

The rule wouldn't affect postings that are “non-legal” in nature, according to the proposal.

But some legal bloggers and attorneys contacted by the newspaper say the proposed regulation is unclear on what types of comments would be regulated, and they argue it could stifle free speech.

The regulation is so vague that simply listing an attorney's employment and education might be a violation, retired Judge Stan Billingsley, the senior editor of the blog and research service LawReader.com, said on his blog recently. “Technically, as written, simply listing your name brings an attorney within the purview of the rule. Should we use an alias?”

Michael L. Stevens, attorney and editor of the blog Kentucky Law Review, has this entry this morning on the LCJ story. Here is a quote:

And if you don't believe the use of Facebook by lawyers for client solicitation has not become explosive, the following two texting abbreviations should open your eyes a little (for list of abbreviations click here):

  • MVA - Motor vehicle accident
  • MVA no PI - Motor vehicle accident with no personal injury
  • MVA w/PI - Motor vehicle accident with PI
  • DUI - driving under the influence
  • DWI - driving while intoxicated
Stevens also has posted this useful "Blog Caveat."

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to General Law Related

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

Updating this ILB entry from Oct. 18th, about the rule change effective Jan. 1, 2011, Teresa Auch Schultz of the Gary Post Tribune has this long story today headed "New rule keeps lawyers at bay." Some quotes:

People often label lawyers with the stereotypes of being ambulance chasers, stepping in within minutes of an accident to get new clients for civil lawsuits.

The Indiana Supreme Court has recently taken a step that bans lawyers from contacting people involved in accidents for 30 days.

The new rule also applies to family members of someone who died in an accident, according to the state court. * * *

The Lake County Bar Association has supported the ban for several years, President Rich Wolter said. The idea is that hiring a lawyer is a serious decision and one that people should be able to think clearly about, he said. * * *

The state actually already had a statute that addressed runners, or people who would directly solicit people on behalf of attorneys. However, it's hard to prove, Wolter said, and the new rule sets a clear line.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Courts

Law - "Betting on Justice: Putting Money on Lawsuits, Investors Share in the Payouts"

From the front-page of today's NY Times, a very long investigative story by Binyamin Appelbaum. This is the start of a new Times series "looking at the growing practice of investing in lawsuits, and efforts to facilitate it." Some quotes:

Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings. * * *

The rise of lending to plaintiffs and their lawyers is a result of the high cost of litigation. Pursuing a civil action in federal court costs an average of $15,000, the Federal Judicial Center reported last year. Cases involving scientific evidence, like medical malpractice claims, often cost more than $100,000. Some people cannot afford to pursue claims; others are overwhelmed by corporate defendants with deeper pockets.

A review by The New York Times and the Center for Public Integrity shows that the inflow of money is giving more people a day in court and arming them with well-paid experts and elaborate evidence. It is helping to ensure that cases are decided by merit rather than resources, echoing and expanding a shift a century ago when lawyers started fronting money for clients’ lawsuits.

But the review shows that borrowed money also is fueling abuses, including cases initiated and controlled by investors. A Florida judge in December ordered an investment banker who orchestrated a shareholder lawsuit against Fresh Del Monte Produce to repay the company’s legal expenses, ruling that the case should not have reached trial. * * *

Lawyers are not required to tell clients that they have borrowed money, so the client may be unaware that there is financial pressure to resolve cases quickly. Lenders also seek detailed information about cases, which can jeopardize client confidentiality.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to General Law Related

Ind. Courts - More on "Forfeiture law invites abuse of the system"

This is the third of an outstanding, must-read investigative series on asset forfeitures, from the Indianapolis Star team of Heather Gillers, Mark Alesia and Tim Evans, following on the Nov. 7th story.

Yesterday's very long story is headlined "Cashing in on crime: Indiana law allows prosecutors to farm out forfeiture cases to private lawyers -- who get a cut of the money." Here are a few quotes, but they don't give the whole picture:

Indiana law allows prosecutors to farm out forfeiture cases -- cases where the state seeks to claim money or property that officials suspect was involved in a crime -- to private attorneys. Those attorneys represent the prosecutor in court and then take a cut, usually about a third, of the money -- money that would otherwise help pay for police or to build schools.

It's a practice nearly unheard of in many other parts of the country. But prosecutors do it in at least 18 Indiana counties, including Boone, Hamilton, Hancock, Marion and Morgan.

"No one in Pennsylvania is doing that -- what you guys are doing in Indiana," said Richard Long, executive director of the Pennsylvania District Attorneys Association. "No one's done it. You know, the asset forfeiture stuff -- it's more of a core prosecutorial function. It's something that prosecutors feel they should be handling themselves."

Besides, he added, "why share that money?"

Or, put another way, why take it out of the taxpayers' pockets?

And it's not an inconsequential amount of money. When police capture a big-time drug dealer or gambling ring operator, the private lawyer's take-home share for a single case can grow to six-figures. * * *

Some Indiana prosecutors, including Marion County Prosecutor Carl Brizzi, defend the practice, saying private attorneys have better expertise and can bring in more money.

But it's a practice that raises many questions. Among them:

Is it in the best interest of taxpayers to turn over nearly a third of these funds to private attorneys?

Is the process transparent in a way that taxpayers can easily know just how much government money is going to private firms?

Does paying those private lawyers a percentage of what they take in -- as opposed to an hourly rate or set fee -- encourage them to go after property they should not?

Can the public be sure a private attorney will uphold the ethical standards demanded of an elected and sworn prosecutor?

Much of the criticism focuses on metropolitan areas such as Marion County. Some experienced prosecutors said it might make fiscal sense for small rural counties to bring in a private lawyer to handle the few asset seizures per year.

But larger cities, where police routinely seize money from drug dealers and others, are not usually so willing to let that cash flow leak into the pockets of private lawyers. For example, in Columbus, Ohio; Cincinnati; Detroit; Houston; Louisville, Ky.; Milwaukee; and Kansas City, Mo., county prosecutors do the procedures in-house -- seemingly without too much expense. In Kansas City, just one deputy prosecutor works on forfeiture cases.

"Government officials are hired to do the job, and they're paid a certain salary to do the job," said Georgetown University law Professor Paul Rothstein. "To get out of the job by hiring someone else and paying them a huge amount at state expense to do it -- there's something smelly about that."

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Courts

Ind. Gov't. - "Millions of historic state government documents now accessible online"

CNHI reporter Maureen Hayden has this interesting story, available here via the Terre Haute Tribune Star. It begins:

TERRE HAUTE — Among the millions of government documents deposited in the Indiana State Archives are Civil War-era telegrams from President Abraham Lincoln to his stalwart ally, Indiana Gov. Oliver Morton.

Until recently, the telegrams were sitting in cardboard boxes in a state government warehouse designated a decade ago as the “temporary home” for nearly two centuries worth of state records.

Now they’re being scanned into the state's digital archives to eventually join a growing collection of historic government records that can be accessed online.

Many reveal information about ordinary Hoosiers.

With just a few clicks of a mouse, a visitor to the Indiana State Digital Archives website has access to 2.7 million records. They include naturalization records of immigrants who settled in Indiana; the “Negro” registries of Hoosiers forced by a 19th-century state law to report their race; indexes of inmates committed to prison and mental institutions; and “muster roll” information on more than 200,000 Indiana soldiers who fought in the Civil War.

“Our collections are absolutely fascinating,” said Jim Corridan, the Indiana state archivist and director of the Indiana Commission on Public Records.

While federal funds have helped support the digital archives project, a wealth of information has been preserved and protected on a shoestring budget. Corridan gives much credit to a dedicated band of volunteers known as the Friends of the Indiana State Archives. “They make Indiana history come alive,” he said.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Government

Ind. Courts - More on: South Bend Tribune review finds errors in Indiana court statistics

Updating this ILB entry from Oct. 2, 2010, which is worth rereading, Alicia Gallegos of the South Bend Tribune had a second story yesterday. The headline: "Source of problem in court stats found: Tribune report prompts talks about how to fix issues." Some quotes from the beginning of the long story:

A St. Joseph County judge says he has found the source of problematic court data being submitted to the Indiana Supreme Court that for years has ended up in annual totals.

A Tribune analysis in October found significant inaccuracies among the higher court's data for St. Joseph County, including extremely inflated case filings and missing categories.

The state reports, compiled yearly along with that of other Indiana counties, is used for policy decisions, judicial staffing, and proposing fees and penalties.

After a review by him and his staff, St. Joseph Superior Chief Judge Michael Scopelitis said the misdemeanor stat trouble seems to stem from most St. Joseph County defendants being counted twice by the courts.

Scopelitis explained that when someone is arrested on a misdemeanor and bonds out of jail, that person is assigned a case number and receives a date to appear in court. In many cases, however, the arrestee goes to court before a misdemeanor charge has been officially filed by the prosecutor's office. With no official charge, Scopelitis said, the case is dismissed by the judge.

If the prosecutor later files a charge, a new "cause" number is then assigned to the same person, he said.

These double assignments create a lopsided number of misdemeanors filed in St. Joseph County — nearly 3,000 more than actually filed in 2008 — along with an exorbitant rate of dismissals.

"We're generating more cause numbers than we need to," Scopelitis said. "That creates a misconception that we need to figure out how to fix."

Until The Tribune's review of the court statistics, Scopelitis said, "nobody ever compared numbers with the judges' and prosecutor's."

The process of double counting, the judge said, has been going on for years.

Questions remain as to how much these errors and others would have, and do, affect the larger picture of state trends.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Courts

Ind. Courts - More on: "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"

Updating this ILB entry from Oct. 29th, Mark Alesia of the Indianapolis Star has another story today, headed "Blood-test audit questioned." Some quotes:

The first results of an audit of blood samples tested by the state Department of Toxicology could be available as early as this week.

But can that audit -- which includes blood samples used in convictions -- be trusted if it is being overseen by a former prosecutor?

A leading Indianapolis defense attorney says that issue could end up undermining public confidence in the effort.

Attorney John L. Tompkins, who teaches forensic blood testing in continuing education classes for lawyers, said the audit should involve a defense attorney as well former Marion County Prosecutor Scott Newman, who is directing the audit.

Tompkins said he likes and trusts Newman. But, he added, "Whoever put this together put him in a tough position. There will be people out there saying this is rigged -- you put a former prosecutor in there alone."

Newman was hired in August by Indiana University, which runs the Toxicology Department by state statute. He recommended the audit of all blood test results from 2007 to 2009 after he reviewed the situation and determined that a responsible person "would not feel comfortable and would feel the need to investigate." * * *

"I don't intend to do this alone," Newman said. "If the reviewers turn up something, I will be going to my colleagues on the prosecution and defense side and lay out what we did.

"We're documenting every step we take. Every e-mail, every survey. I will welcome their input."

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Courts

Ind. Gov't. - More on: I&M lease fight cost city of Fort Wayne $1.2 million

Fleshing out this Nov. 11th ILB entry quoting a Fort Wayne Journal Gazette story on legal and other expenses for reaching a settlement in a longtime dispute with I&M were two stories yesterday in the FWJG.

The first was an editorial on "city officials’ disclosure of the costs of settling the dispute with I&M over the end of the 35-year lease of City Light," headed "$1.2 million well spent."

The second is a lengthy story by Benjamin Lanka and Dan Stockman detailing the entire negotiation process that ended with the settlement. It might serve as a local government case study.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Government

Ind. Law - Ignition interlock devices in St Joe County

The Sunday South Bend Tribune had two stories by Mary Kate Malone. The first is a long overview on use of the devices, headed "Ignition interlock devices have both skeptics and fans." Some quotes:

But in Indiana, the device is an option for sentencing, not a requirement.

After the death of a Mishawaka police officer to a drunken driver in January 2010, court officials in the county collaborated to use ignition interlocks more frequently, pointing to the positive results coming from New Mexico and other states, officials said.

"It's not the big answer to the problem, but at least it can help alter the behavior of some people," said St. Joseph County Chief Judge Michael Scopelitis.

He said he has seen a "marked increase" in use of ignition interlocks as terms of probation in St. Joseph County this year. * * *

The device has its skeptics in Indiana.

Among them is Elkhart County Prosecutor Curtis Hill Jr., who believes license suspension is a sufficient sanction for a first-time DUI offender.

When an Elkhart County judge tried to mandate ignition interlock devices in his courtroom, Hill told the judge it was unlikely his office would prosecute people who violated terms of the interlock agreement.

The device, Hill said, is not the "magic bullet" that some believe it to be.

If offenders want to re-offend, they will, he said.

"The vast majority of first-time offenders will be adequately addressed by ordinary court sanctions like license suspension," he said.

Malone's second story is headed "St. Joseph County DUI program in limbo: Judge says it might violate state law." Some quotes:
SOUTH BEND — A program that allows certain drunken-driving offenders to avoid conviction by using an ignition interlock device, among other requirements, has come under scrutiny after a local judge said it might violate state law.

Since late October, the program has been effectively frozen, as officials examine a statute that appears to cast doubt on its legality.

The deferred judgment ignition interlock program, also called delayed sentencing, allows first-time DUI offenders who qualify to avoid a DUI conviction if they use an ignition interlock device for six months.

The device prevents the car from turning on if the driver has alcohol on his or her breath. The offender must also pay a $90 fee, take alcohol education classes and random drug tests, and other requirements.

The deferred judgment program for DUI offenders was created about five years ago by the St. Joseph County Prosecutor's office, officials said.

The program generally works like this: The defendant pleads guilty to a drunken-driving charge and reckless driving, but the judge does not enter a judgment. If the defendant completes the terms of the deferral program, the judge dismisses the DUI and convicts only on the reckless driving charge.

But St. Joseph Superior Court Judge Roland Chamblee Jr. raised a question with the program in September, after studying an Indiana statute that, in his interpretation, requires an offender in the program to use the ignition interlock for at least two years, not six months.

In October, Chamblee asked magistrates in the Traffic and Misdemeanor Court to stop accepting such agreements, and sent a letter to St. Joseph County Prosecutor Michael Dvorak explaining his concerns.* * *

[St. Joseph County Chief Judge Michael Scopelitis] said he is thankful Chamblee noticed the discrepancy.

"We've gone for some amount of time without realizing the statute said two to four years instead of six months," Scopelitis said. "There are so many statutes, so many amendments, you can sometimes miss something, unfortunately."

Ignition interlock devices are not used only in the deferral program, however.

They are also used in standard plea agreements between DUI offenders and the state, when the DUI offense is not dismissed, officials said.

In those cases, a six-month sentence to use the interlock appears to be in line with state law.

Here is a list of ILB entries on ignition interlocks.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Law

Ind. Courts - "State Supreme Court Justice, community members works to find new magistrate"

Bridget Flynn reported in the Nov. 13th LaPorte Herald Argus in a story that began:

LA PORTE — The new magistrate who will be replacing La Porte County Magistrate Thomas Pawloski is being chosen in an unprecedented way, according to an Indiana Supreme Court Justice who is assisting in the process.

“I’m not aware of any magistrate who’s been selected by the merit selection process,” said Justice Frank Sullivan Jr. “It’s cool. I’m really tickled that they would be so innovative and open in the process.”

Sullivan chaired a nominating committee that included several local community members. The committee interviewed the seven applicants for the position Thursday and has chosen three finalists. Judges Thomas Alevizos and William Boklund are slated to make the final decision.

Sullivan noted that state law has given Alevizos and Boklund the power to appoint the magistrate, and they did not have to include community input.

“They didn’t have to do it this way,” he said.

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Courts

Ind. Law - "We should avoid sending the signal (any more so than we already do) that we’re an intellectual backwater, hostile to progress, by deliberately injecting discriminatory language into our founding document"

So writes Lafayette attorney and blogger Doug Masson this morning in Masson's Blog, reacting to a report of "another try at getting a gay marriage ban into the Indiana Constitution."

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending November 12, 2010

Here is the Clerk's transfer list for the week ending November 12, 2010. It is one page (and 13 cases) long.

One transfer was granted for the week ending Nov. 12, 2010:

The Court's Nov. 5th ruling to vacate transfer in the case of Kevin Taylor v. State of Indiana is also noted on the transfer list - see the ILB entry on the denial here.

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 Monday, November 15, 2010
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/15/10):

Tuesday, November 16th

Next week's oral arguments before the Supreme Court (week of 11/22/10):

Tuesday, November 23rd

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 11/15/10):

Monday, November 15th

Tuesday, November 16th

Next week's oral arguments before the Court of Appeals (week of 11/22/10):

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

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

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

Posted by Marcia Oddi on Monday, November 15, 2010
Posted to Upcoming Oral Arguments

Sunday, November 14, 2010

Ind. Courts - More on "Davis earns victory over 3-term judge: Scheibenberger’s tenure ends"

Updating this ILB entry from Nov. 3rd, two stories this weekend on the topic:

Posted by Marcia Oddi on Sunday, November 14, 2010
Posted to Indiana Courts

Environment - More on: Proposed wood-fired boiler rule is preliminarily adopted by APCB [Updated]

Updating this ILB entry from Sept. 2, 2010, that reported on the preliminary adoption by the state Air Pollution Control Board of a rule to regulate the use of outdoor wood-fired boilers that has been under development for over 5 years, Justin Leighty reports today in the Elkhart Truth under the headline "Goshen mayor wants moratorium on outdoor wood boiler heaters." From the end of the story:

"We have not had anyone in town yet complain because someone installed these next door, but if you drive out into the country you see these belching smoke. I wanted to put a moratorium before we get the first one that is a problem," [Mayor Allan] Kauffman said.

He said one business has one they plan to use this winter. "We can't stop that one at this point," Kauffman said, but he'd like the city to keep any more from being installed.

The moratorium would join several other moratoriums or outright bans across the state.

Indianapolis, Loogootee, Greendale, Petersburg, Greencastle, Avilla, Rome City and Evansville all banned the use of outdoor wood furnaces.

Kauffman didn't seek an outright ban, but wants a moratorium through 2020 while the Indiana Department of Environmental Management and the Indiana Air Pollution Control Board work on regulations of the units.

[Updated 11/17/10] Justin Leighty reports in this story today:
Goshen's city council covered a lot of ground at a marathon meeting Tuesday night * * *

The council placed a moratorium on the installation of outdoor wood boilers. "I don't think any of us would be happy if one of these came in next to us," said Mayor Allan Kauffman, who suggested the ban. "They are not good things in cities."

Stump sought assurances it's not a move toward banning wood-burning stoves or something along those lines, but Kauffman said that's not the case. "I have a fireplace in my house. Wood-burning stoves do not have the same (pollution) effect as these hydronic furnaces do," Kauffman said. The state is working on regulating them, which would then supersede the city's moratorium.

Posted by Marcia Oddi on Sunday, November 14, 2010
Posted to Environment

Courts - "Florida judges may be on political hot seat"

From the Palm Beach Post, a story by Jane Musgrave reporting:

With little or no funding, several single-issue activist groups influenced a statewide election that normally attracts little interest - and that's troubling to those who believe it marks the beginning of a movement that could shake the foundation of the judiciary. * * *

There were also nasty and expensive elections in states such as Michigan and Ohio where high court justices run for office like other candidates.

Some observers say they don't see a seismic shift in judicial contests. Bill Raftery, of the National Center for State Courts, said judges up for merit retention fared worse than normal even when there were no groups opposing them. They were caught in the anti-incumbent wave that felled other officeholders.

Posted by Marcia Oddi on Sunday, November 14, 2010
Posted to Courts in general

Courts - Have you ever wondered whether to use "pleaded" or "pled"?

The ILB has, and apparently so have many others, as Eugene Volokh discussed Nov.. 12 in his blog.

Posted by Marcia Oddi on Sunday, November 14, 2010
Posted to Courts in general

Courts - "Does Routinely Sampling DNA From Arrested Felons Violate The Fourth Amendment? "

Sherry F. Colb, law prof at Cornell Law, writes Nov. 10, 2010 for Findlaw.com on the issue of routinely sampling the DNA of people who have not been tried and convicted of an offense. The long article concludes:

What makes this case special may ultimately have less to do with the presumption of innocence than with the treasure trove of information that is contained in a small sample of DNA. Unlike ordinary searches, in which the main intrusion occurs at the time of initial surveillance, a DNA sampling -- as Judge Cercone correctly observes -- has the potential to make large quantities of personal information about someone available to the government long after the sampling takes place.

In this sense, DNA squarely raises the issue of informational privacy, rather than spatial privacy, precisely because the physical taking of DNA is not very different from the physical taking of fingerprints (and may indeed be, or shortly become, an entirely nonintrusive collection of discarded biological material).

When the U.S. Court of Appeals for the Third Circuit decides this case, it will accordingly have the opportunity to consider the relatively undeveloped and critical issue of whether, sometimes, the mining of information from materials already in the government's possession might constitute the invasion of a reasonable expectation of privacy.

Posted by Marcia Oddi on Sunday, November 14, 2010
Posted to Courts in general

Friday, November 12, 2010

Ind. Decisions - "Avon law to control groundwater invalid"

That is the headline to this story this afternoon by the Indianapolis Star's Josh Duke, referencing this morning's COA decision in Town of Avon v. West Central Conservancy District, et al. (ILB summary here, 4th case). Some quotes:

In its 23-page ruling, the Indiana Court of Appeals agreed with Hendricks County Judge Mark A. Smith. In February, Smith ruled in favor of Washington Township and the West Central Conservancy District in all but one count regarding the town ordinance that was passed in 2008 to regulate the removal of groundwater in the Avon area.

"Avon may not interfere with the appellees' common law right to use the groundwater in its aquifers as it sees fit," today's Indiana Court of Appeals ruling concluded. * * *

Avon's ordinance was crafted in response to an Indianapolis Water study finding of a potential water supply shortage in the future. That study recommended local governments preserve water resources.

Avon conducted its own engineering study before adopting an ordinance. That ordinance approved in April 2008 attempted to protect water resources in the community to ensure an adequate supply.

In response, both the township and conservancy district sued the town later that year.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues rare, flat-out disbarment

The decision is In the Matter of William J. Rawls, a 7-page, 5-0 per curiam opinion. From the opinion:

We find that Respondent, William J. Rawls, engaged in a pattern of serious violations of the Indiana Professional Conduct Rules, as set forth in detail below. For this misconduct, we find that Respondent should be disbarred from the practice of law in this state.
The opinion details six counts against Respondent, then set out his history of discipline, stating "Respondent's history of discipline, summarized below, which includes a prior suspension for misconduct, is a substantial fact in aggravation:" More from the opinion:
In Indiana, disbarment permanently strips an attorney of the privilege of practicing law in the state. Accordingly, disbarment is reserved for the most serious misconduct. See Matter of Sniadecki, 924 N.E.2d 109, 120 (Ind. 2010). The American Bar Association's Standards for Imposing Lawyer Sanctions (as amended in 1992) ("Standards") provide the following examples of misconduct warranting disbarment: * * *

Respondent's misconduct fits within all of the above Standards. Respondent has demonstrated a pattern of neglect of his clients' cases, resulting in adverse dispositions, suspension of one client's driver's license, a missed opportunity to settle, and undue delay. Respondent made a series of intentional misrepresentations to the Commission during its investigations of grievances. Respondent created a fraudulent receipt, criminally forged a client's name on it, and submitted it to the Commission, acting as an agency of this Court, with the intent of deceiving the Commission. We therefore conclude that Respondent should be disbarred.

The Court concludes that Respondent engaged in a pattern of serious violations of the Indiana Professional Conduct Rules, as set forth above. For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective December 27, 2010. Respondent shall not undertake any new legal matters between service of this order and the effective date of the disbarment, and Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 8 today (and 15 NFP)

For publication opinions today (8):

In Leo Machine & Tool Inc., et al. v. Poe Volunteer Fire Dept. Inc., et al. , a 14-page opinion, the issue is whether Poe Fire Department is immune from liability under the Indiana Tort Claims Act, thereby denying Leo Machine’s Complaint for damages suffered as a result of a fire. Judge Riley writes:

Referencing the Indiana Tort Claims Act (ITCA), Leo Machine contends that the trial court erred in granting Poe Fire Department’s motion for summary judgment. Relying on Peavler v. Monroe Cnty Bd. of Comm’ns, 528 N.E.2d 40 (Ind. 1988), the seminal case on governmental immunity in Indiana, Leo Machine claims that the specific fire fighting strategy and excavation actions in this cause cannot be characterized as a discretionary function which is entitled to immunity. * * *

Prior to 1988, the issue of whether a governmental entity was immune from liability under the discretionary exception for claims of negligence in fighting a fire was a settled question. * * *

In 1988, however, our supreme court decided [Peavler], in which the discretionary/ministerial test was discarded in favor of the planning/operational test to determine the applicability of ITCA’s discretionary function exception. Under this new test, the court’s task is to “distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitlement to immunity.” * * *

[W]e conclude that Assistant Chief Klepper’s decision to employ Anderson’s excavator was a discretionary decision which is entitled to immunity pursuant to ITCA.

In Jimmy Morris v. State of Indiana , the issue involves noncode language from 2001, which the Court refers to as a "savings" clause. The ILB will write on this opinion separately.

In Tracie Burton v. Donna Bridwell, et al., a 16-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Tracie L. Burton (Tracie) appeals a jury verdict in her favor, claiming that the jury‘s determination that she was 50% at fault in an auto accident while riding as a passenger in a vehicle that her husband was driving was contrary to law. Tracie also contends that the damage award was inadequate because she was not compensated for all of the medical expenses that she incurred as a result of the accident.

We conclude that the jury erroneously attributed 50% fault to Tracie. However, the error was harmless, as the jury‘s gross damage award was less than the other driver‘s liability limits to which Tracie stipulated that her insurance company—appellee-defendant State Farm Mutual Automobile Insurance Company (State Farm)—was entitled to a setoff or credit. We also decline to set aside the damage award because it was within the bounds of the evidence that was presented at trial.

Thus, we affirm in part and reverse in part.

In Town of Avon v. West Central Conservancy District, et al. , a 23-page opinion, Chief Judge Baker writes:
The Town of Avon (Avon) enacted an ordinance that purports to regulate a township and a conservancy district's ability to remove and sell groundwater that was located in a local park. The conservancy district and the township challenged the Ordinance's validity under the Home Rule Act1, alleging that Avon's control over the groundwater exceeded its scope of its authority. On the other hand, Avon asserted that it had the statutory authority to regulate the withdrawal of the water. The trial court declared the Ordinance invalid on several bases and this appeal ensues. * * *

In light of our discussion above, we conclude that the trial court properly granted summary judgment in the appellees' favor and declared the Ordinance invalid. In particular, Avon lacks the express authority to regulate groundwater in aquifers under the Watercourse Statutes, the Home Rule Act does not grant Avon the authority to regulate in accordance with its inherent police powers, and Avon lacks the authority to review, regulate, or impose duties on the appellees' exercise of its power to sell the groundwater under the Park Resources Statute. Moreover, the Ordinance's limitation on the appellees' right to sell water is inconsistent with the DNR's regulation of groundwater and there is no statute expressly authorizing Avon to regulate the appellees' sale of the groundwater. Thus, Avon may not interfere with the appellees' common law right to use the groundwater in its aquifers as it sees fit.

In R.H. v. State of Indiana , a 12-page opinion, Chief Judge Baker writes:
In the instant case, we are asked to determine whether a juvenile court abused its discretion when it awarded guardianship of a juvenile who had been adjudicated a delinquent child to the Indiana Department of Correction (DOC). Although juvenile courts have a variety of placement options for juveniles who have delinquency problems, Indiana Code section 31-37-18-6 imposes one important restriction, namely, that a juvenile court select the least restrictive placement that is “consistent with the safety of the community and the best interest of the child.”

Appellant-respondent R.H. appeals the juvenile court’s disposition order awarding guardianship of him to the DOC, arguing that there was a less restrictive alternative available. Concluding that R.H.’s placement with the DOC is justified by the two instant adjudications, his behavior while in detention and on electronic monitoring, his pattern of inappropriate sexual conduct, and his family’s inability or refusal to address his inappropriate sexual conduct, we affirm the decision of the juvenile court.

In Michael McAllister, et al. v. Loretta A. Sanders, et al., an 11-page opinion, Judge Riley writes:
The McAllisters and Zirkle argue that the trial court erred when it determined that Sanders had dedicated the disputed alley to the public through common law dedication. Specifically, they contend that because the dedication of the disputed alley had not been adequately accepted by a public authority, title to the disputed alley must remain with Sanders and her heirs. * * *

Because there was no statutory dedication in this case, there may be a common law dedication. Two elements are required for common law dedication: (1) the intent of the owner to dedicate and (2) the acceptance of the public of the dedication. * * *

[B]ecause we determined that the disputed alley was dedicated to the public, the McAllisters and Zirkle cannot now argue that they have adversely possessed the alley to the exclusion of others.

Based on the foregoing, we conclude that the trial court did not err when it found that Sanders intended to make a common law dedication of the disputed alley and that the McAllisters and Zirkle had not acquired fee simple title by adverse possession. Affirmed.

Brian McNeill v. State of Indiana - "Sufficient evidence exists to support McNeill’s aggravated battery conviction, and we accordingly affirm."

Lucio Garcia v. State of Indiana - "Appellant-defendant Lucio Garcia appeals the denial of his petition for post-conviction relief. Garcia contends that the post-conviction court erroneously determined that he did not receive the ineffective assistance of trial and appellate counsel. Finding no error, we affirm."

NFP civil opinions today (2):

Roman Warner v. State of Indiana, Alan Finnan, et al. (NFP)

Paul Hagedorn v. Dennis Talboom (NFP)

NFP criminal opinions today (13):

Joseph L. Haskett v. State of Indiana (NFP)

Randy L. Labresh v. State of Indiana (NFP)

John F. Minter v. State of Indiana (NFP)

Samuel D. Clark, Jr. v. State of Indiana (NFP)

Donielle S. Sims v. State of Indiana (NFP)

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

David Wright v. State of Indiana (NFP)

Walter A. Griffin v. State of Indiana (NFP)

Timothy Martin v. State of Indiana (NFP)

Simon Allen v. State of Indiana (NFP)

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

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

Christopher Upton v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Deficit to rule state hearings on the budget"

Niki Kelly has the report today in the Fort Wayne Journal Gazette. The story begins:

INDIANAPOLIS – State budget hearings begin next week as lawmakers prepare to attack a structural deficit while writing a new two-year spending plan.

The State Budget Committee, made up of four lawmakers and the state budget director, will hear budget requests from public colleges and state agencies starting Wednesday.

Meetings will take place intermittently throughout November and December.

“We go through the drill every year,” said Sen. Luke Kenley, R-Noblesville, chairman of the Budget Committee and Senate Appropriations. “I think the difference is going to be there is going to be a lot of probing on specific programs and cuts. It may be a little more intense in that regard.”

Gov. Mitch Daniels has made hundreds of millions in budget cuts to get through the current biennium, but the state still spends more than it takes in. To do so, the state has relied on federal stimulus dollars and spending down the state surplus, which once was as high as $1.3 billion under Daniels.

Reserves will be nearly drained at the end of the fiscal year in June, which means legislators have a structural deficit to deal with when crafting a new budget.

Kenley thinks that deficit is about $1 billion and legislators will have to cut that amount out of the budget they pass if they don’t want to raise taxes. The last two-year state budget was about $27 billion.

[More] See this Nov. 12, 2010 story by Lesley Stedman Weidenbener of the Louisville Courier Journal, headed "Scrutiny for Indiana's next budget begins Wednesday."

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Indiana Government

Courts - "OSHA Case May Break New Legal Ground"

From The Blog of Legal Times, this post from Jenna Greene that begins:

The business community is watching a potentially precedent-setting case that could sharply curtail the period of time that companies can be cited for Occupational Safety and Health reporting violations.

The issue is “of serious consequence to small businesses of all industries,” according to an amicus brief from the National Federation of Independent Business Legal Foundation, which complains that companies are subject to stiff fines for such violations and find it difficult to defend five-year old charges.

Signaling a potential change in agency policy, the OSH Review Commission last week heard oral arguments on the matter – the first time it has held oral arguments in four years.

At issue: Can employers be cited by OSHA for record-keeping violations that occurred up to five years in the past – the current agency practice - or is the statute of limitations strictly six months?

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Courts in general

Ind. Gov't. - Wrecked police cars and parking meters in Indy

Two interesting stories. "Wrecked cruisers cost city over $2.5M" is the headline to this WTHR13 story by Sandra Chapman that begins:

Indianapolis - 13 Investigates has discovered the city is spending millions repairing crashed police cars.

Cars and crashes are piling up at the Indianapolis Metro Police Department. So is the cost of damage resulting from police pursuits emergency runs and officer inattention. 13 Investigates uncovered more than 50 individual accidents costing the city from $10,000 to $34,000 each.

"If you crash one, you need to be accountable for that," said IMPD Chief Paul Ciesielski.

But is IMPD holding officers accountable? 13 Investigates found ten officers with a troubling string of crashes, including a three-year officer with seven crashes, five of them just this year, but no record of discipline. Others tangled up five or six times over a two-and-a-half-year period.

That's just the start.

The blog Indianapolis Times points to a story in the Minneapolis StarTribune by Randy Furst, dated Nov. 9th. Minneapolis is installing thousands of "smart meters" on its own, rather than entering into a 50-year contract. From the StarTribune story that makes the process look easy:
The city plans to replace all 6,800 metered spaces in Minneapolis by the end of 2012 with a combination of multi-meter and single-meter stations and single-space coin meters.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Indiana Government

Ind. Gov't. - Continuing with "Porter County cannot leave RDA "

Updating this ILB entry from April 17th, both the Gary Post Tribune and the NWI Times are reporting that the COA will heard oral argument in the case. Here are some quotes from Bob Kasarda's report in the Times:

INDIANAPOLIS | The Indiana Court of Appeals has agreed to hear oral arguments in Porter County's attempt to overturn a lower court ruling prohibiting it from withdrawing from the Northwest Indiana Regional Development Authority.

The hearing, requested by the County Council, is scheduled for 2 p.m. Indianapolis time Jan. 20, according to an order handed down Wednesday. * * *

The County Council voted 5-2 in April to appeal Jasper County Circuit Court Judge John Potter's ruling that month blocking the council's attempt to withdraw from the regional partnership with Lake County and East Chicago, Gary and Hammond.

Members of the council in April 2009 voted to withdraw from the RDA, saying they felt the group had not followed through on its mission to accomplish large projects and that a majority of county residents wanted to end the supporting 0.25 percent income tax.

The council argued in its appeal that Potter erred when he ruled the 2005 legislation creating the RDA offers no right for a member to leave.

The council argued further that Potter erred in dismissing a constitutional challenge to amendments to the RDA law allowing any two municipalities in Porter County to force the county to remain a member. The constitutional issue should be taken up, the council argued, because the RDA law amounts to special legislation targeting just Porter, Lake and LaPorte counties, or just Porter County.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Indiana Government

Law - "Why the lawyer job market is changing"

IU Mauer Law School Professor William D. Henderson has an interesting article in this month's National Jurist that begins with the statement that "The traditional big firm hiring model - focused on law school pedigree and grades - does a poor job of selecting candidates who will succeed in today's lgal marketplace."

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to General Law Related

Environment - "College Campuses Continue to Leave Coal Behind"

A Reuter story by Joan Oleck, dated Nov. 11, 2010, surveys the issue. The story begins:

With more than 60 campuses nationwide getting energy from coal plants, student protests and lawsuits over power generation have become a part of the college experience.

Earlier this month the Department of Justice filed a suit against the state of Pennsylvania over what it called repeated pollution law violations at Slippery Rock University’s coal-fired boiler plant.

And last month the Sierra Club and the Hoosier Environmental Council petitioned the Environmental Protection Agency to look into an air permit issued Purdue University got in July. It was signed by the Indiana Department of Environmental Management and it will allow the school to continue operating and even expand its coal-powered boilers. The petition claims the permit violates the Clean Air Act.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Environment

Environment - 15 years after they expired, IDEM issues draft permits for two NWI steel mills

So reports Gitte Laasby in yesterday's Gary Post-Tribune in a story that begins:

BURNS HARBOR -- After a 15-year delay, the Indiana Department of Environmental Management publicized draft wastewater permits late Tuesday for two Northwest Indiana steel mills -- ArcelorMittal Burns Harbor and U.S. Steel Midwest.

IDEM is soliciting public comments on the permits, which have been backlogged since the ArcelorMittal Burns Harbor permit expired in August 1993 and the U.S. Steel Midwest in 1995.

The agency has been working its way through backlogged permits for years, but progress on major permits slowed after public furor about BP Whiting's wastewater permit in 2007 and the U.S. Environmental Protection Agency's objections to U.S. Steel Gary Works' draft permit in 2007.

This time, IDEM is trying to avoid such controversy by involving environmentalists early and by getting an official confirmation letter from EPA that the feds won't object.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to Environment

Law - "Butler Professor Says FCPA Enforcement Is A ‘Facade’"

Yesterday's WSJ reported on "The Facade of FCPA Enforcement," by Mike Koehler, Butler University College of Business, a paper published in the Georgetown Journal of International Law.
a few quotes from the abstract:

The rise in Foreign Corrupt Practices Act ("FCPA") enforcement actions has been well documented. Against the backdrop of aggressive enforcement and the resulting multi-million dollar fines and penalties is the undeniable fact that, in most instances, there is no judicial scrutiny of the FCPA enforcement theories. The end result is that the FCPA often means what the enforcement agencies say it means. Because of the "carrots" and "sticks" relevant to resolving a government enforcement action, FCPA defendants are nudged to accept resolution vehicles notwithstanding the enforcement agencies’ untested and dubious enforcement theories or the existence of valid and legitimate defenses. The end result is often the facade of FCPA enforcement.

This article discusses various pillars that contribute to the facade of FCPA enforcement and highlights that the FCPA, during its decade of resurgence, is being enforced like no other law.

Posted by Marcia Oddi on Friday, November 12, 2010
Posted to General Law Related

Thursday, November 11, 2010

About this Blog - Law Prof Blog Traffic Rankings

The TaxProf Blog ("A Member of the Law Professor Blogs Network") has an entry ranking the 35 law professor blogs that have publicly available SiteMeters (as does the ILB). The entry begins:

Below are the updated quarterly traffic rankings (page views and visitors) of the Top 35 blogs edited by law professors with publicly available SiteMeters for the most recent 12-month period (Oct. 1, 2009 - Sept. 30, 2010), as well as the percentage change in traffic from the prior 12-month period.
A table follows. The ILB wondered where its page view and visitor totals for the past year would fit on the table, and so did the math. The answer: The ILB would come in right between #13 and #14 on both tables. Pretty good for a law blog aimed at Indiana law.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to About the Indiana Law Blog

Ind. Decisions - "Corcoran death sentence upheld"

Updating this ILB entry from Nov. 8th, Rebecca S. Green of the Fort Wayne Journal Gazette has a long story today on the procedural intricacies of the death penalty case. It begins:

Overturning the 7th U.S. Circuit Court of Appeals, the U.S. Supreme Court effectively reinstated the death penalty against convicted killer Joseph Corcoran.

It was the second time in just over a year the nation’s highest court slapped down a ruling by the U.S. Court of Appeals’ 7th Circuit, this time saying the appellate court reviewed Corcoran’s case without evidence of any violation of his constitutional rights.

For now, the decision puts the death penalty back on track for Corcoran, whose case has wound its way through the state and federal courts since his 1999 Allen Superior Court conviction for the murders of four people.

According to Bryan Corbin, spokesman for the Indiana Attorney General’s Office, the recent ruling points out the complexity of death penalty cases and safeguards in the state’s criminal justice system.

More from the story:
In the seven-page ruling handed down Tuesday, the Supreme Court said the 7th Circuit erred when it said the sentencing order violated state law, which the state’s highest courts said it did not. Federal courts cannot review state court cases because of allegations of state law violations, only for violations of federal law, according to court documents.

“The (7th Circuit’s) opinion contained no hint that it thought the violation of Indiana law it had unearthed also entailed the infringement of any federal right,” according to the Supreme Court opinion. “It was improper for the Court of Appeals to (review the case) without first concluding that a violation of federal law had been established.”

Corcoran may attempt to have the U.S. Supreme Court again review the case, Corbin said.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - "Iowa Vote Shows the Injustice of Electing Judges"

That is the headline to a long article by Adam Cohen in Time Magazine. Cohen appears to argue for the federal system, with lifetime tenure, for state courts. A quote:

The Iowa vote is just the latest evidence that elections are a terrible way of choosing judges — whether the decision is putting them in office or removing them. The Constitution's framers, who were brilliant in their sense of how government power should be allocated, had a very different idea about judicial selection. They decided federal judges should be appointed by the President and confirmed by Congress — with the people getting no say of any kind. Federal judges would then have lifetime tenure, insulating the third and equal branch of government from the pressures of the political majority.

If it sounds undemocratic, that's because it is — and intentionally so. Judges decide what people's fundamental rights are, and the founders understood that fundamental rights must not be put up for a popular vote. Judges are also responsible for protecting minority groups, which they might not be able to do if they had to answer to the will of the majority. * * *

State-court judges do not have the same protection. In more than two-thirds of the states, judges are either elected to begin with or eventually face the voters, as in Iowa. Judicial elections were once generally fairly high-minded, but in the past few years they have become bare-knuckle political brawls.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to Courts in general

Ind. Gov't. - I&M lease fight cost city of Fort Wayne $1.2 million

So reports Benjamin Lanka today in the Fort Wayne Journal Gazette. Some quotes:

FORT WAYNE – Fort Wayne spent more than $1 million on legal and other fees since 2007 to settle the dispute with Indiana Michigan Power over the former city electric utility.

City officials Wednesday released how much money was spent negotiating the $39.2 million settlement with I&M announced last month. In total, the city paid 10 firms nearly $1.2 million from 2007 through Oct. 28. The vast majority of the fees were paid to legal firms. * * *

Tim Haffner, corporate counsel for the city, said the private utility was well represented with attorneys and experts during the negotiations.

Haffner’s firm, Baker & Daniels, earned $412,013 since negotiations began in 2007. He said the fees included his hours and that of other attorneys at the firm.

The city also hired Michael Cracraft, from Hackman Hulett & Cracraft. Haffner called Cracraft one of the most experienced regulatory lawyers in the state; his firm was paid $183,430. The city used Wayne Turner and Gregory Neibarger, of Bingham McHale, to provide litigation expertise, Haffner said, at a cost of $270,775.

Fees paid to firms not providing legal services were also released, including $104,375 to H.J. Umbaugh for financial information and $70,143 to NOVI to help the city understand what it would take to get back into the electric business.

Haffner said the city’s willingness to investigate taking back the electric utility from I&M helped reach a settlement.

Menon said City Utilities paid the fees using revenue from the city’s previous lease with I&M. The fees do not include what will be paid to mediator John Whiteleather, and Haffner said some additional legal fees could be incurred during the state approval process.

Under a lease signed in 1974, the city’s electric power grid – formerly run by City Light & Power – was leased to Indiana & Michigan Electric Co. for 35 years. That lease expired Feb. 28 without resolution of whether the city still owned the right to serve customers in their utility district or simply the old infrastructure.

Under the settlement, I&M will own the former city electric infrastructure and the right to serve all customers. It will pay the city $39.2 million over 15 years with $5 million paid immediately upon City Council and state approval.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to Indiana Government

Ind. Decisions - "Justices weigh molester’s fate"

The oral argument before the Supreme Court yesterday in the case of Elmer Baker v. State of Indiana (ILB background here) is the subject of a story today by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

[D]efense attorney Latriealle Wheat argues that Baker’s convictions should be reversed on two grounds.

She first said the prosecution should not have been allowed to amend the charges involving two of the girls after the first trial. Wheat said the amendment changed the time frame of the molesting from a two-month period to 34 months.

Prosecutors also added a third count of child molesting involving a third victim.

Wheat said state law prohibits amending charges less than 30 days before the commencement of trial and argued the prosecution should not have been allowed to amend the charges for the second trial because the deadline had already passed.

The law does not specifically address the prospect of a second trial after a hung verdict.

Justice Frank Sullivan Jr. said that prosecutors could have just dismissed the charges and filed them again.

But Justice Brent Dickson also noted that when a statute is ambiguous, courts are supposed to interpret the law in favor of the rights of the defendant.

Wheat also argued there was no evidence that the jury had reached unanimity on the convictions. The jury was indeed polled and all agreed Baker was guilty of child molesting.

But she cited previous court rulings that showed jurors must all agree on which specific offense made him guilty. In the Baker case, the girls testified about numerous assaults and there is no way to tell for which one he was found guilty, Wheat said.

Deputy Attorney General Ian McLean said the issue was not raised at trial by defense counsel and therefore cannot be used to challenge the convictions now.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to Indiana Decisions

Ind. Law - More on: "Interviews indicated that no one involved in the Bisard investigation, sworn or civilian, knew about the March 12, 2010 law amendment"

Updating this entry from the ILB posted late yesterday afternoon, today's Indianapolis Star has extensive coverage of the Bisard Report.

From a list of bullet points headed "What went wrong in Bisard case?", note these points:

Here is the Star's main story, headed "Report cites Indianapolis police failures in Officer Bisard crash: Internal probe finds officer was treated as victim, not a suspect," written by Vic Ryckaert and Will Higgins.

Posted by Marcia Oddi on Thursday, November 11, 2010
Posted to Indiana Law

Wednesday, November 10, 2010

Ind. Courts - Results of the 2010 Judicial Nominating Commission District 2 Election

Here are the results, as certified by the Clerk of the Courts to the Secretary of State.

The return this year was 2,196 ballots. For the 2007 District 2 election, the return was 1,678.

In 2007, 6,616 ballots were sent out, with a 25.4% return.

In 2010, 7,092 ballots were sent out, with a 31% return.

Results of 2010 JNC District 2 Election
William E Winningham, Jr. 672
Jan M. Carroll 543
Kathy L. Osborn 399
Joel M. Schumm 310
David R. Hennesssy 272

Here is the link to the bios of the candidates.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Courts

Ind. Law - "Interviews indicated that no one involved in the Bisard investigation, sworn or civilian, knew about the March 12, 2010 law amendment"

The full 47-page internal investigation report on David Bisard crash is available online, via the Indianapolis Star.

Starting on p. 26, the Report has "A brief history of SEA 342 and the amended law -- IC 9-30-6-6." Here, from p. 26-28:

I.C. 9-30-6-6, the Indiana law which defines the acceptable personnel to conduct post-crash blood draws and the suitable location for them, was altered by the Indiana General Assembly and signed into (amended) law by Governor Mitch Daniels on March 12, 2010. This alteration came as a result of the 2009 Indiana Court of Appeals case, Brown v. State (911 N.E. 2d 668). * * *

When word of this August 21, 2009 decision reached the Indiana General Assembly, discussions of an amendment to 9-30-6-6 started quickly. It was known as Senate Enrolled Act 342.

After months of debate as to how the new law would read, the General Assembly decided to remove “a certified phlebotomist” from the list of acceptable persons who can draw blood. However, the General Assembly also specifically said, “The list of persons qualified to take a bodily substance sample is not a limitation to ‘ONLY THOSE PERSONS’ when the sample is taken in a licensed hospital.”.

SEA 342 was signed into law with little, if any publicity or media attention.

This law amendment was communicated to all law enforcement officers in the State of Indiana, in the monthly publication released in the April 2010, (Issue #221) “Police Prosecutor Update (PPU).” Each paragraph of this particular PPU addresses various Indiana Codes, Senate Enrolled Acts, House Enrolled Acts, all pertaining to new laws. SEA 342 was listed near the bottom, with a brief, incomplete, one-sentence explanation of the new law amendment. No officers on the scene of the Bisard incident received any additional training/education about the law change, nor its applicability to their assigned duties. It remains unclear whether any of them even saw this issue of the PPU (see PPU on page 29).

Interviews indicated that no one involved in the Bisard investigation, sworn or civilian, knew about the March 12, 2010 law amendment. Therefore they believed that Methodist Occupational Health Center (MOHC) was an approved facility and Medical Assistant Michelle Maga was a person authorized by law to draw Bisard’s blood.

The boldface type was added by the ILB. To the contrary, both the Brown case and SEA 342 received considerable coverage. Here are a few examples collected by the ILB, in reverse chronological order:
Ind. Decisions - Transfer in certified phlebotomist "loophole" case ruled "improvidently granted"

Supreme Court oral argument in the case of Roger Brown v. State was held Jan. 14, 2010. The posted description:At trial on charges of operating a vehicle while intoxicated, the Clinton Superior Court admitted the results of a blood alcohol...

Posted in The Indiana Law Blog on May 28, 2010 08:03 AM

Ind. Law - More on "New drunken driving law quickens blood sample process"

Updating this March 16, 2010 ILB entry on SEA 342, Rebecca S. Green reports today in the Fort Wayne Journal Gazette:This month, Gov. Mitch Daniels signed a bill into law changing part of the state’s drunken-driving law. That change removed... [Excellent report by Rebecca S. Green in the Fort Wayne Journal Gazette]

Posted in The Indiana Law Blog on March 21, 2010 12:22 PM

Ind. Law - "New drunken driving law quickens blood sample process"

HEA 342, signed by the Governor March 12, 2010, is the focus of a story in the Bloomington Herald-Times. Some quotes:New legislation closes what Monroe County Prosecutor Chris Gaal referred to as a “loophole” in drunken driving law. Back in...

Posted in The Indiana Law Blog on March 16, 2010 10:49 AM

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Robert J. Blanford v. Judy D. Blanford, an 18-page opinion, Judge Bailey writes:

Robert J. Blanford (“Robert”) appeals from the trial court's denial of his Motion to Correct Error, which challenged the trial court's determination of his child support obligations and the disposition of a 401(k) plan.
We affirm in part, reverse in part, and remand for further proceedings.

Robert presents three issues for our review, which we restate as whether the trial court erred when it:
I. Calculated Robert's child support obligations using separate worksheets for each of his two children;
II. Required Robert to pay certain expenses related to his elder child's post-secondary education; and
III. Ordered that the 401(k) account maintained by Robert would be equally divided between the two children upon his younger child's completion of a bachelor's degree. * * *

The trial court erred when it calculated Robert's child support obligations on two worksheets, treating each son as an only child without explanation of its reasons. This inflated the basic support obligation and caused calculation errors in the support calculations for each of the three time periods addressed in the support order. The trial court did not err in its determination and allocation of extraordinary educational expenses as part of Robert's support obligations related to M.B.'s and S.B.'s college education. The trial court erred in assigning the funds in the 401(k) to M.B. and S.B., rather than to Robert and Judy, upon S.B.'s completion of a bachelor's degree, because this assignment was a post-dissolution modification of the division of marital assets. We therefore affirm in part, reverse in part, and remand with instructions for recalculation of the support order and for the allocation of the 401(k).

In Kevin Barton v. State of Indiana , a 20-page opinion, Judge Kirsch writes:
Kevin Barton appeals his conviction for failure to return to the scene of an accident resulting in death1 as a Class C felony. Barton raises the following three restated issues:
I. Whether the trial court erred when it denied Barton's motion to dismiss, which asserted that the State was barred under collateral estoppel principles from prosecuting him for failure to return to the scene of an accident resulting in death;
II. Whether certain statements made by the State during rebuttal closing argument constituted Doyle[2] violations; and
III. Whether the trial court erred when it refused Barton's mistake-of-fact instruction.
We affirm.
[2] In Doyle v. Ohio, 426 U.S. 610 (1976), discussed more fully in Section II, the United States Supreme Court held that a defendant's Fourteenth Amendment due process rights are violated if a prosecutor uses the defendant's post-arrest, post-Miranda silence to impeach him or her.
Scott D. Wells v. Herman Bud Bernitt, et al.

NFP civil opinions today (4):

Paul Catterall v. James Donbrook d/b/a Donbrook Enterprises (NFP)

Jean D. Schoknect v. Susan E. Dunlap (NFP)

R.B. v. Review Board (NFP)

C & R Realty, LLC v. Jerry Tooley (NFP)

NFP criminal opinions today (4):

Quentin Taylor v. State of Indiana (NFP)

Mamadou Sow v. State of Indiana (NFP)

Damon Myers v. State of Indiana (NFP)

Kenneth J. DeBord v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Fishers Town Council member will seek to become judge of newly created Fishers Town Court"

Updating this ILB entry from Nov. 5, where:

Chief Judge John Baker talks about "A New Way Forward," the Indiana Judicial Conference's strategic plan to reform the courts, which includes abolishing city courts.
is this press release I just received. Some quotes from the release:
FISHERS, IN – Long-time Fishers resident and three-term member of the Fishers Town Council, Dan Henke, announced today he will seek to become the first judge of the newly-established Fishers Town Court.

The Fishers Town Court will begin service to the community in January 2012. * * *

“The establishment of a Town Court is a win-win for Fishers,” Henke said. “It will provide a more convenient way of resolving ordinance violations by saving citizens the time it takes to travel to the courts in Noblesville. In addition, it will save our police officers significant time away from their regular duties waiting for court appearances.”

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Courts

Ind. Courts - "Porter County gets new public defender"

Updating a Nov. 7th entry headed "Judges will decide Porter County's new public defender", James D. Wolf Jr. reports today in the Gary Post Tribune in a story that begins:

VALPARAISO -- Porter County has a new chief public defender.

Ken Elwood accepted the position Tuesday morning, although Porter County's six judges made the decision Monday night at their monthly meeting. * * *

"There were four and they were all very well-qualified. But Ken was the best," said Porter Superior Court Judge Roger Bradford, the judicial liaison for the public defender's office.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Courts

Ind. Gov't. - Still more on: Continuing saga of politics of trash in Lake county

Updating yesterday's ILB entry, Marc Chase of the NWI Times reports today in a story headed "Access counselor reaffirms opinion that waste district meeting followed the law":

Since 10 solid waste district board members were not an officially appointed board committee, no open meetings laws were violated during their closed Sept. 23 gathering, the state's access counselor said Tuesday.

Public Access Counselor Andrew Kossack offered that opinion in response to questions of whether the gathering had served as a board committee, subject to the Indiana Open Door Law.

A media law attorney has said the closed-door meeting may have violated the law if the 10 board members had served as a "de facto committee."

Controversy has surrounded the issue since the Lake County Solid Waste Management District directed a reporter and others to leave the gathering of board members, reportedly going into executive session to discuss legal matters. * * *

In his first opinion, released last week, Kossack, who previously worked for Barnes & Thornburg, contended the gathering did not violate the law because the members did not constitute a quorum of the board.

But Hoosier State Press Association attorney Stephen Key said the gathering may have violated the law if the group functioned as a committee, gathering information from the meeting and providing advice to shape actions taken at a subsequent meeting of the entire board.

In an e-mail to The Times Tuesday, Kossack said there was no evidence the gathering functioned as a board-appointed committee.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Government

Ind. Gov't. - "Former two-term Indianapolis Mayor Stephen Goldsmith is making a name for himself as New York's deputy mayor"

Kevin Rader has this report at Indy WRTV13. A few quotes from an interesting story:

"The issues in Indianapolis and New York City are not that different, but the scale is different. The complexity is different and maybe the stakes are different," Goldsmith said. * * *

"There is no politics in City Hall. There is no fundraising in and around City Hall and you have a champion who says, 'Look, I recruited you here, Goldsmith, to apply what you know to make New York City an even greater place in the future and as long as you are doing the right thing, I am going to protect you'," Goldsmith said. * * *

So Goldsmith is not reinventing himself. He's working to help Mayor Bloomberg reinvigorate New York City.

If you are wondering what a Deputy Mayor in charge of operations is really in charge of, Goldsmith is in charge of police, fire, transportation, sanitation, buildings and environmental protection departments just to name a few.

In other words, the day-to-day operation of New York City.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Government

Ind. Gov't. - Will "social issues" hijack this General Assembly?

Several recent stories offer hints of what may come.

Mary Beth Schneider of the Indianapolis Star had two reports in Sunday's edition. The lengthy main story is headed "Social issues could divide Republicans in General Assembly." She broadens the definition by lumping immigration in with the traditional same-sex marriage and abortion, and writes:

Many GOP legislators -- both old and new -- see their new majority in the House as a chance to finally enact a socially conservative wish list after four years of being blocked by Democrats. * * *

Many of the GOP's current leaders argue that nothing -- including such social issues -- should distract them from addressing the state's enormous fiscal challenges and the need for education reforms.

Keeping faith with social conservatives without letting divisive fights derail those issues will be a balancing act that Gov. Mitch Daniels and Republican legislative leaders will have to finesse.

And it won't be easy. After years of criticizing Democrats for blocking votes on social issues, Republican House and Senate leaders are not about to do the same. Yet they realize prolonged debate on such controversies could consume precious time. * * *

Senate President Pro Tempore David Long, who will lead a Senate of 37 Republicans and 13 Democrats, and the next House speaker, Brian Bosma, who will preside over a House with at least a 59-41 GOP majority, said they expect bills to be filed on abortion, illegal immigration and same-sex marriage and will not stand in their way. Bosma said he'll "allow the democratic process to work."

But Bosma and Long say their focus will be on the budget, job creation and education. The question is how much the legislature can do.

Sen. Luke Kenley, the Noblesville Republican who, as chairman of the Senate Appropriations Committee, will have a lead role in concocting a budget, said legislative leaders will have to decide whether pursuing the social issues this year, rather than waiting until 2012, is worth the risk of Democrats shutting down the House for days or playing out the clock with lengthy debates on endless amendments.

Time spent on such fights, he said, is time not spent resolving the priorities.

"Any distraction in that arena can be the basis of blowing the whole thing up," Kenley said. "Read the governor's list. If you think there's something else more important, you need to read the list again."

In a sidebar headed "10 Indiana issues affected by the election," Schneider begins with the four issues likely to gain traction. Three of them are the marriage amendment, abortion, and immigration. A fourth is eduction.

In a story this morning featured "above-the-fold" on the front page of the Anderson Herald Bulletin, Maureen Hayden of the CNHI Statehouse Bureau focuses on the anticipated introduction again this year of the same-sex marriage constitutional amendment. Some quotes:

While Gov. Mitch Daniels has called for a “truce” on social issues like same-sex marriage, there are some Indiana legislators ready to put up a fight.

Conservative state lawmakers say they expect to reintroduce legislation in the next session that would clear the way for a constitutional amendment to define marriage as a union between one man and one woman.

Indiana already has a law that bans gay marriage but supporters of a constitutional amendment say it would offer protection against court action. * * *

The marriage amendment issue isn’t a new one. The Indiana Legislature passed a ban on same-sex marriage in 1997. The law was upheld by the Indiana Court of Appeals in 2005.

But supporters of the ban were concerned that a higher court could overturn the state law, similar to what’s happened in other states, including California and Iowa.

They also note the timing, convinced voter sentiment is on their side. Last week, three members of the Iowa Supreme Court that struck down a ban on same-sex marriage were voted out of office.

Thirty states have passed constitutional amendments that define marriage between a man and a woman.

Indiana lawmakers have been attempting to do the same for several years. In order for the amendment to be added to the constitution, it has to pass two separately elected General Assemblies and then be approved in a statewide voter referendum on the next general election ballot.

Both the Indiana House and Senate approved the “Defense of Marriage” bill in 2005. The Senate approved it in 2008, but the bill was blocked from a vote in the House by then-Speaker Patrick Bauer, a Democrat who assigned it to a House Rules Committee where it died. The process now has to start over again.

Jim Shella of WISHTV had an interesting story yesterday on the makeup of this new General Assembly. It begins:
The freshman class in the Indiana General Assembly reported to the Statehouse for orientation Tuesday. It's an unusual class both because of its size and its partisan makeup.

The voters wanted new blood in the Statehouse and there is so much of it that, right now, it's hard to make an argument for term limits in this state. There will be 24 new members in the Indiana General Assembly when they stand for the oath of office on Organization Day next week. All 24 are Republican.

"A lot of them come from various professions that really haven't been involved in the governmental process before so probably a steeper curve for them," says Jack Ross of the Legislative Services Agency.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Government

Ind. Gov't. - "State officials repeatedly have rationalized that the best place to find new state regulators is within the ranks of regulated industries"

An editorial today in the Indianapolis Star on the Duke scandal begins:

All three people at the center of a scandal involving Duke Energy and the Indiana Utility Regulatory Commission have now lost their jobs. That's as it should be.

But questions remain about what further steps the state will take to ensure that such improprieties don't happen again.

It concludes:
[S]tate leaders also need to take a deeper look at long-standing attitudes within Indiana government. Officials repeatedly have rationalized that the best place to find new state regulators is within the ranks of regulated industries. That approach, perpetuated under governors from both major political parties, has helped create a closeness between regulators and industry leaders that too often shortchanges the public's best interests.

The Duke scandal should send a clear message to state officials and industry executives: Business as usual can no longer be tolerated.

Posted by Marcia Oddi on Wednesday, November 10, 2010
Posted to Indiana Government

Tuesday, November 09, 2010

Ind. Decisions - "Ind. court upholds search of locked glove box"

Today's 2-1 COA decision in the case of Anthony A. Parish v. State of Indiana (ILB summary here, 2nd opinion) is the subject of an AP story by Charles Wilson posted late this afternoon by the Chicago Tribune. It begins:

INDIANAPOLIS — The Indiana Court of Appeals ruled Tuesday that police making a traffic stop have the right to search a car's glove box for weapons, even if it is locked.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Ind. App.Ct. Decisions

Ind. Law - "A day in the life of Chris Stewart; Notre Dame's lineman, law student"

From the Sept. 15, 2010 USA Today, this long story by Mike Lopresti that begins:

SOUTH BEND, Ind. — It's just before 7 a.m., a lit-up Touchdown Jesus signals over a still-dark Notre Dame campus, and here comes — according to the sports information folks — the only man playing major college football while enrolled in law school.

Chris Stewart has beaten the sun to the Guglielmino Athletics Complex, but so it goes for a current starting guard and future Perry Mason. No one at Notre Dame has ever tried what he is trying.

"There's no rubric to follow," he says, which is something you don't hear every day from an offensive lineman. "I wasn't trying to kill any record. It's my life. It's what I do."

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Indiana Law

Law - Adopt a volume of the First Series of the Federal Reporter of the United States!

Read about it here.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to General Law Related

Environment - Coal and nuclear power

Ran across two items of interest today:

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Environmental Issues

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Paul Arlton v. Gary Schraut, M.D., and Lafayette Retina Clinic, a 20-page opinion, Judge Mathias writes:

Appellant-Plaintiff Paul Arlton ("Arlton") brought a medical malpractice action against Appellees-Defendants Gary Schraut, M.D. ("Dr. Schraut"), and the Lafayette Retina Clinic ("LRC") (collectively "the Medical Care Providers"), alleging that Arlton had suffered permanent injury to his eye as a result of laser eye surgery performed by Dr. Schraut. The jury returned a verdict in favor of the Medical Care Providers. Arlton appeals and presents three issues:

I. Whether 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;
II. Whether the trial court abused its discretion when it refused to provide the jury with access to digital evidence during deliberations; and
III. Whether 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.

We reverse and remand. * * *

[I] Under all of these facts and circumstances, we conclude that the trial court’s decision to exclude the enlargements was clearly against the logic and effect of the facts and circumstances before the court and therefore an abuse of discretion. See Armstrong, 871 N.E.2d at 293. * * *

[II] Ideally, these issues should be dealt with well before deliberations begin, even before trial, so that the trial court does not have to scramble just before deliberations trying to find a way to let the jury access admitted digital evidence. But whatever solution is agreed upon or decided upon is better than admitting digital evidence, and then giving the jurors no means of accessing it. Digital evidence should not be "relegated to muteness."5 Rose, 522 F.3d at 715.
5. Indiana’s talented trial attorneys and trial judges can work together to solve this issue through anticipatory motions in limine during discovery, or as discovery closes, and well before trial. As they do so, it is important not to interpret our discussion and opinion as a requirement that courts and their counties immediately purchase expensive technology to make digital evidence accessible to jurors. As stated above, transformation of digital evidence by the parties, their attorneys, or digital experts into a DVD format playable on a simple television with attached DVD player may well be all that is required in most instances. It will always be the responsibility of the parties’ attorneys to ensure that the digital evidence at issue "works" on the court’s equipment available to the jury or to provide appropriate equipment for the jury’s use, subject to review by the court and objection by opposing counsel. As courts and counties upgrade their technology, in many instances, the technology being replaced can be repurposed to the limited jury room uses discussed here. * * *

[III] In short, we must conclude that the trial court abused its discretion in refusing to give Arlton’s tendered instruction.

[IV] For all of these reasons, we conclude that the trial court’s evidentiary and instructional rulings constitute reversible error because the end result of these decisions was to deny the jury access to evidence which "directly implicated the heart of the matter the jury was asked to decide[.]" Armstrong, 871 N.E.2d at 297; Walker, 808 N.E.2d at 102. We therefore reverse the judgment of the trial court and remand this cause for a new trial consistent with this opinion.

In Anthony A. Parish v. State of Indiana , a 15-page, 2-1 opinion, Judge Mathias writes:
Following a jury trial, Appellant-Defendant Anthony A. Parish (“Parish”) was convicted of murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license, and was sentenced to an aggregate term of eighty-six years incarceration. Parish appeals and claims that a protective search of a locked glove box during a traffic stop was constitutionally improper and that the evidence found during the search should have been suppressed. Concluding that the protective search was permissible under the Fourth Amendment, we affirm. * * *

We think it goes without saying that a glove box is a place where a weapon could easily be placed or hidden. But here Officer Foster searched inside a locked glove box. We must therefore determine whether the locked glove box is part of the passenger compartment that can be searched as part of a protective search. In other words, does the fact that the glove box was locked mean that Parish could not gain immediate control of any weapon hidden therein? Although there appears to be no Indiana case directly on point, the federal courts of appeal, including the Seventh Circuit, have held that a locked glove box may be searched during a protective search of an automobile. * * *

Here, Parish admits that the initial traffic stop was valid, and we have concluded that the subsequent protective search was justified by Officer Foster's reasonable fear for her safety. Thus, even if Officer Foster had ulterior, pretextual motives, this does not by itself render the protective sweep unconstitutional. Although we may question why the police allowed Parish to leave the stop with only a minor traffic citation despite discovery of marijuana, scales, and a handgun in the locked glove box, this does not change our ultimate conclusion that the protective search of that glove box was permissible under the Fourth Amendment. Affirmed.

BRADFORD, J., concur.
RILEY, J., dissents with separate opinion. [from p. 14] Here, the officers conducted a warrantless search of Parish's car after a traffic stop based on the officers' belief that Parish was the suspect in several shootings and was armed. While exiting his car, Parish did not make any furtive movements and appeared to be cooperative with the officers' orders. After searching the vehicle and a locked glove box, the officers discovered a revolver, a small scale, and marijuana. Nevertheless, despite the presence of a weapon, the officers simply issued a citation and let him go.

NFP civil opinions today (1):

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

NFP criminal opinions today (2):

Jess David Woods v. State of Indiana (NFP)

Emilio Rivera v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Ind. App.Ct. Decisions

Courts - Howard Bashman's view on the Iowa retention vote

Howard Bashman, Pennsylvania appellate litigator and editor of How Appealing, has this Nov. 8th article in The Legal Intelligencer, headed: "How Did Elections Affect Pa. 'Merit Selection' Battle?." A few quotes:

In actuality, however, the judicial retention vote in Iowa merely shows that the system is operating in the manner in which it was designed. * * *

The best way for judges to respond to the results of the judicial retention election in Iowa is to change absolutely nothing about the way that they approach their work. It is indeed bizarre to have a system that allows voters to reject judges based on the outcomes of cases with which the voters disagree, but that reality should not and cannot lead judges to base their rulings on anything other than their obligation to faithfully apply the law.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Courts in general

Courts - "Are class-action lawsuits going the way of the Dodo?" [Updated]

That is the first line of Ashby Jones' entry yesterday in the WSJ Law Blog, headed "Is D-Day Approaching For Class-Actions Lawsuits?" More from the beginning of the entry:

On first blush, it sounds crazy. But many legal experts think it could happen if the U.S. Supreme Court rules the way many think it will in a case called AT&T Mobility Services v. Concepcion.

For instance, writes Vanderbilt law professor Brian Fitzpatrick in this opinion piece from the SF Chron: “If the case is decided the way many observers predict, it could end class-action litigation in America as we know it.”

Fitzpatrick does a nice job laying out the rather complicated factual and legal issues in the case.

Nina Totenberg of NPR had a story this morning on Morning Edition titled "High Court Case Tests Bans On Class-Action Suits."

[Updated at 3:43 pm] Here is an AP post-oral argument report. A quote:

The Supreme Court seemed wary about a business-backed challenge that could make it almost impossible for consumers to band together to make claims against their cell phone carriers, cable providers and credit card companies.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Courts in general

Ind. Courts - More on "Forfeiture law invites abuse of the system"

Updating this ILB entry from Sunday, Nov. 7th, Reason.com has a story dated Nov. 8 by Radley Balko, headed "More on Indiana's Forfeiture Racket."

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Indiana Courts

Ind. Gov't. - More on: Continuing saga of politics of trash in Lake county

In this ILB entry from Oct. 5th re the Lake County Solid Waste Management District, the NWI Times reported:

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," [Steve Key, legal counsel for the Hoosier State Press Association] 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.

A Nov. 5th Gary Post Tribune story by Diane Krieger Spivak reported on the Public Access Counselor's ruling:
The Indiana Public Access Counselor has determined the Lake County Solid Waste Management District did not violate the Open Door Law by conducting an executive session on a proposed garbage-to-ethanol plant.

Public Access Counselor Andrew Kossack responded Wednesday to formal complaints by Lake County Sheriff Roy Dominguez and The Times of Northwest Indiana Executive Editor William Nangle that the Sept. 23 executive session violated the law.

The executive session notice "contains all elements required by the Open Door Law," Kossack's analysis said. "It is my opinion that the District did not violate the Open Door Law."

Dominguez had questioned the appropriateness of notice of the session that did not list the subject matter other than the "threat of litigation" provision in the Open Door Law.

But this long Nov. 8th story by Marc Chase of the NWI Times reports:
Lake County solid waste officials may have convened what should have been a public meeting when they discussed a contract issue in a meeting they closed to the public, a media-law attorney says.

That assessment from Hoosier State Press Association attorney Stephen Key follows an opinion rendered last week by a state access official that the Lake County Solid Waste Management District did not violate open meetings laws by holding a closed meeting to discuss ownership issues surrounding a planned trash-to-ethanol facility in Schneider.

But Key said the closed gathering of 10 waste district board members may have violated Indiana's Open Door Law -- especially if meeting participants used information or advice from that meeting to shape actions taken at a subsequent meeting of the entire board.

Waste district lawyer Clifford Duggan has argued -- and the state's public access counselor agreed -- the district did not violate Open Door law because a quorum of 14 board members was not present to make it an official and, therefore, open meeting.

But Key said it appears the 10 members may have formed "a de facto committee." Committees formed by public boards are subject to the Open Door Law barring certain exceptions, such as written threats of litigation. * * *

Some Lake County municipal officials have worried the taxpayer-ownership clause would make local government liable for any mishaps at the plant, which would rely on commercially unproven technology to transform trash into the fuel alternative, ethanol.

The waste district sought the advice of its hired law firm, Barnes & Thornburg, and an attorney from the firm delivered an opinion at the closed meeting but produced no written analysis, meaning only district officials who attended know the details.

A week later, at a meeting of the full board, a quorum of members voted to proceed as planned, adopting an interlocal agreement asking communities to contract to send their municipal waste to the future Schneider plant for 20 years.

Key, with the Hoosier State Press Association, said because waste district officials cited a Times article -- and not any actual threat received by the district in writing -- the district lacked grounds to close the meeting.

Indiana Public Access Counselor Andrew Kossack, who sided with Lake County's waste district last week, could not be reached for comment Monday regarding whether the Sept. 23 closed meeting actually was a committee meeting and, hence, should have been open to the public and press. Kossack formerly worked for Barnes & Thornburg.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Indiana Government

Ind. Courts - More on "Supreme Court digs into Elkhart murder case"

From the Elkhart Truth story of Nov. 5th about the oral argument Nov. 4th in Taylor v. State:

Three of the five justices commented that the case, a complicated one, was unique.

"In my experience here this case is one-of-a-kind, where a man has been convicted of an offense where the jury hasn't even been instructed on the offense in the first place," said Justice Frank Sullivan. * * *

Justice Robert Rucker called the case "rather fascinating," while his colleague, Justice Brent Dixon, said it raised "intriguing issues."

However, on Nov. 5th the Court issued this order, stating in part:
After further review, including oral argument, a majority of the Court has determined that transfer of jurisdiction was improvidently granted. Accordingly, the order granting transfer is VACATED.
The Court of Appeals opinion reported as Taylor v. State, 922 N.E.2d 710 (Ind. Ct. App. 2010), is no longer vacated and is reinstated as Court of Appeals precedent. See App. R. 58(A) & (B). The transfer petition filed by Appellee is DENIED.
Thanks to the reader who alerted the ILB.

Posted by Marcia Oddi on Tuesday, November 09, 2010
Posted to Indiana Transfer Lists

Monday, November 08, 2010

Ind. Gov't. - "Duke Energy fires its top Indiana officer" [Updated]

In a story posted on the Indianapolis Star website at 5:07 pm, John Russell reports in a story that begins:

Duke Energy Corp. has fired its Indiana president and a staff attorney in the wake of an ethics scandal that has cast a shadow over the company's controversial Edwardsport power plant.

The electric utility told employees today in an internal newsletter it has terminated the employment of Mike Reed, president of its Indiana operations, and Scott Storms, a lawyer in its regulatory affairs office. Both worked in the Plainfield office.

The two officials had been placed on administrative leave in October pending the outcome of a company investigation.

[Updated 11/9/10] Here is an updated Russell story from this morning's Star. Here is the AP version, from Charles Wilson. A quote:
A copy of the internal memo obtained by The Associated Press said Duke decided to fire Reed and Storms after "careful consideration" of the legal review's findings.

The Duke memo also said the company would change its hiring guidelines to "ensure that job candidates linked to regulatory and oversight groups are removed from all Duke Energy affairs prior to being considered for opportunities."

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Indiana Government

Ind. Courts - Nominations for Tax Court sent to the Governor

On November 5th, Chief Justice Shepard forwarded to Governor Daniels a five-page letter containing:

... the names of the three strongest candidates from among the fourteen applicants: Bloomington attorney Joby D. Jerrells, Judge Karen M. Love of the Hendricks Superior Court, and Indianapolis attorney Martha Wentworth. In making this selection, the Commission considered each applicant's legal education, writings, reputation in the practice, commitment to the profession and to public service, financial interests, and other pertinent information it thought important. The Commission members went well beyond review of the applications and letters of recommendation (helpful as those were) by initiating independent inquiries about the contenders.
This is followed by "brief observations about their qualifications."

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Indiana Courts

Ind. Law - "Barnes & Thornburg Brings on Venable Partner to Head IP Practice"

The Blog of Legal Times has the item here.

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Indiana Law

Ind. Decisions - Answer on ILB question re COA opinion

In this ILB entry Nov. 5th, summarizing the COA opinion in S.A. v. Review Board, authored by Judge Crone, I noted: "There is no explanation in this opinion of why appellant is identified only as 'S.A.'"

This afternoon Judge Terry Crone sent this note to the ILB:


In an entry last friday, november 5, you mentioned our opinion in s.a. v. review board, which involved the determination of the indiana department of workforce development that the appellant was ineligible to continue receiving unemployment benefits. You pointed out that we referred to the appellant by initials yet mentioned the appellant in a 1981 case by name.

This distinction is explained by the confidentiality provisions of indiana administrative rule 9(g), which was not in effect in 1981. Administrative rule 9(g)(1)(b)(xviii) addresses the confidentiality of case records of the department of workforce development. administrative rule 9(g)(4)(d) provides "orders, decisions, and opinions issued by the court shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, ...."

It is our current reading of rule 9 that necessitates using initials for cases issued now even though cases reported prior to adoption of the rule would still be cited as reported at the time of their issue.

I hope this sheds some light on the apparent anomaly. as always if i can be of any assistance, please feel free to contact me and thank you again for the valuable service you perform.

Thanks to Judge Crone for the explanation!

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Timothy Cranston v. State of Indiana , a 9-page opinion, Judge Vaidik writes:

Timothy Cranston appeals his conviction for Class A misdemeanor operating a vehicle while intoxicated with an alcohol concentration of .15 or greater. Cranston was arrested for drunk driving. He submitted to a B.A.C. Datamaster chemical breath test. The Datamaster machine printed an evidence ticket stating that Cranston's blood alcohol concentration was .15. At trial, the State introduced the evidence ticket along with foundational testimony from the arresting officer. Cranston argues that the admission of the Datamaster ticket without live testimony from an equipment technician violated his Sixth Amendment right to confrontation. We conclude that the admission of the ticket did not offend Cranston's confrontation rights. A Datamaster evidence ticket is a mechanically-produced readout which cannot constitute “testimonial hearsay” under Crawford v. Washington, 541 U.S. 36 (2004). We affirm the judgment of the trial court.
ILB: Cranston is a "must read" if you do DWI work.

In Kimberly Thomas v. State of Indiana , a 7-page, 2-1 opinion, Judge Brown concludes:

Under the circumstances set forth in the record, the institution of direct contempt proceedings was the more appropriate action in response to Thomas's statement to Smith in the courtroom. We reverse and remand with instructions to vacate Thomas's conviction for invasion of privacy as a class A misdemeanor and, at the trial court's option, to resume direct contempt proceedings3 to address Thomas's comment to Smith at the November 16, 2009 hearing. Reversed and remanded with instructions.

DARDEN, J., concurs.
BRADFORD, J., dissents with opinion. [That begins, at p. 6] I respectfully dissent. Thomas violated a protective order when she told Smith to stop calling her and called him a “fagot” [sic] while they were in court. The State charged Thomas with invasion of privacy for the violation, and the trial court convicted her in a bench trial. The majority reverses Thomas's conviction after concluding that the institution of direct contempt proceedings was a more appropriate action. Although I agree that direct contempt proceedings would have been the more efficient and preferred remedy, I find nothing in the statute that precluded the State from choosing to file the invasion of privacy charges. Specifically, Indiana Code section 35-46-1-15.1 provides in relevant part that a person who violates a protective order commits invasion of privacy.

NFP civil opinions today (2):

A.C. v. J.H. (NFP)

Noble Adigbli v. Dave Novak, et al. (NFP)

NFP criminal opinions today (9):

Branton Homsher v. State of Indiana (NFP)

Jonathan Grider, Sr. v. State of Indiana (NFP)

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

Nicholas N. Harless v. State of Indiana (NFP)

Brandon D. Lange v. State of Indiana (NFP)

Alan Akers v. State of Indiana (NFP)

Paul Dodson v. State of Indiana (NFP)

Harvey O. Coffey, Jr. v. State of Indiana (NFP)

Matthew Holland v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Ind. App.Ct. Decisions

Courts - More on: Indiana case on "Petitions to Watch" list

Updating this ILB entry from Nov. 4th re the Indiana case of Bill K. Wilson, Superintendent, Indiana State Prison, Petitioner v. Joseph E. Corcoran, the SCOTUS this morning issued a rather strong 7-page per curiam ruling, which begins on p. 9 of this Nov. 8th order list, directed at the 7th Circuit Court of Appeals. It begins:

Federal courts may not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law. Because the Court of Appeals granted the writ to respondent without finding such a violation, we vacate its judgment and remand. * * *

The petition for a writ of certiorari and respondent’s motion for leave to proceed in forma pauper is are granted.The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. We express no view about the merits of the habeas petition.

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Ind. (7th Cir.) Decisions

Courts - More on removal of Iowa judges

The Indianapolis Star has a long AP story today on p. 4 headed "Judge-ouster effort could spread." But it is not available online via the Star.

However, the syndicated story is available at several other site, including NPR, which posted it here Nov. 5th. This section was of particular interest:

Iowa was one of at least four states where groups sought to remove judges in Tuesday's election, but it was the only place where the effort succeeded.

The anti-abortion group Kansans For Life failed to remove four Supreme Court justices for their decisions regarding abortion clinics.

In Colorado, three high court members withstood a removal campaign focused on their tax decisions. And in Illinois, a Supreme Court justice survived an attempt to oust him because he overturned a cap on medical malpractice damages.

Law.com has a long essay today by attorney/columnist Katherine A. Helm, headed "Appointed vs. Elected Justices: States' High Courts Take a Hit."

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Courts in general

Ind. Decisions - "How one court ruling in Indiana defined 'accessory' versus 'principal' could set a national precedent"

That quote is a line from this lengthy story published in the Nov. 7, 2010 Nazareth Pennsylvania Morning Call, referencing the Indiana COA decision in Timothy Hamby, et al. v. Board of Zoning Appeals, an August 31, 2010 opinion.

(See the ILB summary of the opinion here; see also this Sept. 7th entry quoting an Evansville Courier & Press story headed "Court backs wind turbine: Case could set precedent in state, nation.")

A quote from Sunday's story, reported by Arlene Martínez:

Whether a solar energy is a "principal" or an "accessory" use is at the heart of a debate that could reach Pennsylvania's higher courts in coming years as municipalities grapple with alternative energy systems, whether it's solar, wind turbines, geothermal systems or whatever else comes along.

The question is, said Phil Ehlinger, executive director of the Pennsylvania Association of Zoning Officials, is a solar energy system a "customary and incidental" as the zoning law defines an accessory use? Customary implies longevity, but alternative energies are a recent technology, which complicates the issue, Ehlinger said.

"If it's new, how can it be customary?" he said. "Whether or not it's incidental is in the eye of the beholder."

That question is popping up all over the country, as school districts, corporations and residences rush to claim millions of dollars in grants and rebates the federal government earmarked for alternative energy projects.

How one court ruling in Indiana defined "accessory" versus "principal" could set a national precedent.

In September, the Indiana Court of Appeals court ruled against neighbors objecting to a wind turbine in Warrick County and determined the project was indeed an accessory. Prohibiting its construction, the court said, would discourage the development of alternative energy.

"We're just seeing the beginning of this," Ehlinger said.

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 5, 2010

Here is the Clerk's transfer list for the week ending November 5, 2010. It is one page (and 8 cases) long.

No transfers were granted for the week ending Nov. 5, 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 Monday, November 08, 2010
Posted to Indiana Transfer Lists

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

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

From Sunday, November 7th, 2010:

From Saturday, November 6th, 2010:

Posted by Marcia Oddi on Monday, November 08, 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 11/8/10):

Wednesday, November 10th

Next week's oral arguments before the Supreme Court (week of 11/15/10):

Tuesday, November 16th

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 11/8/10):

Monday, November 8th

Next week's oral arguments before the Court of Appeals (week of 11/15/10):

Next Monday, November 15th

Next Tuesday, November 16th

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

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

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

Posted by Marcia Oddi on Monday, November 08, 2010
Posted to Upcoming Oral Arguments

Sunday, November 07, 2010

Ind. Courts - "Forfeiture law invites abuse of the system"

An outstanding, must-read investigative piece on asset forfeitures begins on the front-page of today's Indianapolis Star, reported by the team of Heather Gillers, Mark Alesia and Tim Evans. This is the same team that in mid-August had the report headed "Despite law, schools get little of assets seized from crime suspects." Here is a sample from today's very long story:

... Indiana's laws on asset seizure and forfeiture are so lax -- so ripe for abuse -- that legal experts, judges and even some of those who stand to gain most have become increasingly troubled.

An Indianapolis Star investigation found that in the absence of a clear statute, prosecutors across the state play fast and loose with forfeiture funds -- keeping as much as they want and using the money
however they like.

In short, some prosecutors are treating seized money less like a regulated source of revenue and -- the way legal experts see it -- more like a slush fund, creating a dangerous incentive to police for profit.

The Star's investigation found numerous examples of questionable practices, including:

Prosecutors using liberal definitions of law enforcement costs and thus keeping all of the cash and money derived from seized assets. (State law calls for excess money to be turned over to schools.)

Law enforcement deciding how money is spent, rather than allowing it to go through the normal local government appropriations process, removing another check on policing for profit.

Prosecutors circumventing the regular judicial oversight process and handling forfeiture cases through settlement agreements, without ever entering a courtroom.

Counties assigning the same prosecutor to a forfeiture case who is prosecuting the related criminal case, increasing the potential for extortion or providing leniency to those who agree to give up assets.

After detailing the probloms, the article ends with a look at potential solutions:
Other states have laws that aim to protect the forfeiture process against abuse.

In Illinois, prosecutors can't bring forfeiture proceedings until a suspect is convicted and sentenced. That guards against the possibility, or even the appearance, that a prosecutor is trading leniency for money or other seized property.

Wisconsin, like Indiana, sends some of its seized assets to the common school fund. But instead of letting each prosecutor keep as much money as he or she can justify, state law explains exactly how to distribute it: Half the money goes to the school fund and half to the law enforcement agency, which is permitted to spend it on any expenses associated with the forfeiture process.

But are Indiana lawmakers willing to tighten seizure and forfeiture laws?

Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, says yes -- and changes may be coming as early as the legislative session that starts in January.

"We need to have people testify and get professional opinions," Steele said, "and have an open, serious debate."

Sen. Richard Bray, R-Martinsville, chairman of the Senate Judiciary Committee, agrees it's time for lawmakers to get involved. Among other things, he thinks the formula for calculating law enforcement costs should be set by the legislature, not left up to each individual prosecutor.

Steele met this summer with Senate President Pro Tempore David Long, R-Fort Wayne. It was a meeting prompted by the Delaware County case -- one of the most egregious recent examples of abuse that has came to light: The prosecutor, McKinney, was contracting out forfeiture cases -- to himself -- and keeping a quarter of the forfeited funds.

"Maybe if the law had been more exact, people wouldn't be getting into trouble over the issue," Steele said. "That's what happens when the law isn't complete and exact, and what we've got is not adequate."

Posted by Marcia Oddi on Sunday, November 07, 2010
Posted to Indiana Courts

Ind. Courts - "Judges will decide Porter County's new public defender"

James D. Wolf Jr. reports in the Gary Post Tribune:

At their monthly meeting on Monday, Porter County's six judges will decide how they'll select the next public defender.

Whatever process the judges choose will likely set a precedent, because the county has had only one head of the public defender's office since James V. Tsoutsouris was appointed in 1970.

Tsoutsouris died Sept. 29. * * *

"We deferred that until all the applications came in," said Judge Roger Bradford, the judicial liaison for the public defender, but most possibilities --from a majority vote to interviewing each candidate -- remain open.

"We won't be sending white smoke up the chimney or anything," he said jokingly. * * *

Bradford confirmed that no one outside the area submitted an application.

"I think we're all familiar with all of the applicants," he said. * * *

"We don't expect whoever we hire to be Jim Tsoutsouris or do everything he did," he said.

Someone essentially starting an office and serving in it for 40 years as it grew from just him to a staff is a once-in-a-lifetime thing, Bradford acknowledged.

None of the current judges was seated when Tsoutsouris started. Bradford, who has been on the bench since 1980, has been a judge the longest.

That's also the longest a Porter County judge has served.

Posted by Marcia Oddi on Sunday, November 07, 2010
Posted to Indiana Courts

Ind. Law - "Some 400 registered sex offenders in Vanderburgh County"

A long article in the Evansville Courier & Press today by Jared Council.

The article begins:

Federal arrests of sex offenders are on the rise across the United States, thanks, in part, to landmark legislation passed by Congress in 2006, according to the U.S. Marshals Service.

The legislation — the Adam Walsh Child Protection and Safety Act — made it a federal offense for sex offenders to move to another state and fail to register there.

"We have one of the busiest (sex offender) registries in the Tri-State," said detective Cpl. Tom Wedding of the Vanderburgh County Sheriff's Office.

He noted that the first of more than 150 Adam Walsh arrests in the state came in Vanderburgh County. He credits the Sheriff's Office staff, state innovations and the public.

So arrests are up, not for sex offenses, but for failing to register when moving into the state?

The article also fails to distinguish between the federal and state law requirements. See this July 12, 2010 ILB entry quoting a "long, must-read story in the Fort Wayne Journal Gazette, reported by Rebecca S. Green" that provides the needed background.

Posted by Marcia Oddi on Sunday, November 07, 2010
Posted to Indiana Law

Courts - "Will justices vote tarnish or help Iowa's image?"

The DesMoines Register today has a very long and thorough article, reported by Tom Witisky, on the impact of last Tuesday's vote not to retain the three Iowa Supreme Court justices up for retention. Some quotes:

"There are many shades of gray here," said John Boyd Jr., a principal at the Boyd Co., a business relocation firm in Princeton, N.J. "But in the minds of many people, Iowa became a progressive state with respect to civil liberties, attracting intellectual capital, and a dynamic work force" when the state Supreme Court declared in 2009 that a law banning same-sex marriage violated the Iowa Constitution's right to equal protection.

Steve Ridge, president of the media strategy group for Frank N. Magid & Associates, the Marion company that is a leading public relations research firm, said business and political leaders will have to respond to the vote that ousted Chief Justice Marsha Ternus and Justices David Baker and Michael Streit.

State leaders now will have to engage with business prospects and will have "to frame the state's image with a thoughtful, focused and aggressive communication strategy," Ridge said.

"A more discerning business community tends to be more sophisticated in evaluating the best place to grow a business - and perceptually, a strong work ethic is Iowa's number one asset," Ridge said.

Posted by Marcia Oddi on Sunday, November 07, 2010
Posted to Courts in general

Saturday, November 06, 2010

Ind. Courts - "Hearing set in case against Wayne County prosecutor"

Bill Engle has this report for the Richmond Palladium-Item, that begins:

A motion to dismiss a defamation lawsuit against Wayne County Prosecutor Mike Shipman will be considered in Madison County next month.

Madison County Superior Court 2 Judge George Pancol scheduled a hearing for Dec. 15 on Shipman's motion to dismiss a defamation lawsuit by Dr. Joseph Czaja. The case was moved to Madison County from Delaware County in August after a joint agreement by the two sides.

In his motion to dismiss, Shipman's attorney, Aaron Raff of the Indiana Attorney General's office, argued that Shipman was acting in his official capacity as prosecutor and hence has "absolute prosecutorial immunity under Indiana law."

In a response to the motion, Czaja's attorney, Jason Delk of Muncie, said Shipman went well beyond the scope of his authority "to include public attacks on (Czaja's) integrity and qualifications."

Posted by Marcia Oddi on Saturday, November 06, 2010
Posted to Indiana Courts

Courts - "Russian Courts: Unyielding, an Oligarch vs. Putin"

Not your usual ILB entry, but this column today by Joe Nocera of the NY Times is fascinating. Here is how it starts:

I wish I had enough space to reprint in its entirety Mikhail B. Khodorkovsky’s closing statement, as his latest sham trial in Russia came to an end earlier this week. I have never been so moved by the words of a businessman.

Not that Mr. Khodorkovsky is a businessman anymore. Once the most famous of the Russian oligarchs, he ran Yukos Oil, which under his leadership became the best-run, fastest-growing, most transparent company in the country — a gleaming symbol of hope for Russian industry. Mr. Khodorkovsky, however, has spent the last seven years in prison, much of that time in Siberia. Stripped of his company, which was sold off to politically connected insiders, Mr. Khodorkovsky and his business partner, Platon Lebedev, were convicted of trumped-up tax charges brought by prosecutors acting on behalf of Vladimir V. Putin, who had come to view Mr. Khodorkovsky as a threat.

Then, in 2007, with the prospect of parole on the horizon, the same prosecutors — with what appears to be the complicity of PricewaterhouseCoopers, Yukos’s longtime accounting firm — indicted the two men again, bringing a new round of Kafkaesque charges.

That trial ended on Tuesday. The verdict will most likely be announced in December, not that anyone doubts the outcome.

Posted by Marcia Oddi on Saturday, November 06, 2010
Posted to Courts in general

Ind. Courts - "Evansville Attorney Charged With Felony Theft"

I looked back and found three earlier ILB entries on Douglas W. Patterson, from June 13, 2008 and June 14, 2008 ("Supreme Court issues 3 year suspension") and another from June 20, 2009, headed "What Constitutes 'Practicing Law'?"

Today Courtney Gousman reports for Evansville News25:

We are following the case of an Evansville attorney now answering to charges filed against him. Prosecutors tell NEWS 25 the bankruptcy attorney embezzled money from more than 20 of his clients, totaling tens of thousands of dollars. * * *

He had his own office on Evansville's Westside, but Vanderburgh County prosecutors tell NEWS 25, he left a number of his clients high and dry.

"They didn't get the help and they basically didn't get their money refunded to them," says Brent Weil, a Deputy Prosecutor with the Vanderburgh County Prosecutor's Office.

Weil specializes in white-collar crimes for the prosecutor's office. He's handling the Patterson case, in which this bankruptcy attorney is now facing three counts of felony theft.

Weil tells NEWS 25, when Patterson closed-up his office in 2008, he refunded a number of clients their money, by writing them checks that eventually bounced.

"There's more than 20 victims who made police reports as detailed in the probable cause affidavit with amounts varying from $275 to over a thousand dollars," says Weil.

Weil says grand total, Patterson made away with $16,000 to $17,000 in client money for services never rendered.

Posted by Marcia Oddi on Saturday, November 06, 2010
Posted to Indiana Courts

Ind. Courts - Updating: "Life, Death and Insurance: Indiana's $15 Million Mystery "

Updating this list of earlier ILB entries, Kathleen McLaughlin of the IBJ has a long story today headed "Drama builds in suit over Hilbert mother-in-law's death."

The ILB's Oct. 5th entry links to Judge Barker's 23-page, Sept. 30, 2010 Entry on Pending Motions in AIG v. Germaine Tomlinson Insurance Trust. A look at the docket this morning reveals that no major orders have since been issued.

Posted by Marcia Oddi on Saturday, November 06, 2010
Posted to Indiana Courts

Ind. Law - "Notre Dame's legal (and moral) issues"

Updating this ILB entry from Nov. 1st, which was headed "Forbes: 'Sullivan's Death Could Cost Notre Dame $30 Million'", it looks like ESPN agrees with the ILB reader, rather than with the Forbes analysis.

Here is a long "Courtside Seat" column by Lester Munson of ESPN.com. Some quotes:

Courtside Seat has a heart. You know that, right? We take no joy in addressing the sad situation in South Bend, Ind. But the legal issues facing the university right now are significant, and there is no point in avoiding them. So the view from this week's 'Seat' is of liability, of workers' compensation and of death benefits ... Today, we start with … The value of a young life

No one is ready to talk about it, but Notre Dame must soon answer a difficult question: What is the university willing to do for the family of Declan Sullivan, the 20-year-old football videographer who fell to his death while taping practice in 50 mph winds last week? * * *

The Indiana laws that apply to this tragedy might not be helpful to the Sullivan family, if it wishes to seek redress for Declan's death. Notre Dame paid him for his work; so as an employee who was killed while on the job, his family is limited to what is available under Indiana workers' compensation law. And it isn't much.

As a worker who had no dependents, Sullivan is limited to a payment of a $7,500 death benefit, according to Brad Varner, a workers' compensation specialist in Mishawaka, a town located adjacent to South Bend. If Notre Dame decides to adopt a highly technical and legalistic approach to the tragedy, it could easily try to limit any settlement to the $7,500 death benefit.

Notre Dame officials are not discussing the matter as they await the results of investigations by a state safety agency and insurance adjusters.

Is there any way for the Sullivan family to move beyond the limits of workers' compensation into a more equitable claim for damages, if they so desire?

The answer is a qualified 'yes.' There are some legal options; but all of them are difficult, if not impossible, to pursue successfully. They include: (A) a products liability claim against the manufacturer of the scissor lift that Sullivan rode to his death; (B) a claim against the company that leased the lift to the university; and (C) a claim against anyone who repaired or serviced the device. But according to Kenneth J. Allen, a highly successful trial lawyer in Valparaiso, these claims are not likely to succeed.

"Indiana law is not favorable to consumers and protects big companies and insurance companies," Allen said.

Looming over any attempt to go beyond the workers' compensation death benefit is an Indiana safety regulation that provides, "Work from scaffolds is prohibited during storms and high winds unless a competent person has determined that it is safe for employees to be on the scaffold and those employees are protected by a personal fall arrest system or wind screens."

[More] Here is a lengthy story by Margaret Fosmoe from today's South Bend Tribune. Some quotes:
SOUTH BEND — The University of Notre Dame's president sent an e-mail letter Friday saying that the university is responsible for student Declan Sullivan's death because they failed to protect him.

“Declan Sullivan was entrusted to our care, and we failed to keep him safe. We at Notre Dame — and ultimately I, as President — are responsible,” the Rev. John I. Jenkins wrote in the e-mail sent to the campus community. * * * [ILB: The text of the letter is available as a sidebar to the SBT story.]

Notre Dame has faced a storm of criticism in the days since Sullivan's death — from sports columnists, bloggers, and some alumni, students and fans — questioning who made the decision to have videographers on lifts taping the football practice on a day in which a high-wind warning had been issued.

The mood on campus has been somber since the death of Sullivan, 20, a junior from Long Grove, Ill.

In a news conference after last Saturday's loss to Tulsa, Kelly took responsibility for deciding to hold practice outdoors that day, despite the brisk winds. No one has said who made the decision to have videographers go up on lifts.

Shortly before his death, Sullivan posted on Twitter: “Gusts of wind up to 60 mph. Well today will be fun at work. I guess I've lived long enough … This is terrifying.”

South Bend was under a wind advisory that day, with gusts reaching 51 mph, according to the National Weather Service. * * *

“I wonder whether anybody from the university or OSHA will delve into what role the pervasive football culture at Notre Dame played in putting Sullivan high atop that scissor lift,” Chicago Tribune sports columnist David Haugh wrote Friday. * * *

The university's risk management and safety department website states the department is responsible for arranging training for all authorized users of scissor lifts and other aerial lifts on campus. The document is dated January 2007.

The site includes a waiver and indemnification agreement users apparently are required to sign before operating a lift. The waiver states the signer has knowingly and voluntarily accepted certain risks inherent in operating such equipment, including the possibility of injury or death.

Posted by Marcia Oddi on Saturday, November 06, 2010
Posted to Indiana Law

Friday, November 05, 2010

Ind. Courts - "Supreme Court digs into Elkhart murder case"

Oral argument was heard before the Supreme Court yesterday in Kevin Taylor v. State of Indiana. From a story by Justin Leighty of the Elkhart Truth:

GOSHEN -- The five justices of the Indiana Supreme Court listened Thursday to whether they ought to send Kevin Taylor's case back to a Goshen courtroom for a new trial.

Three of the five justices commented that the case, a complicated one, was unique.

"In my experience here this case is one-of-a-kind, where a man has been convicted of an offense where the jury hasn't even been instructed on the offense in the first place," said Justice Frank Sullivan. * * *

Justice Robert Rucker called the case "rather fascinating," while his colleague, Justice Brent Dixon, said it raised "intriguing issues."

One of those is that the jury heard the specific elements of the crime twice, just not in final instructions. "The jury did get the definition of robbery, just not from the trial court," argued Stephen Creason, deputy attorney general. "This might be a different case if the state had misinformed the jury of what robbery is," he said.

However, the justices dwelt heavily on whether they should deny a new trial to Taylor when Thomas got a repeat under the exact same circumstances.

"I think that makes an open-and-shut case," argued Ken Martin of Goshen, Taylor's appeal attorney.

Sullivan asked Creason, "How do we rationalize Mr. Thomas getting his conviction reversed because the jury was not told by the court the elements or robbery, and Mr. Taylor not?"

Creason responded, "The short answer to that is that the court of appeals was incorrect in the Thomas case."

Chief Justice Randall Shepard asked if Creason suggested they put on blinders to the appeals court's decision in that case, but Creason said the events of that case prove the appeals court made a mistake.

"I think the Court of Appeals is proven wrong, in fact, by Thomas' retrial and reconviction and affirmance on appeal," he said.

Watch the oral argument here. See this "Upcoming Oral Arguments" entry from Monday for more information.

Posted by Marcia Oddi on Friday, November 05, 2010
Posted to Indiana Courts

Ind. Courts - "High court hears backfired appeal arguments "

The Supreme Court heard oral argument yesterday in the case of Jeffrey Akard v. State of Indiana. From an earlier ILB entry:

The Supreme Court held last March in McCullough v. State that appellate courts have the power to revise sentences upward on appeal, and this is the first case in which the power was exercised. See this ILB entry from Sept. 13, 2010 for copies of the briefs. Here is the March 30, 2010 COA opinion summary. See also this March 31st ILB entry headed "Appeal backfires on convicted rapist."
The argument is well worth watching online, there are several not-to-be-missed sequences, especially if you expect to participate in an argument in the coming months.

Two reporters covered the argument yesterday, Dan Carden of the NWI Times, and Sophia Voravong of the Lafayette Journal Courier.

Posted by Marcia Oddi on Friday, November 05, 2010
Posted to Indiana Courts

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

For publication opinions today (1):

In S.A. v. Review Board , a 6-page opinion in a case with a pro se appellant, Judge Crone writes:

S.A., who was laid off from her job at Daimler Chrysler, accepted an early retirement package, and her unemployment benefits were suspended. Although S.A. felt pressured to accept the retirement package, we agree with the Review Board of the Indiana Department of Workforce Development (“the Board”) that her acceptance of the package made her ineligible to continue receiving unemployment benefits. Therefore, we affirm the Board’s decision.
[ILB] There is no explanation in this opinion of why appellant is identified only as "S.A." Note that in the Review Board case cited in the last paragraph, the employee is named:
We acknowledge that S.A. felt pressured to retire. However, her case is strikingly similar to York v. Review Board of the Indiana Employment Security Division, in which we held that an employee who accepted an early retirement package left employment without good cause in connection with the work.
NFP civil opinions today (4):

Deana Crickmore v. John R. Crickmore (NFP)

Robin L. Rashin v. Mark W. Rashin (NFP)

Jeanette Daniels, et al. v. Hidden Bay Homeowners Association, Inc., et al. (NFP)

In the Guardianship of Z.E.; A.G., et al. v. A.G., et al. (NFP)

NFP criminal opinions today (1):

Antonio M. Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 05, 2010
Posted to Ind. App.Ct. Decisions

Ind. Courts - Still more on: Another "traffic court judges behaving badly" story

Updating this ILB entry from Nov. 4th, Deanna Dewberry of WISHTV 8 last evening "sat down with the chief judge of the Indiana Court of Appeals to talk to him about why he believes city and town courts should be abolished." In the interview, Chief Judge John Baker talks about "A New Way Forward," the Indiana Judicial Conference's strategic plan to reform the courts, which invcludes abolishing city courts. From the WISHTV story:

Chief Judge of the Indiana Court of Appeals, John Baker, said he'd like to see city and town courts go away "yesterday."

Judge Baker is one of nine judges serving on the Strategic Planning Committee, a group of judges trying to reform Indiana's court system.

"Our research indicates there are 75 city and town courts across the state. Thirty-nine have lawyers as judges. The rest do not," said Baker.

That means 36 have judges with likely no law training at all. And while Judge Baker says many city and town courts have honorable, hard working judges, he believes city and town courts often duplicate services.

“In some communities we have a court that handles traffic offenses; whereas, in another court system in the same community they have another court that can do the same thing," said Baker.

He says he worries about the expense of the inefficiencies. The possibility of justice being ill-served in courts where judges are poorly trained worries him.

"We are fearful that people are sometimes not exposed to the quality of justice that they're entitled to," said Baker.

Chief Judge Baker and others on his committee plan to push for the passage of legislation this session that will require all judges have law training. He says the bill should also make the court system easier to navigate by giving judges equal jurisdiction.

Posted by Marcia Oddi on Friday, November 05, 2010
Posted to Indiana Courts

Thursday, November 04, 2010

Ind. Courts - More on: NCAA issues sent by 7th Circuit to the Indiana Supreme Court

This Oct. 18, 2010 ILB entry quotes a 7th Circuit opinion on the question of: Does the NCAA's system of distributing Final Four tickets constitutes an illegal lottery? The 7th Circuit, in a per curiam opinion, wrote:

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:
In a 2-page order dated Oct. 29, 2010, but only posted within the last day or two, the Indiana Supreme Court accepts the certified questions, pursuant to Ind. App. Rule 64. Briefing and other details follow.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Ind. (7th Cir.) Decisions

Indd. Decisions - "Judge: DOC Violating Law By Not Offering Kosher Meals"

From Indy 6 News:

INDIANAPOLIS -- A federal judge has ruled the Indiana Department of Correction is violating the law by not offering kosher meals to prison inmates whose religious beliefs require it. * * *

Judge Jane Magnus-Stinson this week ruled in favor of inmate Matson Willis, finding that the department's handling of the issue had violated his religious rights.

Here is the 28-page opinion in Willis et al. v. Comm., IDOC. Some quotes:
The DOC has failed to meet its burden of persuasion to show a compelling government interest under RLUIPA, an essential element for which it bears the burden. Summary judgment for the Plaintiffs is therefore appropriate on this basis alone. * * *

[E]ven if cost reduction alone were a compelling government interest, DOC has not met its burden of demonstrating that it considered and rejected the many obvious alternatives, and that no feasible less restrictive means existed to achieve that interest. 42 U.S.C. § 2000cc-1(a). On this evidentiary record, the Court has no choice but to find that, as a matter of law, the termination of kosher diets violated RLUIPA, 42 U.S.C. § 2000cc-1(a), and the Court must grant summary judgment in favor of the Plaintiffs.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Marion County Prosecutor's office prepares for transition

See the story here from WTHR 13 News. A sample:

Thursday morning, Curry met with outgoing Republican incumbent Carl Brizzi to talk about the transition. Curry says he hopes to have a team in place in the next week or so. Curry will take over several high-profile cases including the one involving IMPD Officer David Bisard.

Curry also says he plans to implement some new office rules, for one, requiring all employees in his office to live in Marion County "because employees of the office draw salaries from Marion County and should live here, be paying taxes here and engaging in the community. I understand there are a number who do not live in Marion County and do not anticipate making them leave January first, but it will be a priority for hiring and attorneys and non-attorneys out of Marion County."

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Indiana Government

Courts - Indiana case on "Petitions to Watch" list

On SCOTUSblog's "Petitions to Watch" list for the Court's Nov. 5th conference, the Indiana case of Bill K. Wilson, Superintendent, Indiana State Prison, Petitioner v. Joseph E. Corcoran, with the issues:

Whether a state capital defendant has a constitutional right to a sentencing decision that is not informed by facts that are neither elements of his crime or aggravated circumstances authorized by statute, and, if so, whether a federal court may grant habeas relief based on its own finding that the state trial court improperly considered non-statutory factors when imposing its sentence.
The blog's entry for the case, which is the very last on its list, includes links to the 7th Circuit opinion, the cert petition, etc. Here is the Supreme Court entry for No. 10-91.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Courts in general | Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In DBL Axel LLC v. Lasalle Bank National Association , a 15-page opinion, Judge Brown writes:

In this interlocutory appeal, DBL Axel, LLC (“DBL”) appeals the trial court's Order Directing Immediate Turnover of Funds (the “Order Directing Turnover”) in favor of LaSalle Bank National Association, Trustee (the “Trustee”) for Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC14, Commercial Mortgage Pass Through Certificates, Series 2006-CIBC14, (“J.P. Morgan”) acting by and through its Special Servicer, Midland Loan Services, Inc (“Midland”). DBL raises one issue, which we revise and restate as whether DBL's constitutional due process rights were violated when the trial court granted the Trustee's motion for turnover of funds and issued its Order Directing Turnover. We affirm and remand.
In Bruce R. Fox v. Dennis Rice and West Central Community Corrections , a 17-page opinion, Judge Robb writes:
Bruce Robert Fox appeals the trial court's grant of summary judgment in favor of West Central Community Corrections (“WCCC”) on Fox's claims of false arrest, false imprisonment, violation of rights under the Indiana Constitution and, pursuant to 42 U.S.C. section 1983, under the Fourth Amendment to the United States Constitution. Fox raises three issues for our review, which we restate as: 1) whether the trial court erred when it concluded the tort claim notice period expired before Fox filed his notice, 2) whether Fox's probation was revoked or tolled while he was imprisoned on other charges, and 3) whether WCCC caused Fox's allegedly false imprisonment.

We hold the tort claim notice period expired before Fox filed his notice and therefore whether Fox's probation was revoked or tolled has no bearing on the summary judgment order before us. We also hold Fox's federal claim does not contain a genuine issue of material fact, and therefore affirm the trial court's entry of summary judgment in favor of WCCC. * * *

Based on the facts and law above, Fox's state law claims against WCCC are barred by the notice requirement of the ITCA, and Fox's federal claim does not contain a genuine issue of material fact. Therefore, the trial court's summary judgment orders are affirmed.

NFP civil opinions today (2):

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

Kenneth Mitan v. Richard E. Deckard Family Limited Partnership #206 (NFP)

NFP criminal opinions today (3):

In the Matter of the Guardianship of Azzie Justice v. Garnet S. Justice (NFP)

Linda Chiesi v. State of Indiana (NFP)

Nickolas Sandifer v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Ind. App.Ct. Decisions

Law - "$103 million verdict against Baker & McKenzie"

Julie Wernau reported in the Chicago Tribune on Oct. 26, 2010 in a story that begins:

A $103 million verdict was returned against Chicago-based Baker & McKenzie and one of its attorneys by a Jones County, Miss., jury.

The case centers on Joel Held, a Baker & McKenzie attorney based in Dallas, who represented both sides of an oil-rig-drilling business that turned sour for one client while benefiting the other, according to court documents.

A spokesman for Baker & McKenzie said the law firm strongly disagrees with the verdict.

"We are confident we acted in a manner that was entirely consistent with our professional obligations and that no harm was done to the plaintiffs," Baker and McKenzie said in a statement. "We will continue to argue our position vigorously and expect we will be vindicated. As this is a pending legal matter, we will have no further comment at this time."

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to General Law Related

Ind. Gov't. - "Duke CEO denies any inappropriate contact between utility and former regulatory official" [Updated]

Updating yesterday's ILB entry, here is a report in the LCJ based on Indianapolis Star and AP dispatches. It begins:

INDIANAPOLIS — Duke Energy's top executive told an Indiana regulatory commission Wednesday that he's confident the panel's former top attorney exerted no influence on decisions regarding the $3 billion coal gasification plant the utility is building.

Duke chief executive Jim Rogers appeared before the Indiana Utility Regulatory Commission to discuss an ethics dispute involving the Charlotte, N.C.-based company and Indiana regulators.

Former commission general counsel Scott Storms faces an ethics complaint for continuing to preside over some matters involving the utility while seeking a job with the company.

Rogers says he believes Storms didn't influence any decisions regarding Duke and its Edwardsport plant and that there was no inappropriate contact regarding the plant.

The state inspector general’s office filed a complaint last month alleging that Storms broke state ethics law by having a financial interest in the outcome of cases involving Duke while he pursued a job with the company. Storms in July approved Duke’s request to have its customers pay for cost overruns on the plant.

[Updated at 4:51 pm] A later Star story is headed: "Consumer office continues to back Duke's coal-gasification plant construction." Some quotes:
The Indiana state office that represents the interests of utility consumers said it continues to support Duke Energy Corp.'s massive coal-gasification plant in Edwardsport, despite the project's soaring costs.

David Stippler, Indiana's utility consumer counselor, told state regulators Wednesday that Indiana will need more electrical power in coming years, and that Duke's plan to tap into the state's abundant coal reserves is still the right way to go. * * *

Stippler said shutting down the construction project now, as some environmental groups are demanding, would be irresponsible. He said the state's economic growth depends on using local coal "God gave us" to provide power.

"I think those would be terrible sins to commit. . . . I think it would be unforgivable," said Stippler, who was appointed by Gov. Mitch Daniels.

The plant's cost has soared from an original estimate of $1.6 billion to $2.9 billion, much of which will be passed along to customers in the form of higher electric bills. * * *

Meanwhile, a coalition of environmental and citizens groups called on the IURC to launch an investigation into whether Duke committed fraud, concealed facts or committed gross mismanagement in allowing the plant's costs to skyrocket. If so, the costs incurred to build the plant should not be passed along to customers, said Michael Mullett, an attorney representing the Sierra Club, Citizens Action Coalition, Save the Valley and Valley Watch.

He said the plant's costs have soared to nearly $5,000 per kilowatt hour of generating capacity, which would make it one of the most expensive fossil fuel power plants ever.

And that cost could rise an additional 30 percent if Duke eventually adds technology to capture and dispose of carbon dioxide. Duke, one of the nation's largest corporate emitters of carbon, has said the plant is expected to emit about 4 million tons of carbon dioxide a year, and it is still studying ways to capture and store the emissions, although it has no immediate plans to do so.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Indiana Government

Courts - More on: "In Iowa, Voters Oust Judges Over Marriage Issue"

Updating yesterday's ILB entry, there are a number of stories today.

A.G. Sulzberger of the NY Times has a lengthy reaction story. From within the story:

From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality.

That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage.

But the risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday when voters chose to remove all three justices who were on the ballot seeking new terms.

Conservative groups this year launched similar campaigns in a number of the 16 states that use merit selection, targeting supreme court justices for rulings on abortion, taxes, tort reform and health care. Unlike the three in Iowa, however, those judges — in Alaska, Colorado, Kansas, Illinois and Florida — were all re-elected.

The number of challenges and the success of the effort in Iowa has caused some concern that retention elections designed to be as apolitical as possible are becoming as bitterly contested as other races. This year far more was spent on campaigns in retention elections than was spent in the entire previous decade, according to the Brennan Center for Justice at New York University Law School.

The ouster was reminiscent of a retention election in California in 1986 that led to the removal of three Supreme Court justices who were portrayed as opposing the death penalty.

“Obviously it has an impact on the independence of judges and how they think of their role — I think that’s demonstrable,” said Joseph R. Grodin, a law professor who was one of the three California judges who lost a re-election bid. “But more than that,” he continued, “I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes.”

Another quote:
“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”
How Appealing has collected several stories here.

"Judgeless in Iowa: Making Sense of Tuesday’s Judicial Ouster"
is the heading of an entry in the WSJ Law Blog that includes a worth reading interview with Todd Pettys, a law professor at the University of Iowa.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Courts in general

Ind. Gov't. - "Attorney is twice a witness to Lake Republican history"

Neat story today in the NWI Times, by Bill Dolan. It begins:

SCHERERVILLE | Dennis Stanton, 74, a Schererville attorney, has personally known the only two Republicans to win a countywide election in Lake County in the last 60 years.

One was his father, David P. Stanton, who defeated Democrat Ben Schwartz in 1950 to become prosecutor following a bribery scandal in that office.

The other was Hank Adams, who Stanton recruited into politics and who is the unofficial winner in the race for county assessor Tuesday.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Indiana Government

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

Updating this ILB entry from Oct. 29th, Deanna Dewberry of WISHTV 8 had a story Wednesday evening headed "Mayor backs judge in parking hypocrisy." It concludes:

Thursday, we take you to the Indiana Supreme Court to show you how to file a complaint if you believe a judge has treated you unfairly. And we sit down with the chief judge of the Indiana Court of Appeals to talk to him about why he believes city and town courts should be abolished.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Indiana Courts

Courts - Ruling 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" (a preliminary injunction),and this Aug. 29th entry where the ILB compared the Kansas and Indiana selection systems, Roxana Hegeman of the Kansas City Star reports today in a story that begins:

WICHITA, Kan. | A federal judge on Wednesday tossed out a constitutional challenge to the way Kansas nominates its appellate justices, ruling that it’s not his job to weigh in on the debate over whether participants in the process should be popularly elected.

The decision by U.S. District Judge Monti Belot comes just two days after the governor filled a vacancy on the Kansas Supreme Court. It also comes a day after voters retained, by margins of 60 percent or better, all four Supreme Court justices who were on the ballot — a fact Belot noted in making his ruling.

The judicial nomination dispute is expected to resurface in the Legislature, where anti-abortion forces are coalescing in a move to change the state Constitution which set out the process.

Later in the story:
At issue is a process created more than a half-century ago that uses a nine-person nominating commission to fill vacancies on the Kansas Supreme Court and appellate courts. Lawyers elect five of those nine commission members.

The lawsuit in Kansas was filed by Indiana-based attorney James Bopp Jr., who last year represented three Alaska voters who challenged a similar selection process in that state. A federal judge dismissed the Alaska lawsuit in a decision that has been appealed.

Posted by Marcia Oddi on Thursday, November 04, 2010
Posted to Courts in general

Wednesday, November 03, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In James K. Oberst v. State of Indiana, a 14-page opinion, Judge Vaidik writes:

James K. Oberst appeals the post-conviction court's denial of his petition for post-conviction relief. He contends that his trial counsel was ineffective on several grounds, including allowing him to give a statement that he had sexual intercourse with the victim to police in counsel's presence. Because Oberst gave this statement to police in counsel's presence before adversary criminal proceedings had been initiated, Oberst had no Sixth Amendment right to counsel and therefore no right to the effective assistance of counsel. Finding no other instances of ineffective assistance of counsel, we affirm the post-conviction court.
NFP civil opinions today (0):

NFP criminal opinions today (3):

State of Indiana v. Jermain Blue (NFP)

Doris Mitchell v. State of Indiana (NFP)

Kareen Dunn v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Watch Duke Energy this morning before the IURC

From the IURC:

The Technical Conference in the Duke Energy proceeding (Cause No. 43114 IGCC4-S1) will be webcast at 9:00 a.m. EDT on Wednesday, November 3rd.

To view the webcast, please click here.

To view the docket entry announcing the Technical Conference, please click here

See yesterday's comprehensive story by John Russell of the Indianapolis Star, headlined "Ethics flap has spotlight back on Duke project," here. A quote:
The issue is sure to come up Wednesday when Duke's chief executive, James Rogers, appears before state regulators in Indianapolis to justify the project in the wake of an ethics flap.

Two months ago, the utility placed two top officials on leave amid conflict-of-interest concerns over the relationship between the company and state regulators. The same day, Gov. Mitch Daniels fired the chairman of the Indiana Utility Regulatory Commission, David Hardy, saying he knew about the conflict and failed to address it.

The ethics issue has cast a shadow over the state's regulatory decisions regarding the Edwardsport plant. Now the state is conducting an audit of those decisions dating to 2006.

In the meantime, the review is reigniting a larger debate over whether the plant is needed, whether the technology is proven, and what the final price tag will be.

A parade of witnesses is set to testify during Wednesday's meeting, which begins at 9 a.m. at the PNC Center Downtown, 101 W. Washington St.

[Update at 9:10 am] OR MAYBE NOT! I saw it for a few seconds and now nothing.

[9:52 am] Now on "standby" with a photo of the Statehouse. Really, this is the agency that has all the engineers and determines our telecommunications policy?

[9:56 am] Back again, at least for the moment. Rogers is saying the prudent thing is to build a coal plant now -- because EPA, through NSR, may not permit new coal plants in future. All we could replace it with would be gas. In answer to a question, no, carbon sequestation not yet addressed.

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Indiana Government

Ind. Courts - "Delaware County Prosecutor Could Face Sanctions From Supreme Court"

A 6News report last evening by Derrik Thomas confusingly muddled together, IMHO, two different aspects of the Mark McKinney story. One is the Brief on Sanctions filed by the Indiana Supreme Court Disciplinary Commission, that the ILB reported on in this Nov. 1st entry. That concerns the disciplinary case pending against McKinney in the Supreme Court, where the hearing officer has recommended a reprimand, not a suspension..

The second is a story reported by the ILB on June 9, 2010, headed "Delaware Prosecutor McKinney now object of two lawsuits." The story at the time by Douglas Walker of the Muncie Star-Press began:

MUNCIE -- Attorneys for four convicted felons filed suit Tuesday against Delaware County Prosecutor Mark McKinney over "confidential settlement agreements" that saw the plaintiffs surrender cash and other assets to the Muncie-Delaware County Drug Task Force "while under threat of prosecution."

Also named as defendants in the lawsuit -- which the lawyers seek to expand into a class action suit, potentially on behalf of scores of defendants in local drug cases -- are Delaware County, the city of Muncie and McKinney's predecessor as prosecutor, Richard Reed.

The suit, filed late Tuesday afternoon in Delaware Circuit Court 2, alleges local law enforcement agencies, "working with the county prosecutor, have been taking property from certain criminal suspects in violation of their due process rights."

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Indiana Courts

Ind. Gov't. - "Inquiry looms as Charlie White wins secretary of state's job"

Carrie Ritchie has this report on the front page of this morning's Indianapolis Star. Some quotes:

Questions of alleged voting irregularities didn't keep Republican Charlie White from winning election Tuesday as Indiana's next secretary of state, the state's chief elections official.

But questions will remain as he prepares to take office.

Two special prosecutors are investigating White's voting records in Hamilton County, focusing on whether he broke the law by voting in the May 4 primary from a former address in Fishers.

Intentionally voting in a precinct where you don't live can be a felony under Indiana law -- and if charged and convicted of a felony, White would have to give up the position that he won by a wide margin Tuesday.

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Indiana Government

Ind. Courts - "Davis earns victory over 3-term judge: Scheibenberger’s tenure ends"

Updating this Oct. 29th ILB entry headed "Heated election battle for Allen County Superior Court Judge continues," Rebecca S. Green of the Fort Wayne Journal Gazette reports today:

After a series of back-and-forth accusations between the campaigns, Wendy Davis won the race for Allen County Superior Court judge, defeating longtime incumbent Judge Ken Scheibenberger.

Davis pulled in roughly 47 percent of the votes, followed closely by Scheibenberger, who snagged 42 percent, according to the unofficial results from the Allen County Board of Elections. Lewis Griffin finished a distant third with 11 percent. * * *

First appointed to the bench in 1991 by then-Gov. Evan Bayh, Scheibenberger is finishing his third term on the bench.

But his nearly 20 years wearing judicial robes have been far from controversy-free, especially in recent years, with a suspension from the Indiana Supreme Court and other publicized troubles.

Those cracks in his armor made him ripe for a challenge. By contrast, none of the three other Superior Court races were contested.

The three candidates appeared at forums, debates and parades in an effort to attract voter attention, which was made more difficult by Allen County’s $10,000 spending limit on non-partisan judicial races.

The rules governing judicial behavior also place prohibitions on campaigning, limiting what candidates can say about each other and what they would do if they were elected.

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Indiana Courts

Courts - "In Iowa, Voters Oust Judges Over Marriage Issue"

A.G. Sulzberger reports this morning in the NY Times in a lengthy story:

DES MOINES — In a rebuke of the state supreme court with implications for judicial elections across the country, voters here removed three justices who participated in a ruling last year that made the state the first in the Midwest to permit same-sex marriage. * * *

Each of the three judges received about 45-46 percent support with 91 percent of precincts reporting, according to The Associated Press, marking the first time members of Iowa’s high court had been rejected by voters. Under the system used here, judges face no opponents and simply need to win more yes votes than no votes to win another eight-year term.

Financed largely by out-of-state organizations opposed to gay marriage, those pushing against the judges were successful in turning the vote into a referendum on the divisive issue. * * *

Though the Iowa election was the most prominent, similar ouster campaigns were launched in other states against state supreme court justices running unopposed in retention elections whose rulings on matters involving abortion, taxes, tort reform and health care had upset conservatives. * * *

The defeat was a bitter disappointment to much of the legal community here, which rallied behind the three justices arguing that judicial standards require judges to follow their interpretation of the law and not their reading of public opinion. They had urged voters to consider issues like competence and temperament rather than a single issue when casting ballots.

The three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — did not raise money to campaign and only toward the end of the election did they make public appearances to defend themselves.

See this earlier ILB entry from Oct. 26, 2010. Illinois Supreme Court Chief Justice Thomas Kilbride, who is also mentioned in that entry, won retention, according to the Chicago Tribune. That story by Monique Garcia begins:
Illinois Supreme Court Chief Justice Thomas Kilbride on Tuesday faced down a well-funded and concerted effort by interests backing caps on jury awards in malpractice cases.

Kilbride declared victory late Tuesday. He had 65 percent of the vote with 74 percent of precincts reporting, according to unofficial election results in his 21-county district stretching from Naperville to the Mississippi River. He needed to clear 60 percent to keep the post for a second 10-year term.

[More] Here is this morning's story in the DesMoines Register, reported by Grant Schulte. Some quotes:
Three Iowa Supreme Court justices lost their seats Tuesday in a historic upset fueled by their 2009 decision that allowed same-sex couples to marry.

Vote totals from 96 percent of Iowa's 1,774 precincts showed Chief Justice Marsha Ternus and Justices David Baker and Michael Streit with less than the simple majority needed to stay on the bench.

Their removal marked the first time an Iowa Supreme Court justice has not been retained since 1962, when the merit selection and retention system for judges was adopted. * * *

The retention challenge triggered a battle never seen in Iowa's judicial history. Television, radio and Internet ads portrayed the justices as both activists and referees. Robo-calls urged a "no" vote. U.S. Rep. Steve King embarked on a statewide bus tour to rally "no" voters.

Supporters of the justices included former governors Robert Ray, a Republican, and Democrat Tom Vilsack, and other prominent figures in government.

Supporters of the justices considered the attacks an affront to the integrity of Iowa's courts and how justices are selected

Posted by Marcia Oddi on Wednesday, November 03, 2010
Posted to Courts in general

Tuesday, November 02, 2010

Environment - More on "Wind turbines can bring financial windfall"

Or not.

An August 9, 2010 story by Diane Krieger Spivak of the Gary Post-Tribune, quoted here by the ILB, talks in detail about a proposed Windlaw wind turbine project in southern Lake County:

Aussie-based global wind energy development company Windlab has identified the area north of the Kankakee River and just west of the Porter County line as prime wind-generating property.
There was talk of thousands of dollars per year per turbine and thousands of turbines.

But on Oct. 22, Ms.Spivak had a second story, headlined "Plan for turbines gone with the wind: Effect on drainage into Kankakee River is the main reason." Some quotes:

Plans for a $2 billion alternative energy wind farm in south Lake County blew away this week when the company that would have built the nearly 200-turbine wind park east of Lowell pulled out.

Steve Arwood, U.S. regional director for Windlab, a wind energy development company with offices in Australia, South Africa, Canada and Michigan, confirmed the company had withdrawn its plans for Eagle Creek Wind Park.

"We are still in the process of properly notifying landowners," Arwood said.

Two reasons spelled the demise of the plan -- the Kankakee River drainage system and residential growth in the area, Arwood said,

"The Kankakee River drainage system is very involved and upon internal reviews we decided that being able to construct a successful wind farm is probably not feasible," Arwood said. "We'd be potentially disruptive to that drainage. That's really it."

The southern tip of the 23,000-acre wind farm would have stopped a mile north of the river.

Arwood said extremely detailed engineering necessary for land and drainage, ditching and piling necessary to install the huge 225-feet turbines, along with growth in residential areas to the north, led Windlab to determine the project, as it originally envisioned, "was not something we wanted to pursue."

More from later in the story:
John Bryant Jr., who was on a three-member committee representing property owners, said landowners had committed several thousand acres to the project.

"They had signed up some property owners already and paid them, and they paid our attorney (Blaney)," Bryant said.

Bryant, who would have hosted seven of the turbines on his property at a minimum of $12,500 a year each, took the news in stride.

Posted by Marcia Oddi on Tuesday, November 02, 2010
Posted to Environment

Ind. Decisions - No Indiana cases today, but Judge Posner writes on class actions

In Thorogood v. Sears Roebuck, a 29-page opinion (including an Appendix beginning at p. 26) reversing and remanding a case out of ND Illinois, Judge Posner writes on "virtually identical class action suits." Some quotes, beginning at p. 12:

The class action is a worthwhile device for economizing on the expense of litigation and enabling small claims, illustrated by Thorogood’s claim, capped at $3,000, to be litigated at all (though when the claim is deceptive advertising, a proceeding before the Federal Trade Commission is a more economical alternative to a class action suit). But the device also lends itself to abuse. As Judge Friendly pointed out many years ago, class members are interested in relief for the class but the lawyers are primarily interested in their fees, and the class members’ stakes in the litigation are ordinarily (and in the present case or cases) too small to motivate them to supervise the lawyers in an effort to align the lawyers’ incentives with their own. Saylor v. Lindsley, 456 F.2d 896, 900-01 (2d Cir. 1972). Defendants, wanting to minimize the sum of the damages they pay the class and the fees they pay the class counsel, are willing to trade small damages for high attorneys’ fees, especially since, as Judge Friendly put it in another case, “a juicy bird in the hand is worth more than the vision of a much larger one in the bush, attainable only after years of effort not currently compensated and possibly a mirage.” Alleghany Corp. v. Kirby, 333 F.2d 327, 347 (2d Cir. 1964) (dissenting opinion). These convergent incentives forge a community of interest between class counsel, who control the plaintiff’s side of the case, and the defendants, but may leave the class members out in the cold.
At p. 20:
Abuse of litigation is a conventional ground for the issuance of an injunction under the All Writs Act, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984), because without an injunction a defendant might have to plead the defense of res judicata or collateral estoppel in a myriad of jurisdictions in order to ward off a judgment, and would be helpless against settlement extortion if a valid such defense were mistakenly rejected by a trial court.

So Sears is entitled to an injunction. But we must be careful about precisely who and what are to be enjoined. Sears wants to enjoin all members of the class that was decertified pursuant to our decision in Thorogood’s case, plus their lawyers. The lawyers should indeed be included in the injunction, as has been done in other cases. See In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, supra, 333 F.3d at 769; Newby v. Enron Corp., 302 F.3d 295, 300-03 (5th Cir. 2002) (the “district court had authority under the All Writs Act to enjoin [the law firm] from filing future state court actions without its permission and did not abuse its discretion in doing so”); In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 271 F. Supp. 2d 1080 (S.D. Ind. 2003), on remand from 333 F.3d 763 (7th Cir. 2003) (“ ‘all members of the putative national classes . . . , and their lawyers,’ are hereby prohibited ‘from again attempting to have nationwide classes certified over defendants’ opposition with respect to the same claims’ ”) (emphasis added) (the interior quotation is from this court’s opinion in In re Bridgestone/Firestone); cf. Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, 589 F.3d 835, 837 (6th Cir. 2009). If Krislov and the other class counsel are not enjoined, they will continue their state-bystate quest for certification and will doubtless be able to find at least one lead plaintiff in every state.

Posted by Marcia Oddi on Tuesday, November 02, 2010
Posted to Ind. (7th Cir.) Decisions

Environment - More on "Shuttered EPA libraries to open doors tomorrow after two years"

That was the heading to this ILB entry from Sept. 30, 2008. Now the GAO has put out a 40-page report headed "EPA Needs to Complete a Strategy for Its Library Network to Meet Users' Needs." See this overview.

Posted by Marcia Oddi on Tuesday, November 02, 2010
Posted to Environment

Law - "Split Court Denies Rehearing En Banc in Sun Pharmaceuticals v. Eli Lilly"

I've posted a link to this story by contributing author Jason Rantanen in the blog Patently-O, run by Dennis Crouch, Associate Professor, University of Missouri School of Law, mainly to call readers attention to this blog, if you are at all interested in patent law.

The blog also has an entry on the Myriad case I blogged about here yesterday.

Posted by Marcia Oddi on Tuesday, November 02, 2010
Posted to General Law Related

Ind. Courts - Hamilton Superior Court Judge William Hughes arrested on DUI charge

There are a number of reports from last evening and this morning that Judge Hughes was arrested in North Carolina last week on a DUI. According to this Indianapolis Star report, Judge Hughes sent out a news release to the media yesterday with that announcement. More from the Star:

A longtime Hamilton County judge was arrested on a drunken-driving charge last week while vacationing in the Outer Banks of North Carolina.

Hamilton Superior Court Judge William Hughes, who is presiding over the Carmel High School basketball hazing cases and former money manager Marcus Schrenker's divorce, was arrested at 5:45 p.m. Wednesday, according to a news release Hughes sent to the media. Hughes, 55, was charged in Currituck County with drunken driving and driving left of center, the release said.

He did not provide details of what led to his arrest but said he has already reported it to the Judicial Qualifications Committee for review. * * *

He is scheduled for a preliminary hearing Jan. 24. The drunken-driving charge is a misdemeanor, and driving left of center appears to be a traffic infraction.

The Republican judge has presided over Hamilton Superior Court 3 since 1997. His term will expire at the end of 2012.

Posted by Marcia Oddi on Tuesday, November 02, 2010
Posted to Indiana Courts

Monday, November 01, 2010

Ind. Law - Forbes: "Sullivan's Death Could Cost Notre Dame $30 Million" [Updated]

Patrick Rishe of Forbes' SportsMoney blog has late this afternoon posted a long, detailed analysis that begins:

If found guilty of negligent behavior and if the degree of fault rests predominantly in the university’s lap, Notre Dame could face compensatory damages in the $15M to $20M range in the aftermath of Declan Sullivan’s tragic death. And if punitive damages are also levied upon the university, the price tag associated with Mr. Sullivan’s passing could increase by an additional $45M-$60M if penalized to the maximum allowable amount under Indiana law.
[Updated 11/2/10 am] A reader has just sent this note:
Just an observation—was the Notre Dame student a university employee? Will remedies against the university (i.e., employer) be limited to worker’s compensation? I haven’t a clue about the underlying facts (nor may anyone else at this point), but I wondered whether the Forbes piece was a little overheated until more facts come to light.
BTW, the ILB sent this response to the reader:
Thanks for the observation. I have added it to the entry as a note from a reader. I hesitated to post the story last evening because I thought it was "jumping the gun," but did so anyway because of the Forbes label -- I hoped for reactions.
[More] More from the reader:
Honestly, my first reaction was, uh-oh, open the bank, and then I recalled that Indiana law isn’t particularly generous to single adults without dependents from a wrongful death perspective and, as I thought about it further, it occurred that he might simply have been on the payroll and the remedies would be restricted to the even less generous w/c benefits. That’s why I was startled a bit by the Forbes story.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Law

Courts - Another example of a juror behaving badly

The WSJ Law Blog has the entertaining version this afternoon.

William Glaberson's NY Times story takes the more serious approach, with the headline "Alternate Juror’s Note Complicates Death-Penalty Case," in what was really a horrific case.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Courts in general

Ind. Courts - More on "Judge David recommends reprimand, not suspension, for McKinney"

This ILB entry from Oct. 2, 2010 quoted Douglas Walker's comprehensive story in the Muncie Star-Press - here are some pertinent parts:

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. [ILB: Judge David served as hearing officer] * * *

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.

Then-Judge David's 25-page ruling is available here, via the Star-Press.

A Brief on Sanction has now been filed by the Indiana Supreme Court Disciplinary Commission. It is 12-pages long, apparently filed Oct. 29, 2010. It concludes:

The Hearing Officer's findings are clear that Mark McKinney's misconduct was long and continuous in pursuing civil forfeiture cases on a for-profit basis to augment his personal income while willfully ignoring the potential negative impact his actions might have against his primary client, the State of Indiana. The misconduct at issue here is serious and of long standing. The Hearing Officer's Findings of Fact and Conclusions of Law are clear and unequivocal; this respondent violated the law remorselessly. When viewed in the light of prior cases involving misconduct by prosecutors, the Hearing Officer's recommendation of a public reprimand seems inappropriately low. Based on the prior cases, the Commission submits that a more appropriate resolution to this case would be to suspend the respondent indefinitely with leave to apply for reinstatement in no less than one year.

WHEREFORE, the Commission respectfully prays for a sanction as described in the foregoing paragraph and for all other relief just and proper.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Courts

Ind. Gov't. - Three health insurance stories of interest

(1) "Insurance 'death spirals' remain full of life: State seems at a loss to keep companies from closing plans, which drives up premiums" is the headline to a lengthy, front-page story today by Daniel Lee of the Indianapolis Star. A few quotes:

Nicholas Peppler, Fort Wayne, was healthy and only 23 years old, but he appeared to be in the beginning of a death spiral. * * *

Peppler discovered evidence of a death spiral in January, when Anthem, part of Indianapolis-based health insurance giant WellPoint, notified him that his premium payment would rise by 32 percent -- far more than the estimated 17 percent or less for similar Anthem plans.

His father, an actuary who understood the inner workings of the individual health insurance market, filed a complaint with the Indiana Department of Insurance.

Said the father, David Peppler: "I just kind of wanted them to hold Anthem's feet to the fire."

But the Department of Insurance upheld Anthem's hefty rate hike.

The decision reveals weaknesses in the way Indiana and many other states regulate the individual health insurance industry. Untold thousands of Hoosiers are paying a price for the state's inability or unwillingness to deal with closed-block death spirals.

Insurance regulators here are aware of the problem, but they admit they do not have the answers. And even if they did, some say they are not adequately staffed to carry them out. * * *

So, for the foreseeable future, death spirals appear to be a fact of life in Indiana. * * *

The individual insurance market will fundamentally change as part of health-care reform -- including in 2014 the creation of exchanges for consumers to buy policies and the requirement that insurers accept applicants with pre-existing conditions.

"Ideally that should make that a problem of the past," said Alwyn Cassil, spokeswoman for the Center for Studying Health System Change. "What you're doing is creating a marketplace where underwriting is not the name of the game any more."

That is, if the law survives attacks from those who would repeal or alter it. Much could happen before 2014.

(2) "Insurance Commissioners Loom Large In Health Law" is the headline to an NPR Morning Edition story today by Sarah Varney. Some quotes:
Voters don't give much thought to who runs their state department of insurance. But as key provisions of the new federal health law begin to take effect, the insurance commissioner will become the king of a much bigger kingdom. * * *

"With the insurance market reforms, it's really going to be important for states to take a proactive role in responding to any problems that come up and making sure plans are complying with the law," says Sabrina Corlette, a health policy researcher at Georgetown University.

She says that under the federal health law, state insurance chiefs will have a long list of new consumer protections to enforce. For example, starting in 2014, health plans can't charge women or sicker people more.

They're also helping to write the regulations for their own expanded powers. Congress left it up to an obscure group — the National Association of Insurance Commissioners — to essentially decide critical details, such as what health plans can claim as actual medical care vs. administration and profit.

Corlette says this decision made these humble regulators very popular with industry lobbyists at their spring meeting.

"I was stunned to discover that there were about 17 consumer representatives that were focused on health care, compared to over 1,000 different insurance industry representatives," she says.

Consumer advocates and industry officials say once the rules are written, state regulators will have to crack down on health plans looking to exploit fuzzy rules or weak enforcement. At the same time, if they're too heavy-handed, the plans might leave the market.

All of which means state insurance chiefs could very well play a key role in whether the federal health overhaul flies or flops. Laurie Sobel, a senior attorney with the consumer advocacy group Consumers Union, says it matters how the insurance commissioners view the new federal health law.

"If you have one that really doesn't want to enforce it, then consumers are going to need to fight it every step of the way," Sobel says.

(3) "Indiana AG Sues WellPoint Over Breach: Civil Suit Alleges Delay in Notification." This story has appeared locally and appears today at HealthcareInfoSecurity.com. It begins:
Indiana Attorney General Greg Zoeller has sued health insurer WellPoint Inc., alleging the firm took too long to notify Indiana residents affected by a health information breach.

The attorney general alleges that about 32,000 people were not notified of the breach in a timely manner as required under state law. Indiana law requires businesses to notify both the individuals potentially affected by a data breach, as well at the attorney general, "without reasonable delay."

Zoeller is seeking $300,000 in civil penalties. * * *

Applications for insurance policies submitted to WellPoint Inc., which contained Social Security numbers as well as financial and health information, were potentially available to the general public through an unsecure website for at least 137 days between October 2009 and March 2010, according to a statement from the attorney general.

WellPoint was notified on Feb. 22 and again March 8 that the information was available on the site, but it did not begin notifying customers of the breach until June 18, the attorney general says. Following news reports of the breach in June, the attorney general's office submitted an inquiry to WellPoint and received a response on July 30. The attorney general is calling the delays in notice to customers and its office "unreasonable."

The office confirms, however, that it has not received any consumer complaints relating to identity theft as a result of the breach. But it's continuing an investigation of the incident.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Government

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

For publication opinions today (0):

NFP civil opinions today (4):

Phillip Ibrahim v. Automotive Finance Corp. (NFP)

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

R.E. v. B.L. (NFP)

Jane Lareau v. Ernest Lareau (NFP)

NFP criminal opinions today (1):

Michael J. Shepard v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Ind. App.Ct. Decisions

Courts - Five reasons why Nevadans should vote "no" on changing to an appointed, rather than elected, Supreme Court

A letter today in the Las Vegas Review-Journal from two professors Sylvia R. Lazos, at UNLV's William S. Boyd School of Law, and Chris W. Bonneau, a professor of political science at the University of Pittsburgh. spell out their reasons why Nevada should not move to a system of selecting appellate judges similar to that of Indiana.

Number four is intended to refute the contention that the change would "result in a better quality of judges." It continues: "It is true that under the current system, Nevadans have witnessed judges who have embarrassed the office to which they were elected." The answer, according to the writers, would be to switch to a partisan elective system, which would mean that the parties would screen the candidates.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Courts in general

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

Updating this ILB entry from August 20, 2010, Justin L. Mack of the Lafayette Journal Courier reports today in a story that begins:

DELPHI -- After months of conflict and accusations of poor bookkeeping, Carroll County Clerk Nancy Mattox has announced her resignation.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Courts

Ind. Gov't. - Town of Cedar Lake urged to opt out of IURC

Carrie Napoleon of the Gary Post Tribune has a story today that puzzles me. Some quotes:

CEDAR LAKE -- Resident concern about the motives behind a move by the town to opt out of the Indiana Utility Regulatory Commission prompted officials to postpone a decision on the matter until Thursday's regular Town Council meeting.

Last week, the Town Council canceled a Tuesday special meeting slated solely to act on whether to opt out of the IURC after a Monday public hearing on the measure brought out residents concerned that town officials want the ability to raise rates at will for the town's water utility.

"We had concerned citizens that didn't think we should be opting out of the IURC," said council president Dennis Wilkening. "So we are going to bring it back up and see what happens." * * *

Wilkening said the town's financial consultants, the London Whitte Group of Indianapolis, advised the council to opt out of the IURC since it is looking to expand services to 129th Street and incorporate the Robin's Nest water utility. The move would save the town about $30,000 in fees charged by the state commission for hearings the town would request.

Wilkening said local officials are also concerned about the recent scandals at the IURC, including the removal of the chairman of five years, David Lott Hardy, by Gov. Mitch Daniels in early October amid concerns about ethics violations.

"When you pick up the paper and see the IURC chief has been fired it gets people thinking," Wilkening said.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Government

Law - "Money Woes Can Be Early Clue to Alzheimer’s"

This is an important article for attorneys. Reported by Gina Kolata in the Sunday NY Times, the lengthy front-page story begins:

Renee Packel used to have a typical suburban life. Her husband, Arthur, was a lawyer and also sold insurance. They lived in a town house just outside Philadelphia, and Mrs. Packel took care of their home and family.

One day, it all came crashing down. The homeowners’ association called asking for their fees. To Mrs. Packel’s surprise, her husband had simply stopped paying them. Then she learned he had stopped writing checks to his creditors, too.

It turned out that Mr. Packel was developing Alzheimer’s disease and had forgotten how to handle money. When she tried to pay their bills, Mrs. Packel, who enlisted the help of a forensic accountant, could not find most of the couple’s money.

“It just disappeared,” she said.

What happened to the Packels is all too common, Alzheimer’s experts say. New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements.

It is not just families who are affected — financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping.

Later in the story:
For lawyers, the main question is at what point a client lacks the capacity to execute a will or other document, and who decides when that point has been reached. And if a lawyer lets a client go ahead, will the document be challenged?

Lawyers have guidelines, published in 2005, that include warning signs of diminished capacity, like memory loss and problems communicating and doing calculations. The guidelines instruct lawyers to look at the legal requirements for capacity in specific situations, like making a gift. But many questions remain, said Charles P. Sabatino, who leads the American Bar Association’s Commission on Law and Aging.

“Courts are always struggling to come up with principles and definitions of capacity,” Mr. Sabatino said. Definitions of capacity vary among the states.

All too often, though, no one protects people who are losing their capacity to execute documents and their judgment about finances. Their stories of decisions gone awry tend to end badly.

Mrs. Packel had to close her husband’s business and sell their house to pay lawyers and creditors. Now they live in a one-bedroom apartment in Philadelphia. Mrs. Packel, who is 75, supports herself and her husband by working as a receptionist. He goes to adult day care.

“It’s such a complete turnaround,” Mrs. Packel said. “Arthur was a very, very bright man.”

The story links a an 80-page ABA document, "Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers."

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to General Law Related

Courts - Updating "Cancer Patients Challenge the Patenting of a Gene"

The ILB has had a number of entries under that heading. On Oct. 29th Andrew Pollack had this story in the NY Times, headlined "U.S. Says Genes Should Not Be Eligible for Patents." This is the case where:

[T]he American Civil Liberties Union and the Public Patent Foundation organized various individuals, medical researchers and societies to file a lawsuit challenging patents held by Myriad Genetics and the University of Utah Research Foundation. The patents cover two genes, BRCA1 and BRCA2, and the over $3,000 analysis Myriad performs on the genes to see if women carry mutations that predispose them to breast and ovarian cancers.

In a surprise ruling in March, Judge Robert W. Sweet of the United States District Court in Manhattan ruled the patents invalid. He said that genes were important for the information they convey, and in that sense, an isolated gene was not really different from a gene in the body. The government said that that ruling prompted it to re-evaluate its policy.

Myriad and the University of Utah have appealed.

Saying that the questions in the case were “of great importance to the national economy, to medical science and to the public health,” the Justice Department filed an amicus brief that sided with neither party. While the government took the plaintiffs’ side on the issue of isolated DNA, it sided with Myriad on patentability of manipulated DNA.

Here, via the NYT, is the DOJ Friend-of-theCourt Brief.

Lyle Denniston of SCOTUSblog posted a long entry Oct. 30, 2010 that begins:

Taking a position in court for the first time on the issue of patenting human genes, when isolated outside the body, the Obama Administration opposed monopoly rights. The position runs counter to long-time government policy. The issue likely is bound for the Supreme Court.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Courts in general

Courts - "Judges Weigh Fairness of Juvenile Life Without Parole"

In this WSJ Law Blog entry from Friday, Oct. 29, Nathan Koppel wrote:

Is it cruel and unusual punishment to sentence youngsters to life without parole?

It’s a question judges increasingly face as they deal with the aftermath of the Supreme Court’s May ruling that life without parole is unconstitutional for juveniles who commit crimes short of murder.

“A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity,” wrote Justice Anthony Kennedy for the majority in Graham v. Florida.

About 150 inmates are automatically eligible for lighter sentences in the wake of the ruling, but impact could be bigger as lawyers are arguing that life without parole is unconstitutional for any juvenile crime, including murder.

From Mr. Koppel's story in the WSJ itself:
For example, Joseph Ligon, 73, a Pennsylvania inmate who has been in prison about 57 years, is challenging the life-without-parole sentence he received for his role in two murders committed when he was 15. Mr. Ligon "has learned and grown," said his attorney Bradley Bridge. "The child who went to prison in 1953 no longer exists."

Mr. Ligon's appeal is likely to be one of hundreds of cases testing the reach of the Supreme Court ruling. Last week, the Missouri Supreme Court heard arguments in a case that contends that Graham should apply to the case of an inmate sentenced to life without parole for killing a police officer at the age of 15.

What about Indiana? IU-Indy Law Professor Joerl Schumm responded to that question from the ILB:
A juvenile under sixteen may never receive life without parole according to Indiana statute. Those sixteen or seventeen who commit murder with at least one aggravating circumstance might receive LWOP.
IC 35-50-2-3 Murder

Sec. 3. (a) A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).

(b) Notwithstanding subsection (a), a person who was:

(1) at least eighteen (18) years of age at the time the murder was committed may be sentenced to:
(A) death; or
(B) life imprisonment without parole; and
(2) at least sixteen (16) years of age but less than eighteen (18) years of age at the time the murder was committed may be sentenced to life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is an individual with mental retardation.
Here are earlier ILB entries on Graham v. Florida.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Courts in general

Environment - Asian Carp issue is FWJG's Sunday Centerpeice

Stacey Stumpf of the Fort Wayne Journal Gazette reports the lead story, headed "Area key in stopping assault on Great Lakes." Some quotes:

On Aug. 1, Kearns, a Terre Haute resident, and his friend Mark Kirby were testing out a new boat Kearns had just bought by taking a cruise along the Wabash River. Kearns, an avid photographer nearly always armed with a camera, used his camera to get video of the amazing sight of the invasive species of carp leaping from the water, some landing in the boat and some hitting Kearns and Kirby – hard.

He said it hurt when the fish hit, and riding in the boat felt like “being pelted by pumpkins in your car.”

“I killed hundreds with my boat that day. You look behind your boat and it’s like a trail of glitter behind your boat.”

The video is evidence the concern about the Asian carp invasion isn’t science fiction or a hypothetical possibility. The Wabash River is teeming with Asian carp. That’s why the recently completed carp fence in Eagle Marsh is far from a farfetched precaution. And that’s why the Indiana Department of Natural Resources asked scientists to test for carp eDNA (environmental deoxyribonucleic acid).

And more on the carp fence:
Fort Wayne has the potential of becoming the front line for keeping Asian carp from invading the Great Lakes via Lake Erie. Eagle Marsh is a 700-acre wetland area in southwest Allen County managed by the Little River Wetlands Project. It sits on a continental divide and separates the Wabash and Maumee river basins.

The rivers are 20 miles apart at Eagle Marsh. Though the Maumee and Wabash rivers normally empty in opposite directions, under specific flooding conditions, the waters could commingle at Eagle Marsh. That could allow Asian carp, prevalent in the Wabash River, to gain access to the St. Marys River, the Maumee River and then, after swimming 100 miles northeast, Lake Erie.

State natural resource officials decided to get ahead of the fish by building the carp fence. It was completed on Oct. 19 and is nearly 1,200 feet long and 8 feet high. The 120 concrete barriers and chain-link fence prevention measure costs slightly less than $200,000.

The fence is an eyesore in the middle of a scenic nature preserve and pleasant hiking destination, but the aesthetic assault is mitigated by the need to control the carp.

There are a number of photos, plus the incredible 4:25 minute carp video:

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Environment

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

Updating this ILB entry from Oct. 22, 2010, re the case of Susanne C. Gaudin, et al. v. J.W. Austin, et al, Laura Lane of the Bloomington Herald-Times had this story ($$$) on Oct. 31st:

NASHVILLE — Legal maneuverings involving the Brown County Fire Protection District have resulted in rulings for each side. In the end, the Indiana Supreme Court will decide once and for all which side the law favors.

The lawsuit challenging the county commissioners’ abolition of a unified countywide district to oversee rural fire protection has taken twists and turns reminiscent of a drive down the county’s Scarce O’ Fat Ridge Road.

In 2009, a Brown Circuit Court ruling in favor of the commissioners determined they had the authority to disband the fire district and legally did so.

The ordinance establishing it had been approved two years before by the previous commissioners, including two voted out in part because of public outcry about the fire district. So the remaining commissioner and the two newly elected ones met Jan. 1, 2009 — the first day of their new term — to pass a new ordinance axing the previous one.

Then, the attorney who filed the lawsuit sought review by the Indiana Court of Appeals, claiming the commissioners did not follow proper procedures in disbanding the district. In February of this year, a panel of appeals court judges agreed.

The appeals court written opinion said an established fire district cannot be dissolved merely by passing an ordinance. The ruling said the commissioners must receive a petition with signatures from a majority of property owners in the county to be able to dissolve the district, then must hold a public hearing before voting on the issue.

Kurt Young, the county attorney who advises the commissioners, challenged the appeals court decision, then sought a hearing before the state Supreme Court.

He recently learned the Supreme Court has agreed to hear oral arguments on points of law in the matter, which vacates the appeals court ruling, which is now moot.

The hearing before the high court is scheduled for 8:30 a.m. Nov. 16, in the Supreme Court courtroom at the State House in Indianapolis.

The fire district would have placed the county’s rural volunteer fire departments under the leadership of a county-wide district controlled by an appointed board of directors. Most fire departments in the county opposed the consolidation and thousands of citizens signed petitions against it.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Transfer Lists

Ind. Law - "Rising Star: Jennifer Ruby is a probate professional"

That is the headline to this feature in the Sunday Indianapolis Star, about Jennifer Ruby, an "estate planning, small-business advising and probate" attorney in solo practice in Avon.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Law

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

Updating these earlier ILB entries, the Toledo Blade reported Oct. 31st:

The 3-year-old boy at the center of an interstate custody battle was scheduled to be brought to Swanton yesterday by his adoptive Indiana parents to live with his biological father.

The exchange was ordered after the Ohio Supreme Court decided earlier this month not to reconsider an earlier ruling that allowed Benjamin Wyrembek to have custody of his biological son, Grayson. The boy had been raised since birth by Jason and Christy Vaughn of Sellersburg, Ind.

[More] Deborah Yetter of the Louisville Courier Journal now has filed this comprehensive report - a sample:
Bocvarov met and chose the Vaughns as prospective adoptive parents, Hectus said.

But after Grayson’s birth, Wyrembek signed a registry indicating that he believed he could be the father and, once his paternity was established, sought custody of Grayson.

Lengthy court battles ensued in Indiana and in Ohio, resulting in an Ohio Supreme Court decision this year that Wyrembek should have custody of Grayson,

A court-ordered mediation in Ohio was supposed to try to reconcile any differences in the case, but it resulted in the Vaughns getting just two weeks to turn Grayson over to Wyrembek, Hectus said.

The couple took the child to Wyrembek’s home Saturday and left, he said.

At this point, they have no visitation agreement and no immediate prospects for seeing Grayson, Hectus said.

Posted by Marcia Oddi on Monday, November 01, 2010
Posted to Indiana Decisions

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, November 4th

Next week's oral arguments before the Supreme Court (week of 11/8/10):

Next Wednesday, November 10th

Webcasts of Supreme Court oral arguments are available here.

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

Monday, November 1st

Thursday, November 4th

Next week's oral arguments before the Court of Appeals (week of 11/8/10):

Next Monday, November 8th

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, November 01, 2010
Posted to Upcoming Oral Arguments